Article 1. Workers’ Compensation Act.

§ 97-1. Short title.

This Article shall be known and cited as The North Carolina Workers’ Compensation Act.

History. 1929, c. 120, s. 1; 1979, c. 714, s. 1.

Cross References.

As to application of this Chapter to incapacitated State law-enforcement officers, see G.S. 143-166.14.

As to the inapplicability of this chapter to prisoners working pursuant to G.S. 162-58, see G.S. 162-61.

Legal Periodicals.

For case law survey on workers’ compensation, see 41 N.C.L. Rev. 409 (1963); 44 N.C.L. Rev. 1069 (1966); 45 N.C.L. Rev. 983 (1967).

For survey of 1977 workers’ compensation law, see 56 N.C.L. Rev. 1166 (1978).

For note discussing the nonexistence of a private right of action for retaliatory discharge resulting from pursuit of workers’ compensation benefits, see 15 Wake Forest L. Rev. 139 (1979).

For note on workers’ compensation and retaliatory discharge, see 58 N.C.L. Rev. 629 (1980).

For comment on injury by accident in workers’ compensation, see 59 N.C.L. Rev. 175 (1980).

For note on occupational disease under workers’ compensation statute, see 16 Wake Forest L. Rev. 288 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1032 (1981).

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

For comment discussing the North Carolina Workers’ Compensation Act in light of Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982), see 19 Wake Forest L. Rev. 513 (1983).

For note discussing proof of causation requirement in occupational disease cases, in light of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983), see 7 Campbell L. Rev. 99 (1984).

For survey of North Carolina construction law, with particular reference to workers’ compensation, see 21 Wake Forest L. Rev. 633 (1986).

For note discussing workers’ compensation and mental injuries, in light of 79 N.C. App. 483, 340 S.E.2d 116, disc. rev. denied, 317 N.C. 334, 346 S.E.2d 140 (1986), see 65 N.C.L. Rev. 816 (1987).

For article on “North Carolina Construction Law Survey II,” see 22 Wake Forest L. Rev. 481 (1987).

For note discussing the exclusive remedy requirement for the scheduled injuries section of the North Carolina Workers’ Compensation Act, see 66 N.C.L. Rev. 1365 (1988).

For note, “Roberts v. Burlington Industries — Workers’ Compensation for the Death of a Good Samaritan,” see 66 N.C.L. Rev. 1377 (1988).

For article, “Smoking in the Workplace: Who Has What Rights?,” see 11 Campbell L. Rev. 311 (1989).

For article, discussing the protection of nonsmokers’ rights in the workplace, see 11 Campbell L. Rev. 339 (1989).

For note, “Workers’ Compensation — Death Knell of a Good Samaritan!,” commenting on Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 377 S.E.2d 777 (1989), see 12 Campbell L. Rev. 121 (1989).

For note, “The Intentional-Tort Exception to the Workers’ Compensation Exclusive Remedy Immunity Provisions: Woodson v. Rowland,” see 70 N.C.L. Rev. 849 (1992).

For article, “An Analysis of the Retaliatory Employment Discrimination Act and Protected Activity under the Occupational Safety and Health Act of North Carolina,” see 15 Campbell L. Rev. 29 (1992).

For note, “North Carolina’s Expansion of the Definition of ‘Intentional’ in Exceptions to the Exclusivity of Workers’ Compensation: Is Legislative Action ‘Substantially Certain’ to Follow? — Woodson v. Rowland”, see 27 Wake Forest L. Rev. 797 (1992).

For Survey of Developments in North Carolina Law (1992), see 71 N.C.L. Rev. 1893 (1993).

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For survey, “Vernon v. Stephen L. Mabe Builders: The Requirements of Fairness in Settlement Agreements Under the North Carolina Workers’ Compensation Act,” see 73 N.C.L. Rev. 2529 (1995).

For article, “The Substantial Certainty Exception to Workers’ Compensation,” see 17 Campbell L. Rev. 413 (1995).

For note, “The Fairness Requirement for a Workers’ Compensation Agreement — The Effect of Vernon v. Steven L. Mabe Builders,” see 17 Campbell L. Rev. 521 (1995).

For a survey of 1996 developments in the law regarding prisoner rights, see 75 N.C.L. Rev. 2428 (1997).

For a survey of 1996 developments in workers’ compensation law, see 75 N.C.L. Rev. 2505 (1997).

For comment, “A Proposal to Reform the North Carolina Workers’ Compensation Act to Address Mental-Mental Claims,” see 32 Wake Forest L. Rev. 193 (1997).

For comment on the reality of work-related stress, see 20 Campbell L. Rev. 321 (1998).

For legislative survey on worker’s compensation, see 22 Campbell L. Rev. 253 (2000).

Survey of Developments in North Carolina Law and the Fourth Circuit, 1999: Revisiting Rutledge: A Survey of Recent Developments in Occupational Disease Law Under the North Carolina Workers’ Compensation Act, 78 N.C.L. Rev. 2083 (2000).

For casenote, “Nickel and Dimed: North Carolina Court Blocks Carolina Panthers’ Attempt to Avoid Payment of Workers’ Compensation Benefits to Injured Athletes,” see 28 N.C. Cent. L.J. 241 (2006).

CASE NOTES

Editor’s Note. —

Most of the cases below were decided prior to the amendments made by Session Laws 2011-401, which were effective November 1, 2011, and references therein to the Employment Security Commission should be construed as references to the Division of Employment Security (DES) of the Department of Commerce.

Constitutionality. —

The North Carolina Workers’ Compensation Act has been held to be constitutional by the North Carolina Supreme Court, and the Supreme Court of the United States has upheld the constitutionality of similar compensation acts. Jenkins v. American Enka Corp., 95 F.2d 755, 1938 U.S. App. LEXIS 4214 (4th Cir. 1938).

The contention that the Workers’ Compensation Act is unconstitutional on the ground that it destroys the right of trial by jury is untenable. McCune v. Rhodes-Rhyne Mfg. Co., 217 N.C. 351, 8 S.E.2d 219, 1940 N.C. LEXIS 240 (1940). See also Hagler v. Mecklenburg Hwy. Comm'n, 200 N.C. 733, 158 S.E. 383, 1931 N.C. LEXIS 427 (1931); Huffman v. Douglass Aircraft Co., 260 N.C. 308, 132 S.E.2d 614, 1963 N.C. LEXIS 689 (1963), cert. denied, 379 U.S. 850, 85 S. Ct. 93, 13 L. Ed. 2d 53, 1964 U.S. LEXIS 636 (1964).

This act is not unconstitutional in denying punitive damages for willful injuries to an employee. McCune v. Rhodes-Rhyne Mfg. Co., 217 N.C. 351, 8 S.E.2d 219, 1940 N.C. LEXIS 240 (1940).

Contention of mother of deceased employee that she was entitled under the statute of distribution to any sum receivable for the death of the deceased and that the Workers’ Compensation Act, which deprived her of that right, was unconstitutional, was without merit, as compensation legislation is a valid exercise of police power. Heavner v. Town of Lincolnton, 202 N.C. 400, 162 S.E. 909, 1932 N.C. LEXIS 519 (1932).

This Chapter is not violative of N.C. Const., Art. I, § 18, as a taking of property without due process of law. Sneed v. Carolina Power & Light Co., 61 N.C. App. 309, 300 S.E.2d 563, 1983 N.C. App. LEXIS 2654 (1983).

Purpose of Act. —

The primary purpose of legislation of this kind is to compel industry to take care of its own wreckage. Barber v. Minges, 223 N.C. 213, 25 S.E.2d 837, 1943 N.C. LEXIS 244 (1943).

The purpose of this act is to provide compensation benefits for industrial injuries. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877, 1963 N.C. LEXIS 720 (1963).

The purpose of the Workers’ Compensation Act is not only to provide a swift and certain remedy to an injured worker, but also to ensure a limited and determinate liability for employers. Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479, 1966 N.C. LEXIS 1364 (1966); Taylor v. J.P. Stevens Co., 57 N.C. App. 643, 292 S.E.2d 277, 1982 N.C. App. LEXIS 2695 (1982), modified, aff'd, 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

The underlying purpose of the Workers’ Compensation Act is to provide compensation for workers who suffer disability by accident arising out of and in the course of their employment. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

One of the primary objects and purposes of compensation laws is to grant certain and speedy relief to injured employees, or, in case of death, to their dependents. Cabe v. Parker-Graham-Sexton, Inc., 202 N.C. 176, 162 S.E. 223, 1932 N.C. LEXIS 457 (1932).

The general purpose of the Workers’ Compensation Act, in respect to compensation for disability, is to substitute, for common-law or statutory rights of action and grounds of liability, a system of money payments by way of financial relief for loss of capacity to earn wages. There is no compensation provided for physical pain or discomfort. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

One of the purposes of the Workers’ Compensation Act is to relieve against hardship, rather than to afford full compensation for injury. The fixing of maximum and minimum awards in industry is a compromise. Kellams v. Carolina Metal Prods., Inc., 248 N.C. 199, 102 S.E.2d 841, 1958 N.C. LEXIS 365 (1958).

It is not the purpose of the Workers’ Compensation Act to exculpate or absolve employers from the consequences of their negligent conduct. Tscheiller v. National Weaving Co., 214 N.C. 449, 199 S.E. 623, 1938 N.C. LEXIS 373 (1938).

The purpose of the Workers’ Compensation Act is to furnish compensation for loss of earning capacity. Wilhite v. Liberty Veneer Co., 47 N.C. App. 434, 267 S.E.2d 566, 1980 N.C. App. LEXIS 3127 (1980), aff'd in part and rev'd in part, 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

The purpose of the Workers’ Compensation Act is twofold. It was enacted to provide swift and sure compensation to injured workers without the necessity of protracted litigation. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458, 1982 N.C. LEXIS 1555 (1982).

The Workers’ Compensation Act is a compromise arrived at through the concessions of employees and employers alike. Nothing in it supports the notion that it was enacted just for the protection of careful, prudent employees, or that employees that do not stick strictly to their business are beyond its protection. By its terms, with certain exceptions the act applies to all employees who work for employers with the requisite number of employees and are injured by accident during the course of and arising from their employment; and it is not required that the employment be the sole proximate cause of the injury, it being enough that any reasonable relationship to the employment exists, or employment is a contributory cause. Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534, 1984 N.C. App. LEXIS 3613 (1984).

The philosophy which supports the Workers’ Compensation Act is that the wear and tear of human beings in modern industry should be charged to the industry, just as the wear and tear of machinery has always been charged. Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173, 1951 N.C. LEXIS 558 (1951); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968); Porterfield v. RPC Corp., 47 N.C. App. 140, 266 S.E.2d 760, 1980 N.C. App. LEXIS 2975 (1980).

While compensation is presumably charged to the industry, and consequently to the employer or owner of the industry, eventually it becomes a part of the fair money cost of the industrial product, to be paid for by the general public patronizing such products. Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173, 1951 N.C. LEXIS 558 (1951).

Workers’ compensation laws were enacted to treat the cost of industrial accidents as a cost of production. Daniels v. Swofford, 55 N.C. App. 555, 286 S.E.2d 582, 1982 N.C. App. LEXIS 2260 (1982).

Cost-effectiveness is not the sole goal of the Workers’ Compensation Act. Grantham v. Cherry Hosp., 98 N.C. App. 34, 389 S.E.2d 822, 1990 N.C. App. LEXIS 319 (1990).

Applicability. —

The Workers’ Compensation Act deals with the incidents and risks of the contract of employment, in which is included the negligence of the employer in that relation. It has no application outside the field of industrial accident, and does not intend, by its general terms, to take away common-law or other rights which pertain to the parties as members of the general public, disconnected from the employment. Barber v. Minges, 223 N.C. 213, 25 S.E.2d 837, 1943 N.C. LEXIS 244 (1943).

Mutuality of Act. —

It was the purpose of the General Assembly that both employee and employer should receive the benefits and enjoy the protection of this act. The act contemplates mutual concessions by employee and employer; for that reason, its validity has been upheld, and its policy approved. Winslow v. Carolina Conference Ass'n, 211 N.C. 571, 191 S.E. 403, 1937 N.C. LEXIS 154 (1937). See also Lee v. American Enka Corp., 212 N.C. 455, 193 S.E. 809, 1937 N.C. LEXIS 341 (1937); NLRB v. Moss Planing Mill Co., 224 F.2d 702, 1955 U.S. App. LEXIS 4565 (4th Cir. 1955).

The Workers’ Compensation Act is primarily for the protection and benefit of the employee, and he is entitled to know with certainty when his right of action accrues. Hartsell v. Thermoid Co., 249 N.C. 527, 107 S.E.2d 115, 1959 N.C. LEXIS 396 (1959).

Basis of Liability. —

The Workers’ Compensation Act takes into consideration certain elements of a mutual concession between the employer and employee by which the question of negligence is eliminated, and liability under the act rests upon the employer upon the condition precedent of an injury by accident occurring in the course of employment and arising out of it. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 1930 N.C. LEXIS 459 (1930).

Workers’ compensation laws are a statutory compromise which assure workers’ compensation for injuries arising out of and in the course of employment without their having to prove negligence on the part of the employer. In exchange for the employer’s loss of common law defenses, however, the employee gives up his right to common-law verdicts. In effect, tort liability was replaced with no-fault liability. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

It is generally conceded by all courts that the various compensation acts were intended to eliminate the fault of the workman as a basis for denying recovery. In other words, a workman is entitled to recover irrespective of fault if the injury arises out of and in the course of the employment. The doctrine of horseplay, which excludes a workman from compensation, although he is not at fault, and does not engage therein, is inconsistent with the underlying philosophy of compensation acts, which are designed for the very purpose of eliminating fault as a basis for determining liability. Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534, 1984 N.C. App. LEXIS 3613 (1984).

Compensability under the Workers’ Compensation Act is not dependent upon negligence or fault of the employer. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963).

But the act is not the equivalent of general accident or health insurance. Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173, 1951 N.C. LEXIS 558 (1951); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963); Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877, 1963 N.C. LEXIS 720 (1963).

The legislative intent seems clear that the Workers’ Compensation Act is an industrial injury act, and not an accident and health insurance act. The court should not overstep the bounds of legislative intent and by judicial legislation make the compensation act an accident and health insurance act. Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410, 1954 N.C. LEXIS 457 (1954).

The Workers’ Compensation Act is not intended to provide general health and accident insurance, but its purpose is to provide compensation for those injuries which result from accidents which arise out of and in the course of the employment. Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E.2d 790, 1969 N.C. App. LEXIS 1279 (1969).

The Workers’ Compensation Act is not intended to provide general health and accident insurance. To be compensable the injury must spring from the employment. Hales v. North Hills Constr. Co., 5 N.C. App. 564, 169 S.E.2d 24, 1969 N.C. App. LEXIS 1396 (1969).

Payment of Employee’s Consumer Debts as Rehabilitative Service Not Authorized. —

The Workers’ Compensation Act does not authorize the Commission to order an employer to pay an employee’s common consumer debts as a rehabilitative service. Grantham v. Cherry Hosp., 98 N.C. App. 34, 389 S.E.2d 822, 1990 N.C. App. LEXIS 319 (1990).

It is not a reasonable interpretation of the Workers’ Compensation Act to classify the payment of consumer debt as a rehabilitative service. Grantham v. Cherry Hosp., 98 N.C. App. 34, 389 S.E.2d 822, 1990 N.C. App. LEXIS 319 (1990).

Preexisting Infirmity. —

The fact that an employee is peculiarly disposed to injury because of an infirmity or disease incurred prior to his employment affords no sound basis for a reduction in the employer’s liability. Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876, 1975 N.C. App. LEXIS 1811 (1975), rev'd, 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

The Workers’ Compensation Act is to be liberally construed to effectuate the broad intent of the act to provide compensation for employees sustaining an injury arising out of and in the course of the employment, and no technical or strained construction should be given to defeat this purpose. Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591, 1930 N.C. LEXIS 57 (1930). See Roberts v. City Ice & Coal Co., 210 N.C. 17, 185 S.E. 438, 1936 N.C. LEXIS 3 (1936); Barbour v. State Hosp., 213 N.C. 515, 196 S.E. 812, 1938 N.C. LEXIS 123 (1938).

The provisions of the Workers’ Compensation Act are to be liberally construed to effectuate the legislative intent as gathered from the act to award compensation for the injury or death of an employee arising out of and in the course of his employment, irrespective of the question of negligence. Reeves v. Parker-Graham-Sexton, Inc., 199 N.C. 236, 154 S.E. 66, 1930 N.C. LEXIS 95 (1930).

The Workers’ Compensation Act must be liberally construed and liberally applied. Thomas v. Raleigh Gas Co., 218 N.C. 429, 11 S.E.2d 297, 1940 N.C. LEXIS 4 (1940).

The Workers’ Compensation Act should be liberally construed to the end that benefits should not be denied upon a technical, narrow and strict interpretation. Graham v. Wall, 220 N.C. 84, 16 S.E.2d 691 (1941); Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760 (1950); Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596 (1955); Kellams v. Carolina Metal Prods., Inc., 248 N.C. 199, 102 S.E.2d 841 (1958); Hartley v. North Carolina Prison Dep’t, 258 N.C. 287, 128 S.E.2d 598 (1962); Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857 (1965); Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874 (1968); Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372 (1968); Hall v. W.A. Davis Milling Co., 1 N.C. App. 380, 161 S.E.2d 780 (1968); Owens v. Standard Mineral Co., 10 N.C. App. 84, 177 S.E.2d 775 (1970), cert. denied, 277 N.C. 726, 178 S.E.2d 831 (1977); West v. J.P. Stevens Co., 12 N.C. App. 456, 183 S.E.2d 876 (1971); Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281 (1972); Conklin v. Hennis Freight Lines, 27 N.C. App. 260, 218 S.E.2d 484 (1975); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976); Inscoe v. DeRose Indus., Inc., 30 N.C. App. 1, 226 S.E.2d 201 (1976), aff’d, 292 N.C. 210, 232 S.E.2d 449 (1977); Gallimore v. Marilyn’s Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev’d on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977); Smith v. Liberty Mut. Ins. Co., 409 F. Supp. 1211 (M.D.N.C. 1976); Schofield v. Great Atl. & Pac. Tea Co, 32 N.C. App. 508, 232 S.E.2d 874, cert. denied, 292 N.C. 641, 235 S.E.2d 62 (1977); Porterfield v. RPC Corp., 47 N.C. App. 140, 266 S.E.2d 760 (1980); Deese v. Southern Lawn & Tree Expert Co., 306 N.C. 275, 293 S.E.2d 140, rehearing denied, 306 N.C. 753, 303 S.E.2d 83 (1982); Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982); Taylor v. J.P. Stevens & Co., 57 N.C. App. 643, 292 S.E.2d 277 (1982), modified, 307 N.C. 392, 298 S.E.2d 681 (1983); Donnell v. Cone Mills Corp., 60 N.C. App. 338, 299 S.E.2d 436, cert. denied, 308 N.C. 190, 302 S.E.2d 243 (1983); Roper v. J.P. Stevens & Co., 65 N.C. App. 69, 308 S.E.2d 485 (1983), cert. denied, 310 N.C. 309, 312 S.E.2d 652 (1984). In accord with fourth paragraph in the main volume. See Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772, 1976 N.C. App. LEXIS 2087 (1976).

The Workers’ Compensation Act is a radical and systematic change in the common law and must be liberally construed to accomplish its purposes. Its provisions are superior to the common law in all respects where it deals with the liabilities arising out of the relationship of employer and employee. Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106, 1950 N.C. LEXIS 512 (1950).

The Workers’ Compensation Act requires that it be liberally construed to effectuate the purpose for which it was passed, i.e., to provide compensation for injured workers. Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342 (1963); Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1963); Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967). In accord with sixth paragraph in the main volume. See Belfield v. Weyerhaeuser Co., 77 N.C. App. 332, 335 S.E.2d 44, 1985 N.C. App. LEXIS 4074 (1985).

In the absence of other than technical prejudice to the opposing party, the liberal spirit and policy of the Workers’ Compensation Act should not be defeated or impaired by a too strict adherence to procedural niceties. Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965).

The Workers’ Compensation Act should be liberally construed. Bailey v. North Carolina Dep't of Mental Health, 2 N.C. App. 645, 163 S.E.2d 652, 1968 N.C. App. LEXIS 987 (1968).

The Workers’ Compensation Act was an innovating substitution of statute law in a field theretofore left entirely to the common law. Because of the radical and systematic changes in the common law, a statute so markedly remedial in nature must be liberally construed with a view to effectuating its purposes. Wilmington Shipyard, Inc. v. North Carolina State Hwy. Comm'n, 6 N.C. App. 649, 171 S.E.2d 222, 1969 N.C. App. LEXIS 1254 (1969).

Courts favor a liberal construction of the Workers’ Compensation Act in favor of the claimant. Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183, 1971 N.C. App. LEXIS 1645 (1971), rev'd, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Bartlett v. Duke Univ., 17 N.C. App. 598, 195 S.E.2d 371, 1973 N.C. App. LEXIS 1424, rev'd, 284 N.C. 230, 200 S.E.2d 193, 1973 N.C. LEXIS 823 (1973).

The legislature has provided that the Workers’ Compensation Act shall be liberally construed, but it does not permit either the commission or the courts to hurry evidence beyond the speed which its own force generates. Weidle v. Cloverdale Ford, 50 N.C. App. 555, 274 S.E.2d 263, 1981 N.C. App. LEXIS 2151 (1981).

Courts construe the Workers’ Compensation Act liberally in favor of compensability. Chandler v. Nello L. Teer Co., 53 N.C. App. 766, 281 S.E.2d 718, 1981 N.C. App. LEXIS 2724 (1981), aff'd, 305 N.C. 292, 287 S.E.2d 890, 1982 N.C. LEXIS 1264 (1982).

The provisions of the act are to be construed liberally and in favor of the employee. Dayal v. Provident Life & Accident Ins. Co., 71 N.C. App. 131, 321 S.E.2d 452, 1984 N.C. App. LEXIS 3791 (1984).

As the liberal construction rule is a part of the Workers’ Compensation Act. Kiger v. Bahnson Serv. Co., 260 N.C. 760, 133 S.E.2d 702, 1963 N.C. LEXIS 815 (1963).

But the rule of liberal construction cannot be extended beyond the clearly expressed language of the act. Gilmore v. Hoke County Bd. of Educ., 222 N.C. 358, 23 S.E.2d 292, 1942 N.C. LEXIS 101 (1942).

The rule of liberal construction cannot be employed to attribute to a provision of the act a meaning foreign to the plain and unmistakable words in which it is couched. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760, 1950 N.C. LEXIS 478 (1950); Hatchett v. Hitchcock Corp., 240 N.C. 591, 83 S.E.2d 539, 1954 N.C. LEXIS 486 (1954); Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596, 1955 N.C. LEXIS 387 (1955); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976).

Liberality in construction of the Workers’ Compensation Act should not extend beyond the clearly expressed language of its provisions, and the courts may not enlarge the ordinary meaning of the terms used by the legislature or engage in any method of judicial legislation. Deese v. Southern Lawn & Tree Expert Co., 306 N.C. 275, 293 S.E.2d 140, 1982 N.C. LEXIS 1457 (1982).

Nor can the rule of liberal construction be used to apply the act to employments not within its stated scope, or not within its intent or purpose. Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907, 1942 N.C. LEXIS 84 (1942).

The courts are without authority to enlarge the meaning of the terms used in the Workers’ Compensation Act by the legislature or to extend by construction its scope and intent so as to include persons not embraced by its terms. Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137, 1944 N.C. LEXIS 297 (1944).

The doctrine of liberal construction of the Workers’ Compensation Act arises out of the act itself and relates only to cases falling within the purview of the act. It cannot be invoked to determine when the act applies. Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137, 1944 N.C. LEXIS 297 (1944).

Or to Expand Liability. —

The Workers’ Compensation Act insures a limited and determinate liability for employers, and the court cannot legislate expanded liability under the guise of construing a statute liberally. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982). In accord with the main volume. See McDonald v. Brunswick Elec. Membership Corp., 77 N.C. App. 753, 336 S.E.2d 407, 1985 N.C. App. LEXIS 4381 (1985).

The Workers’ Compensation Act will be construed as a whole to effectuate the intent of the General Assembly. Morris v. Laughlin Chevrolet Co., 217 N.C. 428, 8 S.E.2d 484, 1940 N.C. LEXIS 254 (1940).

The various provisions of the Workers’ Compensation Act are to be construed in their relations to each other as a whole to effectuate the intent of the legislature to provide compensation to an employee for injury arising out of and in the course of his employment. Rice v. Denny Roll & Panel Co., 199 N.C. 154, 154 S.E. 69, 1930 N.C. LEXIS 72 (1930).

In all cases of doubt, the intent of the legislature regarding the operation or application of a particular provision is to be discerned from a consideration of the Workers’ Compensation Act as a whole — its language, purposes and spirit. Deese v. Southern Lawn & Tree Expert Co., 306 N.C. 275, 293 S.E.2d 140, 1982 N.C. LEXIS 1457 (1982).

Choice of Law. —

Where plaintiff sought and received workers’ compensation benefits pursuant to the North Carolina Workers’ Compensation Act for an injury received in Virginia and caused by a third-party subcontractor, and, inter alia, North Carolina was the place of plaintiff ’s residence, the location of defendant’s business, and the place of the initial hiring, North Carolina had significant interests in applying its own law based on the employment relationship and its connection with North Carolina. Braxton v. Anco Elec., Inc., 100 N.C. App. 635, 397 S.E.2d 640, 1990 N.C. App. LEXIS 1137 (1990), aff'd, 330 N.C. 124, 409 S.E.2d 914, 1991 N.C. LEXIS 746 (1991).

What Law Governs. —

The rights of employer, employee, and insurance carrier under a workers’ compensation statute are governed by the law of the state of the statute. Betts v. Southern Ry., 71 F.2d 787, 1934 U.S. App. LEXIS 3211 (4th Cir. 1934).

Exclusive Remedy. —

The Workers’ Compensation Act provided the exclusive remedy for the claimants’ fraud and bad faith refusal to pay or settle a valid claim, unfair and deceptive trade practices, intentional infliction of emotional distress and civil conspiracy claims against their employer and insurer. Johnson v. First Union Corp., 131 N.C. App. 142, 504 S.E.2d 808, 1998 N.C. App. LEXIS 1236 (1998).

Employer and town officials were not liable for the death of their employee while collecting garbage, as the narrow exception to the exclusivity provisions of the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., did not apply because the evidence did not show that they engaged in intentional misconduct that they knew was substantially certain to cause decedent’s serious injury or death. Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665, 2003 N.C. LEXIS 1263 (2003).

Act Not Exclusive Remedy for Intentional Misconduct by Employer. —

Trial court erred in granting summary judgment in favor of municipal defendants in an action alleging gross negligence and wanton misconduct in the death of decedent while employed by defendants caused when a dumpster on a garbage truck partially detached and pinned decedent against the side of the truck. Although the North Carolina Workers Compensation Act is the sole remedy in most cases for employees who suffer employment-related injuries, decedent’s estate presented evidence that defendants acted with substantial certainty of causing decedent serious bodily harm in the form of testimony concerning an earlier incident of dumpster failure that had been reported to defendants; the failure of defendants to take action to repair the garbage truck following the previous accident presented a genuine issue of material fact that precluded summary judgment. Whitaker v. Town of Scot. Neck, 154 N.C. App. 660, 572 S.E.2d 812, 2002 N.C. App. LEXIS 1526 (2002), rev'd, 357 N.C. 552, 597 S.E.2d 665, 2003 N.C. LEXIS 1263 (2003).

Act Not Exclusive Remedy for Intentional Injury by Fellow Employees. —

North Carolina’s Workers’ Compensation Act is not the exclusive remedy for an employee intentionally injured by a fellow employee. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

An employee was free to assert an intentional assault and battery tort action against a coemployee. The coemployee was liable when he intentionally tapped the employee behind the knees, causing her to fall and injure herself, although he allegedly did not intend or foresee the injury. Andrews v. Peters, 75 N.C. App. 252, 330 S.E.2d 638, 1985 N.C. App. LEXIS 3640 (1985), aff'd, 318 N.C. 133, 347 S.E.2d 409, 1986 N.C. LEXIS 2565 (1986).

Injuries resulting from horseplay initiated and participated in by a claimant have not been excluded from the Workers’ Compensation Act. Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534, 1984 N.C. App. LEXIS 3613 (1984).

No Double Recovery Allowed Under Workers Compensation Where Compensatory Damages Have Already Been Awarded. —

Where plaintiff workers exposed to asbestos were awarded compensatory damages against defendant manufacturer, the trial court did not err by allowing defendant a full set-off for prior workers’ compensation claim settlements and prior third-party settlement amounts paid to plaintiffs from other sources; plaintiffs could not recover workers’ compensation benefits and damages from defendant for the same injury. Schenk v. HNA Holdings, Inc., 167 N.C. App. 47, 604 S.E.2d 689, 2004 N.C. App. LEXIS 2059 (2004), superseded, 170 N.C. App. 555, 613 S.E.2d 503, 2005 N.C. App. LEXIS 1067 (2005).

Wrongful Discharge Claim. —

Employee may state a claim for wrongful discharge in violation of public policy where he or she alleges the dismissal resulted from an assertion of rights under the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq.; the statute of limitations for such a claim is three years under G.S. 1- 52(5). Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757, 2003 N.C. App. LEXIS 1041 (2003).

Trial court did not err in granting an employer’s G.S. 1A-1, N.C. R. Civ. P. 12(b)(6) motion, dismissing an employee’s claim of wrongful discharge in violation of public policy because she engaged in a protected activity when she requested that her employer pay for a medical evaluation of a work-related injury, as her act of asking her employer to pay for a doctor’s visit or other medical services was merely an abstract assertion, and not an assertion of rights under the Workers’ Compensation Act, G.S. 97-1 et seq., and no evidence was presented that she filed a workers’ compensation claim which would have triggered the statutory and common law protection against employer retaliation in violation of public policy. Whitings v. Wolfson Casing Corp., 173 N.C. App. 218, 618 S.E.2d 750, 2005 N.C. App. LEXIS 1916 (2005).

This section did not bar plaintiff’s claims for intentional and negligent infliction of emotional distress because they neither resulted from a risk to which she was exposed because of the nature of her employment nor occurred in the course of her employment. Buser v. Southern Food Serv., 73 F. Supp. 2d 556, 1999 U.S. Dist. LEXIS 16940 (M.D.N.C. 1999).

Act Does Not Cover Injury During Pre-employment Interview. —

It was not the purpose of the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., to provide benefits to a prospective employee who was injured during a pre-employment interview, when no employment relationship existed between the prospective employee and her prospective employer. Huntley v. Howard Lisk Co., 154 N.C. App. 698, 573 S.E.2d 233, 2002 N.C. App. LEXIS 1528 (2002).

Disability Compensation Agreement Constitutes Award. —

A validly executed Industrial Commission Form 21 agreement (“Agreement for Compensation for Disability”) constitutes an “award” under the North Carolina Workers’ Compensation Act. Apple v. Guilford County, 84 N.C. App. 679, 353 S.E.2d 641, 1987 N.C. App. LEXIS 2549, rev'd, 321 N.C. 98, 361 S.E.2d 588, 1987 N.C. LEXIS 2498 (1987).

The Workers’ Compensation Act makes no provision for property damage suits, and the Supreme Court has clearly distinguished the recoveries allowable in personal injury damage suits and payments received under the Workers’ Compensation Act. Bowman v. Comfort Chair Co., 271 N.C. 702, 157 S.E.2d 378, 1967 N.C. LEXIS 1267 (1967).

Version of Statute in Effect for Determining Compensation. —

Plaintiff who became partially disabled in 1973 and was compensated pursuant to the laws in effect at that time, was entitled to compensation for total disability (arising out of the same injury) under the laws in effect in 1981, when he became totally disabled. Peace v. J.P. Stevens Co., 95 N.C. App. 129, 381 S.E.2d 798, 1989 N.C. App. LEXIS 687 (1989).

Wrongful Death Statute Controls. —

The provisions of the North Carolina wrongful death statute, G.S. 28-173 (see now G.S. 28A-18-2), are controlling over the provisions of the Workers’ Compensation Act. Byers v. North Carolina State Hwy. Comm’n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff’d, 277 N.C. 229, 166 S.E.2d 649 (1969).

Wrongful Death Action Held Barred. —

Employers’ motion for summary judgment was granted because the administratrix’s wrongful death action was barred by the North Carolina Workers’ Compensation Act, G.S. 97-1, et seq., since (1) the shooting occurred at the deceased’s place of employment, and (2) regardless of whether the deceased was the intended victim, the shooting arose out of the deceased’s employment because the gunman intended to shoot a co-worker. Champion v. PPG Indus., 2004 U.S. Dist. LEXIS 9034 (W.D.N.C. Apr. 2, 2004).

Simultaneous Claims in Workers’ Compensation and Civil Intentional Tort. —

A plaintiff in North Carolina may now simultaneously pursue a workers’ compensation claim and a civil intentional tort claim without being required to elect between them. Federal Ins. Co. v. Sanfatex, Inc., 897 F. Supp. 932, 1995 U.S. Dist. LEXIS 13400 (E.D.N.C. 1995).

A plaintiff should not be allowed to recover twice for a single injury; once in workers’ compensation benefits and a second time in a civil action. Federal Ins. Co. v. Sanfatex, Inc., 897 F. Supp. 932, 1995 U.S. Dist. LEXIS 13400 (E.D.N.C. 1995).

Where civil action was settled for only $415,000 because plaintiff was already receiving over $700,000 in workers’ compensation benefits, the threat of double recovery was negated and the combined amount of $1,197,669.09 was a single recovery. Federal Ins. Co. v. Sanfatex, Inc., 897 F. Supp. 932, 1995 U.S. Dist. LEXIS 13400 (E.D.N.C. 1995).

Pursuing one’s rights under the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., is a legally protected activity under G.S. 95-241(a)(1)a.; public policy is violated for purposes of the public policy exception to the at-will employment doctrine when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes, and the statutory remedy available for violation of this public policy does not diminish the rights or remedies of any employee at common law under G.S. 95-244. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757, 2003 N.C. App. LEXIS 1041 (2003).

Employer and employee held not to come within the provisions of the North Carolina Workers’ Compensation Act. Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co. v. Harrill, 106 F. Supp. 332, 1952 U.S. Dist. LEXIS 3998 (D.N.Y. 1952).

General contractor was a workers’ compensation claimant’s statutory employer under G.S. 97-19, even though it was found that the claimant’s employer, a subcontractor. had workers’ compensation insurance, as the general contractor did not get a certificate of insurance for the project from the subcontractor; holding the general contractor liable was not against the legislative intent of the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq. Gonzalez v. Worrell, 221 N.C. App. 351, 728 S.E.2d 13, 2012 N.C. App. LEXIS 763 (2012), aff'd, 366 N.C. 501, 739 S.E.2d 552, 2013 N.C. LEXIS 338 (2013).

Double Coverage — Workers’ Compensation and Longshoremen’s Benefits. —

If a valid award may be made under the Workers’ Compensation Act, the Longshoremen’s and Harbor Workers’ Act, 33 USC G.S. 901 to 950, may be dismissed from consideration, since double coverage is not intended. Rice v. Uwharrie Council Boy Scouts of Am., 263 N.C. 204, 139 S.E.2d 223, 1964 N.C. LEXIS 798 (1964).

Same — Workers’ Compensation and Unemployment Benefits. —

Several states allow the recovery of both workers’ compensation and unemployment benefits for the same time period, in the absence of an express statutory prohibition. In North Carolina, there is no express prohibition of duplicate benefits, although a persuasive argument can be made that the General Assembly intended that there be no recovery of both workers’ compensation and unemployment. Dolbow v. Holland Indus., Inc., 64 N.C. App. 695, 308 S.E.2d 335, 1983 N.C. App. LEXIS 3338 (1983).

Adoption of per diem reimbursement rule exceeded the Commission’s statutory authority to review and approve hospital charges for services rendered to patients entitled to care under the Workers’ Compensation Act. Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716, 1994 N.C. LEXIS 240, dismissed, 336 N.C. 305, 443 S.E.2d 733, 1994 N.C. LEXIS 231 (1994).

Personal Deviation from Work Route. —

Test developed by North Carolina case law was whether, at the time of the injury, the employee was on a substantial personal deviation, and therefore his injury was not compensable, or whether the employee had returned to the business route, and therefore his injury was compensable, where the employee was injured while leaving a ball game while on a business trip, his attendance at the ball game was a deviation from the employer’s benefit, and the injury was not compensable. Jacobs v. Sara Lee Corp., 157 N.C. App. 105, 577 S.E.2d 696, 2003 N.C. App. LEXIS 374 (2003).

The Industrial Commission has exclusive jurisdiction of the rights and remedies herein afforded. Hedgepeth v. Lumbermen's Mut. Cas. Co., 209 N.C. 45, 182 S.E. 704, 1935 N.C. LEXIS 19 (1935); Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706, 1952 N.C. LEXIS 449 (1952).

Ordinarily, when the pleadings in a common-law tort action disclose that the parties are subject to and bound by the provisions of this act with respect to the injury involved, dismissal is proper, for the Industrial Commission has exclusive jurisdiction in such cases. Neal v. Clary, 259 N.C. 163, 130 S.E.2d 39, 1963 N.C. LEXIS 505 (1963).

Jurisdiction in Commission Upheld. —

Where the findings of fact of the Industrial Commission, supported by competent evidence, were to the effect that defendant’s employee was temporarily employed in pumping water from a barge which was being loaded with logs on a navigable river, that the barge careened, and that the employee fell or jumped from the shore side of the barge and was actually killed on land as a result of the barge crushing him, and it further appeared that the barge was without means of propulsion and was at the time incapable of navigation, and that both the employee and the defendant had accepted and were amenable to this Chapter, it was held that the North Carolina Industrial Commission had jurisdiction to hear and determine the claim for compensation for the employee’s death, its jurisdiction not being ousted by the admiralty and maritime jurisdiction of the United States. Johnson v. Foreman-Blades Lumber Co., 216 N.C. 123, 4 S.E.2d 334, 1939 N.C. LEXIS 111 (1939).

The strict rules applicable to ordinary civil actions are not appropriate in proceedings under the act. Conklin v. Hennis Freight Lines, 27 N.C. App. 260, 218 S.E.2d 484, 1975 N.C. App. LEXIS 1812 (1975).

Because the Industrial Commission, pursuant to this article, has sole jurisdiction over the plaintiff-worker’s allegations, after settlement, that defendants committed fraud, bad faith, unfair and deceptive trade practices, intentional infliction of emotional distress and civil conspiracy during the handling of his workers’ compensation claim, the trial court properly dismissed the post-settlement claim pursuant to G.S. 1A-1-12(b). Deem v. Treadaway & Sons Painting & Wallcovering, Inc., 142 N.C. App. 472, 543 S.E.2d 209, 2001 N.C. App. LEXIS 141 (2001).

Appellate Review. —

Findings of fact by the Industrial Commission are conclusive on appeal if there is any competent evidence to support them, and even if there is evidence that would support contrary findings. Richards v. Town of Valdese, 92 N.C. App. 222, 374 S.E.2d 116, 1988 N.C. App. LEXIS 1026 (1988).

Conclusions of law based on the Industrial Commission’s findings are subject to review by the appellate courts. Richards v. Town of Valdese, 92 N.C. App. 222, 374 S.E.2d 116, 1988 N.C. App. LEXIS 1026 (1988).

Under the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., the Industrial Commission is the factfinding body, the sole judge of the credibility of witnesses, and the ultimate factfinder whether it is conducting a hearing or reviewing a cold record, and the commission’s findings of fact could have been set aside on appeal only where there was a complete lack of competent evidence to support them; ample evidence supported the denial of an employee’s workers’ compensation claim where the full commission reviewed depositions from three qualified physicians, and reviewed notes from another physician who was not present, and only one of the doctors opined that the employee’s job aggravated his underlying arthritis. Armstrong v. W.R. Grace & Co., 175 N.C. App. 528, 623 S.E.2d 820, 2006 N.C. App. LEXIS 127 (2006).

Employer’s and insurer’s appeal of the North Carolina Industrial Commission’s (Commission) award of attorney’s fees from medical compensation was dismissed because the employer’s and insurer’s argument that the Commission lacked such authority was not raised before the Commission when the employer and insurer pled only a generalized assignment of error regarding the award. Reed v. Carolina Holdings, Wolseley Mgmt., 251 N.C. App. 782, 796 S.E.2d 102, 2017 N.C. App. LEXIS 37 (2017).

Effect of Superior Court’s Jurisdictional Findings. —

The Supreme Court would consider the superior court’s findings of jurisdictional fact as binding on appeal if supported by the evidence when the question was whether the Industrial Commission or the superior court had jurisdiction over a claim. Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 350 S.E.2d 83, 1986 N.C. LEXIS 2743 (1986).

Conflicts in the evidence are for the Industrial Commission to resolve. The only question on appeal is whether there was sufficient evidence to support the Commission’s findings, not whether different findings might have been made. Tsonos v. Tsonos, 222 A.3d 927, 2019 R.I. LEXIS 145 (2019).

Effect of Certification of Ability to Work to Employment Security Commission. —

Employee’s certification of himself as able to work to the Employment Security Commission does not mean that he is estopped from recovering workers’ compensation benefits. His statement to the Employment Security Commission was not conclusive evidence on the question of disability, and therefore, was not binding upon the Industrial Commission. Dolbow v. Holland Indus., Inc., 64 N.C. App. 695, 308 S.E.2d 335, 1983 N.C. App. LEXIS 3338 (1983).

Pleadings. —

Unless the notice of accident required by G.S. 97-22 and G.S. 97-23 is so considered, the Workers’ Compensation Act makes no mention of pleadings. Clark v. Gastonia Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354, 1964 N.C. LEXIS 448 (1964).

Judicial Notice. —

North Carolina courts will take judicial notice of a public statute of this State, which therefore need not be pleaded, and the North Carolina Workers’ Compensation Act is a public statute. State v. Bozzo, 223 A.3d 755, 2020 R.I. LEXIS 5 (2020).

§ 97-1.1. References to workmen’s compensation.

Any reference in any act, public or local, to the “Workmen’s Compensation Act,” “Workmen’s Compensation,” or “workmen’s compensation” shall be deemed to refer respectively to “Workers’ Compensation Act,” “Workers’ Compensation” or “workers’ compensation.”

History. 1979, c. 714, s. 4.

Editor’s Note.

Session Laws 1991, c. 636, s. 3, provides: “Consistent with G.S. 97-1.1, the Revisor of Statutes is authorized to change the terms ‘Workmen’s Compensation Act’, ‘Workmen’s Compensation’ and ‘workmen’s compensation’ to ‘Workers’ Compensation Act’, ‘Workers’ Compensation’, and ‘workers’ compensation’, respectively, wherever these terms are used in the General Statutes.”

§ 97-2. Definitions.

When used in this Article, unless the context otherwise requires:

  1. Employment. — The term “employment” includes employment by the State and all political subdivisions thereof, and all public and quasi-public corporations therein and all private employments in which three or more employees are regularly employed in the same business or establishment or in which one or more employees are employed in activities which involve the use or presence of radiation, except agriculture and domestic services, unless 10 or more full-time nonseasonal agricultural workers are regularly employed by the employer and an individual sawmill and logging operator with less than 10 employees, who saws and logs less than 60 days in any six consecutive months and whose principal business is unrelated to sawmilling or logging. For purposes of this section, “agriculture” has the same meaning as in G.S. 106-581.1.
  2. Employee. — The term “employee” means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer, and as relating to those so employed by the State, the term “employee” shall include all officers and employees of the State, including such as are elected by the people, or by the General Assembly, or appointed by the Governor to serve on a per diem, part-time or fee basis, either with or without the confirmation of the Senate; as relating to municipal corporations and political subdivisions of the State, the term “employee” shall include all officers and employees thereof, including such as are elected by the people. The term “employee” shall include members of the North Carolina National Guard while on State active duty under orders of the Governor and members of the North Carolina State Defense Militia while on State active duty under orders of the Governor. The term “employee” shall include deputy sheriffs and all persons acting in the capacity of deputy sheriffs, whether appointed by the sheriff or by the governing body of the county and whether serving on a fee basis or on a salary basis, or whether deputy sheriffs serving upon a full-time basis or a part-time basis, and including deputy sheriffs appointed to serve in an emergency, but as to those so appointed, only during the continuation of the emergency. The sheriff shall furnish to the board of county commissioners a complete list of all deputy sheriffs named or appointed by him immediately after their appointment and notify the board of commissioners of any changes made therein promptly after such changes are made. Any reference to an employee who has been injured shall, when the employee is dead, include also the employee’s legal representative, dependents, and other persons to whom compensation may be payable: Provided, further, that any employee, as herein defined, of a municipality, county, or of the State of North Carolina, while engaged in the discharge of the employee’s official duty outside the jurisdictional or territorial limits of the municipality, county, or the State of North Carolina and while acting pursuant to authorization or instruction from any superior officer, shall have the same rights under this Article as if such duty or activity were performed within the territorial boundary limits of their employer.Except as otherwise provided herein, every executive officer elected or appointed and empowered in accordance with the charter and bylaws of a corporation shall be considered as an employee of such corporation under this Article.Any such executive officer of a corporation may, notwithstanding any other provision of this Article, be exempt from the coverage of the corporation’s insurance contract by such corporation’s specifically excluding such executive officer in such contract of insurance, and the exclusion to remove such executive officer from the coverage shall continue for the period such contract of insurance is in effect, and during such period such executive officers thus exempted from the coverage of the insurance contract shall not be employees of such corporation under this Article.All county agricultural extension service employees who do not receive official federal appointments as employees of the United States Department of Agriculture and who are field faculty members with professional rank as designated in the memorandum of understanding between the North Carolina Agricultural Extension Service, North Carolina State University, A & T State University, and the boards of county commissioners shall be deemed to be employees of the State of North Carolina. All other county agricultural extension service employees paid from State or county funds shall be deemed to be employees of the county board of commissioners in the county in which the employee is employed for purposes of workers’ compensation.The term “employee” shall also include members of the Civil Air Patrol currently certified pursuant to G.S. 143B-1031(a) when performing duties in the course and scope of a State-approved mission pursuant to Subpart C of Part 5 of Article 13 of Chapter 143B of the General Statutes.“Employee” shall not include any person performing voluntary service as a ski patrolman who receives no compensation for such services other than meals or lodging or the use of ski tow or ski lift facilities or any combination thereof.“Employee” shall not include any person elected or appointed and empowered as an executive officer, director, or committee member under the charter, articles, or bylaws of a nonprofit corporation subject to Chapter 47A, 47C, 47F, 55A, or 59B of the General Statutes, or any organization exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code, who performs only voluntary service for the nonprofit corporation, provided that the person receives no remuneration for the voluntary service other than reasonable reimbursement for expenses incurred in connection with the voluntary service. When a nonprofit corporation as described herein employs one or more persons who do receive remuneration other than reasonable reimbursement for expenses, then any volunteer officers, directors, or committee members excluded from the definition of “employee” by operation of this paragraph shall be counted as employees for the sole purpose of determining the number of persons regularly employed in the same business or establishment pursuant to G.S. 97-2(1). Other than for the limited purpose of determining the number of persons regularly employed in the same business or establishment, such volunteer nonprofit officers, directors, or committee members shall not be “employees” under the Act. Nothing herein shall prohibit a nonprofit corporation as described herein from voluntarily electing to provide for workers’ compensation benefits in the manner provided in G.S. 97-93 for volunteer officers, directors, or committee members excluded from the definition of “employee” by operation of this paragraph. This paragraph shall not apply to any volunteer firefighter, volunteer member of an organized rescue squad, an authorized emergency worker when that individual is engaged in emergency fire suppression activities for the North Carolina Forest Service, a duly appointed and sworn member of an auxiliary police department organized pursuant to G.S. 160A-282, or a senior member of the State Civil Air Patrol functioning under Subpart C of Part 5 of Article 13 of Chapter 143B of the General Statutes, even if such person is elected or appointed and empowered as an executive officer, director, or committee member under the charter, articles, or bylaws of a nonprofit corporation as described herein.Any sole proprietor or partner of a business or any member of a limited liability company may elect to be included as an employee under the workers’ compensation coverage of such business if he or she is actively engaged in the operation of the business and if the insurer is notified of his election to be so included. Any such sole proprietor or partner or member of a limited liability company shall, upon such election, be entitled to employee benefits and be subject to employee responsibilities prescribed in this Article.“Employee” shall include an authorized emergency worker of the North Carolina Forest Service of the Department of Agriculture and Consumer Services when that individual is engaged in emergency activities for the North Carolina Forest Service. As used in this section, “authorized emergency worker” means an individual who has completed required emergency response training as required by the North Carolina Forest Service and who is available as needed by the North Carolina Forest Service for emergency activities, including immediate dispatch to wildfires, snow events, hurricanes, earthquakes, floods, or other emergencies, and standby for initial attack on fires during periods of high fire danger.
  3. Employer. — The term “employer” means the State and all political subdivisions thereof, all public and quasi-public corporations therein, every person carrying on any employment, and the legal representative of a deceased person or the receiver or trustee of any person. The board of commissioners of each county of the State, for the purposes of this law, shall be considered as “employer” of all deputy sheriffs serving within such county, or persons serving or performing the duties of a deputy sheriff, whether such persons are appointed by the sheriff or by the board of commissioners and whether serving on a fee basis or salary basis. Each county is authorized to insure its compensation liability for deputy sheriffs to the same extent it is authorized to insure other compensation liability for employees thereof. For purposes of this Chapter, when an authorized pickup firefighter of the North Carolina Forest Service of the Department of Agriculture and Consumer Services is engaged in emergency fire suppression activities for the North Carolina Forest Service, that individual’s employer is the North Carolina Forest Service.
  4. Person. — The term “person” means individual, partnership, association or corporation.
  5. Average Weekly Wages. — “Average weekly wages” shall mean the earnings of the injured employee in the employment in which the employee was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury, including the subsistence allowance paid to veteran trainees by the United States government, provided the amount of said allowance shall be reported monthly by said trainee to the trainee’s employer, divided by 52; but if the injured employee lost more than seven consecutive calendar days at one or more times during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of fewer than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both parties will be thereby obtained. Where, by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.But where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.Wherever allowances of any character made to an employee in lieu of wages are specified part of the wage contract, they shall be deemed a part of his earnings.Where a minor employee, under the age of 18 years, sustains a permanent disability or dies leaving dependents surviving, the compensation payable for permanent disability or death shall be calculated, first, upon the average weekly wage paid to adult employees employed by the same employer at the time of the accident in a similar or like class of work which the injured minor employee would probably have been promoted to if not injured, or, second, upon a wage sufficient to yield the maximum weekly compensation benefit. Compensation for temporary total disability or for the death of a minor without dependents shall be computed upon the average weekly wage at the time of the accident, unless the total disability extends more than 52 weeks, and then the compensation may be increased in proportion to the employee’s expected earnings.In case of disabling injury or death to a volunteer firefighter; volunteer member of an organized rescue squad; an authorized pickup firefighter, as defined in subdivision (2) of this section, when that individual is engaged in emergency fire suppression activities for the North Carolina Forest Service; a duly appointed and sworn member of an auxiliary police department organized pursuant to G.S. 160A-282; or senior members of the State Civil Air Patrol functioning under Subpart C of Part 5 of Article 13 of Chapter 143B of the General Statutes, under compensable circumstances, compensation payable shall be calculated upon the average weekly wage the volunteer firefighter, volunteer member of an organized rescue squad, authorized pickup firefighter of the North Carolina Forest Service; when that individual is engaged in emergency fire suppression activities for the North Carolina Forest Service, member of an auxiliary police department, or senior member of the State Civil Air Patrol was earning in the employment wherein he principally earned his livelihood as of the date of injury. Provided, however, that the minimum compensation payable to a volunteer firefighter, volunteer member of an organized rescue squad, an authorized pickup firefighter of the North Carolina Forest Service of the Department of Agriculture and Consumer Services, when that individual is engaged in emergency fire suppression activities for the North Carolina Forest Service, a sworn member of an auxiliary police department organized pursuant to G.S. 160A-282, or senior members of the State Civil Air Patrol shall be sixty-six and two-thirds percent (66 2/3%) of the maximum weekly benefit established in G.S. 97-29.
  6. Injury. — “Injury and personal injury” shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident. With respect to back injuries, however, where injury to the back arises out of and in the course of the employment and is the direct result of a specific traumatic incident of the work assigned, “injury by accident” shall be construed to include any disabling physical injury to the back arising out of and causally related to such incident. Injury shall include breakage or damage to eyeglasses, hearing aids, dentures, or other prosthetic devices which function as part of the body; provided, however, that eyeglasses and hearing aids will not be replaced, repaired, or otherwise compensated for unless injury to them is incidental to a compensable injury.
  7. Carrier. — The term “carrier” or “insurer” means any person or fund authorized under G.S. 97-93 to insure under this Article, and includes self-insurers.
  8. Commission. — The term “Commission” means the North Carolina Industrial Commission, to be created under the provisions of this Article.
  9. Disability. — The term “disability” means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.
  10. Death. — The term “death” as a basis for a right to compensation means only death resulting from an injury.
  11. Compensation. — The term “compensation” means the money allowance payable to an employee or to his dependents as provided for in this Article, and includes funeral benefits provided herein.
  12. Child, Grandchild, Brother, Sister. — The term “child” shall include a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged child born out of wedlock dependent upon the deceased, but does not include married children unless wholly dependent upon him. “Grandchild” means a child, as defined in this subdivision, of a child, as defined in this subdivision. “Brother” and “sister” include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers nor married sisters unless wholly dependent on the employee. “Child,” “grandchild,” “brother,” and “sister” include only persons who at the time of the death of the deceased employee are under 18 years of age.
  13. Parent. — The term “parent” includes stepparents and parents by adoption, parents-in-law, and any person who for more than three years prior to the death of the deceased employee stood in the place of a parent to him, if dependent on the injured employee.
  14. Widow. — The term “widow” includes only the decedent’s wife living with or dependent for support upon him at the time of his death; or living apart for justifiable cause or by reason of his desertion at such time.
  15. Widower. — The term “widower” includes only the decedent’s husband living with or dependent for support upon her at the time of her death or living apart for justifiable cause or by reason of her desertion at such time.
  16. Adoption. — The term “adoption” or “adopted” means legal adoption prior to the time of the injury.
  17. Singular. — The singular includes the plural and the masculine includes the feminine and neuter.
  18. Hernia. — In all claims for compensation for hernia or rupture, resulting from injury by accident arising out of and in the course of the employee’s employment, it must be definitely proven to the satisfaction of the Industrial Commission:
    1. That there was an injury resulting in hernia or rupture.
    2. That the hernia or rupture appeared suddenly.
    3. Repealed by Session Laws 1987, c. 729, s. 2.
    4. That the hernia or rupture immediately followed an accident. Provided, however, a hernia shall be compensable under this Article if it arises out of and in the course of the employment and is the direct result of a specific traumatic incident of the work assigned.
    5. That the hernia or rupture did not exist prior to the accident for which compensation is claimed.All hernia or rupture, inguinal, femoral or otherwise, so proven to be the result of an injury by accident arising out of and in the course of employment, shall be treated in a surgical manner by a radical operation. If death results from such operation, the death shall be considered as a result of the injury, and compensation paid in accordance with the provisions of G.S. 97-38. In nonfatal cases, if it is shown by special examination, as provided in G.S. 97-27, that the injured employee has a disability resulting after the operation, compensation for such disability shall be paid in accordance with the provisions of this Article.In case the injured employee refuses to undergo the radical operation for the cure of said hernia or rupture, no compensation will be allowed during the time such refusal continues. If, however, it is shown that the employee has some chronic disease, or is otherwise in such physical condition that the Commission considers it unsafe for the employee to undergo said operation, the employee shall be paid compensation in accordance with the provisions of this Article.
  19. Medical Compensation. — The term “medical compensation” means medical, surgical, hospital, nursing, and rehabilitative services, including, but not limited to, attendant care services prescribed by a health care provider authorized by the employer or subsequently by the Commission, vocational rehabilitation, and medicines, sick travel, and other treatment, including medical and surgical supplies, as may reasonably be required to effect a cure or give relief and for such additional time as, in the judgment of the Commission, will tend to lessen the period of disability; and any original artificial members as may reasonably be necessary at the end of the healing period and the replacement of such artificial members when reasonably necessitated by ordinary use or medical circumstances.
  20. Health care provider. — The term “health care provider” means physician, hospital, pharmacy, chiropractor, nurse, dentist, podiatrist, physical therapist, rehabilitation specialist, psychologist, and any other person providing medical care pursuant to this Article.
  21. Managed care organization. — The term “managed care organization” means a preferred provider organization or a health maintenance organization regulated under Chapter 58 of the General Statutes. “Managed care organization” also means a preferred provider benefit plan of an insurance company, hospital, or medical service corporation in which utilization review or quality management programs are used to manage the provision of health care services and benefits under this Chapter.
  22. Suitable employment. — The term “suitable employment” means employment offered to the employee or, if prohibited by the Immigration and Nationality Act, 8 U.S.C. § 1324a, employment available to the employee that (i) prior to reaching maximum medical improvement is within the employee’s work restrictions, including rehabilitative or other noncompetitive employment with the employer of injury approved by the employee’s authorized health care provider or (ii) after reaching maximum medical improvement is employment that the employee is capable of performing considering the employee’s preexisting and injury-related physical and mental limitations, vocational skills, education, and experience and is located within a 50-mile radius of the employee’s residence at the time of injury or the employee’s current residence if the employee had a legitimate reason to relocate since the date of injury. No one factor shall be considered exclusively in determining suitable employment.

History. 1929, c. 120, s. 2; 1933, c. 448; 1939, c. 277, s. 1; 1943, c. 543; c. 672, s. 1; 1945, c. 766; 1947, c. 698; 1949, c. 399; 1953, c. 619; 1955, c. 644; c. 1026, s. 1; c. 1055; 1957, c. 95; 1959, c. 289; 1961, cc. 231, 235; 1967, c. 1229, s. 1; 1969, c. 206, s. 2; c. 707; 1971, c. 284, s. 1; c. 1231, s. 1; 1973, c. 521, ss. 1, 2; c. 763, ss. 1-3; c. 1291, s. 14; 1975, c. 266, s. 1; c. 284, ss. 2, 3; c. 288; c. 718, s. 3; c. 817, s. 1; 1977, c. 419; c. 893, s. 1; 1979, cc. 86, 374; c. 516, ss. 4, 5; c. 714, s. 3; 1981, c. 421, ss. 1, 2; 1983, c. 833; 1983 (Reg. Sess., 1984), c. 1042, s. 1; 1985, cc. 133, 144; 1987, c. 729, ss. 1, 2; 1991, c. 703, s. 1; 1993, c. 389, s. 3; 1993 (Reg. Sess., 1994), c. 679, ss. 2.6, 10.7; 1995, c. 517, s. 35; 1999-219, s. 4.2; 1999-418, s. 1; 1999-456, s. 33(c); 2001-204, ss. 1, 1.1, 2; 2003-156, s. 1; 2009-281, s. 1; 2011-145, s. 13.25(mm), (xx); 2011-287, s. 2; 2013-155, s. 5; 2013-198, s. 25; 2014-64, s. 2(c); 2015-286, s. 2.3; 2017-108, s. 13; 2017-212, s. 4.6(a); 2021-78, s. 10.

Cross References.

As to exceptions from this Article, see G.S. 97-13.

As to independent contractors, see G.S. 97-19 and notes thereunder.

The section above is effective January 1, 2018. For this section as effective until January 1, 2018, see the preceding section, also numbered G.S. 97-2.

Editor’s Note.

Session Laws 2011-145, s. 13.25(xx), provides: “The Revisor of Statutes shall make the conforming statutory changes necessary to reflect the transfers under this section. The Revisor of Statutes may correct any reference in the General Statutes to the statutes that are recodified by this section and make any other conforming changes necessitated by this section.” Pursuant to that provision, conforming changes have been made in subdivisions (3) and (5). “Department of Agriculture and Consumer Services” was substituted for “Department of Environment and Natural Resources.”

The provisions pertaining to the State Civil Air Patrol, referred to in the fifth paragraph of subdivision (2) and the fifth paragraph of subdivision (5), were recodified from Article 11 of Chapter 143B to Subpart C ( G.S. 143B-272.73A through 143B-272.73C) of Part 5 of Article 5A of Chapter 143B), pursuant to Session Laws 2011-145, s. 19.1(w), effective January 1, 2012, and renumbered at the direction of the Revisor of Statutes as Subpart C ( G.S. 143B-1030 through G.S. 143B-1032) of Part 5 of Article 13 of Chapter 143B.

Session Laws 2011-145, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2011.’ ”

Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”

Session Laws 2011-145, s. 32.5 is a severability clause.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 2, which made a minor stylistic change in the introductory language, inserted “including, but not limited to, attendant care services prescribed by a health care provider authorized by the employer or subsequently by the Commission, vocational rehabilitation” in the second sentence of subdivision (19), and added subdivision (22), was applicable to claims arising on or after June 24, 2011.

Session Laws 2021-78, s. 14(a), is a severability clause.

Effect of Amendments.

Session Laws 2009-281, s. 1, effective July 10, 2009, substituted “National Guard” for “national guard” in the second sentence of the first paragraph of subdivision (2).

Session Laws 2011-145, s. 13.25(mm), effective July 1, 2011, substituted “Department of Agriculture and Consumer Services” for “Department of Environment and Natural Resources” in the next-to-last paragraph of subdivision (2).

Session Laws 2011-287, s. 2, effective June 24, 2011, and applicable to claims arising on or after that date, made a minor stylistic change in the introductory language; inserted “including, but not limited to, attendant care services prescribed by a health care provider authorized by the employer or subsequently by the Commission, vocational rehabilitation” in the second sentence of subdivision (19); and added subdivision (22).

Session Laws 2013-155, s. 5, effective July 1, 2013, substituted “North Carolina Forest Service” for “Division of Forest Resources” throughout subdivisions (2), (3), and (5); in the first paragraph of subdivision (2), substituted “the employee’s” for “his” in the fifth and sixth sentences, and in the sixth sentence, substituted “their employer” for “his employer”; and, in subdivision (5), substituted “the employee” for “he” and “the trainee’s” for “his” in the first sentence of the first paragraph, and substituted “the employee’s” for “his” in the last sentence of the fourth paragraph.

Session Laws 2013-198, s. 25, effective June 26, 2013, in the fifth paragraph of subdivision (2), substituted “G.S. 143B-1031(a)” for “G.S. 143B-491(a) [G.S. 143B-1031(a)]” and “Subpart C of Part 5 of Article 13 of Chapter 143B” for “Article 11 of Chapter 143B [Subpart C of Part 5 of Article 13 of Chapter 143B]”; substituted “Subpart C of Part 5 of Article 13 of Chapter 143B” for “Article 11 of Chapter 143B [Subpart C of Part 5 of Article 13 of Chapter 143B]” in the last paragraph of subdivision (5); and in subdivision (12), substituted “child born out of wedlock” for “illegitimate child” and “child, as defined in this subdivision, of a child, as defined in this subdivision” for “child as above defined of a child as above defined.”

Session Laws 2014-64, s. 2(c), effective July 1, 2014, substituted “volunteer firefighter, volunteer member of an organized rescue squad” for “volunteer fireman, member of an organized rescue squad” throughout the concluding paragraph of subdivision (5).

Session Laws 2015-286, s. 2.3, effective October 22, 2015, in subdivision (2), substituted “Except as otherwise provided herein, every executive” for “Every executive” in the second paragraph, added the present seventh paragraph, and made a punctuation change in the next to last paragraph.

Session Laws 2017-108, s. 13, effective July 12, 2017, substituted “emergency worker” for “pickup firefighter” wherever it appeared, substituted “he or she” for “he” near the middle of the first sentence of eighth paragraph, in the next to last paragraph, in the first and last sentences, deleted “fire suppression” preceding “activities”, and, in the last sentence, substituted “emergency response training as required by the North Carolina Forest Service” for “fire suppression training as a wildland firefighter”, and substituted “wildfires, snow events, hurricanes, earthquakes, floods, or other emergencies,” for “wildfires”.

Session Laws 2017-212, s. 4.6(a), effective January, 2018, deleted the former last paragraph of subdivision (2), which read: “It shall be a rebuttable presumption that the term ‘employee’ shall not include any person performing services in the sale of newspapers or magazines to ultimate consumers under an arrangement whereby the newspapers or magazines are to be sold by that person at a fixed price and the person’s compensation is based on the retention of the excess of the fixed price over the amount at which the newspapers or magazines are charged to the person.”

Session Laws 2021-78, s. 10, effective July 2, 2021, added the last sentence in subdivision (1).

Legal Periodicals.

For collection of cases arising under subdivision (6) of this section, see 10 N.C.L. Rev. 373 (1932).

For discussion of the situation as to deputy sheriffs prior to amendment of this section, see 16 N.C.L. Rev. 419 (1938).

On mealtime injuries, see 17 N.C.L. Rev. 458 (1939).

For note on injury from personal assault, 19 N.C.L. Rev. 108 (1941).

For note on accidents arising out of and in the course of employment of traveling employees, see 23 N.C.L. Rev. 159 (1945).

As to falls due to dizziness, vertigo, epilepsy and like causes as compensable accidents, see 26 N.C.L. Rev. 320 (1948).

As to infections, see 26 N.C.L. Rev. 320 (1948).

For note on street accidents arising out of and in the course of employment, see 32 N.C.L. Rev. 373 (1954).

For note on acts done in furtherance of employer’s good will as arising out of and in the course of employment, see 33 N.C.L. Rev. 637 (1955).

For note on death of night watchman as arising out of and in the course of employment, see 34 N.C.L. Rev. 607 (1956).

For note on injuries sustained by employee while going to and from work, see 36 N.C.L. Rev. 367 (1958).

For note on average weekly wage and combination of wages, see 44 N.C.L. Rev. 1177 (1966).

For note on the range of compensable consequences of a work-related injury, see 49 N.C.L. Rev. 583 (1971).

For survey of 1972 case law on the “arising out of ” requirement, see 51 N.C.L. Rev. 1215 (1973).

For survey of 1976 case law on workers’ compensation, see 55 N.C.L. Rev. 1116 (1977).

For survey of 1977 workers’ compensation law, see 56 N.C.L. Rev. 1166 (1978).

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For note discussing the use of age, education, and work experience in determining disability in workers’ compensation cases, see 15 Wake Forest L. Rev. 570 (1979).

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For comment on injury by accident in workers’ compensation, see 59 N.C.L. Rev. 175 (1980).

For survey of 1980 law on evidence, see 59 N.C.L. Rev. 1173 (1981).

For survey of 1980 tort law, see 59 N.C.L. Rev. 1239 (1981).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

For note discussing proof of causation requirement in occupational disease cases, in light of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983), see 7 Campbell L. Rev. 99 (1984).

For note, “Winstead v. Derreberry: Stepchildren and the Presumption of Dependence Under the North Carolina Workers’ Compensation Act,” see 64 N.C.L. Rev. 1548 (1986).

For note, “Caulder v. Waverly Mills: Expanding the Definition of an Occupational Disease Under the Last Injurious Exposure Rule,” see 64 N.C.L. Rev. 1566 (1986).

For note, “Houses and Wages: An Increase in Workers’ Compensation Recovery,” see 65 N.C.L. Rev. 1499 (1987).

For article, “Benefits Without Proof: The North Carolina Supreme Court Creates a Presumption of Compensability in Workers’ Compensation Death Benefits Actions,” see 67 N.C.L. Rev. 1522 (1989).

For note, “Workers’ Compensation — Death Knell of a Good Samaritan!,” commenting on Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 377 S.E.2d 777 (1989), see 12 Campbell L. Rev. 121 (1989).

For note, “North Carolina’s Expansion of the Definition of ‘Intentional’ in Exceptions to the Exclusivity of Workers’ Compensation: Is Legislative Action ‘Substantially Certain’ to Follow? — Woodson v. Rowland,” see 27 Wake Forest L. Rev. 797 (1992).

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For article, “Primary Issues in Compensation Litigation,” see 17 Campbell L. Rev. 443 (1995).

For a survey of 1996 developments in the law regarding prisoner rights, see 75 N.C.L. Rev. 2428 (1997).

For a survey of 1996 developments in workers’ compensation law, see 75 N.C.L. Rev. 2505 (1997).

For note, “Searching for Limits on a Municipality’s Retention of Governmental Immunity,” see 76 N.C.L. Rev. 269 (1997).

For comment, “A Proposal to Reform the North Carolina Workers’ Compensation Act to Address Mental-Mental Claims,” see 32 Wake Forest L. Rev. 193 (1997).

For casenote: “The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003),” see 26 N.C. Cent. L.J. 116 (2003).

For article, “Why Aren’t You Working?: Medlin with Proof of Disability Under the North Carolina Workers’ Compensation Act,” see 38 Campbell L. Rev. 211 (2016).

For comment, “Riding the Line Between ‘Employee’ and ‘Independent Contractor’ in the Modern Sharing Economy,” see 51 Wake Forest L. Rev. 1223 (2016).

CASE NOTES

Analysis

I.In General

The Workers’ Compensation Act is a compromise arrived at through the concessions of employees and employers alike. Nothing in it supports the notion that it was enacted just for the protection of careful, prudent employees, or that employees that do not stick strictly to their business are beyond its protection. By its terms, with certain exceptions the act applies to all employees who work for employers with the requisite number of employees and are injured by accident during the course of and arising from their employment; and it is not required that the employment be the sole proximate cause of the injury, it being enough that any reasonable relationship to the employment exists, or employment is a contributory cause. Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534, 1984 N.C. App. LEXIS 3613 (1984).

The social policy behind the Workers’ Compensation Act is twofold. First, the Act provides employees swift and certain compensation for the loss of earning capacity from accident or occupational disease arising in the course of employment. Second, the Act insures limited liability for employers. Although the Act should be liberally construed to effectuate its intent, the courts cannot judicially expand the employer’s liability beyond the statutory parameters. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Liberal Construction. —

The intent of the Legislature regarding the operation of a particular provision of the Workers’ Compensation Act is to be discerned from a consideration of the act as a whole — its language, purposes and spirit. This spirit is one of liberal construction, whenever appropriate, so that benefits will not be denied upon mere technicalities. Brown v. Walnut Cove Volunteer Fire Dep't, 71 N.C. App. 409, 322 S.E.2d 443, 1984 N.C. App. LEXIS 3843 (1984), aff'd, 317 N.C. 147, 343 S.E.2d 523, 1986 N.C. LEXIS 2408 (1986).

As to the inapplicability of state compensation laws to employment of purely admiralty cognizance, see London Guar. & Accident Co. v. Industrial Accident Comm'n, 279 U.S. 109, 49 S. Ct. 296, 73 L. Ed. 632, 1929 U.S. LEXIS 327 (1929).

Industrial Commission Sole Judge of Witnesses Reliability. —

In weighing the evidence, the Industrial Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and may reject a witness’ testimony entirely if warranted by disbelief of that witness. Lineback v. Wake County Bd. of Comm'rs, 126 N.C. App. 678, 486 S.E.2d 252, 1997 N.C. App. LEXIS 603 (1997).

Effect of Superior Court’s Jurisdictional Findings. —

The Supreme Court would consider the superior court’s findings of jurisdictional fact as binding on appeal if supported by the evidence when the question was whether the Industrial Commission or the superior court had jurisdiction over a claim. Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 350 S.E.2d 83, 1986 N.C. LEXIS 2743 (1986).

Duty and Forseeability Not at Issue. —

Where plaintiff ’s intestate choked while eating during her lunch break at work, the fact that she was mentally retarded had no bearing with regard to plaintiffs’ workers’ compensation claim, as plaintiff ’s contention that defendant owed a higher duty of care to its employees because they were mentally retarded was an argument better suited to a negligence action where duty and foreseeability are required to be proven for the plaintiff to recover. Forsythe v. INCO, 95 N.C. App. 742, 384 S.E.2d 30, 1989 N.C. App. LEXIS 872 (1989).

Death Benefits. —

To recover death benefits under the Workers Compensation Act a claimant bears the burden of proving that the decedent sustained a fatal injury (1) by accident, (2) arising out of his employment, and (3) during the course of his employment. Westbrooks v. Bowes, 130 N.C. App. 517, 503 S.E.2d 409, 1998 N.C. App. LEXIS 1004 (1998).

Civil Action Allowed for Employer’s Misconduct Substantially Certain to Cause Injury or Death. —

When an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer as well as a claim for workers’ compensation as such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the Workers’ Compensation Act. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 1991 N.C. LEXIS 523 (1991).

Election Between Remedies Not Required. —

A claimant may, but is not required to, elect between a civil remedy and a remedy under the Workers’ Compensation Act but, in any event, is entitled to but one recovery. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 1991 N.C. LEXIS 523 (1991).

Woodson v. Rowland Applies Retroactively. —

The Supreme Court’s decision in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), which is annotated above, applies retroactively, even though the Woodson court was silent on whether its decision was to operate retroactively. Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 416 S.E.2d 193, 1992 N.C. App. LEXIS 446 (1992).

Co-employee Civil Liability. —

The Workers’ Compensation Act does not bar an employee from suing a co-employee for injuries caused by willful, wanton, and reckless negligence. Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 416 S.E.2d 193, 1992 N.C. App. LEXIS 446 (1992).

No Common-Law Action against Negligent Fellow Employee. —

An employee who sustains an “injury arising out of and in the course of employment,” caused by the negligence of a fellow employee who was acting within “the course of employment,” as that term is used in subdivision (6) of this section, may not maintain an action at common law against the negligent employee. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

Failure to Specify Defense. —

Plaintiff was not prejudiced by failure of defendants to specify the defense which they planned to use at his hearing, and whatever defense the defendants may have relied upon, the burden was on plaintiff to prove that he was injured by an accident arising out of and in the course of employment. Parker v. Burlington Indus., Inc., 78 N.C. App. 517, 337 S.E.2d 589, 1985 N.C. App. LEXIS 4288 (1985).

Refusal to Accept Tendered Work. —

Defendant’s argument that the plaintiff was not disabled within the meaning of subsection (9) because they offered him employment consistent with his medical limitations (one functional arm) at no reduction in salary and that plaintiff was barred from compensation for total disability because he unjustifiably refused the tendered employment suitable to his capacity, was rejected. Bowden v. Boling Co., 110 N.C. App. 226, 429 S.E.2d 394, 1993 N.C. App. LEXIS 446 (1993).

Length of Healing Period. —

Both pain treatment and vocational services were medical compensation, and were designed to give relief and to lessen the period of disability; the evidence supported the industrial commission’s finding that the worker had not reached maximum medical improvement or the end of the healing period since he was in need of and would have benefited from both chronic pain treatment and a vocational rehabilitation program, and until he reached maximum vocational recovery, the worker’s healing period was not at an end. Walker v. Lake Rim Lawn & Garden, 155 N.C. App. 709, 575 S.E.2d 764, 2003 N.C. App. LEXIS 384 (2003).

Treatment Not Limited to FDA-Approved Drugs. —

Industrial Commission properly ordered an employer and its carrier to pay for an employee’s treatment that was not approved by the U.S. Food and Drug Administration (FDA) because the Workers’ Compensation Act did not limit the types of drugs that might reasonably be required solely to those that were FDA-approved, and the two physicians who treated the employee concluded that the non-approved compound cream was reasonably required to afford relief. Davis v. Craven Cty. ABC Bd., 259 N.C. App. 45, 814 S.E.2d 602, 2018 N.C. App. LEXIS 368 (2018).

Reasonable Rehabilitative Service. —

North Carolina Industrial Commission’s conclusion that a workers’ compensation claimant’s life care plan was a “reasonable rehabilitative service” under G.S. 97-2(19) and G.S. 97-25 was supported by a doctor’s opinion that the life care plan was medically necessary for the claimant. Scarboro v. Emery Worldwide Freight Corp., 192 N.C. App. 488, 665 S.E.2d 781, 2008 N.C. App. LEXIS 1616 (2008).

General Assembly’s employment of the language “but not limited to” is indicative of its intent to set out a non-exhaustive list of what might constitute “rehabilitative services” while affording some room for judicial augmentation. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54, 2014 N.C. App. LEXIS 299 (2014).

Employee timely filed her claim for additional benefits because the employer last provided medical compensation for the employee’s injury when it tendered payment to a medical company; the services the medical company provided constitute “rehabilitative services” because its role as an administrative intermediary was necessary to ensure the employee received the appropriate treatment in order to effect a cure or give relief for her compensable back injury. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54, 2014 N.C. App. LEXIS 299 (2014).

Return of Employee to Normal Hours and Wages. —

North Carolina Industrial Commission’s finding that a workers’ compensation claimant had returned to his normal hours and wages did not require denial of the claimant’s disability claim. White v. Weyerhaeuser Co., 167 N.C. App. 658, 606 S.E.2d 389, 2005 N.C. App. LEXIS 5 (2005).

When Fault of Employee Bars Recovery. —

The circumstances in which fault of an employee operates to bar workers’ compensation benefits are (1) when the employee’s injury was proximately caused by intoxication or being under the influence of a controlled substance, or (2) when the injury was proximately caused by the employee’s willful intention to injure or kill himself. Creel v. Town of Dover, 126 N.C. App. 547, 486 S.E.2d 478, 1997 N.C. App. LEXIS 620 (1997).

Competent evidence existed to show that employee’s loss of wage-earning capacity was caused by his injury because he was informed by prospective employers that they did not have a position for him while he was on light-duty work restrictions. White v. Weyerhaeuser Co., 167 N.C. App. 658, 606 S.E.2d 389, 2005 N.C. App. LEXIS 5 (2005).

Workers’ compensation claimant met his burden of proving disability by producing evidence that he was capable of some work, but that, after a reasonable effort, he had been unsuccessful and by showing that he had obtained other employment at a considerably reduced wage. White v. Weyerhaeuser Co., 167 N.C. App. 658, 606 S.E.2d 389, 2005 N.C. App. LEXIS 5 (2005).

While the case law interpreting the specific traumatic incident provision of G.S. 97-2(6) requires the plaintiff to prove an injury at a cognizable time, this does not compel the plaintiff to allege the specific hour or day of the injury; where a Form 18 specifically described the accident causing an employee’s injury as a tire changing incident, this was sufficient to constitute a claim arising out of that incident, despite the fact that the form listed the date of a later truck exiting incident as the date of the accident. Crane v. Berry's Clean-Up & Landscaping, Inc., 169 N.C. App. 323, 610 S.E.2d 464, 2005 N.C. App. LEXIS 614 (2005).

Claim Held Cognizable. —

Claim of employee hired for other types of work, who was temporarily engaged in pumping water from a leaking and powerless barge which was being loaded with logs on the Roanoke River and was crushed by the barge and killed when the logs started rolling, the barge careened toward the channel, and the employee jumped ashore, where he and his employer had both accepted the State compensation act, was properly cognizable by the Commission. The application of the State act to such a situation did not violate the federal Constitution by interference with the uniformity of the general maritime law. Johnson v. Foreman-Blades Lumber Co., 216 N.C. 123, 4 S.E.2d 334, 1939 N.C. LEXIS 111 (1939).

II.Employment, Employees, and Employers
A.In General

An injured person is entitled to compensation under the Act only if he was an employee of the party from whom compensation is claimed at the time of his injury. Hart v. Thomasville Motors, Inc., 244 N.C. 84, 92 S.E.2d 673, 1956 N.C. LEXIS 662 (1956); Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645, 1965 N.C. LEXIS 1279 (1965); Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257, 1976 N.C. LEXIS 1243 (1976).

To be entitled to maintain a proceeding for compensation for personal injury under the Act, the claimant must be, in fact and in law, an employee of the alleged employer. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965). In accord with second paragraph in the main volume. See Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, 1988 N.C. LEXIS 10 (1988).

Employment Is Jurisdictional. —

The question of whether an employer-employee relationship exists is jurisdictional. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965); Lucas v. Li’l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976). In accord with first paragraph in the main volume. See Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, 1988 N.C. LEXIS 10 (1988).

Because the act only applies where the employer-employee relationship exists, the question of whether it existed at the time of the accident is jurisdictional. Carter v. Frank Shelton, Inc., 62 N.C. App. 378, 303 S.E.2d 184, 1983 N.C. App. LEXIS 2932 (1983).

Initial Fact to Be Established. —

Before the provisions of the act are called into play, the relation of master and servant, or employer and employee, or some appointment, must exist; this is the initial fact to be established. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240, 1966 N.C. LEXIS 1045 (1966).

Whether an injured person is an employee of the defendant is a matter of proof which may properly be determined in the Supreme Court. Charnock v. Reusing Light & Refrigerating Co., 202 N.C. 105, 161 S.E. 707, 1932 N.C. LEXIS 436 (1932).

Inquiry Is Mixed Question of Law and Fact. —

The inquiry whether employer-employee relationship exists is a mixed question of fact and law. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280, 1965 N.C. LEXIS 1144 (1965).

Its correct determination depends upon the answer to two questions: (1) What are the terms of the agreement, that is, what was the contract between the parties; and (2) what relationship between the parties was created by the contract, that is, was it that of master and servant or that of employer and independent contractor? The first involves a question of fact and the second is a question of law. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280, 1965 N.C. LEXIS 1144 (1965).

Burdern of Proof. —

Claimant has burden of proving that an employer-employee relationship existed at the time an injury by accident occurred. Hughart v. Dasco Transp., Inc., 167 N.C. App. 685, 606 S.E.2d 379, 2005 N.C. App. LEXIS 3 (2005).

Common-Law Tests Applicable. —

The statutory definition of “employee” adds nothing to the common-law meaning of the term. Whether an employer-employee relationship existed at the time of the injury by accident is to be determined by the application of the ordinary common-law tests. Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257, 1976 N.C. LEXIS 1243 (1976); Carter v. Frank Shelton, Inc., 62 N.C. App. 378, 303 S.E.2d 184, 1983 N.C. App. LEXIS 2932 (1983).

Wages or Salary. —

An employee is one who works for another for wages or salary, and the right to demand pay for his services from his employer would seem to be essential to his right to receive compensation under the act. Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257, 1976 N.C. LEXIS 1243 (1976).

Compulsion of Legal Process. —

One may be an employee, within the meaning of the Workers’ Compensation Act, even if his employment is involuntary and under the compulsion of legal process. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240, 1966 N.C. LEXIS 1045 (1966).

Excluded Employees. —

This Chapter excludes persons whose employment is casual and not in the course of the trade, business, profession or occupation of the employer, and specifically excepts from its provisions casual employees, farm laborers and domestic servants. Burnett v. Palmer-Lipe Paint Co., 216 N.C. 204, 4 S.E.2d 507, 1939 N.C. LEXIS 123 (1939).

Aliens. —

This section makes clear that the General Assembly sought to include individuals like the plaintiff, who worked without the right of citizenship or a green card, under the protections of the Workers’ Compensation Act. Rivera v. Trapp, 135 N.C. App. 296, 519 S.E.2d 777, 1999 N.C. App. LEXIS 1058 (1999).

Illegal alien, who obtained his employment with falsified documents, was entitled to workers’ compensation benefits following injuries in a fall. Ruiz v. Belk Masonry Co., 148 N.C. App. 675, 559 S.E.2d 249, 2002 N.C. App. LEXIS 50 (2002).

Employees Eligible to Retire. —

A claimant’s entitlement to a workers’ compensation disability award is unrelated to either the claimant’s eligibility to retire or his decision to retire. Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 464 S.E.2d 481, 1995 N.C. App. LEXIS 957 (1995).

Full-Time Employment. —

Employees who are employed in distributive education programs may not be fairly and justly classified as full-time for purposes of the Workers’ Compensation Act. Mabry v. Bowers Implement Co., 48 N.C. App. 139, 269 S.E.2d 165, 1980 N.C. App. LEXIS 3222 (1980).

Suitable Employment. —

To read the suitable employment definition as including the 50-mile radius requirement as a “factor” would ignore the ordinary rules of grammar and disregard the North Carolina Legislature’s intent that the 50-mile radius language be a requirement, rather than merely a factor to be considered. Therefore, in a workers’ compensation case, a job offered to a Kingsport, Tennessee resident that was located in Charleston, South Carolina did not constitute “suitable employment” within the meaning of G.S. 97-2. Falin v. Roberts Co. Field Servs., 245 N.C. App. 144, 782 S.E.2d 75, 2016 N.C. App. LEXIS 136 (2016).

North Carolina Industrial Commission erred in holding that a fabrication shop position was suitable employment and not make work because the Commission failed to address the central tenet of the make-work analysis: whether the job was available with employers other than the employer; there was no evidence in the record and no findings by the Commission as to whether the fabrication shop position existed in the competitive job market. Griffin v. Absolute Fire Control, Inc., 269 N.C. App. 193, 837 S.E.2d 420, 2020 N.C. App. LEXIS 9 (2020), cert. dismissed, 376 N.C. 885, 854 S.E.2d 588, 2021 N.C. LEXIS 185 (2021), aff'd, cert. dismissed, 376 N.C. 727, 854 S.E.2d 578, 2021- NCSC-9, 2021 N.C. LEXIS 167 (2021).

Joint employment occurs when a single employee under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other. In such a case, both employers are liable for workers’ compensation. Henderson v. Manpower of Guilford County, Inc., 70 N.C. App. 408, 319 S.E.2d 690 (1984). In accord with first paragraph in the main volume. See Anderson v. Texas Gulf, Inc., 83 N.C. App. 634, 351 S.E.2d 109, 1986 N.C. App. LEXIS 2754 (1986).

Under some circumstances a person can be an employee of two different employers at the same time, in which event either employer or both may be liable for worker’s compensation. Henderson v. Manpower of Guilford County, Inc., 70 N.C. App. 408, 319 S.E.2d 690, 1984 N.C. App. LEXIS 3699 (1984).

Even if there is a mutual business interest between the two employers, and perhaps even some element of control, joint employment as to one employer cannot be found in the absence of a contract with that employer. Anderson v. Texas Gulf, Inc., 83 N.C. App. 634, 351 S.E.2d 109, 1986 N.C. App. LEXIS 2754 (1986).

No Joint Employment. —

Industrial Commission did not err in finding that the claimant was not an employee of the company at the time of her injury under the joint employment doctrine; there was no express contract of hire between the claimant and the company, the claimant was hired, paid, and supervised by the business, and the claimant did not support her argument that the work she performed for the business was essentially the same as the work performed by the company. Whicker v. Compass Group USA, Inc., 246 N.C. App. 791, 784 S.E.2d 564, 2016 N.C. App. LEXIS 352 (2016).

Requirements to Establish Employment Relationship. —

G.S. 97-2(2) contains no requirement that a job applicant, to establish an employment relationship, ascertain whether the person who hires him or her on behalf of an employing entity is acting within the scope of that person’s actual authority. Campos-Brizuela v. Rocha Masonry, L.L.C., 216 N.C. App. 208, 716 S.E.2d 427, 2011 N.C. App. LEXIS 2159 (2011).

Stipulation as to Employment Relationship. —

Stipulation of defendants, prior to hearing, that at the time of injury, the employment relationship existed between plaintiff and defendant employer, was binding on defendants; such a stipulation made it unnecessary for plaintiff to offer evidence of the validity or legal status of his corporate employer at the time of plaintiff ’s injury. Sorrell v. Sorrell's Farms & Ranches, Inc., 78 N.C. App. 415, 337 S.E.2d 595, 1985 N.C. App. LEXIS 4438 (1985).

Because worker and owner of company were considered co-employees, owner was not individually liable to worker under the Workers’ Compensation Act for injuries sustained by worker; thus worker’s claims against owner were not excluded from insurer’s policy coverage under general liability exclusion for workers’ compensation benefits. Newton v. United States Fire Ins. Co., 98 N.C. App. 619, 391 S.E.2d 837, 1990 N.C. App. LEXIS 432 (1990).

Prospective employee who was injured during a pre-employment interview was not an “employee,” for purposes of coverage by the North Carolina Workers’ Compensation Act, as defined in G.S. 97-2(2). Huntley v. Howard Lisk Co., 154 N.C. App. 698, 573 S.E.2d 233, 2002 N.C. App. LEXIS 1528 (2002).

Employment Shown. —

Where deceased was employed and paid by defendant’s driver to assist him in delivering bottled drinks, but the defendant knew of, and consented to, the arrangement between deceased and the driver, the evidence was sufficient to support a finding that deceased was an employee of defendant. Michaux v. Gate City Orange Crush Bottling Co., 205 N.C. 786, 172 S.E. 406, 1934 N.C. LEXIS 73 (1934).

Evidence was sufficient to support a finding of the Commission that deceased, the driver of a tractor-tank, was an employee of defendant oil company, a partnership, and not of a separate transportation business operated by one of the partners. Moses v. Bartholomew, 238 N.C. 714, 78 S.E.2d 923, 1953 N.C. LEXIS 620 (1953).

Where the owner of a truck drives same on a trip in interstate commerce for an interstate carrier under a trip-lease agreement providing that the carrier’s I.C.C. license plates should be used and the carrier retain control and direction over the truck, an assistant driver employed by the owner-lessor is an employee of the carrier within the coverage of the North Carolina Workers’ Compensation Act. Further, if the owner-lessor were considered an independent contractor, but he had less than five employees and no compensation insurance coverage, the carrier would still be liable under G.S. 97-19. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957).

Under the circumstances, the act of an employee in reporting to the union office in this State, accepting a referral slip, and starting upon the trip to the job constituted acceptance of an offer of employment, so that the contract of employment was made and completed in this State. Warren v. Dixon & Christopher Co., 252 N.C. 534, 114 S.E.2d 250, 1960 N.C. LEXIS 612 (1960).

Plaintiff, who sought damages for injuries intentionally inflicted by her supervisor immediately after she had orally tendered her resignation, was still an employee as a matter of law at the time of the alleged incident. Daniels v. Swofford, 55 N.C. App. 555, 286 S.E.2d 582, 1982 N.C. App. LEXIS 2260 (1982).

Eight-year-old child who did odd jobs as needed in defendant’s service station/convenience store business, including stocking cigarettes and drinks and picking up trash, was defendant’s employee at the time of accident. Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 350 S.E.2d 83, 1986 N.C. LEXIS 2743 (1986).

Evidence that for a number of years, when he was able, and when his son, who ran a roofing business, needed him, decedent provided valuable roofing skills and services for his son, that in exchange for these services, which furthered his business, his son would provide decedent with three to four hundred dollars worth of necessities per month, and that without decedent’s skills and services his son would not have been able to afford to provide the three to four hundred dollars worth of necessities per month, even though apart from their business relationship, he may have wanted to help out his father, showed that there existed an implied oral contract of hire between employer-son and employee-father. Dockery v. McMillan, 85 N.C. App. 469, 355 S.E.2d 153, 1987 N.C. App. LEXIS 2617 (1987).

Former employer’s subsequent sale of the division for which an injured employee worked to a buyer that later went bankrupt did not, standing alone, divest the North Carolina Industrial Commission of jurisdiction over the employer as the employee’s employer at the time of the employee’s accident. Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 615 S.E.2d 350, 2005 N.C. App. LEXIS 1315 (2005).

Evidence was sufficient to establish that a worker was a mason’s “employee,” as used in G.S. 97-2(2) because an individual with apparent authority hired him, drove him to the job, told him that he would be earning $9.00 an hour paid by means of a check drawn on the account of the employer, and directed the activities of the worker and others while at the job site. Campos-Brizuela v. Rocha Masonry, L.L.C., 216 N.C. App. 208, 716 S.E.2d 427, 2011 N.C. App. LEXIS 2159 (2011).

Employment Not Shown. —

Where an individual requested the State Game Commission to appoint the plaintiff as a deputy game warden, and after the papers had been mailed out but before they were accepted by plaintiff, he went with said individual to assist in breaking bear traps and was injured while employed in this work, the court would affirm the Commission’s holding that there was no employment until after the appointment had been accepted. Birchfield v. Department of Conservation & Dev., 204 N.C. 217, 167 S.E. 855, 1933 N.C. LEXIS 362 (1933).

The liability of one to pay, and the right of another to receive, compensation depends upon some appointment or the existence of the relation of employer and employee and is to be determined by the rules governing the establishment of contracts, and no such relation existed between defendant department and game warden who was injured as a result of testifying in a criminal prosecution. Hollowell v. North Carolina Dep't of Conservation & Dev., 206 N.C. 206, 173 S.E. 603, 1934 N.C. LEXIS 144 (1934).

Decedent was not an employee within the meaning of subdivision (2) of this section where he had previously been dismissed from defendant’s employment but continued to assist his wife when she succeeded him as acting manager of the store, in view of the fact that defendant’s agent had no authority to allow decedent to continue working at the store and both decedent and his wife knew that defendant’s agent was acting in excess of his authority in permitting decedent to continue working in the store. Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257, 1976 N.C. LEXIS 1243 (1976).

Payroll services company was not an employer of a furniture company’s delivery man because no contractual relationship existed, nor was there any supervision; therefore, the payroll services company was not liable for workers’ compensation death benefits. Hughart v. Dasco Transp., Inc., 167 N.C. App. 685, 606 S.E.2d 379, 2005 N.C. App. LEXIS 3 (2005).

Employee was not entitled to workers’ compensation benefits because he fraudulently misrepresented that he had not sustained prior back injuries, the employer relied on that representation, and the employer’s reliance was a substantial factor in the hiring; because there was actual fraud in obtaining employment, the contract of hire under G.S. 97-2(2) was void ab initio. The employer established that there was a causal connection between the false representation and the injury. Freeman v. J.L. Rothrock, 189 N.C. App. 31, 657 S.E.2d 389, 2008 N.C. App. LEXIS 430 (2008), rev'd, 363 N.C. 249, 676 S.E.2d 46, 2009 N.C. LEXIS 340 (2009).

Conclusions About Employer Without Findings Remanded. —

Where the Deputy Commissioner concluded, without any findings, that individual was employee’s employer and not company, case was remanded for findings on the question whether individual was in fact the alter ego of company, and thus was properly named as the liable employer in the action. Harrelson v. Soles, 94 N.C. App. 557, 380 S.E.2d 528, 1989 N.C. App. LEXIS 541 (1989).

Volunteer Fireman to Be Treated as Employees. —

Because the Workers’ Compensation Act provides the specific calculation for the average weekly wage to be received by volunteer fireman in subsection (5), it is implicit that volunteer firemen are to be treated as employees under the Act. Hix v. Jenkins, 118 N.C. App. 103, 453 S.E.2d 551, 1995 N.C. App. LEXIS 75 (1995).

Application Of Seagraves Test. —

Issue of whether the Seagraves test was properly applied in a case in which an employer denied an injured employee’s claim for workers’ compensation benefits on the grounds that the employee had been terminated for reasons unrelated to his injury was not resolved by the appellate court; although the test was appropriate if circumstances surrounding termination warranted preclusion or discontinuation of injury related benefits under G.S. 97-32, the commission failed to make the necessary findings or conclusions to explain why it applied Seagraves. Jones v. Modern Chevrolet, 194 N.C. App. 86, 671 S.E.2d 333, 2008 N.C. App. LEXIS 2459 (2008).

Costs Award Improper as Employer Was Not Insurer. —

Attorney’s fees were improperly awarded to a workers’ compensation claimant under this section since defendants were not insurers and were not self-insurers as they were not licensed by the North Carolina Commissioner of Insurance. Allred v. Exceptional Landscapes, Inc., 227 N.C. App. 229, 743 S.E.2d 48, 2013 N.C. App. LEXIS 531 (2013).

B.State and Municipal Employees

A municipal corporation is subject to the Workers’ Compensation Act, even though it employs less than the minimum number of employees under this section, the legislative intent to classify municipal corporations with the State and its political subdivisions being consonant with reason and being indicated by G.S. 97-13, which does not include municipal corporations employing less than the minimum number of employees in listing employers exempt from the act, and G.S. 97-7, which provides that neither the State nor any municipal corporation nor any subdivision of the State nor employees of the same shall have the right to reject the provisions of the act, and it being required that these sections be construed in pari materia to determine the legislative intent. Rape v. Town of Huntersville, 214 N.C. 505, 199 S.E. 736, 1938 N.C. LEXIS 389 (1938).

An employee of the State engaged in the cultivation of food crops on lands of the State used by the State Hospital is an employee of the State within the coverage of this section and G.S. 97-13, and his death from an accident arising out of and in the course of his employment is compensable. Barbour v. State Hosp., 213 N.C. 515, 196 S.E. 812, 1938 N.C. LEXIS 123 (1938).

CETA Employee. —

Where a CETA employee would not otherwise be protected by workers’ compensation insurance for a work-related injury, the state governmental unit which hired him and paid the required premiums would be estopped to deny liability therefor, as would its insurance carrier which accepted payment of those premiums. Godley v. County of Pitt, 306 N.C. 357, 293 S.E.2d 167, 1982 N.C. LEXIS 1459 (1982).

Participant in the federally funded Comprehensive Employment and Training Act (CETA) qualified as an “employee” under this section. Sutton v. Ward, 92 N.C. App. 215, 374 S.E.2d 277, 1988 N.C. App. LEXIS 1018 (1988).

A worker employed by a city under a contract stipulating the wages to be received by the worker is an employee of the city within the meaning of this section, and the fact that the city obtains the money to pay the wages from the Reconstruction Finance Corporation is immaterial on the question of the relationship between the worker and the city. Mayze v. Town of Forest City, 207 N.C. 168, 176 S.E. 270, 1934 N.C. LEXIS 414 (1934).

A juror, regularly summoned and serving, is not an employee of the county within the meaning of the North Carolina Workers’ Compensation Act. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240, 1966 N.C. LEXIS 1045 (1966).

Deputized Policeman Aiding in Arrest. —

Evidence that claimant was injured while attempting to aid a policeman in serving a warrant for a breach of the peace, and that claimant had been duly deputized by the policeman to aid in making the arrest, was sufficient to support the finding of the Industrial Commission that at the time of injury claimant was an employee of defendant town under a valid appointment. Tomlinson v. Town of Norwood, 208 N.C. 716, 182 S.E. 659, 1935 N.C. LEXIS 108 (1935).

Policeman Pursuing Offender beyond Jurisdiction. —

For cases decided under this section as it stood prior to the 1949 amendment adding the proviso at the end of the first paragraph of subdivision (2), see Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907, 1942 N.C. LEXIS 84 (1942); Taylor v. Town of Wake Forest, 228 N.C. 346, 45 S.E.2d 387, 1947 N.C. LEXIS 331 (1947).

Sheriff’s Department is Local Governmental Entity. —

In the injured party’s suit against a sheriff and individual detention officers arising out of a five-day episode in the county detention center where she alleged that they ignored her requests for medical treatment, the trial court properly concluded that the office of North Carolina sheriff was a “person” under 42 U.S.C.S. § 1983 because (1) the State constitution created the office of sheriff, N.C. Const., Art. VII, § 2, but included that provision within the article governing local governments, along with provisions for counties, cities, towns, and other governmental subdivisions, N.C. Const., Art. VII, § 1; (2) state statutes, including G.S. 17E-1, 160A-288.2, 143-166.50, and 97-2, characterized a sheriff’s department as a local governmental entity; (3) there was no contention that the State would be potentially liable for any monetary judgment entered against the sheriff and the detention officers; and (4) the State did not have, with respect to a sheriff, the minimum degree of control required for Eleventh Amendment immunity. Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1, 2005 N.C. App. LEXIS 2352 (2005).

Deputy Sheriffs. —

The 1939 amendment including deputy sheriffs within the meaning of the term “employee,” as used in this section, is not violative of N.C. Const., Art. I, § 32 or Art. II, § 24. Towne v. Yancey County, 224 N.C. 579, 31 S.E.2d 754, 1944 N.C. LEXIS 429 (1944).

The provision of c. 277 of the Laws of 1939 that deputy sheriffs shall be deemed employees of the county for the purpose of determining the rights of the parties under the Workers’ Compensation Act does not apply to accidents occurring prior to the enactment of the amendment. Clark v. Sheffield, 216 N.C. 375, 5 S.E.2d 133, 1939 N.C. LEXIS 172 (1939).

For cases dealing with deputies and decided under this section as it stood prior to the amendment, see Saunders v. Allen, 208 N.C. 189, 179 S.E. 754, 1935 N.C. LEXIS 354 (1935); Borders v. Cline, 212 N.C. 472, 193 S.E. 826, 1937 N.C. LEXIS 343 (1937); Gowens v. Alamance County, 216 N.C. 107, 3 S.E.2d 339, 1939 N.C. LEXIS 109 (1939); Clark v. Sheffield, 216 N.C. 375, 5 S.E.2d 133, 1939 N.C. LEXIS 172 (1939).

Trial court did not abuse its discretion in extinguishing a county’s subrogation lien against a deputy sheriff regarding a settlement that he received following an injury in the course of his employment because, based upon the fact that the county government was subject to the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., and its provisions regarding payment and compensation under the Act, there was specific statutory authority authorizing the deputy sheriff to seek a determination under G.S. 97-10.2(j) of the county’s authority to file a lien against his settlement proceeds. Helsius v. Robertson, 174 N.C. App. 507, 621 S.E.2d 263, 2005 N.C. App. LEXIS 2469 (2005).

Police Officers. —

Even if plaintiff’s preexisting knee condition contributed to the injury, plaintiff’s fall while pursuing a fleeing suspect at night was a risk attributable to his employment as a police officer for defendant and was compensable. Mills v. City of New Bern, 122 N.C. App. 283, 468 S.E.2d 587, 1996 N.C. App. LEXIS 248 (1996).

National Guard Training. —

North Carolina Industrial Commission erred by awarding a former North Carolina National Guard member workers’ compensation benefits as a result of injuries she sustained during training as she was in training pursuant to 32 U.S.C.S. § 502(f), was paid with federal and not state funds and, as a result, was not on State active duty at the time of the injuries. As a result, she was not an employee under G.S. 97-2(2) when she sustained her injuries and, therefore, the Commission lacked subject matter jurisdiction in the case. Baccus v. N.C. Dep't of Crime Control & Pub. Safety, 195 N.C. App. 1, 671 S.E.2d 37, 2009 N.C. App. LEXIS 56 (2009).

Teachers. —

A person employed by a graded school district as teacher and director of athletics is an employee of a political subdivision of the State, and is entitled to the benefits of the compensation act under this section. Perdue v. State Bd. of Equalization, 205 N.C. 730, 172 S.E. 396, 1934 N.C. LEXIS 51 (1934).

A county board of education is the sole employer of one under contract to teach vocational agriculture in a county school, where such teacher’s salary is paid in part from funds furnished as a gift to such board by the State and federal governments, and, as such sole employer, is liable, with its insurance carrier, under this Chapter for the death of such teacher from an injury by accident arising out of and in the course of his employment. Callihan v. Board of Educ., 222 N.C. 381, 23 S.E.2d 297, 1942 N.C. LEXIS 104 (1942).

Prisoner. —

A prisoner is not an employee as defined by this section. Lawson v. North Carolina State Hwy. & Pub. Works Comm'n, 248 N.C. 276, 103 S.E.2d 366, 1958 N.C. LEXIS 487 (1958). See G.S. 97-13(c) .

C.Regular Employment of Four (Now Three) or More

Editor’s Note. —

Most of the annotations below were decided under this section prior to its amendment by Session Laws 1987, c. 729, s. 1, which decreased the regular employment requirement in subdivision (1) from four to three employees.

“Regularly Employed”. —

The term “regularly employed” connotes employment of the same number of persons throughout the period with some constancy. Patterson v. L.M. Parker & Co., 2 N.C. App. 43, 162 S.E.2d 571, 1968 N.C. App. LEXIS 870 (1968); Cousins v. Hood, 8 N.C. App. 309, 174 S.E.2d 297, 1970 N.C. App. LEXIS 1545 (1970); Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3, 1982 N.C. App. LEXIS 3067 (1982).

Subdivision (1) of this section does not define “regularly employed.” Cousins v. Hood, 8 N.C. App. 309, 174 S.E.2d 297, 1970 N.C. App. LEXIS 1545 (1970).

Having five (now three) or more employees is a jurisdictional prerequisite and must appear of record on appeal. Chadwick v. North Carolina Dep't of Conservation & Dev., 219 N.C. 766, 14 S.E.2d 842, 1941 N.C. LEXIS 145 (1941); Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3, 1982 N.C. App. LEXIS 3067 (1982); Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, 1986 N.C. App. LEXIS 2117, aff'd, 318 N.C. 410, 348 S.E.2d 595, 1986 N.C. LEXIS 2662 (1986).

If a person does not “regularly employ” five (now four) or more employees, he is not subject to and bound by the act. Cousins v. Hood, 8 N.C. App. 309, 174 S.E.2d 297, 1970 N.C. App. LEXIS 1545 (1970).

Whether the employer had the required number of employees is a question of jurisdictional fact, and the reviewing court is required to review and consider the evidence on this matter and make an independent determination thereon. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3, 1982 N.C. App. LEXIS 3067 (1982).

Falling Below Minimum Requirement on Date of Injury. —

If an employer has five (now four) or more “regularly employed” employees, the fact that he fell below the minimum requirement on the actual date of injury would not preclude coverage. Patterson v. L.M. Parker & Co., 2 N.C. App. 43, 162 S.E.2d 571, 1968 N.C. App. LEXIS 870 (1968).

Number of workers on the job site on the date of injury, standing alone, is not determinative of the issue. If the defendant had four or more “regularly employed” employees, the fact that he fell below the minimum requirement on the actual date of injury would not preclude coverage. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3, 1982 N.C. App. LEXIS 3067 (1982).

The plaintiff has the burden of proving that the employer regularly employed five (now three) or more employees. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, 1986 N.C. App. LEXIS 2117, aff'd, 318 N.C. 410, 348 S.E.2d 595, 1986 N.C. LEXIS 2662 (1986).

Evidence Held Sufficient to Show Minimum Number of Persons Regularly Employed. —

Evidence tending to show that the employer regularly employed three persons in his general mercantile business and that for more than two months prior to the accident in suit he had employed two other persons at stated weekly wages to deliver fertilizers by truck in the operation of his mercantile business supported the finding of the Industrial Commission that the employer had five or more persons regularly employed in his business and that he was therefore subject to the Act. Hunter v. Peirson, 229 N.C. 356, 49 S.E.2d 653, 1948 N.C. LEXIS 488 (1948) (decided prior to 1975 amendment) .

Claimant’s brother was a “regular employee” of defendant service station operator where he was employed eight days prior to the accident in question to keep one of defendant’s stations open at night beyond regular hours to see if this would increase business at the station and had worked for two hours every evening during the eight days, notwithstanding the fact that he was also a full-time State employee; consequently, defendant employer, who also employed four full-time employees at his two service stations, “regularly employed” five persons and was subject to the act. Cousins v. Hood, 8 N.C. App. 309, 174 S.E.2d 297, 1970 N.C. App. LEXIS 1545 (1970) (decided prior to 1975 amendment) .

Plaintiff’s testimony, which was corroborated by defendant’s records, held competent evidence that defendant regularly employed five (now three) or more employees during the period of plaintiff’s employment with defendant and that the Commission thus had jurisdiction. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, 1986 N.C. App. LEXIS 2117, aff'd, 318 N.C. 410, 348 S.E.2d 595, 1986 N.C. LEXIS 2662 (1986).

Defendants were subject to the Industrial Commission’s jurisdiction where there was evidence that defendants employed, with some constancy, at least four people for the year 1987, even though there were only three regularly employed workers on the day plaintiff was injured. Grouse v. DRB Baseball Mgt., Inc., 121 N.C. App. 376, 465 S.E.2d 568, 1996 N.C. App. LEXIS 26 (1996).

Evidence Insufficient. —

Where the record contained no evidence that defendant/“carrier” regularly employed three or more employees, no employer-employee relationship existed within the meaning of the Workers’ Compensation Act. Williams v. ARL, Inc., 133 N.C. App. 625, 516 S.E.2d 187, 1999 N.C. App. LEXIS 602 (1999).

D.Casual Employment

Casual Employment Defined. —

Employment is casual when it is irregular, unpredictable, sporadic and brief in nature. Clark v. Waverly Mills, Inc., 12 N.C. App. 535, 183 S.E.2d 855, 1971 N.C. App. LEXIS 1397 (1971).

When Casual Employee Is Not Entitled to Compensation. —

For an employee to be excluded from benefits under the Workers’ Compensation Act his employment must be casual, and in addition thereto, not in the course of the trade, business, profession or occupation of his employer. Clark v. Waverly Mills, Inc., 12 N.C. App. 535, 183 S.E.2d 855, 1971 N.C. App. LEXIS 1397 (1971).

When Casual Employee Is Entitled to Compensation. —

G.S. 97-13 of this Chapter, providing that the act shall not apply to casual employees, is not totally repugnant to this section, providing for compensation for an injury to an employee while “in the course of the trade, business,” etc., and an employee is entitled to compensation even if the employment is casual if he is injured in the course of the trade, business, etc. Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591, 1930 N.C. LEXIS 57 (1930).

The restriction of this Act excluding injuries sustained in casual employment will not exclude an applicant under the provisions of the Act when he sustains injuries in the course of the general trade, business, etc., of the employer and material or expedient therein. Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591, 1930 N.C. LEXIS 57 (1930).

An accident is compensable if it happens in employment incident to the proper operation of a business even if the employment is casual. Boyd v. Mitchell, 48 N.C. App. 219, 268 S.E.2d 252, 1980 N.C. App. LEXIS 3208 (1980).

Employment Held Casual. —

A plaintiff ’s employment for a period of only two days to help prepare for an annual company picnic was strictly a chance employment for a brief period of time. It was not the sort of work that plaintiff could rely upon as a regular source of income. There was no reasonable probability that she would be employed in future years to assist in preparing for the annual picnics. Thus, plaintiff ’s employment was “casual” within the meaning of subdivision (2) of this section. Clark v. Waverly Mills, Inc., 12 N.C. App. 535, 183 S.E.2d 855, 1971 N.C. App. LEXIS 1397 (1971).

Employment Held Not Casual. —

The painting of the interior of a machine room to give the employees therein a better light or for the protection of the permanent structure is not a casual employment and is one in the general course of business, and the act applies to an injury received by a worker engaged in such painting. Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591, 1930 N.C. LEXIS 57 (1930).

Plaintiff who had been employed full-time for three months prior to accident, and who also worked on Saturdays by choice and with the agreement of his employer, was not merely a casual employee. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, 1986 N.C. App. LEXIS 2325 (1986).

Employment continuously for five or six weeks in construction of facilities for defendant’s plant may not be held to be either casual or not in the course of defendant’s business. Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730, 1946 N.C. LEXIS 390 (1946).

Where the evidence tended to show that the defendant operated a general mercantile business, which included the selling and delivery of commercial fertilizers, and that plaintiffs’ intestates had been working for a period of more than two months at stated weekly wages in delivering the fertilizers by truck when they met with a fatal accident arising out of and in the course of their employment, it was held that decedents were not casual employees, and further, that the injury arose within the scope of the employer’s regular business, and that therefore they were employees of defendant within the coverage of the Act. Hunter v. Peirson, 229 N.C. 356, 49 S.E.2d 653, 1948 N.C. LEXIS 488 (1948).

Eight-year-old child of part-time cashier who sustained an accidental injury on the premises of defendant’s convenience store and service station, at which he stayed after school, and at which on some afternoons he did tasks about the place, such as carrying out the garbage, picking up trash and restocking the cigarette, candy and soft drink machines, for which he was paid a dollar or so, was at least a casual employee, whose employment was not excluded by the statute, since the work that he did was required in the operation of defendant’s business. Fact that the child was too young to be lawfully employed was irrelevant. Lemmerman v. A.T. Williams Oil Co., 79 N.C. App. 642, 339 S.E.2d 820, 1986 N.C. App. LEXIS 2100, aff'd, 318 N.C. 577, 350 S.E.2d 83, 1986 N.C. LEXIS 2743 (1986).

E.Independent Contractors

Act Inapplicable to Independent Contractor. —

An independent contractor is not a person included within the terms of the Act, and the Industrial Commission has no jurisdiction to apply the Act to a person who is not subject to its provisions. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645, 1965 N.C. LEXIS 1279 (1965); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, 1988 N.C. LEXIS 10 (1988).

To establish that he was covered by the provisions of this Article, a worker had the burden of proving that he was either an employee of a subcontractor or the general contractor, rather than an independent subcontractor. Gordon v. West Constr. Co., 75 N.C. App. 608, 331 S.E.2d 259, 1985 N.C. App. LEXIS 3687 (1985).

Meaning of Terms Not Changed. —

Except as to public officers, the definition of “employee” contained in this section adds nothing to the common-law meaning of the term. Nor does it encroach upon or limit the common-law meaning of “independent contractor.” These terms must be given their natural and ordinary meaning in their accepted legal sense. Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137, 1944 N.C. LEXIS 297 (1944). See also Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240, 1966 N.C. LEXIS 1045 (1966).

Common-Law Tests Applicable. —

The question whether one employed to perform specified work for another is to be regarded as an independent contractor or as an employee within the operation of the Act is determined by the application of the ordinary common-law tests. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240, 1966 N.C. LEXIS 1045 (1966); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, 1988 N.C. LEXIS 10 (1988).

Whether a person is an independent contractor or an employee within the meaning of the Act is to be determined in accordance with the common law. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425, 1950 N.C. LEXIS 410 (1950).

In the absence of pertinent statutory definitions, whether a person is an independent contractor, or a subcontractor who is an independent contractor, or an employee within the meaning of the act is to be determined by the application of the ordinary common-law tests. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645, 1965 N.C. LEXIS 1279 (1965).

In determining whether a relationship is one of employer-independent contractor or master and servant, North Carolina applies the common law right of control test. Pinckney v. United States, 671 F. Supp. 405, 1987 U.S. Dist. LEXIS 9308 (E.D.N.C. 1987).

For discussion of the test for determining whether a worker is an employee or an independent contractor, see Denton v. South Mt. Pulpwood Co., 69 N.C. App. 366, 317 S.E.2d 433, 1984 N.C. App. LEXIS 3504 (1984).

Who Is an Independent Contractor. —

Generally an independent contractor is one who exercises independent employment and contracts to do a piece of work according to his own judgment and method, without being subject to his employer except as to the results of his work. Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730, 1946 N.C. LEXIS 390 (1946); McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658, 1951 N.C. LEXIS 333 (1951); Millard v. Hoffman, Butler & Assocs., 29 N.C. App. 327, 224 S.E.2d 237, 1976 N.C. App. LEXIS 2468, cert. denied, 290 N.C. 551, 226 S.E.2d 510, 1976 N.C. LEXIS 1102 (1976); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, 1988 N.C. LEXIS 10 (1988).

When one undertakes to do a specific job under contract and the manner of doing it, including the employment, payment and control of the persons working with or under him, is left entirely to him, he will be regarded as an independent contractor, unless the person for whom the work is being done has retained the right to exercise control in respect to the manner in which the work is to be executed. McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658, 1951 N.C. LEXIS 333 (1951); Millard v. Hoffman, Butler & Assocs., 29 N.C. App. 327, 224 S.E.2d 237, 1976 N.C. App. LEXIS 2468, cert. denied, 290 N.C. 551, 226 S.E.2d 510, 1976 N.C. LEXIS 1102 (1976).

An independent contractor has been defined as one who exercises an independent employment, contracts to do a piece of work according to his own judgment and methods, and without being subject to his employer, except as to the result of the work, and who has the right to employ and direct the action of other workers in the prosecution of the work without interference or right of control on the part of his employer. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280, 1965 N.C. LEXIS 1144 (1965).

Generally speaking, an independent contractor is one who undertakes to produce a given result, where in the actual execution of the work he is not under the orders or control of the person for whom he does it, and where he may use his own discretion in matters and things not specified. One who represents another only as to the results of a piece of work, and not as to the means of accomplishing it, is an independent contractor and not a servant or employee. Bryson v. Gloucester Lumber Co., 204 N.C. 664, 169 S.E. 276, 1933 N.C. LEXIS 228 (1933); Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645, 1965 N.C. LEXIS 1279 (1965).

Elements of Relationship of Employer and Independent Contractor. —

The elements which earmark the relationship of employer and independent contractor, are generally as follows: The person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his skill, knowledge, or training in the execution of the work; (c) is doing a specific piece of work at a fixed price, or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he thinks proper; (g) has full control over such assistants; and (h) selects his own time. The presence of no one of these indicia is controlling, nor is the presence of all required. Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137, 1944 N.C. LEXIS 297 (1944); Morse v. Curtis, 276 N.C. 371, 172 S.E.2d 495, 1970 N.C. LEXIS 691 (1970); Pinckney v. United States, 671 F. Supp. 405, 1987 U.S. Dist. LEXIS 9308 (E.D.N.C. 1987).

There are many elements to be considered in determining whether a person in the execution of work for another is an employee or independent contractor, and no particular element is controlling. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280, 1965 N.C. LEXIS 1144 (1965).

Right to Control is Crucial. —

The right of an employer to supervise and control the activities of one working under him determines to a great extent whether that one is an employee. Hunter v. Hunter Auto Co., 204 N.C. 723, 169 S.E. 648, 1933 N.C. LEXIS 250 (1933).

The test is whether the party for whom the work is being done has the right to control the worker with respect to the manner or method of doing the work, as distinguished from the right merely to require certain definite results conforming to the contract. If the employer has the right of control, it is immaterial whether he actually exercises it. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425, 1950 N.C. LEXIS 410 (1950); McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658, 1951 N.C. LEXIS 333 (1951); Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240, 1966 N.C. LEXIS 1045 (1966); Morse v. Curtis, 276 N.C. 371, 172 S.E.2d 495, 1970 N.C. LEXIS 691 (1970). See also Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220, 1953 N.C. LEXIS 632 (1953); Millard v. Hoffman, Butler & Assocs., 29 N.C. App. 327, 224 S.E.2d 237, 1976 N.C. App. LEXIS 2468, cert. denied, 290 N.C. 551, 226 S.E.2d 510, 1976 N.C. LEXIS 1102 (1976).

The test for determining whether a relationship between parties is that of employer and employee, or that of employer and independent contractor, is whether the party for whom the work is being done has the right to control the worker with respect to the manner or method of doing work, as distinguished from the right merely to require certain definite results conforming to the contract. Alford v. Victory Cab Co., 30 N.C. App. 657, 228 S.E.2d 43, 1976 N.C. App. LEXIS 2332 (1976).

The dominant factor in determining whether a hired hand is an employee or an independent contractor is the employer’s authority to control how the person hired accomplishes the task to be done, and if that right to control exists, it makes no difference that it is not exercised. Youngblood v. North State Ford Truck Sales, 87 N.C. App. 35, 359 S.E.2d 256, 1987 N.C. App. LEXIS 2965 (1987), aff'd, 321 N.C. 380, 364 S.E.2d 433, 1988 N.C. LEXIS 10 (1988).

As to the distinction between an independent contractor and an employee entitled to benefits, see also Cooper v. Colonial Ice Co., 230 N.C. 43, 51 S.E.2d 889, 1949 N.C. LEXIS 549 (1949) (citing) Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591, 1930 N.C. LEXIS 57 (1930); Creswell v. Charlotte News Publishing Co., 204 N.C. 380, 168 S.E. 408, 1933 N.C. LEXIS 413 (1933); Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515, 1941 N.C. LEXIS 96 (1941); Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137, 1944 N.C. LEXIS 297 (1944); Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730, 1946 N.C. LEXIS 390 (1946); Creighton v. Snipes, 227 N.C. 90, 40 S.E.2d 612, 1946 N.C. LEXIS 363 (1946); Bell v. Williamston Lumber Co., 227 N.C. 173, 41 S.E.2d 281, 1947 N.C. LEXIS 359 (1947); Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298, 1948 N.C. LEXIS 257 (1948); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, 1988 N.C. LEXIS 10 (1988).

Question of Law. —

On undisputed facts the question whether one is an independent contractor or an employee is one of law reviewable by the court. Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515, 1941 N.C. LEXIS 96 (1941).

Whether the facts found by the Commission are supported by competent evidence and whether the facts found by the Commission support the legal conclusion that the injured party was an employee are reviewable by the court as questions of law. Pearson v. Peerless Flooring Co., 247 N.C. 434, 101 S.E.2d 301, 1958 N.C. LEXIS 553 (1958).

Newsboy. —

A newsboy engaged in selling papers is held not to be an employee of the newspaper within the meaning of that term as used in this section, the newsboy not being on the newspaper’s payroll and being without authority to solicit subscriptions and being free to select his own methods of effecting sales, although some degree of supervision was exercised by the newspaper. Creswell v. Charlotte News Publishing Co., 204 N.C. 380, 168 S.E. 408, 1933 N.C. LEXIS 413 (1933).

Hauler of Lumber. —

Deceased was an independent contractor where he hauled logs for defendant at a specified rate per thousand, employed his own helpers, and worked in his own way without any direction from defendant. Bryson v. Gloucester Lumber Co., 204 N.C. 664, 169 S.E. 276, 1933 N.C. LEXIS 228 (1933).

Electrician Rebuilding Line in “Off ” Hours. —

Where defendant contracted with plaintiff and two other electricians to rebuild in their “off ” hours a part of its electric line for a lump sum of $30.00, the defendant having the holes dug and furnishing the poles, a truck, other tools, and two helpers and requiring that certain trees be not trimmed but disclaiming any knowledge of the work and leaving it up to the electricians, and plaintiff was killed by a live wire while so engaged, and thereafter the remaining electricians secured other help and completed the job, the relationship thus created was that of independent contractor. Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137, 1944 N.C. LEXIS 297 (1944).

Scallop Shucker. —

Where, among other things, plaintiff went to work for defendant employer only when she heard work was available, she received no training or instruction from defendant as to how to shuck scallops, she used her own equipment, she was paid per pound of scallops shucked, she was under minimum supervision and set her own work hours, plaintiff was an independent contractor and not an employee for the purposes of this act. Spencer v. Johnson & Johnson, Seafood, Inc., 99 N.C. App. 510, 393 S.E.2d 291, 1990 N.C. App. LEXIS 547 (1990).

Hauler of Sand, Gravel and Concrete. —

The evidence tended to show that deceased was a licensed contract hauler, and was engaged to haul sand, gravel and concrete from defendant’s bins to defendant’s concrete mixer along a route selected by defendant, but that defendant had no control over the number of hours deceased worked or whether deceased drove his own truck or employed a driver, and that deceased paid for his own gas and oil and made his own repairs to his truck. Deceased was paid a stipulated sum per load and was also paid the hourly wage of truck driver employed by defendant for time lost waiting in line when the concrete mixer broke down. Deceased was killed when struck by a train at a grade crossing while hauling for defendant on the route selected. It was held that, upon the evidence, deceased was an independent contractor and not an employee within the meaning of this section, and the judgment of the superior court affirming the award of compensation by the Industrial Commission, was reversed. Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298, 1948 N.C. LEXIS 257 (1948).

Carpet Installer. —

A carpet installer who was basically free to set his own hours and determine which days of the week he worked, who was paid on a per-yard basis through a check voucher system which defendant employer used to pay independent contractors and bills of local vendors, who filed self-employment tax with his income tax return, who had considerable leeway in the manner in which he did his job, and whose occupation required special skill and training, was an independent contractor under the Workers’ Compensation Act. Ramey v. Sherwin-Williams Co., 92 N.C. App. 341, 374 S.E.2d 472, 1988 N.C. App. LEXIS 1037 (1988).

Taxi Driver. —

Taxi driver was not a company’s employee, for workers’ compensation purposes, because, inter alia, the driver’s agreement with the company said the driver was an independent contractor, even though the company required the driver to use certain equipment, which the company provided, required the taxi to be painted yellow, and the working relationship could be terminated at any time. Ademovic v. Taxi USA, LLC, 237 N.C. App. 402, 767 S.E.2d 571, 2014 N.C. App. LEXIS 1241 (2014).

Taxi driver was not a company’s employee, for workers’ compensation purposes, because, inter alia, the driver kept all fares and tips and was not paid wages, but paid the company a franchise fee, even though the company required the driver to use certain equipment, which the company provided, required the taxi to be painted yellow, and the working relationship could be terminated at any time. Ademovic v. Taxi USA, LLC, 237 N.C. App. 402, 767 S.E.2d 571, 2014 N.C. App. LEXIS 1241 (2014).

Taxi driver was not a company’s employee, for workers’ compensation purposes, because, inter alia, the driver could decide the driver’s own work schedule, even though the company required the driver to use certain equipment, which the company provided, required the taxi to be painted yellow, and the working relationship could be terminated at any time. Ademovic v. Taxi USA, LLC, 237 N.C. App. 402, 767 S.E.2d 571, 2014 N.C. App. LEXIS 1241 (2014).

Taxi driver was not a company’s employee, for workers’ compensation purposes, because, inter alia, the driver did not have to use the company’s dispatch services, even though the company required the driver to use certain equipment, which the company provided, required the taxi to be painted yellow, and the working relationship could be terminated at any time. Ademovic v. Taxi USA, LLC, 237 N.C. App. 402, 767 S.E.2d 571, 2014 N.C. App. LEXIS 1241 (2014).

Taxi driver was not a company’s employee, for workers’ compensation purposes, because, inter alia, the driver owned the taxi, for which the driver paid taxes, insurance, and maintenance, and which the driver could use as the driver chose when not accepting a fare, even though the company required the driver to use certain equipment, which the company provided, required the taxi to be painted yellow, and the working relationship could be terminated at any time. Ademovic v. Taxi USA, LLC, 237 N.C. App. 402, 767 S.E.2d 571, 2014 N.C. App. LEXIS 1241 (2014).

Operator of Service Station. —

Deceased operated a service station for defendant on a commission basis, being required to keep the place open at certain hours, being told to whom to give credit, and being under the control of the president of the defendant company. The commission’s conclusion that deceased was an employee was sustained. Russell v. Western Oil Co., 206 N.C. 341, 174 S.E. 101, 1934 N.C. LEXIS 179 (1934).

Salesman. —

Deceased, at the time of his fatal injury, was engaged in selling the products of defendant. Letters to him from defendant’s home office were introduced in evidence, which letters contained instructions for the collection of an account which, as an exception, had been charged directly to the purchaser by defendant, as was a letter stating that defendant would fill his orders C.O.D. without deducting commissions, and at the end of the week would then figure his commissions and send him a check therefor plus any difference “to make up the $25.00 salary,” and also stating that a certain sum was due for social security and asking for his social security number. It was held that the evidence, with other evidence in the case, was sufficient to support the finding of the Industrial Commission that the deceased was an employee of the defendant, and not a jobber or independent contractor. Cloinger v. Ambrosia Cake Bakery Co., 218 N.C. 26, 9 S.E.2d 615, 1940 N.C. LEXIS 94 (1940).

Salesman Conducting Training in Use of Equipment. —

Although plaintiff possessed specialized skill in the use of equipment which he sold and was training others to use when he was injured, as defendant retained the right to control the details of plaintiff ’s work by paying him on a time basis, providing all materials and assistance which he needed, setting his hours of work, and retaining the right to discharge him at any time, an employment relationship therefore existed between plaintiff and defendant at the time of plaintiff ’s injury. Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, 1988 N.C. LEXIS 10 (1988).

Machinist Constructing Conveyor under Contract. —

Where evidence tended to show that deceased, a machinist, contracted to construct a conveyor from materials furnished by defendant and in accordance with his rough sketch, hourly wages being the basis of his pay, and the parties appeared to have treated the contract as one of employment, such evidence was sufficient to sustain the finding of the Commission that deceased was an employee and not an independent contractor. Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730, 1946 N.C. LEXIS 390 (1946).

Deliveryman for Ice Company. —

Deceased employee was a deliveryman for defendant ice company. Defendant furnished a horse and wagon and all necessary equipment. Each morning in season, deceased obtained a load of ice for which he was charged. It was sold at defendant’s regular retail price, and deceased was credited with the amount unsold at the end of the day. These facts were held sufficient to establish an employer-employee relation upon which the award of compensation was based. Cooper v. Colonial Ice Co., 230 N.C. 43, 51 S.E.2d 889, 1949 N.C. LEXIS 549 (1949) (distinguishing) Creswell v. Charlotte News Publishing Co., 204 N.C. 380, 168 S.E. 408, 1933 N.C. LEXIS 413 (1933).

Director of Sawmill Operations. —

Evidence tending to show that defendant lumber company operated a sawmill as a part of its general business, that it owned the sawmill, controlled the premises where the work was performed, determined the amount of work to be done, and gave directions on occasion as to the dimensions of the lumber to be sawed, and that the person directing the sawmill operations worked exclusively for the lumber company, which had the power to discharge him at any time with or without cause, was held sufficient to support a finding that the director of the sawmill operations was a supervisory employee and not an independent contractor. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425, 1950 N.C. LEXIS 410 (1950).

Mechanic Supervising Installation Under Contract. —

Where findings included the fact that the seller of materials for construction of dry kilns recommended upon purchaser’s request an expert mechanic to supervise their installation under contractual agreement that such mechanic should be considered an employee of the purchaser, and that the mechanic was merely supervising installation of the kilns because the purchaser had no foreman with sufficient experience and skill to supervise the installation in accordance with the plans and specifications furnished by the seller, such findings supported the legal conclusion that the mechanic was an employee of the purchaser rather than an independent contractor. Pearson v. Peerless Flooring Co., 247 N.C. 434, 101 S.E.2d 301, 1958 N.C. LEXIS 553 (1958).

Cable and Internet Installer. —

Dismissal of an employee’s claim for workers’ compensation benefits on the grounds that he worked for the employer as a subcontractor in installing cable television and internet service was improper under G.S. 97-2(2) because the greater weight of the evidence showed that the employer exerted the degree of control of the employee’s that was characteristic of an employer’s control over an employee. Capps v. Southeastern Cable, 214 N.C. App. 225, 715 S.E.2d 227, 2011 N.C. App. LEXIS 1630 (2011).

Painter. —

Plaintiff in painting defendant’s mill was not an independent contractor where it appeared that defendant directed plaintiff ’s work, hired his helpers and purchased his supplies. Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591, 1930 N.C. LEXIS 57 (1930).

Where plaintiff was a painter of long experience, who had consistently worked for others for fixed hourly wages, and did not hold himself out as a painting contractor, and during his long experience had only once done a painting job for a lump sum, and it was inferred that he was employed by defendant employer because of the quality of his individual work, that he was not to employ or delegate the work to others, and that he was to be paid an hourly wage for such time as he worked, it was held that he was an employee rather than an independent contractor. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280, 1965 N.C. LEXIS 1144 (1965).

Tractor Trailer Driver. —

An employment relationship existed between plaintiff/driver and defendant/truck company where defendant deducted taxes, health insurance and social security costs from driver’s checks, where “Contract Driver Handbook” set out provisions exercising control of plaintiff’s time and manner of performance, and where trucks were owned, insured and maintained by defendant. Barber v. Going West Transp., Inc., 134 N.C. App. 428, 517 S.E.2d 914, 1999 N.C. App. LEXIS 813 (1999).

The lessor-driver, under a trip-lease agreement with an interstate commerce carrier, is deemed to be an employee of the carrier, for workers’ compensation purposes, while operating the equipment under the carrier’s Interstate Commerce Commission authority. Smith v. Central Transp. & Liberty Mut. Ins. Co., 51 N.C. App. 316, 276 S.E.2d 751, 1981 N.C. App. LEXIS 2260 (1981).

Taxi Drivers. —

Taxi drivers were employees of a taxi service company for purposes of the Workers’ Compensation Act, not independent contractors, because they did not rent taxis from the company, could not set their own wages and were required to give the company 50 percent of their fares, could not set their work schedules, and, with a few exceptions, could not drive the taxi for personal use. J.D. Mills v. Triangle Yellow Transit, 230 N.C. App. 546, 751 S.E.2d 239, 2013 N.C. App. LEXIS 1218 (2013).

F.Employees of Independent Contractors and Subcontractors

Employee of Independent Contractor Cannot Recover against Principal. —

Compensation is recoverable only against the employer of the injured worker, and therefore if the worker is an employee of an independent contractor, the employer of the independent contractor cannot be held liable for compensation. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425, 1950 N.C. LEXIS 410 (1950). But see G.S. 97-19 .

Subdivision (1) of this Section Modified by G.S. 97-19. —

As a general proposition the only private employments covered by the Workers’ Compensation Act are those “in which five (now four) or more employees are regularly employed in the same business or establishment.” But this general rule is subject to the exception created by G.S. 97-19, which was manifestly enacted to protect the employees of financially irresponsible subcontractors who do not carry workers’ compensation insurance, and to prevent principal contractors, immediate contractors, and subcontractors from relieving themselves of liability under the act by doing through subcontractors what they would otherwise do through the agency of direct employees. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949).

The North Carolina Workers’ Compensation Act provides compensation to an injured plaintiff only if he is an “employee” of an insured employer, in fact and in law, at the time of the injury. An exception to the general rule is that the Act creates liability for a general contractor under G.S. 97-19. Carroll v. Daniels & Daniels Constr. Co., 327 N.C. 616, 398 S.E.2d 325, 1990 N.C. LEXIS 987 (1990).

Secondary Liability of Contractor to Employees of Subcontractor. —

Where a contractor sublets a part of the contract to a subcontractor without requiring from the subcontractor a certificate that he has procured compensation insurance or has satisfied the Industrial Commission of his financial responsibility as a self-insurer under G.S. 97-93, such contractor is properly held secondarily liable for compensation to an employee of the subcontractor, even though the contractor regularly employs less than five employees. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949).

For cases in which claimants were held employees of independent contractors, see Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515, 1941 N.C. LEXIS 96 (1941); McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658, 1951 N.C. LEXIS 333 (1951).

Agreement Changing Status of Independent Contractor to Foreman. —

Defendant partners, general contractors, had sublet electrical work to one Elkins who had less than five employees, one of whom was plaintiff claimant. Elkins, having figured too low, persuaded defendants to let him go ahead under a new agreement whereby defendants were to pay for the materials and labor. There was evidence that one of the defendants was on the job “practically all the time” and that he gave instructions as to changing the location of some fixtures but not otherwise. It was held, three judges dissenting, that there was sufficient evidence to sustain the finding that Elkins became a mere foreman on this job and that plaintiff was defendants’ employee. Graham v. Wall, 220 N.C. 84, 16 S.E.2d 691, 1941 N.C. LEXIS 482 (1941).

Estoppel of Carrier to Deny Employment Relationship. —

Where a contractor and subcontractor had agreed that members of the subcontractor’s work crew would be considered as “employees” of the contractor while working on a highway construction project, and the contractor was reimbursed by the subcontractor for wages it paid to the crew and for workers’ compensation insurance premiums it paid on those wages upon the Industrial Commission’s finding that a member of the subcontractor’s work crew killed while working on the highway project, was in fact an employee of the subcontractor, the contractor’s workers’ compensation insurance carrier was estopped to deny that it was liable for a portion of the workers’ compensation benefits due because of the employee’s death if it accepted premiums for workers’ compensation insurance on the deceased employee. Britt v. Colony Constr. Co., 35 N.C. App. 23, 240 S.E.2d 479, 1978 N.C. App. LEXIS 2857 (1978).

Remand for Further Findings. —

Where men working on lumbering jobs were injured it was contended that they were not in the employ of defendant but of independent subcontractors with whom the defendant had written agreements. The Commission found that the purported subcontractors were on the defendant’s payroll (one as a superintendent) and that the injured men ate at a camp bearing defendant’s name and received their pay by check direct from defendant; accordingly that the men were employees of, and entitled to compensation from, defendants. The Supreme Court remanded the cause for more specific findings of fact as to the making and performance of the alleged contract with “subcontractors” and as to the relationship of the parties, and for a separate finding of law as to who was the employer of claimants. Farmer v. Bemis Lumber Co., 217 N.C. 158, 7 S.E.2d 376, 1940 N.C. LEXIS 195 (1940); Cook v. Bemis Lumber Co., 217 N.C. 161, 7 S.E.2d 378, 1940 N.C. LEXIS 196 (1940).

While the evidence in a workers’ compensation proceeding would have supported the Industrial Commission’s conclusion that defendant insurer was estopped to deny that a pulpwood cutter was acting as an employee of the two defendant woodyards at the time of his death by accident while cutting pulpwood, the Commission’s findings of fact were insufficient to support such conclusion, and the proceeding was therefore remanded for further findings of fact and conclusions of law based on the record. Allred v. Piedmont Woodyards, Inc., 32 N.C. App. 516, 232 S.E.2d 879, 1977 N.C. App. LEXIS 1986 (1977).

G.Employees Lent by Employer

Special Employer Relationship. —

There was an issue of fact regarding whether a decedent, who was actually employed by a company other than the alleged special employer against whom suit was brought, amounted to a “special employee” subject to the exclusivity provision in G.S. 97-10.1. The employer and the special employer entered into a contract stating that employees assigned to the special employer were not employees of the special employer but were employees of the employer itself, and the special employer agreed contractually that the employer itself would control and direct the decedent’s work. Taft v. Brinley's Grading Servs., 225 N.C. App. 502, 738 S.E.2d 741, 2013 N.C. App. LEXIS 125 (2013).

Test of Employment. —

Because of the statutory requirement that the employment be under an “appointment or contract of hire,” the first question which must be answered in determining whether a lent employee has entered into an employment relationship with a special employer for purposes of this Act is: Did he make a contract of hire with the special employer? If this question cannot be answered “yes,” the investigation is closed, and this must necessarily be so, since the employee loses certain rights along with those he gains when he strikes up a new employment relation. Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, 1974 N.C. App. LEXIS 1841, cert. denied, 285 N.C. 589, 206 S.E.2d 862, 1974 N.C. LEXIS 1020 (1974).

The test for determining the liability of special employers in loaned employee cases is stated as follows: When a general employer lends an employee to a special employer, the special employer becomes liable for workers’ compensation only if (a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has a right to control the details of the work. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workers’ compensation. Henderson v. Manpower of Guilford County, Inc., 70 N.C. App. 408, 319 S.E.2d 690 (1984). In accord with second paragraph in the main volume. See Anderson v. Texas Gulf, Inc., 83 N.C. App. 634, 351 S.E.2d 109, 1986 N.C. App. LEXIS 2754 (1986).

The three-prong “special employer” test as set out in Collins v. Edwards, 21 N.C. App. 455, 204 S.E.2d 873 (1974), is used to determine whether an employee may be deemed to have joint employers for purposes of the Worker’s Compensation Act. Anderson v. Demolition Dynamics, Inc., 136 N.C. App. 603, 525 S.E.2d 471, 2000 N.C. App. LEXIS 105 (2000).

Employee showed the employee was employed by two employers because the employee established an implied contract between the employee and employer one, which controlled the employee’s work that was that of this employer’s, and that employer one paid employer two for the employee’s work, as employer one hired the employee, the employee traveled to that employer’s office to apply for work, that employer’s accounting manager said the employee would work for that employer, a preprinted application listed that employer as the prospective employer, that employer trained and supervised the employee, and that employer controlled where the employee worked, while the employee’s tax form, pay statements, employment verification form, and payroll authorization for automatic deposit listed employer two as the employer. McGuine v. Nat'l Copier Logistics, LLC, 270 N.C. App. 694, 841 S.E.2d 333, 2020 N.C. App. LEXIS 246 (2020).

No Lent Employment Shown. —

Industrial Commission did not err in finding that the claimant was not an employee of the company at the time of her injury under the lent employment doctrine; there was no express contract of hire between the claimant and the company, and the agreement between the company and the business stated that all personnel would be considered employees of the business, the claimant was hired, paid, and supervised by the business, and the claimant failed to show that the company exercised control over the business’s employees. Whicker v. Compass Group USA, Inc., 246 N.C. App. 791, 784 S.E.2d 564, 2016 N.C. App. LEXIS 352 (2016).

Presumption Regarding Continuance of General Employment. —

In lent employee cases, the only presumption is the continuance of the general employment, which is taken for granted as the beginning point of any lent-employee problem. To overcome this presumption, it is not unreasonable to insist upon a clear demonstration that a new temporary employer has been substituted for the old. Failing this, the general employer should remain liable. Anderson v. Texas Gulf, Inc., 83 N.C. App. 634, 351 S.E.2d 109, 1986 N.C. App. LEXIS 2754 (1986).

Consent to New Employment Relationship Not Shown. —

Where there was no evidence nor any contention that a truck driver employed by a firm and a special contractor using the firm’s trucks ever expressly consented to enter into any employment relationship with each other, and certainly there was no express “appointment or contract of hire” entered into between them, the facts did not show such acceptance by the driver of control and direction by the contractor’s employees over his activities as a truck driver for the original employer as to warrant the conclusion that he impliedly consented to enter into a new and special employment relationship with the contractor. Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, 1974 N.C. App. LEXIS 1841, cert. denied, 285 N.C. 589, 206 S.E.2d 862, 1974 N.C. LEXIS 1020 (1974).

“Contract for Employment” Prong of the Special Employer Test. —

Although decedent, after being contacted by the second company, sought permission from the owner of the first company to work at the site of the second company and allegedly “accepted that assignment” by coming to the site, these actions standing alone did not conclusively satisfy the “contract for employment” prong of the special employer test necessary for proving an employer-employee relationship. Anderson v. Demolition Dynamics, Inc., 136 N.C. App. 603, 525 S.E.2d 471, 2000 N.C. App. LEXIS 105 (2000).

Lessee of Truck Held Liable for Compensation for Death of Driver. —

Deceased was employed by X to drive a truck owned by X, but leased to other haulers and under their control. While in the course of hauling goods for one of the lessees, deceased met his death. The lease contract had provided that X provide compensation insurance. The court, in holding the lessee liable, found that such a contract could not be binding upon the employee as he was not a party to it. Whether the lessee could recover from X the amount the lessee was required to pay was not answered by the court. Roth v. McCord, 232 N.C. 678, 62 S.E.2d 64, 1950 N.C. LEXIS 619 (1950).

H.Apprentices

CETA Employee. —

Participant in the federally funded Comprehensive Employment and Training Act (CETA) qualified as an “apprentice” under this section. Sutton v. Ward, 92 N.C. App. 215, 374 S.E.2d 277, 1988 N.C. App. LEXIS 1018 (1988).

As a matter of law, the participants in a laboratory assistantship program were acting as “apprentices” undergoing on-the-job training and hence would be considered employees subject to the provisions of workers’ compensation. Wright v. Wilson Mem. Hosp., 30 N.C. App. 91, 226 S.E.2d 225, 1976 N.C. App. LEXIS 2153, cert. denied, 290 N.C. 668, 228 S.E.2d 459, 1976 N.C. LEXIS 1172 (1976).

While plaintiff may have been a student at a technical institute, when he entered the hospital to perform respiratory therapy, his status changed to apprentice, making him subject to the Workers’ Compensation Act. Ryles v. Durham Co. Hosp. Corp., 107 N.C. App. 455, 420 S.E.2d 487, 1992 N.C. App. LEXIS 728 (1992).

I.Agriculture

The line of demarcation between agricultural and nonagricultural employment often becomes extremely attenuated, and the question in marginal factual situations must frequently turn upon whether the employment is a separable, commercial enterprise rather than a purely agricultural undertaking. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

Departure from Agriculture. —

When a farmer departs from his agricultural pursuits and clearly enters into a service business or another business remote from the direct production of agricultural products, his services cease to be “agriculture” within the meaning of subdivision (1) of this section. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

The commercial processing of agricultural commodities for seed is not an agricultural activity. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, 1986 N.C. App. LEXIS 2325 (1986).

Plaintiff, who was employed to process oats, soybeans and barley through the gin process, and to do other work incidental to the ginning operation, was not a farm laborer under G.S. 97-13(b), and the fact that plaintiff was operating a tractor in a field in which crops were eventually to be planted when he was injured, during a one-time excursion out of the ginning process and into an activity more akin to farming or agricultural labor, did not interrupt his compensation coverage. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, 1986 N.C. App. LEXIS 2325 (1986).

Employees Held Not to Be Farm Laborers. —

Where employee cleaned, graded, packaged and delivered eggs, kept records and collected for eggs delivered, her duties were sufficiently removed from the normal process of agriculture to prevent her exclusion from coverage as a “farm laborer.” Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

When employers formed a business association with a registered trade name and sought to increase the profits of the business by selling and delivering eggs over stated routes to stores, institutions and individuals, thus subjecting their employees to the daily hazards of operating a motor vehicle upon the highways to places far removed from the farm, employers’ business ceased to be agriculture and became part and parcel of the activities of the marketplace. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

J.Sawmills and Logging

For case involving injury to brakeman on a train used exclusively for moving timber from defendant’s land to its mill, which was treated by the court as one for negligence and in which the Workers’ Compensation Act was not mentioned, see Bateman v. Brooks, 204 N.C. 176, 167 S.E. 627, 1933 N.C. LEXIS 354 (1933).

K.National Guard

Injury During Initial Training. —

Plaintiff was an employee of the State when he was injured at federal mandatory initial training, required before serving as a member of the National Guard by 10 U.S.C. § 511(d) (which did not exist when the second sentence of this subsection was written), and accordingly was entitled to compensation under the Worker’s Compensation Act because his injury arose out of and in the course of his employment with the National Guard. Britt v. North Carolina Dep't of Crime Control & Pub. Safety, 108 N.C. App. 777, 425 S.E.2d 11, 1993 N.C. App. LEXIS 178 (1993).

Weekend Drill. —

Plaintiff, injured while performing his duties as a member of the National Guard on a routine weekend drill, was entitled to worker’s compensation for injuries. Duncan v. North Carolina Dep't of Crime Control & Pub. Safety, 113 N.C. App. 184, 437 S.E.2d 654, 1993 N.C. App. LEXIS 1320 (1993).

Employment Found. —

Plaintiff was a private in the National Guard. He was paid 50¢ per drill by the State and $1.00 per week by the federal government. Although his services were voluntary, he was required to sign an enlistment contract which subjected him to the direction and control of the State. It was held that claimant was an employee. Baker v. State, 200 N.C. 232, 156 S.E. 917, 1931 N.C. LEXIS 288 (1931) (decided prior to the 1943 amendment adding the second sentence of subdivision (2)) .

L.Executives

Where a corporate employer with less than the minimum number of employees procures a policy of compensation insurance, such employer is presumed to have accepted the provisions of the Act, and such policy covers its executive officers notwithstanding the premium on the policy is based on the compensation of a single nonexecutive employee and the parties intended to cover him only, unless notice of nonacceptance by the executive officers is duly filed with the Industrial Commission. Laughridge v. South Mt. Pulpwood Co., 266 N.C. 769, 147 S.E.2d 213, 1966 N.C. LEXIS 1443 (1966).

Prior Law. —

For cases involving executives, decided before the passage of Session Laws 1955, c. 1055, making executives employees, see Hodges v. Home Mtg. Co., 201 N.C. 701, 161 S.E. 220, 1931 N.C. LEXIS 74 (1931); Hunter v. Hunter Auto Co., 204 N.C. 723, 169 S.E. 648, 1933 N.C. LEXIS 250 (1933); Jones v. Planters' Nat'l Bank & Trust Co., 206 N.C. 214, 173 S.E. 595, 1934 N.C. LEXIS 146 (1934); Nissen v. City of Winston-Salem, 206 N.C. 888, 175 S.E. 310, 1934 N.C. LEXIS 337 (1934); Rowe v. Rowe-Coward Co., 208 N.C. 484, 181 S.E. 254, 1935 N.C. LEXIS 57 (1935); Gassaway v. Gassaway & Owens, Inc., 220 N.C. 694, 18 S.E.2d 120, 1942 N.C. LEXIS 532 (1942); Pearson v. Newt Pearson, Inc., 222 N.C. 69, 21 S.E.2d 879, 1942 N.C. LEXIS 24 (1942).

M.Workers on Relief

Person Recovering Federal Relief Held Not an Employee. —

A person furnished work for the relief of himself and his family and paid with funds provided by the Federal Relief Administration is not an “employee” of the relief administrative agencies within the meaning of this section. Jackson v. North Carolina Emergency Relief Admin., 206 N.C. 274, 173 S.E. 580, 1934 N.C. LEXIS 163 (1934). See also Barnhardt v. City of Concord, 213 N.C. 364, 196 S.E. 310, 1938 N.C. LEXIS 88 (1938).

But a different result was reached when the injured party was employed by the superintendent of the water and light department of defendant town and paid from funds loaned defendant by the Reconstruction Finance Corporation. Mayze v. Town of Forest City, 207 N.C. 168, 176 S.E. 270, 1934 N.C. LEXIS 414 (1934).

III.Average Weekly Wages
A.In General

The intent of the Act is to base compensation upon the normal income which the employee derived from his employment. Lovette v. Reliable Mfg. Co., 262 N.C. 288, 136 S.E.2d 685, 1964 N.C. LEXIS 638 (1964).

It seems reasonable that the legislature, having placed the economic loss caused by a worker’s injury upon the employer for whom he was working at the time of the injury, would also relate the amount of that loss to the average weekly wages which that employer was paying the employee. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237, 1971 N.C. App. LEXIS 1515 (1971).

Requirements Under This Section. —

There is no requirement of actual disablement in the asbestosis statutes, but the Commission must make findings sufficient to support its award of plaintiff’s average weekly wage. Clark v. ITT Grinnell Indus. Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369, 2000 N.C. App. LEXIS 1416 (2000).

Results Must Be Fair and Just to Both Parties. —

The dominant intent of subdivision (5) of this section is that results fair and just to both employer and employee be obtained. Joyner v. A.J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447, 1966 N.C. LEXIS 1377 (1966).

The Commission’s calculation of plaintiff’s average weekly wage was upheld where the Commission rejected the method used by the Moore court as unfair to the parties, relied upon plaintiff’s earnings during his last year of employment, instead, and supported its decision based on the language of G.S. 97-2. Austin v. Continental General Tire, 141 N.C. App. 397, 540 S.E.2d 824, 2000 N.C. App. LEXIS 1415 (2000), rev'd, 354 N.C. 344, 553 S.E.2d 680, 2001 N.C. LEXIS 1091 (2001).

Industrial Commission erred in calculating an employee’s average weekly wage for her temporary total disability benefits because particular method used (Method 3) squarely conflicted with the statute’s unambiguous command to use a methodology that would most nearly approximate the amount which the injured employee would be earning were it not for the injury and was not A. In General. to the employee where it only took into account the part-time work the employee completed at a lower hourly rate, ignored the uncontested fact that she worked, post-injury, at a higher hourly wage and frequency, and would effectively treat the employee as if she had never worked increased hours at a higher rate of pay. Ball v. Bayada Home Health Care, 255 N.C. App. 1, 803 S.E.2d 692, 2017 N.C. App. LEXIS 664 (2017).

Earnings and Not Earning Capacity Are Basis for Award. —

Under subdivision (5) of this section, “average weekly wages” of the employee “in the employment in which he was working at the time of the injury” are based on his earnings rather than his earning capacity. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790, 1956 N.C. LEXIS 489 (1956).

Compensation Is Based on “Average Weekly Wages”. —

Under the Workers’ Compensation Act, compensation for the injury or death of an employee is based on his average weekly wages. Lovette v. Reliable Mfg. Co., 262 N.C. 288, 136 S.E.2d 685, 1964 N.C. LEXIS 638 (1964).

Without Regard for Artificial Maximum on Income Imposed on Social Security Recipient. —

To compute the plaintiff ’s average weekly wage from a consideration of the fact that he had an artificial maximum of $1680.00 placed on his earnings because he was retired and drawing social security benefits would not only produce results unfair to the employee but would ignore the well-established principle that an injured employee’s average weekly wage must be computed from his actual earnings in the employment in which he is injured rather than his earning capacity. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237, 1971 N.C. App. LEXIS 1515 (1971).

The determination of the plaintiff’s ‘average weekly wages’ requires application of G.S. 97-2(5) and case law and thus raises an issue of law; thus, any mistake made by either of the parties is not a basis for setting the agreement aside. Swain v. C & N Evans Trucking Co., 126 N.C. App. 332, 484 S.E.2d 845, 1997 N.C. App. LEXIS 355 (1997).

Subdivision (5) provides five possible methods of determining average weekly wages (the first three methods as specified in the first, second and third sentences of the first paragraph, respectively; the fourth method as specified in the second paragraph; and the fifth method, that specified for disabling injury to volunteer firemen). Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479, 1966 N.C. LEXIS 1364 (1966) (decided under subdivision (5) as it read in 1966).

And establishes a clear order of preference. When the first method of compensation can be used, it must be used. Hensley v. Caswell Action Comm., Inc., 296 N.C. 527, 251 S.E.2d 399, 1979 N.C. LEXIS 1193 (1979).

“Results fair and just,” within the meaning of the proviso to the second sentence of subdivision (5), consist of such “average weekly wages” as will most nearly approximate the amount which the injured employee would be earning were it not for the injury, in the employment in which he was working at the time of his injury. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790, 1956 N.C. LEXIS 489 (1956); Joyner v. A.J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447, 1966 N.C. LEXIS 1377 (1966); Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237, 1971 N.C. App. LEXIS 1515 (1971).

It is true that all provisions of subdivision (5) must be considered in order to ascertain the legislative intent; and the dominant intent is that results fair and just to both parties be obtained. Ordinarily, whether such results will be obtained by the second method is a question of fact, and in such case a finding of fact by the Commission controls decision. However, this does not apply if the finding of fact is not supported by competent evidence or is predicated on an erroneous construction of the statute. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790, 1956 N.C. LEXIS 489 (1956).

When Special Method of Computation Employed. —

When, in determining the amount to be awarded the dependents of a deceased employee, the methods of computing the “average weekly wage” enumerated in the first paragraph of subdivision (5) of this section would be unfair because of exceptional circumstances, the Industrial Commission is authorized by the second paragraph of said subdivision to use such other method of computation as would most nearly approximate the amount which the employee would be earning if living; the provisions of the second paragraph apply to all three of the methods of computation enumerated in the first paragraph, and such other method of computation may be invoked for exceptional reasons even though the employee had been constantly employed by the employer for 52 weeks prior to the time of the injury causing death. Early v. Basnight & Co., 214 N.C. 103, 198 S.E. 577, 1938 N.C. LEXIS 274 (1938). See also Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790, 1956 N.C. LEXIS 489 (1956); Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479, 1966 N.C. LEXIS 1364 (1966).

The words “the foregoing” in the second paragraph of subdivision (5) clearly refer to the preceding paragraph. Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569, 1968 N.C. LEXIS 670 (1968).

Limitation on Use of Fourth Method of Computing Average Weekly Wage. —

The fourth prescribed method of computing the employee’s average weekly wage may not be used unless there has been a finding that use of the second method would produce results unfair and unjust to either the employee or employer. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237, 1971 N.C. App. LEXIS 1515 (1971).

Unusually severe or totally disabling injuries are not the exceptional reasons contemplated by the fourth method of subdivision (5). Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479, 1966 N.C. LEXIS 1364 (1966).

“Exceptional Reasons.” —

“Exceptional reasons” method of calculating an injured employee’s average weekly wage, under G.S. 97-2(5), could only be utilized subsequent to a finding that the methods stated previously in the statute were either inapplicable, or were applicable but would fail to produce results fair and just to both parties. Conyers v. New Hanover County Sch., 188 N.C. App. 253, 654 S.E.2d 745, 2008 N.C. App. LEXIS 66 (2008).

Fourth Method Sets Standard. —

Fourth method of subdivision (5), while it prescribes no precise method for computing “average weekly wages,” sets up a standard to which results fair and just to both parties must be related. Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479, 1966 N.C. LEXIS 1364 (1966).

Average Weekly Wages Determined by Earnings in Employment in Which Injured. —

Average weekly wages must ordinarily be determined by the employee’s actual earnings in the employment in which he was injured during the 52 weeks, or such lesser period as he may have worked, immediately preceding his injury. Lovette v. Reliable Mfg. Co., 262 N.C. 288, 136 S.E.2d 685, 1964 N.C. LEXIS 638 (1964).

The intent of the legislature that average weekly wages determined by the fourth method be related to the employment in which the employee was injured is evidence by the fifth method, which relates only to a volunteer fireman injured “under compensable circumstances.” Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479, 1966 N.C. LEXIS 1364 (1966).

By computing the plaintiff ’s average weekly wage from his earnings from the employment in which he was injured, the employer’s liability is in direct proportion to his payroll and the insurance premiums based thereon. This is fair and just. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237, 1971 N.C. App. LEXIS 1515 (1971).

Average Weekly Wages Related to Earnings Not Earning Capacity. —

Nothing in the statute defining average weekly wages warranted a conclusion that plaintiff business owner was entitled to payment at the minimum rate of $30.00 per week based on a finding that his business failed to show a net profit for the fifty-two weeks preceding his injury. Under this section, average weekly wages must be related to an employee’s earnings, not to his earning capacity. McAnelly v. Wilson Pallet & Crate Co., 120 N.C. App. 127, 460 S.E.2d 894, 1995 N.C. App. LEXIS 693 (1995).

When evaluating a disability, an employee’s earning capacity must be measured by the employee’s own ability to compete in the labor market, and employee ownership of a business can support a finding of earning capacity only to the extent the employee is actively involved in the personal management of that business and only to the extent that those management skills are marketable in the labor market. McGee v. Estes Express Lines, 125 N.C. App. 298, 480 S.E.2d 416, 1997 N.C. App. LEXIS 80 (1997).

Most Accurate Reflection. —

The Industrial Commission correctly determined claimant’s earning capacity as an independent contractor under the fourth method listed in subsection (5) by averaging plaintiff’s net income for the years 1988 and 1989; this interpretation most accurately reflected claimant’s earning capacity. Holloway v. T.A. Mebane, Inc., 111 N.C. App. 194, 431 S.E.2d 882, 1993 N.C. App. LEXIS 725 (1993), overruled, McAninch v. Buncombe County Sch., 347 N.C. 126, 489 S.E.2d 375, 1997 N.C. LEXIS 598 (1997).

Explanation Required to Support Calculation. —

Where the North Carolina Industrial Commission’s average weekly wage determination pursuant to G.S. 97-2(5) for an injured employee was not supported by an explanation of how it calculated that amount, a remand for an explanation thereof was warranted. Erickson v. Siegler, 195 N.C. App. 513, 672 S.E.2d 772, 2009 N.C. App. LEXIS 213 (2009).

Trial court erred in determining a workers’ compensation claimant’s average weekly wage for G.S. 97-29 purposes based solely on G.S. 97-2(5) as it did not specify which of the five methods it used in calculating the claimant’s average weekly wage; Mauldin v. A.C. Corp., 217 N.C. App. 36, 719 S.E.2d 110, 2011 N.C. App. LEXIS 2336 (2011), rev'd in part, 366 N.C. 140, 727 S.E.2d 874, 2012 N.C. LEXIS 415 (2012).

Issue of whether the Industrial Commission selected the correct method for determining the employee’s average weekly wages was a question of law subject to de novo review and the issue of whether a particular method for making that determination produced results that were fair and just was a question of fact subject to the any competent evidence standard of review in the absence of a showing that the Commission’s determination lacked sufficient evidentiary support or rested upon a misapplication of the relevant legal principle; on remand, the Commission had to enter a new opinion and award containing appropriate findings of fact and conclusions of law. Nay v. Cornerstone Staffing Sols., 2022-NCSC-8, 867 S.E.2d 646, 2022- NCSC-8, 2022 N.C. LEXIS 121 (2022).

Calculation of Average Weekly Wages. —

North Carolina Industrial Commission erred in figuring that a decedent had average weekly wages of $807 based on his 1987 wages and in concluding that the maximum compensation rate of $308 for 1987 applied because although the proper year for determining his average weekly wages was 1987, G.S. 97-29 did not provide an unjust result but required that the maximum compensation rate for 2006 be used, as that was the year of the decedent’s diagnosis; the North Carolina Industrial Commission made the correct determination that to have a just and fair result it had to resort to using a decedent’s average weekly wages from his last year of employment with the employer, but the Commission erred in failing to explain why the first method of G.S. 97-2(5) would produce unjust results. Johnson v. Covil Corp., 212 N.C. App. 407, 711 S.E.2d 500, 2011 N.C. App. LEXIS 1047 (2011).

Court of Appeals of North Carolina holds that in calculating average weekly wages for employees in temporary positions, the North Carolina Industrial Commission must consider the number of weeks the employee would have been employed in that temporary position relative to a 52-week time period. Tedder v. A&K Enters., 238 N.C. App. 169, 767 S.E.2d 98, 2014 N.C. App. LEXIS 1280 (2014).

North Carolina Industrial Commission’s calculation of an employee’s average weekly wage was reversed where he had worked for no more than seven weeks when his temporary job would have ended, and the calculated value vastly overstated his actual average earnings and resulted in a financial windfall to the employee. Tedder v. A&K Enters., 238 N.C. App. 169, 767 S.E.2d 98, 2014 N.C. App. LEXIS 1280 (2014).

Industrial Commission did not err in calculating an employee’s average weekly wage based upon the employee’s earnings in the year immediately preceding his diagnosis of mesothelioma. Penegar v. UPS, 259 N.C. App. 308, 815 S.E.2d 391, 2018 N.C. App. LEXIS 435 (2018).

Deduction of Expenses. —

When an employee is paid a set price for doing a particular job, it is proper to deduct the expenses incurred in producing that revenue in calculating the average weekly wages; however, the Industrial Commission is not required to deduct the expenses if this method does not produce a fair result to the employer and employee. Craft v. Bill Clark Constr. Co., 123 N.C. App. 777, 474 S.E.2d 808, 1996 N.C. App. LEXIS 943 (1996).

When the North Carolina Industrial Commission (Commission) concluded an employee’s per diem payments were not made in lieu of wages but were reimbursement for his business-related living expenses, for purposes of calculating the employee’s average weekly wage, that conclusion had to be affirmed because (1) this was a question of fact, (2) evidentiary findings supporting the conclusion were not specifically challenged, barring de novo review of the Commission’s decision, (3) the factual findings fully supported the conclusion, and (4) prior precedent on essentially the same issue had to be followed. Myres v. Strom Aviation, Inc., 255 N.C. App. 309, 804 S.E.2d 785, 2017 N.C. App. LEXIS 731 (2017).

Equally Lucrative Work. —

Industrial Commission’s findings of fact established, among other things, that any limitations because of a superior labral tear were likely not caused by plaintiff’s work-related injury; the Commission properly concluded, based on the evidence presented, that plaintiff did not prove that his inability to find equally lucrative work was because of his work-related injury. Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 760 S.E.2d 732, 2014 N.C. LEXIS 404 (2014).

Combining Wages from Other Employment Is Not Permitted. —

When an employee who holds two separate jobs is injured in one of them, his compensation is based only upon his average weekly wages earned in the employment producing the injury. Joyner v. A.J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447, 1966 N.C. LEXIS 1377 (1966).

It would be unfair to the employer and his insurance carrier to compute the average weekly wage of an injured employee by combining his earnings from the employment where he was injured with his earnings from other employment, and thus burden the employer and his insurance carrier with a liability out of proportion to the employer’s payroll and the insurance premium computed thereon. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237, 1971 N.C. App. LEXIS 1515 (1971).

Average Weekly Wages. —

It is clear from its wording and the prior holdings of the North Carolina Supreme Court that this section establishes an order of preference for the calculation method to be used, and that the primary method is to calculate the total wages of the employee for the fifty-two weeks of the year prior to the date of injury and to divide that sum by fifty-two. McAninch v. Buncombe County Sch., 347 N.C. 126, 489 S.E.2d 375, 1997 N.C. LEXIS 598 (1997).

The definition of average weekly wages and the range of alternatives set forth in the five methods of computing such wages, as specified in subsection (5), do not allow the inclusion of wages or income earned in employment or work other than that in which the employee was injured. McAninch v. Buncombe County Sch., 347 N.C. 126, 489 S.E.2d 375, 1997 N.C. LEXIS 598 (1997).

Employer’s Contributions to 401(K) and Pension Plans Not Included. —

For purposes of a workers’ compensation claim, an employee was not entitled under G.S. 97-2(5) to include his employer’s contributions to his 401(k) and pensions plans in a calculation of his average weekly earnings as the statute did not define earnings and the contributions constituted fringe benefits, which the statute did not specifically include. Shaw v. U.S. Airways, Inc., 362 N.C. 457, 665 S.E.2d 449, 2008 N.C. LEXIS 684 (2008).

Unless Employments Are Related. —

The wage basis of an employee injured in one of two related employments in which he is concurrently employed should include his earnings from both employments. Most concurrent employment controversies therefore resolve themselves into the question of what employments are sufficiently related to come within the rule. Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479, 1966 N.C. LEXIS 1364 (1966).

Fifth Method Is Only Exception to Exclusion of Other Earnings. —

Except for the fifth method of subdivision (5), no wage-computation provision of the Workers’ Compensation Act allows a consideration of any earnings except those earned in the employment in which the employee was injured. Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479, 1966 N.C. LEXIS 1364 (1966).

Misapplication of Method Five. —

North Carolina Industrial Commission properly used method five under G.S. 97-2(5) to calculate an employee’s average weekly wage, but it misapplied the method because it included wages from other employers in computing the employee’s average weekly wage; the Commission approximated the employee’s average weekly wage by dividing his earnings from all his stunt work over the preceding year by 52 weeks, and the Commission erred in considering income earned in jobs other than the six-week contract of employment the employee had with his employer. Barrett v. All Payment Servs., Inc., 201 N.C. App. 522, 686 S.E.2d 920, 2009 N.C. App. LEXIS 2333 (2009), writ denied, 363 N.C. 853, 693 S.E.2d 915, 2010 N.C. LEXIS 260 (2010).

Compensation of Volunteer Fireman. —

Subdivision (5) of this section employs the term “principally” to distinguish a fireman’s volunteer employment from his other, remunerative employment or employments, i.e., “the employment wherein he principally earned his livelihood.” The statute insures that the injured volunteer fireman receives compensation commensurate with his proven earning ability, as demonstrated by the wages he receives for work done other than in his capacity as a volunteer fireman. Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814, 1986 N.C. LEXIS 2585 (1986).

The dictum in Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966), which suggests that subdivision (5) of this section does not permit a combination of a volunteer fireman’s outside wages, is overruled. Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814, 1986 N.C. LEXIS 2585 (1986).

Where volunteer fireman, at the time he was injured, was earning $74.41 working part-time for one employer and $87.40 per week working part-time for another employer, the Commission should have considered his wages in both part-time employments to compute his average weekly wage. Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814, 1986 N.C. LEXIS 2585 (1986).

Part-Time Employees. —

Appellate court reversed the North Carolina Industrial Commission’s award of workers’ compensation benefits in the amount of $129 per week to the widow of a part-time employee who died due to a work-related accident because the Commission had not identified the method it used to calculate the employee’s average weekly wage; on remand, the Commission could use the fifth method allowed by G.S. 97-2(5) for calculating the employee’s average weekly wage if it found that the second method allowed by G.S. 97-2(5) was unfair because of the employee’s part-time status. Boney v. Winn Dixie, Inc., 163 N.C. App. 330, 593 S.E.2d 93, 2004 N.C. App. LEXIS 371 (2004).

A part-time job cannot be converted into a full-time job for the purpose of compensation. Joyner v. A.J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447, 1966 N.C. LEXIS 1377 (1966).

Nor may an intermittent part-time job be treated as a continuous one for the purpose of compensation. Joyner v. A.J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447, 1966 N.C. LEXIS 1377 (1966).

Basis for Compensation for Death of Minor. —

Under subdivision (5) of this section, compensation for the death of a minor employee must be based on the average weekly wage of adults employed in a similar class of work by the same employer to which decedent would probably have been promoted had he not been killed, if such method can be used, and it is only when such method cannot be used that compensation may be based upon a wage sufficient to yield the maximum weekly compensation benefit. Hensley v. Caswell Action Comm., Inc., 296 N.C. 527, 251 S.E.2d 399, 1979 N.C. LEXIS 1193 (1979).

Future Earnings Used To Calculate Wage of Professional Football Player. —

The North Carolina Industrial Commission was justified in using a different method of computing the average weekly wage of a professional football player by using the future earnings covered by his contract as the basis for calculating his average weekly wage, because such method most accurately approximated the amount which the player would have been earning if it were not for the injury he sustained, and the nature of the NFL players’ contract created exceptional reasons as to why it was not unfair to either party to use the future earnings covered by the player’s contract as a basis for calculating his average weekly wage. Renfro v. Richardson Sports, Ltd. Partners, 172 N.C. App. 176, 616 S.E.2d 317, 2005 N.C. App. LEXIS 1435 (2005).

Employer’s Report of Accident as Evidence of Average Wage. —

While the employer’s report of an accident to the Industrial Commission does not constitute a claim for compensation, a statement therein as to the employee’s average weekly wage is competent upon the hearing after the filing of claim. Harris v. Asheville Contracting Co., 240 N.C. 715, 83 S.E.2d 802, 1954 N.C. LEXIS 507 (1954).

Plaintiff cannot aggregate or combine his or her wages from more than one employment in calculating his or her compensation rate, and thus, for purposes of computing compensation rate where a plaintiff worked two separate jobs at the time of injury, his or her average weekly wages are determined only from the earnings of the employment in which he or she was injured. Tunell v. Res. MFG/Prologistix, 222 N.C. App. 271, 731 S.E.2d 844, 2012 N.C. App. LEXIS 934 (2012).

Since North Carolina statutes and case law do not allow aggregation of wages from concurrent employment in calculating a plaintiff’s average weekly wages pursuant to G.S. 97-2(5), by extension, an employer cannot deduct wages earned from concurrent employment in calculating the employer’s obligation to pay partial disability compensation pursuant to G.S. 97-30; however, that this holding may not apply in situations where the post-injury employment is found to have been enlarged or used as a substitute for the loss of earnings in the injury producing employment. Tunell v. Res. MFG/Prologistix, 222 N.C. App. 271, 731 S.E.2d 844, 2012 N.C. App. LEXIS 934 (2012).

Aggregation Of Wages Not Allowed. —

North Carolina Industrial Commission erred by subtracting an employee’s post-injury earnings from a second employer in calculating a first employer’s obligation to pay temporary partial disability compensation because the employee’s earnings from the second employer were not included in his average weekly wages before his injury; because North Carolina law does not allow aggregation of wages from concurrent employment in calculating a plaintiff’s average weekly wages, by extension, an employer cannot deduct wages earned from a concurrent employer in calculating partial disability compensation. Tunell v. Res. MFG/Prologistix, 222 N.C. App. 271, 731 S.E.2d 844, 2012 N.C. App. LEXIS 934 (2012).

Conclusive Effect of Commission’s Method of Computing Average Wage. —

The Commission’s method of computing the average wage is conclusive if there are any facts to support the Commission’s findings. Munford v. West Constr. Co., 203 N.C. 247, 165 S.E. 696, 1932 N.C. LEXIS 367 (1932).

Ordinarily, whether the results reached in computing the claimant’s average weekly wage will be fair and just to both parties is a question of fact, and in such case a finding of fact by the Commission controls the decision. Hendricks v. Hill Realty Group, Inc., 131 N.C. App. 859, 509 S.E.2d 801, 1998 N.C. App. LEXIS 1558 (1998).

Scope of Review When Commission Finds Results of Computation “Fair and Just”. —

Where the North Carolina Industrial Commission made a finding that its use of the second method of computing the employee’s average weekly wage produced results that were “fair and just to both sides,” review was narrowed to a determination of whether the Commission’s finding and conclusion in this regard was supported by the evidence. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237, 1971 N.C. App. LEXIS 1515 (1971).

Fair Labor Standards Act Inapplicable to Awards. —

The Fair Labor Standards Act, 29 U.S.C. § 201 et seq., is not applicable to awards made pursuant to the North Carolina Workers’ Compensation Act. Lovette v. Reliable Mfg. Co., 262 N.C. 288, 136 S.E.2d 685, 1964 N.C. LEXIS 638 (1964).

Unreasonable Amount of Time to Seek Verification of Calculation Of Average Weekly Wages. —

Employee waited an unreasonable amount of time to seek verification of the calculation of her average weekly wage, as a matter of law, because it was over three and one half years after the benefits had been tendered and accepted and the Form 21 agreement had been approved; a party to a Form 21 agreement which contains a verification provision but no provision regarding the time by which verification must be sought cannot assert a right to seek verification once a “reasonable time” has passed. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54, 2014 N.C. App. LEXIS 299 (2014).

Award Held Proper. —

Industrial commission did not err in awarding the claimant, as a temporary total disability benefit, his average weekly wage multiplied by the maximum percentage award he was entitled to under statutory law, for a two-month period rather than including the seven months that passed from his injury that occurred prior to the two-month period; the evidence did not show that claimant was disabled during that seven-month time period, and the claimant did not show that an alternate calculation should have been used to determine his average weekly wage used to determine the temporary total disability benefit award. France v. Murrow's Transfer, 163 N.C. App. 340, 593 S.E.2d 450, 2004 N.C. App. LEXIS 377 (2004).

North Carolina Industrial Commission’s findings, under G.S. 97-29, as to an injured city employee’s average weekly wage and compensation rate was supported by competent evidence based on the employee’s total yearly earnings, longevity bonus, and overtime adjustment for longevity, which were then divided by the number of weeks the employee worked in the year. Cox v. City of Winston-Salem, 171 N.C. App. 112, 613 S.E.2d 746, 2005 N.C. App. LEXIS 1161 (2005).

B.Illustrative Cases

Recently Promoted Salesman. —

The Industrial Commission found upon supporting evidence that the deceased employee had been employed by defendant employer for a number of years, that he had been promoted successively from truck driver to stock clerk to salesman with increased wages from time to time, and that he had been given a raise in the last position less than three months prior to the time of injury resulting in death, part of the supporting evidence being testimony by the employee’s superior that “with the business he was getting” he would have had further increases. It was held that the findings were sufficient in law to constitute “exceptional reasons” within the meaning of subdivision (5) of this section, and the employee’s “average weekly wage” was properly fixed at the amount he was earning weekly at the time of the injury, it being patent that the wages he was then receiving were not temporary and uncertain, but constituted a fair basis upon which to compute the award to his dependents. Early v. Basnight & Co., 214 N.C. 103, 198 S.E. 577, 1938 N.C. LEXIS 274 (1938).

Pay Increases Within the 52 Weeks. —

Plaintiff was employed practically continuously for 33 weeks prior to the injury resulting in death, but during that period his wages were twice increased. In the absence of a finding supported by evidence that the average weekly wage for the entire period of employment would be unfair, compensation should have been based thereon, and the computation of the average weekly wage on the basis of the wage during the period after the last increase in pay was not supported by the evidence. Mion v. Atlantic Marble & Tile Co., 217 N.C. 743, 9 S.E.2d 501, 1940 N.C. LEXIS 339 (1940).

Significant Increase in Commissions by Real Estate Agent. —

Exceptional reasons existed to support calculation of a real estate agent’s average weekly wage based on the 15 weeks of earnings prior to her death, where the agent made changes in the way that she performed her job, including purchase of a computer and increased hours worked per week, resulting in a significant increase in commissions earned over the previous year. Hendricks v. Hill Realty Group, Inc., 131 N.C. App. 859, 509 S.E.2d 801, 1998 N.C. App. LEXIS 1558 (1998).

Award Based on Total Compensation Customarily Earned. —

Claimant was employed as janitor, his compensation for such work being paid in part by the State School Commission, and was also employed in school maintenance work, his compensation for the maintenance work being paid exclusively by the municipal board of education. He was injured while engaged in duties pertaining exclusively to school maintenance work. It was held that an award computed on the basis of the total compensation customarily earned by claimant, rather than the compensation earned solely in school maintenance work, upon the Commission’s finding of exceptional conditions, was proper. Casey v. Board of Educ., 219 N.C. 739, 14 S.E.2d 853, 1941 N.C. LEXIS 134 (1941).

Similarly Situated Employee’s Average Weekly Wage. —

Under G.S. 97-2(5), the employee’s average weekly wage was determined by average weekly wage of a similar situated employee who had been employed for more than one year, because the employee’s employment prior to her injury extended over a period of less than 52 weeks. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448, 2005 N.C. App. LEXIS 1265 (2005).

Reduction in Wages After Sale of Plant. —

The plant in which claimant worked was sold. Before sale, claimant was a foreman. After sale, he continued to work in a lower classification and at a lower pay rate. The Supreme Court affirmed the action of the Commission in considering the wage earned as foreman in determining claimant’s average weekly wage when disablement occurred before claimant had worked 52 weeks at the lower rate. Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426, 1952 N.C. LEXIS 419 (1952).

Reduction as a Result of Bankruptcy. —

Where, as a result of the bankruptcy of first company decedent worked at, employee’s wages at second company were depressed, Industrial Commission erred by failing to consider evidence of employee’s wages at first company during the 52 weeks preceding his death. Johnson v. Barnhill Contracting Co., 121 N.C. App. 55, 464 S.E.2d 313, 1995 N.C. App. LEXIS 955 (1995).

Compensation Provided in Contract of Employment. —

Where the employer did not contend that plaintiff ’s employment was casual and offered no evidence as to the amount of wages earned by others engaged in similar employment in that community during the 52 weeks previous to plaintiff ’s injury, the employer could not object that the commission, in view of the fact that the employee had worked for the employer less than 40 hours at the time of his injury, fixed the employee’s average weekly wage in accordance with the compensation under the contract of employment at the time of the injury, there being evidence that the employee had theretofore earned wages in excess of this sum for appreciable periods in other employments of like nature. Harris v. Asheville Contracting Co., 240 N.C. 715, 83 S.E.2d 802, 1954 N.C. LEXIS 507 (1954).

College Student Employed Part-Time. —

It was improper for the Commission, in undertaking to apply the method of computing average weekly wages provided in the third sentence of subdivision (5), to determine the average weekly wages of a part-time employee to be the amount he would have earned had he been a full-time employee. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790, 1956 N.C. LEXIS 489 (1956).

In a proceeding for compensation for the death of a college student employed part-time during vacation and after school for a period of 11 weeks in which he worked from 17 1/2 to 51 hours a week, there was no factual basis for application of the method of determining average weekly wages provided in the third sentence of subdivision (5), where there was no evidence as to the average weekly amount being earned during the 52 weeks previous to decedent’s injury by a person of the same grade and character employed in the same class of employment, and no evidence as to the average weekly amount a part-time worker in the same employment had earned during the 52 weeks previous to decedent’s injury, while working for the particular employer or any other employer in the same locality or community. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790, 1956 N.C. LEXIS 489 (1956).

The average weekly wages of a college student working part-time for a period of 11 weeks in which he worked from 17 1/2 hours to 51 hours a week should have been computed by the method provided in the second sentence of subdivision (5) of this section, where the evidence did not warrant a finding of fact or conclusion of law that such method would not obtain results fair and just to both parties. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790, 1956 N.C. LEXIS 489 (1956).

Pulpwood Cutter. —

The Industrial Commission erred in determining a pulpwood cutter’s average weekly wage based on all of the proceeds of sales of pulpwood to two woodyards, where the evidence showed that the cutter was assisted in his work part of the time by his two sons and that they received part of the proceeds from the sales of pulpwood for their labor. Allred v. Piedmont Woodyards, Inc., 32 N.C. App. 516, 232 S.E.2d 879, 1977 N.C. App. LEXIS 1986 (1977).

As to calculation of compensation for the death of pulpwood cutter who was not paid a salary or wages, but received a certain amount for each cord of pulpwood delivered to employer, where decedent owned a truck and other equipment which he used in cutting and preparing the pulpwood, see Baldwin v. Piedmont Woodyards, Inc., 58 N.C. App. 602, 293 S.E.2d 814, 1982 N.C. App. LEXIS 2787 (1982).

Where contractor was held liable for the payment of compensation for the death of a subcontractor engaged in cutting and hauling timber, the Commission should have considered a reasonable rate of depreciation on the equipment of the subcontractor as a business expense in determining the subcontractor’s earnings, or alternatively, the Commission might have considered what the subcontractor would have been required to pay someone else to perform his work, or his income as reported on tax returns from earlier years showing his own income derived from similar work. Christian v. Riddle & Mendenhall Logging, 117 N.C. App. 261, 450 S.E.2d 510, 1994 N.C. App. LEXIS 1202 (1994).

Potentially Full-time Brick Mason. —

The full Commission correctly chose the second method listed in subdivision (5) of this section to calculate plaintiff brick mason’s average weekly wages, instead of the fifth method, since plaintiff, unlike a seasonal worker, could conceivably work every week, full-time for his employer; however, the Commission erred in computing plaintiff’s daily wage by dividing his total earnings by the number of days worked, then multiplying this “daily wage rate” by seven for an average weekly wage, where this section does not authorize such calculation and no evidence supported a finding that plaintiff worked seven days a week. Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 532 S.E.2d 583, 2000 N.C. App. LEXIS 803 (2000).

Distributive Education Student. —

The Industrial Commission erred in determining a deceased minor employee’s average weekly wage on the basis of 11 weeks during the summer when he worked full-time; the Commission should have averaged the 11 weeks of full-time with the 41 weeks of part-time employment contemplated in the minor employee’s distributive education job at the undisputed hourly wage rate of $2.65 in order to reach a result fair and just to both the employee and employer. Mabry v. Bowers Implement Co., 48 N.C. App. 139, 269 S.E.2d 165, 1980 N.C. App. LEXIS 3222 (1980).

School District Employees. —

When calculating the average weekly wage of an injured school district employee, who worked and was paid ten months of the year, for workers’ compensation purposes, pursuant to G.S. 97-2(5), the calculation method which divided the employee’s wages for the 52 weeks preceding the employee’s injury by 52 was not proper because the result was not fair and just; the employer was unduly burdened and the employee received a windfall, contrary to statutory intent, because such calculation caused the employee’s annual wages to be considered to be higher than those wages actually were, since the weekly amount arrived at was paid to the employee for all 52 weeks of the year, rather than the 40 weeks the employee had typically worked. Conyers v. New Hanover County Sch., 188 N.C. App. 253, 654 S.E.2d 745, 2008 N.C. App. LEXIS 66 (2008).

When calculating the average weekly wage of an injured school district employee, who worked and was paid ten months of the year, for workers’ compensation purposes, pursuant to G.S. 97-2(5), the calculation method which divided the employee’s wages for the 52 weeks preceding the employee’s injury by the number of weeks the employee actually worked during that period was fair and just because the result of that calculation most nearly approximated the amount the employee would have earned were it not for the employee’s injury. Conyers v. New Hanover County Sch., 188 N.C. App. 253, 654 S.E.2d 745, 2008 N.C. App. LEXIS 66 (2008).

When calculating the average weekly wage of an injured school district employee, who worked and was paid ten months of the year, for workers’ compensation purposes, pursuant to G.S. 97-2(5), the first calculation method provided in the statute could not be used because the employee worked for less than 52 weeks in the year preceding the employee’s injury. Conyers v. New Hanover County Sch., 188 N.C. App. 253, 654 S.E.2d 745, 2008 N.C. App. LEXIS 66 (2008).

Plaintiff farmer who was injured as a volunteer fireman should be compensated based on what he would have earned from his labor as a farmer had he not been injured. York v. Unionville Volunteer Fire Dep't, 58 N.C. App. 591, 293 S.E.2d 812, 1982 N.C. App. LEXIS 2785 (1982).

Trailer Truck Driver. —

Where trailer truck driver’s job was properly classified as “seasonal,” the Industrial Commission’s determination of plaintiff’s average weekly wage was not supported by the evidence and the matter, would be remanded for recalculation and entry of related findings. Barber v. Going West Transp., Inc., 134 N.C. App. 428, 517 S.E.2d 914, 1999 N.C. App. LEXIS 813 (1999).

Deductions from Farmer’s Gross Income in Calculating Income. —

Farm income of injured volunteer fireman who was a farmer could not be properly calculated without deducting from gross income interest on money which was borrowed to finance crop production, depreciation on equipment used to produce the crops, license fees for things used in crop production, and taxes on land used to produce crops. York v. Unionville Volunteer Fire Dep't, 58 N.C. App. 591, 293 S.E.2d 812, 1982 N.C. App. LEXIS 2785 (1982).

The Court upheld the Commission’s finding that a football player, who was injured in a pre-season game before being officially accepted as a player on the active roster, earned an average weekly wage of $1,653.85 based on a contract amount of $85,000 and a $1,000 signing bonus divided by 52 weeks. Larramore v. Richardson Sports, Ltd., 141 N.C. App. 250, 540 S.E.2d 768, 2000 N.C. App. LEXIS 1305 (2000), aff'd, 353 N.C. 520, 546 S.E.2d 87, 2001 N.C. LEXIS 533 (2001).

Manager-Trainee. —

Where the plaintiff-manager-trainee’s weekly wages were undisputed, the Commission was justified in calculating his wage using his actual wages and was not required to use the wage of a comparable employee. Sims v. Charmes, 142 N.C. App. 154, 542 S.E.2d 277, 2001 N.C. App. LEXIS 46 (2001).

Lodging in Lieu of Wages. —

The Commission’s finding that the value of plaintiff’s lodging was $100 per week, and that plaintiff received lodging in lieu of additional wages, was supported by substantial competent evidence. Shah v. Howard Johnson, 140 N.C. App. 58, 535 S.E.2d 577, 2000 N.C. App. LEXIS 1089 (2000).

Travel “Allowance” in Lieu of Wages. —

Award of workers’ compensation benefits by the Industrial Commission was upheld as the Commission’s finding that a per diem “allowance” paid to the employee was “in lieu of wages” under G.S. 97-2(5) was supported by evidence; the allowance was paid regardless of whether employee traveled and was spent at the employee’s complete discretion. Greene v. Conlon Constr. Co., 184 N.C. App. 364, 646 S.E.2d 652, 2007 N.C. App. LEXIS 1430 (2007).

Combining Earnings of Injured Claimant and Replacement Employee. —

The calculation of the claimant’s average weekly wage by combining his earnings during the year he was injured with the earnings of the person hired to replace him was fair to the employer and the claimant. Davis v. Taylor-Wilkes Helicopter Serv., 145 N.C. App. 1, 549 S.E.2d 580, 2001 N.C. App. LEXIS 562 (2001).

Calculation of Average Weekly Wages. —

Average wage compensation for an injured employee, who worked contract jobs for various employers, was appropriate because the North Carolina Industrial Commission did not err under G.S. 97-2(5) by calculating the employees wages earned in a 52 week period while in the employ of an employer, for whom the employee was working when injured, and then dividing that amount by 52 to obtain the average weekly wage for the employee’s employment with the employer. Thompson v. STS Holdings, Inc., 213 N.C. App. 26, 711 S.E.2d 827, 2011 N.C. App. LEXIS 1230 (2011).

North Carolina Industrial Commission erred in reforming a settlement agreement executed by an employer and an employee because it lacked the authority to change the employee’s average weekly wage; the alleged error in computing the employee’s average weekly wages on the parties’ agreement constituted an error of law, not of fact, because the Commission’s review, as well as the propriety of the method that had produced the error, required reference to, and construction of, statutory provisions. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54, 2014 N.C. App. LEXIS 299 (2014).

Widow of an employee diagnosed with lung cancer was entitled to death benefits based on the last year of work, when the employee retired many years before the diagnosis for unrelated medical reasons, because (1) the lung cancer was an occupational disease, (2) the four other statutory methods for calculating average weekly wages were considered, (3) the employee was exposed to asbestos while employed by the employer, (4) the employee retired from the employer for a reason unrelated to any work injury, (5) after retirement the employee was diagnosed with lung cancer caused by the asbestos exposure, and (6) the employee died as a result of the lung cancer. Lipe v. Starr Davis Co., 237 N.C. App. 124, 767 S.E.2d 539, 2014 N.C. App. LEXIS 1127 (2014).

North Carolina Industrial Commission properly determined the amount of a claimant’s average weekly wages and compensation rate, pursuant to the fifth method set forth in the statute, because the claimant was employed by a symphony orchestra as a musician for a fixed and definite time period of less than 52 weeks. Frank v. Charlotte Symphony, 255 N.C. App. 269, 804 S.E.2d 619, 2017 N.C. App. LEXIS 745 (2017).

North Carolina Industrial Commission properly determined the amount of a claimant’s average weekly wages and compensation rate, pursuant to the fifth method set forth in the statute, because the claimant was employed by a symphony orchestra as a musician for a fixed and definite time period of less than 52 weeks. Frank v. Charlotte Symphony, 255 N.C. App. 269, 804 S.E.2d 619, 2017 N.C. App. LEXIS 745 (2017).

Wages Improperly Calculated. —

Although an employee was entitled to temporary total disability benefits, pursuant to G.S. 97-29, the employee’s average weekly wage was improperly calculated because the Industrial Commission erroneously found the employee worked less than 52 weeks for the employer, and the Commission’s erroneous finding improperly triggered method three under G.S. 97-2(5). James v. Carolina Power & Light, 212 N.C. App. 441, 713 S.E.2d 50, 2011 N.C. App. LEXIS 1164 (2011).

Calculation of Average Weekly Wages in Conjunction with Diagnosis Year. —

North Carolina Industrial Commission correctly determined that decedent’s average weekly wages for 1987 were $807 based on G.S. 97-2(5), but the Commission erred by failing to apply the average weekly wages in conjunction with G.S. 97-38 because the Commission failed to apply the 66 percent aspect of the statute to the average weekly wages of $807; upon applying the 66 percent, the compensation became $538, and because $ 538 was below the maximum compensation rate of $730 for 2006, the year a decedent was diagnosed, the decedent’s dependent was entitled to the full amount of $538 for 400 weeks. Johnson v. Covil Corp., 212 N.C. App. 407, 711 S.E.2d 500, 2011 N.C. App. LEXIS 1047 (2011).

IV.Compensable Injuries, Generally

The threefold conditions antecedent to the right to compensation under the North Carolina Workers’ Compensation Act are: (1) That claimant suffered a personal injury by accident; (2) that such injury arose in the course of the employment; and (3) that such injury arose out of the employment. Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907, 1942 N.C. LEXIS 84 (1942); Taylor v. Town of Wake Forest, 228 N.C. 346, 45 S.E.2d 387, 1947 N.C. LEXIS 331 (1947); Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949); Matthews v. Carolina Std. Corp., 232 N.C. 229, 60 S.E.2d 93, 1950 N.C. LEXIS 509 (1950); Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265, 1951 N.C. LEXIS 604 (1951); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633, 1966 N.C. LEXIS 992 (1966); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7, 1971 N.C. App. LEXIS 1657 (1971); Loflin v. Loflin, 13 N.C. App. 574, 186 S.E.2d 660, 1972 N.C. App. LEXIS 2281, cert. denied, 281 N.C. 154, 187 S.E.2d 585, 1972 N.C. LEXIS 1022 (1972); Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977); King v. Exxon Co., 46 N.C. App. 750, 266 S.E.2d 37, 1980 N.C. App. LEXIS 2908 (1980); Hollar v. Montclair Furn. Co., 48 N.C. App. 489, 269 S.E.2d 667, 1980 N.C. App. LEXIS 3286 (1980).

In order for the death of an employee to be compensable it must result from an injury by an accident arising out of and in the course of the employment. Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844, 1936 N.C. LEXIS 360 (1936); McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, 1939 N.C. LEXIS 364 (1939); Ashley v. F-W Chevrolet Co., 222 N.C. 25, 21 S.E.2d 834, 1942 N.C. LEXIS 8 (1942); Gilmore v. Hoke County Bd. of Educ., 222 N.C. 358, 23 S.E.2d 292, 1942 N.C. LEXIS 101 (1942); Berry v. Colonial Furn. Co., 232 N.C. 303, 60 S.E.2d 97, 1950 N.C. LEXIS 510 (1950); Bell v. Dewey Bros., 236 N.C. 280, 72 S.E.2d 680, 1952 N.C. LEXIS 539 (1952); Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693, 1954 N.C. LEXIS 461 (1954); Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308, 1963 N.C. LEXIS 597 (1963); Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877, 1963 N.C. LEXIS 720 (1963); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963); Gamble v. Stutts, 262 N.C. 276, 136 S.E.2d 688, 1964 N.C. LEXIS 639 (1964); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633, 1966 N.C. LEXIS 992 (1966); Andrews v. County of Pitt, 269 N.C. 577, 153 S.E.2d 67, 1967 N.C. LEXIS 1111 (1967); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569, 1968 N.C. LEXIS 670 (1968); Calhoun v. Kimbrell's, Inc., 6 N.C. App. 386, 170 S.E.2d 177, 1969 N.C. App. LEXIS 1191 (1969); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Bartlett v. Duke Univ., 17 N.C. App. 598, 195 S.E.2d 371, 1973 N.C. App. LEXIS 1424, rev'd, 284 N.C. 230, 200 S.E.2d 193, 1973 N.C. LEXIS 823 (1973); Stewart v. North Carolina Dep't of Cors., 29 N.C. App. 735, 225 S.E.2d 336, 1976 N.C. App. LEXIS 2638 (1976); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39, 1976 N.C. App. LEXIS 2327 (1976), rev'd, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977); Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, 1980 N.C. LEXIS 1080 (1980).

Disability as Fourth Condition. —

An employee must establish a fourth essential element, that his injury caused him disability, unless it is included in the schedule of injuries made compensable by G.S. 97-31 without regard to loss of wage-earning power. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874, 1968 N.C. LEXIS 584 (1968); Loflin v. Loflin, 13 N.C. App. 574, 186 S.E.2d 660, 1972 N.C. App. LEXIS 2281, cert. denied, 281 N.C. 154, 187 S.E.2d 585, 1972 N.C. LEXIS 1022 (1972).

Except in the case of certain occupational diseases, compensation may not be awarded under the Act unless there is proof of a disability due to an injury, which injury was the result of an accident arising out of and in the course of the employment. Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1, 1967 N.C. LEXIS 1247 (1967).

Where the Industrial Commission’s ruling that a worker failed to prove his disability or his need for further medical attention was supported by competent evidence in the record, the issue of the worker’s refusal of light duty work was not reached; no physician had prohibited the worker from working or found that he could not work as a result of his knee and hip complaints and there were no treatment recommendations for the worker. Springer v. McNutt Serv. Group, Inc., 160 N.C. App. 574, 586 S.E.2d 554, 2003 N.C. App. LEXIS 1833 (2003).

“Compensability” and “Disability” Distinguished. —

North Carolina General Statutes and ample case law distinguished between the separate concepts of “compensability” and “disability;” where neither a Form 21 nor a Form 26 was filed, nor was a prior award by the industrial commission entered, an injured employee was not entitled to a presumption of continuing disability based on the insurer’s admission of compensability, and the industrial commission erred in placing on the insurer the burden to show that the injured employee was capable of returning to gainful employment. Clark v. Wal-Mart, 360 N.C. 41, 619 S.E.2d 491, 2005 N.C. LEXIS 990 (2005).

Medical Compensation. —

Defendants admitted that they paid plaintiff’s pursuant to plaintiff’s Florida workers’ compensation claim, and these payments had not been ordered as a result of a pending workers’ compensation claim in North Carolina. Therefore, defendants’ payment of these expenses constituted “medical compensation” under G.S. 97-2(19). Clark v. Summit Contrs. Group, Inc., 238 N.C. App. 232, 767 S.E.2d 896, 2014 N.C. App. LEXIS 1393 (2014).

Effect of Disease. —

To establish his claim for the death of decedent, plaintiff must show (1) death resulting from an injury by accident, (2) arising out of and in the course of decedent’s employment by the defendant, and (3) not including a disease in any form, except where it results naturally and unavoidably from the accident. Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410, 1954 N.C. LEXIS 457 (1954).

Finding of Injury Required. —

The fact that plaintiff sustained an injury is a critical fact upon which her right to compensation depends; thus, a specific finding of that fact is required by the Commission. Jackson v. Fayetteville Area Sys. of Transp., 78 N.C. App. 412, 337 S.E.2d 110, 1985 N.C. App. LEXIS 4337 (1985).

More must be shown than an injury while at work to sustain a claim for compensation. Hargus v. Select Foods, Inc., 271 N.C. 369, 156 S.E.2d 737, 1967 N.C. LEXIS 1198 (1967).

To be compensable the injury must spring from the employment. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877, 1963 N.C. LEXIS 720 (1963); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7, 1971 N.C. App. LEXIS 1657 (1971).

Or Have Its Origin Therein. —

To be compensable an injury must spring from the employment or have its origin therein. Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643, 1964 N.C. LEXIS 630 (1964); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569, 1968 N.C. LEXIS 670 (1968); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972).

Reasonable Relationship to Employment Is Sufficient. —

An appellate court is justified in upholding a compensation award if the accident is fairly traceable to the employment as a contributing cause or if any reasonable relationship to employment exists. Hoffman v. Ryder Truck Lines, 306 N.C. 502, 293 S.E.2d 807, 1982 N.C. LEXIS 1487 (1982).

Injury Must Occur at a Judicially Cognizable Point in Time. —

The specific traumatic incident provision of G.S. 97-2(6) requires plaintiff to prove an injury at a judicially cognizable point in time. Judicially cognizable does not mean “ascertainable on an exact date,” but instead should be read to describe a showing by plaintiff which enables the Commission to determine when, within a reasonable period, the specific injury occurred; the evidence must show that there was some event that caused the injury, not a gradual deterioration, and if the window during which the injury occurred can be narrowed to a judicially cognizable period, then the statute is satisfied. Ruffin v. Compass Group USA, 150 N.C. App. 480, 563 S.E.2d 633, 2002 N.C. App. LEXIS 592 (2002).

Evidence that the employee’s injury occurred in early May 2000, was sufficient to support a determination that the employee’s injury occurred at a judicially cognizable point in time. Goforth v. K-Mart Corp., 167 N.C. App. 618, 605 S.E.2d 709, 2004 N.C. App. LEXIS 2378 (2004).

Specific Hour of Injury Need Not Be Alleged. —

While the case law interpreting the specific traumatic incident provision of subsection (6) requires the plaintiff to prove an injury at a cognizable time, this does not compel the plaintiff to allege the specific hour or day of the injury. Fish v. Steelcase, Inc., 116 N.C. App. 703, 449 S.E.2d 233, 1994 N.C. App. LEXIS 1116 (1994), cert. denied, 339 N.C. 737, 454 S.E.2d 650, 1995 N.C. LEXIS 125 (1995).

When Death Is Compensable. —

In order for a claimant to recover workers’ compensation benefits for death, he must prove that death resulted from an injury (1) by accident; (2) arising out of his employment; and (3) in the course of the employment. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582, 1988 N.C. LEXIS 375 (1988).

Death by suicide is compensable if a work-connected injury causes insanity which in turn induces the suicide. Painter v. Mead Corp., 258 N.C. 741, 129 S.E.2d 482, 1963 N.C. LEXIS 470 (1963).

Finding that plaintiff experienced pain as a result of what occurred while performing her duties was not a sufficient finding that plaintiff sustained an injury. Jackson v. Fayetteville Area Sys. of Transp., 78 N.C. App. 412, 337 S.E.2d 110, 1985 N.C. App. LEXIS 4337 (1985).

Back Injuries. —

By amending the second sentence of subdivision (6) to say that an accident with respect to back injuries includes an injury that is the “result of a specific traumatic incident,” the General Assembly intended to relax the requirement that there be some unusual circumstance that accompanied the injury; the use of the words “specific” and “incident” means that the trauma or injury must not have developed gradually but must have occurred at a cognizable time. Bradley v. E.B. Sportswear, Inc., 77 N.C. App. 450, 335 S.E.2d 52, 1985 N.C. App. LEXIS 4072 (1985).

The General Assembly recognized the complex nature of back injuries, and did not intend to limit the definition of specific traumatic incident to an instantaneous occurrence. Richards v. Town of Valdese, 92 N.C. App. 222, 374 S.E.2d 116, 1988 N.C. App. LEXIS 1026 (1988).

Nothing in subdivision (6) precludes compensation for a back injury which occurs in the normal work routine. Fish v. Steelcase, Inc., 116 N.C. App. 703, 449 S.E.2d 233, 1994 N.C. App. LEXIS 1116 (1994), cert. denied, 339 N.C. 737, 454 S.E.2d 650, 1995 N.C. LEXIS 125 (1995).

Aggravation of Pre-Existing Back Injury. —

Industrial commission properly awarded workers’ compensation benefits to a worker pursuant to G.S. 97-2(6) for a back injury; the evidence established that the worker’s back problems were a result of an accident, which substantially aggravated his pre-existing back condition. Moore v. Fed. Express, 162 N.C. App. 292, 590 S.E.2d 461, 2004 N.C. App. LEXIS 127 (2004).

Employee was entitled to ongoing disability compensation because knee injuries and medical restrictions prevented him from performing his job, and any attempt to obtain sedentary work would have been futile in light of his (1) age of 61, (2) lack of work experience, (3) lack of training and education, (4) lack of transferable skills, and (5) physical impairment. Weatherford v. Am. Nat'l Can Co., 168 N.C. App. 377, 607 S.E.2d 348, 2005 N.C. App. LEXIS 261 (2005).

Preexisting Neurological Disorders. —

North Carolina Industrial Commission properly terminated an employee’s temporary total disability benefits because ample evidence supported the Commission’s finding that the employee’s condition was caused by a preexisting, rare neurological disorder and not by a work-related slip-and-fall accident. Drakeford v. Charlotte Express, 158 N.C. App. 432, 581 S.E.2d 97, 2003 N.C. App. LEXIS 1147 (2003).

Mental Impairments. —

As long as the resulting disability meets statutory requirements, mental impairments are compensable under the Act. Jordan v. Central Piedmont Community College, 124 N.C. App. 112, 476 S.E.2d 410, 1996 N.C. App. LEXIS 1015 (1996).

Employee who alleged that he slipped and fell, injuring his back, while still suffering from a prior work-related injury to his ribs, did not show that employer knew its conduct was substantially certain to cause serious injury or death, since the job he was performing when he fell had been performed the same way for many years without injury, the job involved typical hazards involved with welding, he was a certified welder, falling was not a significant hazard of this particular job, and no O.S.H.A. violations were established with regard to this job. Bullins v. Abitibi-Price Corp., 124 N.C. App. 530, 477 S.E.2d 691, 1996 N.C. App. LEXIS 1155 (1996).

Chronic Fatigue Syndrome. —

Evidence that an employee of a waste company whose job was to collect and dispose of raw sewage developed chronic fatigue syndrome and other ailments after being accidentally sprayed with raw sewage and that the employee’s illnesses were most probably the result of the accident supported a ruling of the North Carolina Industrial Commission awarding the employee permanent workers’ compensation disability benefits. Norton v. Waste Mgmt., 146 N.C. App. 409, 552 S.E.2d 702, 2001 N.C. App. LEXIS 938 (2001).

Injury During Normal and Routine Job Activities Without Accident. —

Employee was not entitled to compensation for shoulder injuries and for psychological trauma, which was aggravated therefrom, where it was found that the injuries were caused when the employee was engaged in her normal work duties and there was no accidental injury that occurred under G.S. 97-2(6). Harrison v. Lucent Techs., 156 N.C. App. 147, 575 S.E.2d 825, 2003 N.C. App. LEXIS 80 (2003).

Attorney’s Malpractice. —

Attorney’s malpractice in failing to timely file a third-party tort action was not an injury under G.S. 97-2(6) for purposes of an employer’s right of subrogation. Grant Constr. Co. v. McRae, 146 N.C. App. 370, 553 S.E.2d 89, 2001 N.C. App. LEXIS 947 (2001).

Expert Testimony. —

Where the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury. Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389, 1980 N.C. LEXIS 1048 (1980).

Where the employee’s primary care physician and a psychologist both provided competent expert testimony as to the cause of an employee’s injuries based on their evaluations and treatment of the employee, the North Carolina Industrial Commission did not err in relying on their opinions in determining that the employee suffered a compensable injury. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66, 2016 N.C. App. LEXIS 127 (2016).

North Carolina Industrial Commission did not err in determining that a psychologist was an expert in psychology because its designation was supported by the psychologist’s education and experience. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66, 2016 N.C. App. LEXIS 127 (2016).

North Carolina Industrial Commission did not err in determining that an employee met his burden to establish a compensable injury because its findings of fact regarding a psychologist’s assessment and observations was sufficient to support its reliance on the psychologist’s testimony as evidence of causation. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66, 2016 N.C. App. LEXIS 127 (2016).

North Carolina Industrial Commission did not err in relying on the testimony of an employee’s primary care physician regarding causation because there was a sufficient basis for the physician’s expert opinion testimony as to the cause of the employee’s injuries; the physician’s impressions were based on his impressions of the employee’s account of a robbery and his symptoms, the exclusion of other potential causes, and the temporal link between the occurrence of the symptoms and the robbery. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66, 2016 N.C. App. LEXIS 127 (2016).

Testimony Attesting Medical Certainty Not Required. —

Although a doctor testified that he could not opine to a reasonable degree of certainty whether the employee’s fall at work caused his injury, testimony attesting medical certainty was not required to award disability benefits; the doctor testified that the employee’s symptoms were consistent with an injury occurring from a fall and that he had no indication that everyday activities caused the injury. Adams v. Metals USA, 168 N.C. App. 469, 608 S.E.2d 357, 2005 N.C. App. LEXIS 343, aff'd, 360 N.C. 54, 619 S.E.2d 495, 2005 N.C. LEXIS 998 (2005).

Competent evidence in the form of testimony from treating physicians supported the awards to an employee for injuries, including the (1) replacement of one of the employee’s breast implants which was damaged in an auto accident, but not the replacement of the other implant which apparently was not damaged in the accident; (2) treatment of the employee’s headaches after the accident, (3) treatment of the employee for carpal tunnel syndrome and arthrosis in the employee’s right wrist and thumb after the accident, and (4) treatment for and surgeries to the employee’s right knee in which a pre-existing condition was aggravated because of the accident. Richardson v. Maxim Healthcare/ Allegis Group, 188 N.C. App. 337, 657 S.E.2d 34, 2008 N.C. App. LEXIS 213, aff'd in part and rev'd in part, 362 N.C. 657, 669 S.E.2d 582, 2008 N.C. LEXIS 973 (2008).

Determination Depends on Facts of Each Case. —

The question of whether compensation is recoverable under this act depends upon whether the accident complained of arises out of and in the course of the employment of the one injured, and its determination depends largely upon the facts of each particular case as matters of fact and conclusions of law. Harden v. Thomasville Furn. Co., 199 N.C. 733, 155 S.E. 728, 1930 N.C. LEXIS 234 (1930).

Common-Law Rules of Negligence Are Inapplicable. —

The words “out of and in the course of the employment,” used in connection with compensable injuries, are not to be construed by the rules controlling in negligent default cases at common law; an accidental injury is compensable if there is a causal relation between the employment and injury, if the injury is one which, after the event, may be seen to have had its origin in the employment, and it need not be shown that it is one which ought to have been foreseen or expected. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 1930 N.C. LEXIS 459 (1930); Ashley v. F-W Chevrolet Co., 222 N.C. 25, 21 S.E.2d 834, 1942 N.C. LEXIS 8 (1942); Lee v. F.M. Henderson & Assocs., 284 N.C. 126, 200 S.E.2d 32, 1973 N.C. LEXIS 810 (1973).

In compensation cases the Commission finds the facts. Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3, 1965 N.C. LEXIS 977 (1965).

The findings of fact of the Commission are conclusive if supported by competent evidence in the record even if the record also contains evidence which would support a contrary finding. Blalock v. Roberts Co., 12 N.C. App. 499, 183 S.E.2d 827, 1971 N.C. App. LEXIS 1390 (1971).

Where there is any competent evidence in support of the finding of the Industrial Commission that the accident in question arose out of and in the course of employment, the finding is conclusive on the courts upon appeal. Latham v. Southern Fish & Grocery Co., 208 N.C. 505, 181 S.E. 640, 1935 N.C. LEXIS 63 (1935).

The finding of fact of the Industrial Commission that the disease causing an employee’s death resulted naturally and unavoidably from an accident is conclusive on appeal when supported by competent evidence. Doggett v. South Atl. Whse. Co., 212 N.C. 599, 194 S.E. 111, 1937 N.C. LEXIS 378 (1937).

If the Commission’s findings have evidentiary support in the record, they are conclusive. Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3, 1965 N.C. LEXIS 977 (1965).

If the findings made by the Commission are supported by competent evidence, they must be accepted as final truth. Blalock v. Roberts Co., 12 N.C. App. 499, 183 S.E.2d 827, 1971 N.C. App. LEXIS 1390 (1971).

Whether an injury arose out of and in the course of employment is a mixed question of law and fact, and where there is evidence to support the commissioner’s findings in this regard, the court is bound by those findings. Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, 1980 N.C. LEXIS 1080 (1980). See also Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308, 1963 N.C. LEXIS 597 (1963).

When Findings Are Reviewable on Appeal. —

Where there is no conflicting evidence and the Industrial Commission decides as a matter of law that there is no sufficient competent evidence that the injury to plaintiff was “by accident arising out of and in the course of employment,” the question is one of law and is reviewable by the court upon appeal. Massey v. Board of Educ., 204 N.C. 193, 167 S.E. 695, 1933 N.C. LEXIS 356 (1933).

Scope of Appellate Review. —

Where the evidence is such that several inferences appear equally plausible, the finding of the Industrial Commission is conclusive on appeal, and courts are not at liberty to reweigh the evidence and set aside the finding simply because other conclusions might have been reached. Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97, 1946 N.C. LEXIS 444 (1946).

The determination of whether an accident arises out of and in the course of employment under this section is a mixed question of law and fact, and the appellate court may review the record to determine if the findings and conclusions are supported by sufficient evidence. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977); Williams v. Hydro Print, Inc., 65 N.C. App. 1, 308 S.E.2d 478, 1983 N.C. App. LEXIS 3385 (1983).

Remand for Findings. —

Where in proceedings under this Act there was no finding or adjudication in reference to the contention of the employer that the claimant’s injury was occasioned by his willful intention to injure his assailant, a fellow servant, the cause would be remanded for a definite determination of the question. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 1930 N.C. LEXIS 459 (1930).

V.Accident

Editor’s Note. —

Earlier cases dealing with back injuries should be read in light of the 1983 amendment to subdivision (6) of this section, which modified the definition of “injury” with respect to back injuries so as to cover “specific traumatic incidents.” Caskie v. R.M. Butler & Co., 85 N.C. App. 266, 354 S.E.2d 242 (1987).

The Workers’ Compensation Act does not provide compensation for all injuries, but only for injuries by accident. O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193, 1964 N.C. LEXIS 505 (1964); Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3, 1965 N.C. LEXIS 977 (1965); Hargus v. Select Foods, Inc., 271 N.C. 369, 156 S.E.2d 737, 1967 N.C. LEXIS 1198 (1967).

An injury, to be compensable, must result from an accident, which is to be considered as a separate event preceding and causing the injury; the mere fact of injury does not of itself establish the fact of accident. Bigelow v. Tire Sales Co., 12 N.C. App. 220, 182 S.E.2d 856, 1971 N.C. App. LEXIS 1330 (1971); Beamon v. Stop & Shop Grocery, 27 N.C. App. 553, 219 S.E.2d 508, 1975 N.C. App. LEXIS 1899 (1975).

There must be an accident, followed by an injury by such accident which results in harm to the employee, before the employee may be compensated. Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865, 1968 N.C. LEXIS 717 (1968).

Absent an accident, i.e., a fortuitous event, the death or injury of an employee while performing his regular duties in the usual and customary manner is not compensable. O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193, 1964 N.C. LEXIS 505 (1964); Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1, 1967 N.C. LEXIS 1247 (1967); Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865, 1968 N.C. LEXIS 717 (1968); Norris v. Kivettco, Inc., 58 N.C. App. 376, 293 S.E.2d 594, 1982 N.C. App. LEXIS 2759 (1982).

Where the plaintiff was not injured by accident as contemplated by this section, his injury is not compensable. Gray v. Durham Transf. & Storage, Inc., 10 N.C. App. 668, 179 S.E.2d 883, 1971 N.C. App. LEXIS 1693 (1971).

Under the Workers’ Compensation Act, an injury arising out of and in the course of employment is compensable only if it is caused by an accident. Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763, 1982 N.C. App. LEXIS 2713 (1982).

An Injury, to be Compensable, Must Result From an Accident. —

Industrial commission properly denied the employee’s workers’ compensation claim, as the meeting at which the employee received a performance rating, did not constitute a workplace accident; the meeting was not an unexpected, unusual or untoward occurrence, and was not an interruption of the work routine and the introduction of unusual conditions likely to result in unexpected consequences. Pitillo v. N.C. Dep't of Envtl. Health & Natural Res., 151 N.C. App. 641, 566 S.E.2d 807, 2002 N.C. App. LEXIS 882 (2002).

When an employee suffered a minor physical injury at work, and later suffered a disabling psychological injury in the course of the employer’s investigation of the physical injury because she thought she was being accused of suing her employer, the evidence established that her disability was caused by the mental injury, rather than the physical injury, and she was not eligible for workers’ compensation benefits because the mental injury did not qualify as an accident, for workers’ compensation purposes, because it was not an unlooked for and untoward event involving the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences. Smith v. Hous. Auth. of Asheville, 159 N.C. App. 198, 582 S.E.2d 692, 2003 N.C. App. LEXIS 1429 (2003).

The terms “injury” and “accident,” as used in the act, are not synonymous. Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1 (1967); Russell v. Pharr Yarns, Inc., 18 N.C. App. 249, 196 S.E.2d 571 (1973); Beamon v. Stop & Shop Grocery, 27 N.C. App. 553, 219 S.E.2d 508 (1975); Reams v. Burlington Indus., 42 N.C. App. 54, 255 S.E.2d 586 (1979). But see Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342 (1963) indicating that injury by accident and accidental injury are synonymous terms Swindell v. Davis Boat Works, Inc., 78 N.C. App. 393, 337 S.E.2d 592 (1985); Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410 (1954)cert. denied and appeal dismissed .

The mere fact of injury does not of itself establish the fact of accident. Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254, 1977 N.C. App. LEXIS 2185 (1977); Reams v. Burlington Indus., 42 N.C. App. 54, 255 S.E.2d 586, 1979 N.C. App. LEXIS 2721 (1979).

The accident must be a separate event preceding and causing the injury. Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254, 1977 N.C. App. LEXIS 2185 (1977); Searsey v. Perry M. Alexander Constr. Co., 35 N.C. App. 78, 239 S.E.2d 847, 1978 N.C. App. LEXIS 2866, cert. denied, 294 N.C. 736, 244 S.E.2d 154, 1978 N.C. LEXIS 1306 (1978); Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763, 1982 N.C. App. LEXIS 2713 (1982).

Accident and injury are considered separate. Ordinarily, the accident must precede the injury. Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109, 1962 N.C. LEXIS 453 (1962); Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502, 1985 N.C. App. LEXIS 4171 (1985).

Injury and accident are separate, and there must be an accident which produces the injury before the employee can be awarded compensation. O’Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193 (1964); Jackson v. North Carolina State Hwy. Comm’n, 272 N.C. 697, 158 S.E.2d 865 (1968); Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360 (1980); Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, cert. denied, 311 N.C. 762, 321 S.E.2d 143 (1984). In accord with third paragraph in the main volume. See Jackson v. Fayetteville Area Sys. of Transp., 88 N.C. App. 123, 362 S.E.2d 569, 1987 N.C. App. LEXIS 3448 (1987).

Which Is Unforeseen or Unusual. —

An “accident” within the meaning of this Act is an unlooked for and untoward event which is not expected or designed by the injured employee. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 1930 N.C. LEXIS 459 (1930); McNeely v. Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509, 1934 N.C. LEXIS 249 (1934); Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844, 1936 N.C. LEXIS 360 (1936); Lover v. Town of Lumberton, 215 N.C. 28, 1 S.E.2d 121, 1939 N.C. LEXIS 184 (1939); Brown v. Carolina Aluminum Co., 224 N.C. 766, 32 S.E.2d 320, 1944 N.C. LEXIS 243 (1944); Edwards v. Piedmont Publishing Co., 227 N.C. 184, 41 S.E.2d 592, 1947 N.C. LEXIS 374 (1947); Gabriel v. Town of Newton, 227 N.C. 314, 42 S.E.2d 96, 1947 N.C. LEXIS 412 (1947); Hensley v. Farmers Fed'n Coop., 246 N.C. 274, 98 S.E.2d 289, 1957 N.C. LEXIS 413 (1957); Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109, 1962 N.C. LEXIS 453 (1962); Searsey v. Perry M. Alexander Constr. Co., 35 N.C. App. 78, 239 S.E.2d 847, 1978 N.C. App. LEXIS 2866, cert. denied, 294 N.C. 736, 244 S.E.2d 154, 1978 N.C. LEXIS 1306 (1978); Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360, 1980 N.C. App. LEXIS 2762 (1980); Gladson v. Piedmont Stores/Scotties Disct. Drug Store, 57 N.C. App. 579, 292 S.E.2d 18, 1982 N.C. App. LEXIS 2657 (1982); Diaz v. United States Textile Corp., 60 N.C. App. 712, 299 S.E.2d 843, 1983 N.C. App. LEXIS 2530 (1983); Adams v. Burlington Indus., Inc., 61 N.C. App. 258, 300 S.E.2d 455, 1983 N.C. App. LEXIS 2638 (1983); Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, 1984 N.C. App. LEXIS 3377 (1984).

While there need be no appreciable separation in time between the accident and the resulting injury, there must be some unforeseen or unusual event other than the bodily injury itself. Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1, 1967 N.C. LEXIS 1247 (1967); Norris v. Kivettco, Inc., 58 N.C. App. 376, 293 S.E.2d 594, 1982 N.C. App. LEXIS 2759 (1982).

An “accident” within the contemplation of this Chapter is an unusual and unexpected or fortuitous occurrence, there being no indication that the legislature intended to put upon the usual definition of this term any further refinements. Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231, 1940 N.C. LEXIS 263 (1940).

Unusualness and unexpectedness are the essence of an accident. Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763, 1982 N.C. App. LEXIS 2713 (1982).

North Carolina Industrial Commission properly concluded that a plaintiff employee’s wrist injuries had not occurred by accident under G.S. 97-2(6) where she was not performing unusual or unexpected job duties when she exerted force to move a pad underneath a healthcare facility resident or took manual blood pressure readings; those actions were normal job duties for a certified nursing assistant. Evans v. Wilora Lake Healthcare, 180 N.C. App. 337, 637 S.E.2d 194, 2006 N.C. App. LEXIS 2294 (2006).

Or Involves a Result Produced by a Fortuitous Cause. —

The term “accident” as used in the act has been defined as (1) an unlooked for and untoward event which is not expected or designed by the injured employee; (2) a result produced by a fortuitous cause. Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109, 1962 N.C. LEXIS 453 (1962); O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193, 1964 N.C. LEXIS 505 (1964); Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1, 1967 N.C. LEXIS 1247 (1967); Pulley v. Migrant & Seasonal Farm-Workers Ass'n, 30 N.C. App. 94, 226 S.E.2d 227, 1976 N.C. App. LEXIS 2154 (1976); Kennedy v. Martin Marietta Chems., 34 N.C. App. 177, 237 S.E.2d 542, 1977 N.C. App. LEXIS 1632 (1977); Reams v. Burlington Indus., 42 N.C. App. 54, 255 S.E.2d 586, 1979 N.C. App. LEXIS 2721 (1979); Norris v. Kivettco, Inc., 58 N.C. App. 376, 293 S.E.2d 594, 1982 N.C. App. LEXIS 2759 (1982); Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502, 1985 N.C. App. LEXIS 4171 (1985).

Injury by accident is an injury produced by a fortuitous cause. Kennedy v. Martin Marietta Chems., 34 N.C. App. 177, 237 S.E.2d 542, 1977 N.C. App. LEXIS 1632 (1977).

The term “accident,” under this Chapter, is an unlooked for and untoward event, and a result produced by a fortuitous cause. Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763, 1982 N.C. App. LEXIS 2713 (1982).

Injuries Which Are Natural and Probable Result of Employment Are Not Compensable. —

An injury, in order to be compensable, must result from an accident, and injuries which are not the result of any fortuitous occurrence, but are the natural and probable result of the employment, are not compensable. Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231, 1940 N.C. LEXIS 263 (1940).

An injury must involve more than the carrying on of the usual and customary duties in the usual way to justify an award of compensation. Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763, 1982 N.C. App. LEXIS 2713 (1982).

No matter how great the injury, if it is caused by an event that involves both an employee’s normal work routine and normal working conditions it will not be considered to have been caused by accident. Searsey v. Perry M. Alexander Constr. Co., 35 N.C. App. 78, 239 S.E.2d 847, 1978 N.C. App. LEXIS 2866, cert. denied, 294 N.C. 736, 244 S.E.2d 154, 1978 N.C. LEXIS 1306 (1978); King v. Exxon Co., 46 N.C. App. 750, 266 S.E.2d 37, 1980 N.C. App. LEXIS 2908 (1980).

If the employee is performing his regular duties in the usual and customary manner, and is injured, there is no “accident” and the injury is not compensable. Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360, 1980 N.C. App. LEXIS 2762 (1980).

Because an employee’s trapezius strain was caused by his shoulder injury and his shoulder injury occurred while performing his normal work routine under normal working conditions, the shoulder injury was not compensable under the Workers’ Compensation Act; it was not the result of an injury by accident as defined in G.S. 97-2(6). Raper v. Mansfield Sys., 189 N.C. App. 277, 657 S.E.2d 899, 2008 N.C. App. LEXIS 540 (2008).

Accident involves the interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences. Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109, 1962 N.C. LEXIS 453 (1962); Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747, 1963 N.C. LEXIS 707 (1963); Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3, 1965 N.C. LEXIS 977 (1965); Gray v. Durham Transf. & Storage, Inc., 10 N.C. App. 668, 179 S.E.2d 883, 1971 N.C. App. LEXIS 1693 (1971); Southards v. Byrd Motor Lines, 11 N.C. App. 583, 181 S.E.2d 811, 1971 N.C. App. LEXIS 1588 (1971); Bigelow v. Tire Sales Co., 12 N.C. App. 220, 182 S.E.2d 856, 1971 N.C. App. LEXIS 1330 (1971); Garmon v. Tridair Indus., Inc., 14 N.C. App. 574, 188 S.E.2d 523, 1972 N.C. App. LEXIS 2179 (1972); Dunton v. Daniel Constr. Co., 19 N.C. App. 51, 198 S.E.2d 8, 1973 N.C. App. LEXIS 1564 (1973); Beamon v. Stop & Shop Grocery, 27 N.C. App. 553, 219 S.E.2d 508, 1975 N.C. App. LEXIS 1899 (1975); Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254, 1977 N.C. App. LEXIS 2185 (1977); Smith v. Burlington Indus., Inc., 35 N.C. App. 105, 239 S.E.2d 845, 1978 N.C. App. LEXIS 2873 (1978); Curtis v. Carolina Mechanical Sys., 36 N.C. App. 621, 244 S.E.2d 690, 1978 N.C. App. LEXIS 2563 (1978); Gladson v. Piedmont Stores/Scotties Disct. Drug Store, 57 N.C. App. 579, 292 S.E.2d 18, 1982 N.C. App. LEXIS 2657 (1982); Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763, 1982 N.C. App. LEXIS 2713 (1982); Norris v. Kivettco, Inc., 58 N.C. App. 376, 293 S.E.2d 594, 1982 N.C. App. LEXIS 2759 (1982); Adams v. Burlington Indus., Inc., 61 N.C. App. 258, 300 S.E.2d 455, 1983 N.C. App. LEXIS 2638 (1983); Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, 1984 N.C. App. LEXIS 3377 (1984); Sanderson v. Northeast Constr. Co., 77 N.C. App. 117, 334 S.E.2d 392, 1985 N.C. App. LEXIS 4051 (1985).

Professional Football Player. —

Though an injury sustained while playing football may not be an unusual occurrence, such injury is not a probable, intended consequence of the employment and constitutes an unlooked for and untoward event that was not expected or designed; as such, sufficient evidence supported the findings of fact that a plaintiff, a professional football player, sustained a compensable injury by accident arising out of and in the course of his employment when his testimony explained that there was a technique he used to initiate a block by having his wrist in an upward position but, instead, his hand was forced into an awkward position wherein his wrist went downward and such testimony indicated that although he was engaging in his normal work duty of blocking an offensive lineman, he was injured because he was forced by another player into utilizing an unusual and awkward blocking or work technique that was not normally used in his normal work routine. Renfro v. Richardson Sports, Ltd. Partners, 172 N.C. App. 176, 616 S.E.2d 317, 2005 N.C. App. LEXIS 1435 (2005).

Football player’s leg injury was a compensable injury by accident where the player sustained an injury while playing in the fifteenth game of the season, the injury was unusual in that the player had attempted to block numerous extra point attempts without sustaining a broken leg and torn tendons in his ankle, it was unexpected that one or more players would fall on the back of the injured player’s leg causing a career-ending injury, and for such an injury to occur required a force of 3000 pounds per square inch. Swift v. Richardson Sports, Ltd., 173 N.C. App. 134, 620 S.E.2d 533, 2005 N.C. App. LEXIS 1898 (2005).

Willful or Criminal Assault by Third Person. —

Injuries resulting from an assault are caused by “accident” when, from the employee’s perspective, the assault was unexpected and was without design on her part. Hauser v. Advanced Plastiform, Inc., 133 N.C. App. 378, 514 S.E.2d 545, 1999 N.C. App. LEXIS 507 (1999).

Death by Gunshot. —

Industrial Commission did not err in concluding that plaintiffs were entitled to a presumption of compensability, where defendants failed to rebut the presumption that the death of an employee who died from a gunshot wound was accidental and arose out of his employment. Horton v. Powell Plumbing & Heating of N.C. Inc., 135 N.C. App. 211, 519 S.E.2d 550, 1999 N.C. App. LEXIS 983 (1999).

Plaintiff, who had been employed by defendant for five years in an office job before her work-related injury and who testified that she was not yet proficient in defendant’s filling department, was not performing her usual work routine at the time of accidental injury on her fifth day on the production line; thus, the commission’s conclusion that the plaintiff suffered an injury by accident was accordingly upheld. Church v. Baxter Travenol Labs., Inc., 104 N.C. App. 411, 409 S.E.2d 715, 1991 N.C. App. LEXIS 1057 (1991).

Circumstances sufficient to constitute an interruption of a given work routine typically involve an undertaking by the employee of duties not usual and customary. Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, 1984 N.C. App. LEXIS 3377 (1984).

The assigning of an employee to a particular task where the work routine for the employee involves a variety of tasks does not necessarily constitute an interruption of the work. Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, 1984 N.C. App. LEXIS 3377 (1984).

An injury which occurs under normal work conditions is not considered an accident arising out of employment, and work conditions may be considered normal despite the presence of changed circumstances. Trudell v. Seven Lakes Heating & Air Conditioning Co., 55 N.C. App. 89, 284 S.E.2d 538, 1981 N.C. App. LEXIS 2980 (1981).

An injury which occurs under normal work conditions is not considered an accident arising out of employment. Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, 1984 N.C. App. LEXIS 3377 (1984).

Once an activity, even a strenuous or otherwise unusual activity, becomes a part of the employee’s normal work routine, an injury caused by such activity is not the result of an interruption of the work routine or otherwise an “injury by accident” under the Workers’ Compensation Act. Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502, 1985 N.C. App. LEXIS 4171 (1985).

No matter how great the injury, if it is caused by an event that involves both an employee’s normal work routine and normal working conditions it will not be considered to have been caused by an accident. Swindell v. Davis Boat Works, Inc., 78 N.C. App. 393, 337 S.E.2d 592, 1985 N.C. App. LEXIS 4290 (1985).

The Industrial Commission’s conclusion of law that plaintiff did not sustain a compensable injury was adequately supported by its finding that plaintiff ’s back pain was not the result of any interruption of her normal work routine, in that plaintiff was doing her usual job in her usual and customary manner, and was not the result of any specific traumatic incident, in that plaintiff had experienced back pain over an extended period of time. Causby v. Bernhardt Furn. Co., 83 N.C. App. 650, 351 S.E.2d 106, 1986 N.C. App. LEXIS 2747 (1986).

There must be some new circumstance not a part of usual work routine in order to find that an accident has occurred. Swindell v. Davis Boat Works, Inc., 78 N.C. App. 393, 337 S.E.2d 592, 1985 N.C. App. LEXIS 4290 (1985).

North Carolina Industrial Commission’s finding that pulling wire sometimes in awkward positions was a normal part of a workers’ compensation claimant’s job routine was not dispositive of whether the claimant’s injury was by accident under G.S. 97-2(6); the dispositive question was whether the totality of the conditions under which the claimant worked at the time of the injury were “usual tasks in the usual way” expected of an electrician working for the employer. Griggs v. Eastern Omni Constructors, 158 N.C. App. 480, 581 S.E.2d 138, 2003 N.C. App. LEXIS 1187 (2003).

Accident Must Have Had Origin in a Risk Connected with Employment. —

To be compensable, the accident need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899, 1983 N.C. App. LEXIS 2686 (1983).

An accident has a reasonable relationship to the employment when it is the result of a risk or hazard incident to the employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

And some risk inherent to the employment must be a contributing proximate cause of the injury and the risk must be enhanced by the employment and must be one to which the worker would not have been equally exposed apart from the employment. Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899, 1983 N.C. App. LEXIS 2686 (1983).

There must be competent evidence to support the inference that the accident in question resulted in the injury complained of, i.e., some evidence that the accident at least might have or could have produced the particular disability in question. Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389, 1980 N.C. LEXIS 1048 (1980).

Death from injury by accident implies a result produced by a fortuitous cause. Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844, 1936 N.C. LEXIS 360 (1936); Hensley v. Farmers Fed'n Coop., 246 N.C. 274, 98 S.E.2d 289, 1957 N.C. LEXIS 413 (1957); Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109, 1962 N.C. LEXIS 453 (1962); O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193, 1964 N.C. LEXIS 505 (1964); Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865, 1968 N.C. LEXIS 717 (1968).

Physical exertion may in and of itself be the precipitating cause of an injury by accident within the meaning of this section. Hollar v. Montclair Furn. Co., 48 N.C. App. 489, 269 S.E.2d 667, 1980 N.C. App. LEXIS 3286 (1980).

Evidence of the necessity of extreme exertion is sufficient to bring into an event causing an injury the necessary element of unusualness and unexpectedness from which accident may be inferred. Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360, 1980 N.C. App. LEXIS 2762 (1980).

Extra exertion by the employee, resulting in injury, may qualify as an injury by accident. Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865, 1968 N.C. LEXIS 717 (1968).

It is well-settled in this State that an extra or unusual degree of exertion by an employee while performing a job may constitute the unforeseen or unusual event or condition necessary to make any resulting injury an injury “by accident.” Jackson v. Fayetteville Area Sys. of Transp., 88 N.C. App. 123, 362 S.E.2d 569, 1987 N.C. App. LEXIS 3448 (1987).

Injury arising out of lifting objects in the ordinary course of an employee’s business is not caused by accident where such activity is performed in the ordinary manner, free from confining or otherwise exceptional conditions and surroundings. Beamon v. Stop & Shop Grocery, 27 N.C. App. 553, 219 S.E.2d 508, 1975 N.C. App. LEXIS 1899 (1975); Curtis v. Carolina Mechanical Sys., 36 N.C. App. 621, 244 S.E.2d 690, 1978 N.C. App. LEXIS 2563 (1978).

Injury to Nurse Lifting Patient. —

Where labor and delivery nurse injured herself while lifting the legs of a 263 pound woman in order to facilitate delivery, the evidence did not support the Industrial Commission’s denial of compensation based on the finding that plaintiff’s injuries “occurred while performing her usual employment duties in the usual way.” Calderwood v. Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App. 112, 519 S.E.2d 61, 1999 N.C. App. LEXIS 912 (1999).

Nurse was injured in an accident in that incident was unforeseen and an interruption not designed or expected in that the nurse injured the nurse’s arm moving a very large patient while trying to change the patient’s bed pad when it was not unusual for the nurse to assist in moving obese patients and for some patients to be unable or unwilling to help, but the nurse had never before attempted to change a bed pad on a patient of this size with only one other person and had always attempted to move such a patient as part of a team of more people. Aldridge v. Novant Health, Inc., 867 S.E.2d 721, 2021- NCCOA-651, 2021 N.C. App. LEXIS 674 (Ct. App. 2021).

Where employee was not engaged in his routine duties in his customary fashion at the time he sustained an injury to his back, the injury was accidental and compensable. Sanderson v. Northeast Constr. Co., 77 N.C. App. 117, 334 S.E.2d 392, 1985 N.C. App. LEXIS 4051 (1985) (decision prior to the 1983 amendment to subdivision (6)) .

Insufficient to Show that Activity Caused No Pain in Past. —

It is insufficient as a matter of law to show only that in the past a regular activity caused no pain and that the same activity now causes pain; there must be a specific fortuitous event, rather than a gradual build-up of pain, in order to show injury by accident. Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502, 1985 N.C. App. LEXIS 4171 (1985).

Damage to heart tissue clearly precipitated or caused by “overexertion” constitutes an injury by accident. Weaver v. Swedish Imports Maintenance, Inc., 61 N.C. App. 662, 301 S.E.2d 736, 1983 N.C. App. LEXIS 2754 (1983).

Death from Heart Disease. —

Ordinarily a death from heart disease is not an injury by accident arising out of and in the course of the employment, nor an occupational disease, so as to be compensable. Bellamy v. Morace Stevedoring Co., 258 N.C. 327, 128 S.E.2d 395, 1962 N.C. LEXIS 676 (1962).

Cardiac Arrhythmia. —

Defendant presented sufficient evidence to rebut the presumption under Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988), that decedent sustained an injury by accident, where the evidence indicated that there was nothing unusual about the route, the hours, or the amount or type of deliveries required of decedent on the day of his death, and that the cause of his death was cardiac arrhythmia, which was a sudden, fatal irregular heart beat, precipitated by the severe ischemic heart disease, and where the autopsy revealed no evidence of trauma. Bason v. Kraft Food Serv., Inc., 140 N.C. App. 124, 535 S.E.2d 606, 2000 N.C. App. LEXIS 1099 (2000).

Heart Attack. —

When one is carrying on his usual work in the usual way and suffers a heart attack, the injury does not arise by accident out of and in the course of employment. Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865, 1968 N.C. LEXIS 717 (1968).

Deaths from heart attacks which occur in the usual course of employment are not compensable. Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865, 1968 N.C. LEXIS 717 (1968).

Where an injury is caused by a heart attack, the plaintiff must show that it was precipitated by some unusual or extraordinary exertion. Dillingham v. Yeargin Constr. Co., 82 N.C. App. 684, 348 S.E.2d 143, 1986 N.C. App. LEXIS 2625 (1986), rev'd, 320 N.C. 499, 358 S.E.2d 380, 1987 N.C. LEXIS 2269 (1987).

Evidence that the room temperature in the nuclear power plant was 85 degrees and that the worker suffered heat exhaustion while wearing a radiation suit which inhibited his body’s ability to radiate heat unequivocally demonstrated that the worker was exposed to an increased risk of heat-related illness because of his employment and that the worker’s subsequent cardiac arrest was a compensable “accident.” Dillingham v. Yeargin Constr. Co., 320 N.C. 499, 358 S.E.2d 380, 1987 N.C. LEXIS 2269 (1987).

Deceased employee’s widow failed to meet her burden of proof under G.S. 97-2(6) where she did not show that the employee’s death from a heart attack was a result of an accident in the course and scope of employment; accordingly, her application for workers’ compensation benefits was properly denied. Gray v. UPS, 226 N.C. App. 15, 739 S.E.2d 590, 2013 N.C. App. LEXIS 288 (2013).

Heart Attack Held to Be Accident. —

Where decedent’s heart attack followed a period of unusually high exertion which was unusual and not a normal part of his work routine, there was competent evidence to support the findings that death was an accident within the meaning of the Workers’ Compensation Act. Wall v. North Hills Properties, Inc., 125 N.C. App. 357, 481 S.E.2d 303, 1997 N.C. App. LEXIS 93 (1997).

Death of a fireman from heart failure brought on by excitement and exhaustion in fighting a fire is not the result of an accident within the meaning of the Workers’ Compensation Act, heat, smoke, excitement, and physical exertion being the ordinary and expected incidents of the employment. Neely v. City of Statesville, 212 N.C. 365, 193 S.E. 664, 1937 N.C. LEXIS 317 (1937). See also Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410, 1954 N.C. LEXIS 457 (1954).

Amendment to G.S. 97-53 by Session Laws 1949, c. 1078, so as to make certain heart diseases compensable as occupational diseases when contracted by firemen was held unconstitutional in Duncan v. City of Charlotte, 234 N.C. 86, 66 S.E.2d 22, 1951 N.C. LEXIS 404 (1951) and Davis v. City of Winston-Salem, 234 N.C. 95, 66 S.E.2d 28, 1951 N.C. LEXIS 405 (1951). See 30 N.C.L. Rev. 98 (1951).

Aneurysm Caused by Stress and Excitement While Deputy Sheriff Performed CPR. —

Employee’s aneurysm, caused by stress and excitement while the employee was performing cardiopulmonary resuscitation (CPR) on a victim while working as deputy sheriff, was compensable; CPR was seldom done by deputies, and the testimony of the employee’s doctor as to cause of the aneurysm was unequivocal and not speculative. Ferreyra v. Cumberland County, 175 N.C. App. 581, 623 S.E.2d 825, 2006 N.C. App. LEXIS 186 (2006).

Injury While Shifting Position. —

Where plaintiff, a carpenter, was hired to perform a number of tasks connected with employer’s home improvement business, injury which occurred when he shifted his position while shingling a roof was deemed to have occurred under normal work conditions, and was not compensable as an injury suffered as the result of an accident. Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, 1984 N.C. App. LEXIS 3377 (1984).

Rupture of Intervertebral Disc. —

To sustain an award of compensation in ruptured or slipped disc cases, the injury to be classed as arising by accident must involve more than merely carrying on the usual and customary duties in the usual way. Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109, 1962 N.C. LEXIS 453 (1962); Byrd v. Farmers Fed'n Coop., 260 N.C. 215, 132 S.E.2d 348, 1963 N.C. LEXIS 668 (1963); Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3, 1965 N.C. LEXIS 977 (1965); Dunton v. Daniel Constr. Co., 19 N.C. App. 51, 198 S.E.2d 8, 1973 N.C. App. LEXIS 1564 (1973); Pulley v. Migrant & Seasonal Farm-Workers Ass'n, 30 N.C. App. 94, 226 S.E.2d 227, 1976 N.C. App. LEXIS 2154 (1976); Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254, 1977 N.C. App. LEXIS 2185 (1977).

An injury to the back from a herniated disc does not arise by accident if the employee at the time is merely carrying on his usual and customary duties in the usual way. Byrd v. Farmers Fed'n Coop., 260 N.C. 215, 132 S.E.2d 348, 1963 N.C. LEXIS 668 (1963).

Degenerative disc condition which is a gradual deterioration occurring over the years is excluded from the definition of “accident.” Griffitts v. Thomasville Furn. Co., 65 N.C. App. 369, 309 S.E.2d 277, 1983 N.C. App. LEXIS 3463 (1983).

Back Injury. —

A back injury or hernia suffered by an employee does not arise by accident if the employee at the time was merely carrying out his usual and customary duties in the usual way. Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3, 1965 N.C. LEXIS 977 (1965).

Back Injury Resulting from Specific Traumatic Incident at Cognizable Time. —

Where a 57-year-old woman, who performed secretarial tasks for her employer, suffered back pain the day after she helped carry a heavy, unwieldy spotlight up a flight of steps while walking backwards and bending over at the waist, and where the activity was not within her normal work routine, the claimant’s injury resulted from a specific traumatic incident that occurred at a cognizable time. Beam v. Floyd's Creek Baptist Church, 99 N.C. App. 767, 394 S.E.2d 191, 1990 N.C. App. LEXIS 832 (1990).

Back Injury Resulting from Traumatic Incident at Unknown Time. —

Plaintiff employee’s disabling back injury was shown to be a result of traumatic injury and was compensable under G.S. 97-2(6), despite some uncertainty as to the exact date the injury occurred. Gregory v. W.A. Brown & Sons, 192 N.C. App. 94, 664 S.E.2d 589, 2008 N.C. App. LEXIS 1543 (2008), rev'd in part, 363 N.C. 750, 688 S.E.2d 431, 2010 N.C. LEXIS 35 (2010).

Specific Traumatic Incidents. —

A specific traumatic incident need not involve unusual conditions or a departure from the claimant’s normal work routine. Lettley v. Trash Removal Serv., 91 N.C. App. 625, 372 S.E.2d 747, 1988 N.C. App. LEXIS 905 (1988).

Back injuries that occur gradually, over long periods of time, are not specific traumatic incidents; however, events which occur contemporaneously, during a cognizable time period, and which cause a back injury, do fit the definition intended by the legislature. Richards v. Town of Valdese, 92 N.C. App. 222, 374 S.E.2d 116, 1988 N.C. App. LEXIS 1026 (1988).

A “specific traumatic incident” could occur during a “cognizable time” of two hours but in every case there must be evidence of proximate cause between the “specific traumatic incident” and the injury. Livingston v. James C. Fields & Co., 93 N.C. App. 336, 377 S.E.2d 788, 1989 N.C. App. LEXIS 174 (1989).

Specific Traumatic Incident Not Shown. —

Finding that employee suffered a cervical spine condition as the result of a specific traumatic incident was not supported by competent evidence; the evidence showed that the employee experienced pain on a particular date, but the employee presented no evidence linking that pain to the occurrence of an injury. Chambers v. Transit Mgmt., 360 N.C. 609, 636 S.E.2d 553, 2006 N.C. LEXIS 1195 (2006).

“Specific traumatic incident” amendment to subdivision (6) was intended to supplement the law related to back injuries, not to supplant it. The effect of the amendment was to eliminate the need to show an external cause or unusual conditions in order for a worker to receive compensation for a back injury. Instead, what may be shown is that the back injury arose in the course of the employment and that the injury was “the direct result of a specific traumatic incident of the work assigned.” Caskie v. R.M. Butler & Co., 85 N.C. App. 266, 354 S.E.2d 242, 1987 N.C. App. LEXIS 2558 (1987).

The 1983 amendment to subdivision (6) relaxes the requirement that there be some unusual circumstance that accompanies a back injury. Richards v. Town of Valdese, 92 N.C. App. 222, 374 S.E.2d 116, 1988 N.C. App. LEXIS 1026 (1988).

Back injuries that occur gradually, over long periods of time, are not specific traumatic incidents; however, events which occur contemporaneously, during a cognizable time period, and which cause a back injury, do fit the definition intended by the legislature. Glynn v. Pepcom Indus., Inc., 122 N.C. App. 348, 469 S.E.2d 588, 1996 N.C. App. LEXIS 386 (1996).

The onset of pain is not a “specific traumatic incident” that will determine whether compensation for a back injury will be allowed pursuant to the act; rather, pain is as a general rule the result of a “specific traumatic incident.” Roach v. Lupoli Constr. Co., 88 N.C. App. 271, 362 S.E.2d 823, 1987 N.C. App. LEXIS 3465 (1987).

Injury to Back Must Be Causally Related. —

Even if a specific traumatic incident occurs to constitute a compensable “injury by accident” there must be a “disabling physical injury to the back arising out of and causally related to such incident.” Lettley v. Trash Removal Serv., 91 N.C. App. 625, 372 S.E.2d 747, 1988 N.C. App. LEXIS 905 (1988).

Back Injury and Pain Need Not Occur Simultaneously. —

Just because claimant felt pain for the first time hours after he allegedly injured his back did not mean that the “specific traumatic incident” could not have occurred when he said it did. Logic dictates that injury and pain do not have to occur simultaneously for claimant to establish that he sustained a compensable injury. Roach v. Lupoli Constr. Co., 88 N.C. App. 271, 362 S.E.2d 823, 1987 N.C. App. LEXIS 3465 (1987).

Evidence Supported Finding of Back Injury. —

Based on evidence that repeated lifting of cases of cigarettes, coupled with twisting and contorting in a cramped area to reach in behind and on top of cigarette display rack, was not part of plaintiff ’s job routine, and the commission’s finding that plaintiff had never performed as much repetitious lifting and stacking of cases on a single day as she did on the date of her back injury, under existing case law, without deciding the issue of specific traumatic incident, the commission should have concluded that plaintiff ’s back injury was an injury by accident arising out of and in the course of employment, thereby qualifying as a compensable injury under the first sentence of subdivision (6). Caskie v. R.M. Butler & Co., 85 N.C. App. 266, 354 S.E.2d 242, 1987 N.C. App. LEXIS 2558 (1987).

Where volunteer fireman could point to a series of contemporaneous events which could have caused his back injury, it was error for the commission to conclude as a matter of law that employee suffered no injury as a result of a specific traumatic injury. Richards v. Town of Valdese, 92 N.C. App. 222, 374 S.E.2d 116, 1988 N.C. App. LEXIS 1026 (1988).

Evidence Insufficient to Find Back Injury. —

Where plaintiff injured her back during her previous employment, was treated for back pain over a period of time, and the pain which plaintiff experienced during her employment with defendant was in the same area of her back that had been injured during plaintiff’s prior employment, there was competent evidence to support the Commission’s findings and conclusion that plaintiff’s back condition was neither caused by nor aggravated by an injury, by accident or by specific traumatic incident at her new employment. Thompson v. Tyson Foods, Inc., 119 N.C. App. 411, 458 S.E.2d 746, 1995 N.C. App. LEXIS 474 (1995).

Denial of workers’ compensation benefits was upheld because the employee failed to prove any of the employee’s alleged occupational diseases or injuries resulted from the employee’s employment; among other things, an expert acknowledged that the employee did not have any documented cause for employee’s cervical condition and that the expert’s opinion of causation was mere speculation. Lanier v. Eddie Romanelle's, 192 N.C. App. 166, 664 S.E.2d 609, 2008 N.C. App. LEXIS 1552 (2008).

Employer’s Knowledge of Earlier Injury Did Not Make Injury Compensable. —

Finding of the Commission that plaintiff ’s back injury was not accidental, in that the evidence failed to disclose an interruption of plaintiff ’s normal work routine, which involved the regular and repetitive lifting, albeit without usage of his left hand, was supported by the evidence, despite plaintiff ’s argument that because his employer knew of disability certificate given him by his physician following an earlier hand injury but nonetheless assigned him duties which involved lifting heavy objects, the injury occurred as a matter of law outside his normal work routine. Pittman v. Inco, Inc., 78 N.C. App. 134, 336 S.E.2d 637, 1985 N.C. App. LEXIS 4252 (1985).

Death by violent means is prima facie evidence of death by accident. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, 1939 N.C. LEXIS 364 (1939).

The burden of proving suicide is upon the party seeking to establish it. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, 1939 N.C. LEXIS 364 (1939).

Employee Found Dead or Injured at His Place of Employment. —

Deceased was required to report to work before daylight. On the particular morning in question, he was told to return later in the day. At daylight he was found in a dying condition at the base of an unlighted platform on defendant’s premises. Deceased had to cross the platform to leave the premises. It was held that there was sufficient evidence to sustain the finding that the accident arose out of deceased’s employment. Morgan v. Cleveland Cloth Mills, 207 N.C. 317, 177 S.E. 165, 1934 N.C. LEXIS 458 (1934).

Where claimants’ evidence tended to show that deceased was employed as chief of police of defendant municipality and that deceased died as a result of a shot from a pistol while he was in office, proof of death by violence raised a presumption of accidental death, casting the burden of going forward with the evidence upon the employer and insurance carrier to show that deceased killed himself; and claimants’ evidence was sufficient to support the finding of the Industrial Commission that death resulted from an accident arising out of and in the course of the employment. McGill v. Lumberton, 218 N.C. 586, 11 S.E.2d 873, 1940 N.C. LEXIS 54 (1940).

Evidence tending to show that deceased came to his death as a result of a pistol wound while at a place where he had a right to be in the course of his employment, without evidence that he was authorized to keep a pistol or to use it in the business of the employer, was insufficient to support an award of compensation on the ground that in the absence of a showing of suicide it would be presumed that the death resulted from an accident, since, even so, there was neither presumption nor evidence to support the necessary basis for compensation that the accident arose out of the employment. Bolling v. Belk-White Co., 228 N.C. 749, 46 S.E.2d 838, 1948 N.C. LEXIS 300 (1948).

Intentional Injurious Acts Excluded. —

The qualifications that an accident cannot be expected or designed operate narrowly to exclude intentional injurious acts. Searsey v. Perry M. Alexander Constr. Co., 35 N.C. App. 78, 239 S.E.2d 847, 1978 N.C. App. LEXIS 2866, cert. denied, 294 N.C. 736, 244 S.E.2d 154, 1978 N.C. LEXIS 1306 (1978).

Injury Resulting from Fellow Employees’ Negligence. —

An injury suffered by an employee while engaged in his master’s business within the scope of his employment proximately resulting from the negligence of fellow employees is, as to the employee, an “accident” arising out of and in the course of his employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

Claim for Negligent Infliction of Emotional Distress Resulting from Accident Barred by Workers’ Compensation Exclusivity. —

As an employer’s willful and wanton negligence in handling a former employee’s harassment complaint was an “accident” (an unlooked for and untoward event), and as her injury arose out of and was sustained in the course of her employment, her negligent infliction of emotional distress claim against the employer was barred by workers’ compensation exclusivity. Shaw v. Goodyear Tire & Rubber Co., 225 N.C. App. 90, 737 S.E.2d 168, 2013 N.C. App. LEXIS 54 (2013).

Acts of negligence of the employee do not bar compensation for an original injury arising out of and in the course of employment. Starr v. Charlotte Paper Co., 8 N.C. App. 604, 175 S.E.2d 342, 1970 N.C. App. LEXIS 1633 (1970); Bartlett v. Duke Univ., 17 N.C. App. 598, 195 S.E.2d 371, 1973 N.C. App. LEXIS 1424, rev'd, 284 N.C. 230, 200 S.E.2d 193, 1973 N.C. LEXIS 823 (1973).

Injury by Accident Distinguished from Occupational Disease. —

An injury by accident, as that term is ordinarily understood, is distinguished from an occupational disease in that the former rises from a definite event, the time and place of which can be fixed, while the latter develops gradually over a long period of time. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

Injury Not By Accident. —

North Carolina Industrial Commission did not fail to make sufficient findings of fact and conclusions of law with respect to whether an employee’s Achilles tendon injury was an injury by accident under the Workers’ Compensation Act, G.S. 97-2(6) because the evidence supported the Commission’s finding that there was no unusual or unforeseen circumstance interrupting the employee’s normal work routine when he sustained the injury to his Achilles tendon; the employee’s testimony indicated that he routinely would have to step backward off the flat portion of a crosswalk, that in doing so, he would often step onto the inclined section. that during the incident nothing hit him or tripped him, and that there was nothing wrong with the crosswalk. Gray v. RDU Airport Auth., 203 N.C. App. 521, 692 S.E.2d 170, 2010 N.C. App. LEXIS 639 (2010).

Accident Held Compensable. —

North Carolina Industrial Commission did not err in determining that the employee was injured as a result of a compensable accident arising out of and in the course of the employee’s employment, rather than as a result of an idiopathic condition independent of the employee’s employment, where there was contradictory evidence as to whether the employee had a seizure, there were no witnesses to the fall, and there was evidence that being atop a ladder was dangerous. Rackley v. Coastal Painting, 153 N.C. App. 469, 570 S.E.2d 121, 2002 N.C. App. LEXIS 1186 (2002).

Determination by the North Carolina Industrial Commission’s that the employee’s work-related injury was compensable was supported by competent evidence and in accordance with applicable law; the employee was asked to do the weaving for the three days while the weaver was on vacation, the bobbins weighed between 20 and 22 pounds, and lifting was not a regular part of the employee’s job. Moose v. Hexcel-Schwebel, 163 N.C. App. 177, 592 S.E.2d 615, 2004 N.C. App. LEXIS 309 (2004).

Evidence Sufficient. —

Sufficient evidence supported a disability finding where the worker’s right hand was crushed and nearly amputated to such an extent that he had not regained any use of the hand. Campos-Brizuela v. Rocha Masonry, L.L.C., 216 N.C. App. 208, 716 S.E.2d 427, 2011 N.C. App. LEXIS 2159 (2011).

VI.Arising Out of and in the Course of Employment
A.In General

“Out of and in the Course of ” Construed. —

An accident arises out of and in the course of the employment when it occurs while the employee is engaged in some activity or duty which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer’s business. Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643, 1964 N.C. LEXIS 630 (1964); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633, 1966 N.C. LEXIS 992 (1966); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569, 1968 N.C. LEXIS 670 (1968); Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E.2d 790, 1969 N.C. App. LEXIS 1279 (1969); Martin v. Bonclarken Ass'y, 296 N.C. 540, 251 S.E.2d 403, 1979 N.C. LEXIS 1195 (1979); Long v. Asphalt Paving Co., 47 N.C. App. 564, 268 S.E.2d 1, 1980 N.C. App. LEXIS 3151 (1980); Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196, 1982 N.C. LEXIS 1455 (1982); Powers v. Lady's Funeral Home, 306 N.C. 728, 295 S.E.2d 473, 1982 N.C. LEXIS 1562 (1982).

The words “out of ” refer to the origin or cause of the accident. The words “in the course of ” refer to the time, place, and circumstances under which an accident occurs. Ridout v. Rose's 5-10-25 Cent Stores, 205 N.C. 423, 171 S.E. 642, 1933 N.C. LEXIS 577 (1933); Plemmons v. White's Serv., 213 N.C. 148, 195 S.E. 370, 1938 N.C. LEXIS 27 (1938); Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907, 1942 N.C. LEXIS 84 (1942); Brown v. Carolina Aluminum Co., 224 N.C. 766, 32 S.E.2d 320, 1944 N.C. LEXIS 243 (1944); Taylor v. Town of Wake Forest, 228 N.C. 346, 45 S.E.2d 387, 1947 N.C. LEXIS 331 (1947); Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949); Matthews v. Carolina Std. Corp., 232 N.C. 229, 60 S.E.2d 93, 1950 N.C. LEXIS 509 (1950); Berry v. Colonial Furn. Co., 232 N.C. 303, 60 S.E.2d 97, 1950 N.C. LEXIS 510 (1950); Bell v. Dewey Bros., 236 N.C. 280, 72 S.E.2d 680, 1952 N.C. LEXIS 539 (1952); Sweatt v. Rutherford County Bd. of Educ., 237 N.C. 653, 75 S.E.2d 738, 1953 N.C. LEXIS 698 (1953); Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410, 1954 N.C. LEXIS 457 (1954); Zimmerman v. Elizabeth City Freezer Locker, 244 N.C. 628, 94 S.E.2d 813, 1956 N.C. LEXIS 494 (1956); Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862, 1957 N.C. LEXIS 507 (1957); Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218, 1962 N.C. LEXIS 702 (1962); Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570, 1962 N.C. LEXIS 687 (1962); Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308, 1963 N.C. LEXIS 597 (1963); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633, 1966 N.C. LEXIS 992 (1966); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569, 1968 N.C. LEXIS 670 (1968); Robinson v. North Carolina State Hwy. Comm'n, 13 N.C. App. 208, 185 S.E.2d 333, 1971 N.C. App. LEXIS 1196 (1971); Enroughty v. Black Indus., Inc., 13 N.C. App. 400, 185 S.E.2d 597, 1972 N.C. App. LEXIS 2249 (1972); Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, 1972 N.C. App. LEXIS 1891, cert. denied, 281 N.C. 755, 191 S.E.2d 353, 1972 N.C. LEXIS 1174 (1972); Lee v. F.M. Henderson & Assocs., 17 N.C. App. 475, 195 S.E.2d 48, 1973 N.C. App. LEXIS 1388, aff'd, 284 N.C. 126, 200 S.E.2d 32, 1973 N.C. LEXIS 810 (1973); Bartlett v. Duke Univ., 17 N.C. App. 598, 195 S.E.2d 371, 1973 N.C. App. LEXIS 1424, rev'd, 284 N.C. 230, 200 S.E.2d 193, 1973 N.C. LEXIS 823 (1973); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976); Goldston v. Goldston Concrete Works, Inc., 29 N.C. App. 717, 225 S.E.2d 332, 1976 N.C. App. LEXIS 2634, cert. denied, 290 N.C. 660, 228 S.E.2d 452, 1976 N.C. LEXIS 1136 (1976); Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977); Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, 1980 N.C. LEXIS 1080 (1980); Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196, 1982 N.C. LEXIS 1455 (1982); Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899, 1983 N.C. App. LEXIS 2686 (1983).

An accident occurring during the course of employment does not ipso facto arise out of it. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772, 1976 N.C. App. LEXIS 2087 (1976).

As the phrases “arising out of ” and “in the course of ” are not synonymous; they involve two ideas and impose a double condition, both of which must be satisfied in order to bring a case within the act. Sweatt v. Rutherford County Bd. of Educ., 237 N.C. 653, 75 S.E.2d 738, 1953 N.C. LEXIS 698 (1953); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, 1972 N.C. App. LEXIS 1891, cert. denied, 281 N.C. 755, 191 S.E.2d 353, 1972 N.C. LEXIS 1174 (1972); Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977); Martin v. Bonclarken Ass'y, 296 N.C. 540, 251 S.E.2d 403, 1979 N.C. LEXIS 1195 (1979); Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, 1980 N.C. LEXIS 1080 (1980); Brown v. Jim Brown's Serv. Station, 45 N.C. App. 255, 262 S.E.2d 700, 1980 N.C. App. LEXIS 2624 (1980); Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196, 1982 N.C. LEXIS 1455 (1982); Powers v. Lady' Funeral Home, 57 N.C. App. 25, 290 S.E.2d 720, 1982 N.C. App. LEXIS 2608, rev'd, 306 N.C. 728, 295 S.E.2d 473, 1982 N.C. LEXIS 1562 (1982).

To be compensable under the act an injury must arise out of and be received in the course of employment. Two ideas are involved here. The words “in the course of ” refer to the time, place, and circumstances surrounding the accident, while the words “arising out of ” have reference to the causal connection between the injury and the employment. Davis v. North State Veneer Corp., 200 N.C. 263, 156 S.E. 859, 1931 N.C. LEXIS 295 (1931); Parrish v. Armour & Co., 200 N.C. 654, 158 S.E. 188, 1931 N.C. LEXIS 407 (1931); Walker v. J.D. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89, 1937 N.C. LEXIS 385 (1937); McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, 1939 N.C. LEXIS 364 (1939); Matthews v. Carolina Std. Corp., 232 N.C. 229, 60 S.E.2d 93, 1950 N.C. LEXIS 509 (1950); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968); Forsythe v. INCO, 95 N.C. App. 742, 384 S.E.2d 30, 1989 N.C. App. LEXIS 872 (1989).

The phrase “arising out of and in the course of employment” encompasses two separate and distinct concepts — “out of ” and “in the course of ” — both of which must be satisfied in order for particular injuries to be compensable under the act. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968); Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, 1986 N.C. App. LEXIS 2325 (1986).

The term “arising out of ” refers to the origin of the injury or the causal connection of the injury to the employment, while the term “in the course of ” refers to the time, place and circumstances under which the injury occurred. Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, 1986 N.C. App. LEXIS 2271 (1986).

But They Are Not Applied Entirely Independently. —

In practice, the “course of employment” and “arising out of employment” tests are not, and should not be, applied entirely independently; they are both parts of a single test of work-connection, and therefore deficiencies in the strength of one factor are sometimes allowed to be made up by strengths in the other. Lee v. F.M. Henderson & Assocs., 284 N.C. 126, 200 S.E.2d 32, 1973 N.C. LEXIS 810 (1973); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976).

Deficiencies in One Factor May Be Made Up by the Other. —

Since the terms of the Workers’ Compensation Act should be liberally construed in favor of compensation, deficiencies in one factor are sometimes allowed to be made up by strength in the other. Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196, 1982 N.C. LEXIS 1455 (1982).

Natural Consequences of Primary Injury Arising Out of and in Course of Employment. —

When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct. Thus, a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury. Starr v. Charlotte Paper Co., 8 N.C. App. 604, 175 S.E.2d 342, 1970 N.C. App. LEXIS 1633 (1970).

Mixed Question of Law and Fact. —

Whether an injury by accident arises out of and in the course of the employment is a mixed question of law and of fact. Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862, 1957 N.C. LEXIS 507 (1957); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633, 1966 N.C. LEXIS 992 (1966); Enroughty v. Black Indus., Inc., 13 N.C. App. 400, 185 S.E.2d 597, 1972 N.C. App. LEXIS 2249 (1972); Lee v. F.M. Henderson & Assocs., 17 N.C. App. 475, 195 S.E.2d 48, 1973 N.C. App. LEXIS 1388, aff'd, 284 N.C. 126, 200 S.E.2d 32, 1973 N.C. LEXIS 810 (1973); Goldston v. Goldston Concrete Works, Inc., 29 N.C. App. 717, 225 S.E.2d 332, 1976 N.C. App. LEXIS 2634, cert. denied, 290 N.C. 660, 228 S.E.2d 452, 1976 N.C. LEXIS 1136 (1976); Long v. Asphalt Paving Co., 47 N.C. App. 564, 268 S.E.2d 1, 1980 N.C. App. LEXIS 3151 (1980); Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, 1986 N.C. App. LEXIS 2271 (1986); Pittman v. International Paper Co., 132 N.C. App. 151, 510 S.E.2d 705, 1999 N.C. App. LEXIS 92, aff'd, 351 N.C. 42, 519 S.E.2d 524, 1999 N.C. LEXIS 1002 (1999).

Conclusive Effect of Commission’s Findings. —

Whether an employee sustained an injury by accident arising out of and in the course of his employment with the defendant employer resulting in his death is a mixed question of law and fact, and the finding of the Commission as to the factual portion is conclusive if supported by any competent evidence. McManus v. Chick Haven Farms, 4 N.C. App. 177, 166 S.E.2d 526, 1969 N.C. App. LEXIS 1463 (1969).

The issue of whether a particular accident arises out of and in the course of employment is a mixed question of fact and law, and appellate review is limited on appeal to the question of whether the findings and conclusions are supported by competent evidence. Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196, 1982 N.C. LEXIS 1455 (1982).

Whether an injury arose out of and in the course of employment is a mixed question of fact and law, and where there is evidence to support the Commission’s findings, the appellate court is bound by them. Hemric v. Reed & Prince Mfg. Co., 54 N.C. App. 314, 283 S.E.2d 436, 1981 N.C. App. LEXIS 2820 (1981); Hoffman v. Ryder Truck Lines, 306 N.C. 502, 293 S.E.2d 807, 1982 N.C. LEXIS 1487 (1982).

Injury While Performing Task Which Was Not Part of Job. —

Where it was not a part of the plaintiff ’s job to clean tote tank, the tote tank was not supposed to be cleaned and the cleaning of it did not further the business of the employer, the Industrial Commission was correct in concluding that plaintiff was “not about his work” when he was overcome by fumes while cleaning the tote tank. Parker v. Burlington Indus., Inc., 78 N.C. App. 517, 337 S.E.2d 589, 1985 N.C. App. LEXIS 4288 (1985).

Where the employer did not own or control the public street on which plaintiff was injured, where plaintiff was not performing any duties for employer at the time of the injury and was not exposed to any greater danger than that of the public generally, plaintiff did not suffer an injury arising out of and in the course of his employment. Royster v. Culp, Inc., 343 N.C. 279, 470 S.E.2d 30, 1996 N.C. LEXIS 274 (1996).

Cocktail waitress’s injuries sustained when she tried to escape from a guest of the resort who had kidnapped and sexually assaulted her, arose out of and in the course of her employment, even though the attack occurred after the employee’s workday ended when she stopped on a resort road to assist the guest, who she assumed had car trouble. Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 377 S.E.2d 777, 1989 N.C. App. LEXIS 166, aff'd, 325 N.C. 702, 386 S.E.2d 174, 1989 N.C. LEXIS 592 (1989).

If employee does something which he is not specifically ordered not to do by a then present superior and the thing he does furthers the business of the employer although it is not a part of the employee’s job, an injury sustained by accident while he is so performing is in the course of employment. This has been characterized as “being about his work.” Parker v. Burlington Indus., Inc., 78 N.C. App. 517, 337 S.E.2d 589, 1985 N.C. App. LEXIS 4288 (1985).

A volunteer fireman, who is injured by the negligence of a fellow volunteer fireman, at a time when both are acting in the course and scope of their duties, is barred from pursuing a negligence action against the fellow fireman. Hix v. Jenkins, 118 N.C. App. 103, 453 S.E.2d 551, 1995 N.C. App. LEXIS 75 (1995).

Normal Work Routine. —

Because climbing stairs to an employee’s second-floor classroom became a part of the employee’s normal work routine after a month and was not a new condition of employment, the employee did not sustain an injury by accident arising out of and in the course of employment under G.S. 97-2(6) when the employee suffered a knee injury while climbing the stairs and was not entitled to workers’ compensation benefits. Shay v. Rowan Salisbury Sch., 205 N.C. App. 620, 696 S.E.2d 763, 2010 N.C. App. LEXIS 1310 (2010).

Insect Stings. —

To be compensable, an insect sting must be an injury by accident which arose out of and in the course of plaintiff’s employment. Minter v. Osborne Co., 127 N.C. App. 134, 487 S.E.2d 835, 1997 N.C. App. LEXIS 790 (1997).

The increased risk test is the appropriate test for ascertaining whether an employee’s injuries from an insect sting arose out of his employment. Minter v. Osborne Co., 127 N.C. App. 134, 487 S.E.2d 835, 1997 N.C. App. LEXIS 790 (1997).

Where plaintiff failed to show that he was at an increased risk of being stung than a member of the general public, the sting was not an accident or an injury arising out of the employment. Minter v. Osborne Co., 127 N.C. App. 134, 487 S.E.2d 835, 1997 N.C. App. LEXIS 790 (1997).

Injury Suffered in the Course of Employment. —

In-home caregiver was injured in the course of her employment and her injuries arose out of her employment when the caregiver fell from a tree in her client’s yard while picking a pear for her and the client to eat; thus her injury was compensable under G.S. 97-2(6). McGrady v. Olsten Corp., 159 N.C. App. 643, 583 S.E.2d 371, 2003 N.C. App. LEXIS 1520 (2003).

Employee sustained an injury to his back as a direct result of a specific traumatic incident arising out of and in the course of employment where the employee’s testimony and the accident report established that the employee sustained a lower back injury while lifting a hoist off a drum; a subsequent car accident while en route to a doctor’s appointment was not an intervening cause that precluded compensation for aggravation of the employee’s work-related injury since the accident was not the fault of the employee. Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 614 S.E.2d 440, 2005 N.C. App. LEXIS 1254 (2005).

North Carolina Industrial Commission did not err by finding that an injured professional football player sustained a compensable injury by accident arising out of and in the course of his employment, under G.S. 97-2(6), as there was evidence to support the Commission’s finding that the injury which the player suffered while playing during a game was unusual. Swift v. Richardson Sports, Inc., 2005 N.C. App. LEXIS 725 (N.C. Ct. App. Apr. 5, 2005).

Because there was evidence to support the finding by the North Carolina Industrial Commission that a police officer’s injuries, which occurred on the officer’s lunch break when a drunk driver ran over her after hitting the officer’s car, arose out of the assault and thus out of her employment, as it could be inferred that the driver acted as such due to the fact that the employee was a police officer, the decision to award the employee benefits was affirmed. Rose v. City of Rocky Mount, 180 N.C. App. 392, 637 S.E.2d 251, 2006 N.C. App. LEXIS 2413 (2006).

Stock handler, who repetitively moved 40-pound boxes, was injured in the course of employment because he suffered two injuries to his back while working, and although the second injury aggravated a preexisting condition from another work injury, it was compensable under G.S. 97-2(6). Ard v. Owens-Illinois, 182 N.C. App. 493, 642 S.E.2d 257, 2007 N.C. App. LEXIS 684 (2007).

Evidence supported the North Carolina Industrial Commission’s award of ongoing temporary disability compensation to a claimant, finding that the claimant’s back injury arose out of and in the course of her employment under G.S. 97-2(6), as the claimant’s physician opined that the injury originally occurred when she was performing a patient transfer in the course of her employment and was merely aggravated by a non-work incident during which she felt a strain in her back while she was lifting a casserole. Cawthorn v. Mission Hosp., Inc., 211 N.C. App. 42, 712 S.E.2d 306, 2011 N.C. App. LEXIS 723 (2011).

B.Arising Out of

“Arising out of ” relates to the origin or cause of the accident. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963); Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183, 1971 N.C. App. LEXIS 1645 (1971), rev'd, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, 1972 N.C. App. LEXIS 1891, cert. denied, 281 N.C. 755, 191 S.E.2d 353, 1972 N.C. LEXIS 1174 (1972); Strickland v. King, 32 N.C. App. 222, 231 S.E.2d 193, 1977 N.C. App. LEXIS 1887, rev'd, 293 N.C. 731, 239 S.E.2d 243, 1977 N.C. LEXIS 1020 (1977); Powers v. Lady' Funeral Home, 57 N.C. App. 25, 290 S.E.2d 720, 1982 N.C. App. LEXIS 2608, rev'd, 306 N.C. 728, 295 S.E.2d 473, 1982 N.C. LEXIS 1562 (1982).

The phrase “arising out of ” has reference to the origin or cause of the accident. But this is not to say that the accident must have been caused by the employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

The term “arising out of ” refers to the origin or causal connection of the accidental injury to the employment. For an accident to “arise out of ” an employment, there must be some causal connection between the employment and the injury. Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534, 1984 N.C. App. LEXIS 3613 (1984).

Rule of Causal Relation Enunciated. —

An injury to be compensable must be shown to have resulted from an accident arising out of and in the course of the employment. This principle has come to be known and referred to as the rule of causal relation, i.e., that injury to be compensable must spring from the employment. This rule of causal relation is the very sheet anchor of the Workers’ Compensation Act. It has kept the act within the limits of its intended scope — that of providing compensation benefits for industrial injuries, rather than branching out into the field of general health insurance benefits. Duncan v. City of Charlotte, 234 N.C. 86, 66 S.E.2d 22, 1951 N.C. LEXIS 404 (1951); Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643, 1964 N.C. LEXIS 630 (1964).

The requirement that an injury to be compensable must be shown to have resulted from an accident arising out of and in the course of the employment is known and referred to as the “rule of causal relation.” Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633, 1966 N.C. LEXIS 992 (1966).

The rule of causal relation is the very sheet anchor of the Workers’ Compensation Act, and prevents the act from being a general health and insurance benefit act. Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633, 1966 N.C. LEXIS 992 (1966).

There Must Be a Causal Connection Between Employment and Injury. —

The accident “arises out of ” the employment when it occurs in the course of the employment and is the result of a risk involved therein or incident thereto, or to the conditions under which it is required to be performed. There must be some causal connection between the employment and the injury. Bolling v. Belk-White Co., 228 N.C. 749, 46 S.E.2d 838, 1948 N.C. LEXIS 300 (1948); Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643, 1964 N.C. LEXIS 630 (1964); Lee v. F.M. Henderson & Assocs., 284 N.C. 126, 200 S.E.2d 32, 1973 N.C. LEXIS 810 (1973).

An injury “arises out of ” the employment when it occurs in the course of the employment and is a natural and probable consequence or incident of it, so that there is some causal relation between the accident and the performance of some service of the employment. Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97, 1946 N.C. LEXIS 444 (1946); Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976).

There must be some causal relation between the employment and the injury. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570, 1962 N.C. LEXIS 687 (1962); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968); Stubblefield v. Watson Elec. Constr. Co., 277 N.C. 444, 177 S.E.2d 882, 1970 N.C. LEXIS 630 (1970); Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183, 1971 N.C. App. LEXIS 1645 (1971), rev'd, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39, 1976 N.C. App. LEXIS 2327 (1976), rev'd, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977); Hensley v. Caswell Action Comm., Inc., 35 N.C. App. 544, 241 S.E.2d 852, 1978 N.C. App. LEXIS 3022 (1978), rev'd, 296 N.C. 527, 251 S.E.2d 399, 1979 N.C. LEXIS 1193 (1979); Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899, 1983 N.C. App. LEXIS 2686 (1983).

For an accident to arise out of the employment there must be some causal connection between the injury and the employment. When an injury cannot fairly be traced to the employment as a contributing proximate cause, or if it comes from a hazard to which the employee would have been equally exposed apart from the employment, or from the hazard common to others, it does not arise out of the employment. In such a situation the fact that the injury occurred on the employer’s premises is immaterial. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308, 1963 N.C. LEXIS 597 (1963); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

An injury arises out of the employment when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so that there is some causal relation between the injury and the performance of some service of the employment. Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569, 1968 N.C. LEXIS 670 (1968); Lee v. F.M. Henderson & Assocs., 17 N.C. App. 475, 195 S.E.2d 48, 1973 N.C. App. LEXIS 1388, aff'd, 284 N.C. 126, 200 S.E.2d 32, 1973 N.C. LEXIS 810 (1973); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772, 1976 N.C. App. LEXIS 2087 (1976); Powers v. Lady' Funeral Home, 57 N.C. App. 25, 290 S.E.2d 720, 1982 N.C. App. LEXIS 2608, rev'd, 306 N.C. 728, 295 S.E.2d 473, 1982 N.C. LEXIS 1562 (1982); Fortner v. J.K. Holding Co., 83 N.C. App. 101, 349 S.E.2d 296, 1986 N.C. App. LEXIS 2666 (1986), aff'd, 319 N.C. 640, 357 S.E.2d 167, 1987 N.C. LEXIS 2080 (1987).

The injury arises “out of ” the employment when there is apparent to the rational mind upon consideration of all the circumstances a causal connection between the conditions under which the work is required to be performed and the resulting injury. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Patterson v. Gaston County, 62 N.C. App. 544, 303 S.E.2d 182, 1983 N.C. App. LEXIS 2931 (1983).

The term “arising out of ” requires an employee to demonstrate a causal connection between the injury complained of and an accident which occurred in the course of employment. Buck v. Procter & Gamble Mfg. Co., 52 N.C. App. 88, 278 S.E.2d 268, 1981 N.C. App. LEXIS 2320 (1981).

For an injury to be compensable under the North Carolina Workers’ Compensation Act, it must be proximately caused by an accident arising out of and in the course of the employment, according to G.S. 97-2(6); where the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury. Sufficient medical evidence supported a determination by the North Carolina Industrial Commission that an employee suffered a work related injury entitling her to temporary total disability compensation where her doctor testified that her third neck injury, one that occurred in the course of her employment, was the injury that caused a ruptured disc, and where medical records and the employee’s testimony supported the medical findings. Towns v. Epes Transp., 163 N.C. App. 566, 594 S.E.2d 113, 2004 N.C. App. LEXIS 421 (2004).

Finding that the employee’s left ankle injury was causally related to the employee’s compensable right wrist injury was supported by sufficient evidence, including the employee’s testimony that the employee could have broken the fall that caused the ankle injury if the employee’s wrist had not been injured. Everett v. N.C. Indus. Comm'n No. 102217 Well Care & Nursing Servs., 180 N.C. App. 314, 636 S.E.2d 824, 2006 N.C. App. LEXIS 2313 (2006).

Claimant had the burden of establishing that the right knee injury was the direct and natural result of the compensable left knee injury and her claim was denied because her testimony was not adequate to establish medical causation and the doctor’s testimony was not sufficiently reliable to qualify as competent evidence because it was based merely upon speculation and conjecture. Nale v. Allen, 199 N.C. App. 511, 682 S.E.2d 231, 2009 N.C. App. LEXIS 1482 (2009).

But there is no requirement that the injury should be foreseen if it resulted from the employment, nor does the employment have to be the “sole” cause of the injury. Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183, 1971 N.C. App. LEXIS 1645 (1971), rev'd, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39, 1976 N.C. App. LEXIS 2327 (1976), rev'd, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977).

While there must be some causal connection between the employment and the injury, nevertheless it is sufficient if the injury is one which, after the event, may be seen to have had its origin in the employment, and it need not be shown that it is one which should have been foreseen or expected. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949); Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173, 1951 N.C. LEXIS 558 (1951); Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220, 1953 N.C. LEXIS 632 (1953); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963); Starr v. Charlotte Paper Co., 8 N.C. App. 604, 175 S.E.2d 342, 1970 N.C. App. LEXIS 1633 (1970); Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183, 1971 N.C. App. LEXIS 1645 (1971), rev'd, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Goldston v. Goldston Concrete Works, Inc., 29 N.C. App. 717, 225 S.E.2d 332, 1976 N.C. App. LEXIS 2634, cert. denied, 290 N.C. 660, 228 S.E.2d 452, 1976 N.C. LEXIS 1136 (1976); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39, 1976 N.C. App. LEXIS 2327 (1976), rev'd, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977).

The words “out of ” as used in the act refer to the origin or cause of the accident and import that there must be some causal relation between the employment and the injury, but not that the injury ought to have been foreseen or expected. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596, 1955 N.C. LEXIS 387 (1955).

And Fact That Injury Could Not Have Been Anticipated Is Immaterial. —

If it can be seen that the injury had its origin in the employment, it arises out of such employment, and the fact that it could not have been anticipated is immaterial. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 1930 N.C. LEXIS 459 (1930).

Injury Arises Out of Employment Where Reasonable Relationship Exists. —

Where any reasonable relationship to employment exists, or employment is a contributory cause, the court is justified in upholding the award as “arising out of employment.” Kiger v. Bahnson Serv. Co., 260 N.C. 760, 133 S.E.2d 702, 1963 N.C. LEXIS 815 (1963); Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102, 1968 N.C. App. LEXIS 1014 (1968); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193, 1973 N.C. LEXIS 823 (1973); Brown v. Jim Brown's Serv. Station, 45 N.C. App. 255, 262 S.E.2d 700, 1980 N.C. App. LEXIS 2624 (1980).

Injury Must Spring or Originate from Employment. —

“Arising out of ” has been defined to mean coming from the work the employee is to do, or out of the services he is to perform, and as a natural result of one of the risks of the employment. The injury must spring from the employment or have its origin therein. Bolling v. Belk-White Co., 228 N.C. 749, 46 S.E.2d 838, 1948 N.C. LEXIS 300 (1948); Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220, 1953 N.C. LEXIS 632 (1953); Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410, 1954 N.C. LEXIS 457 (1954); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968). See Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173, 1951 N.C. LEXIS 558 (1951).

Employment Must Contribute in Some Reasonable Degree Thereto. —

In order for an accident to arise out of the employment it is not required that a hazard of the employment be the sole cause of the accident, but it is sufficient if the physical aspects of the employment contribute in some reasonable degree toward bringing about or intensifying the condition which renders the employee susceptible to the accident and consequent injury. Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173, 1951 N.C. LEXIS 558 (1951).

Recreational Activities Arranged by Employer. —

Appellate court erred in affirming the North Carolina Industrial Commission’s decision that found the employee was entitled to temporary total disability workers’ compensation benefits based on a cervical strain injury the employee sustained when the go-cart the employee was driving at a “Fun Day” recreational event arranged by the employer struck another go-cart; the employee, who was a volunteer emergency medical services captain for the employer, was not required to attend or participate in the recreational event, and thus was not injured in activity “arising out of” the employment of the employee. Frost v. Salter Path Fire & Rescue, 361 N.C. 181, 639 S.E.2d 429, 2007 N.C. LEXIS 35 (2007).

North Carolina Industrial Commission did not err in concluding that the claimant’s injury arose out of his employment because the employer specifically required its employees to attend the event, encouraged their participation in the laser tag activity, and derived a business benefit from the conference as a whole; in determining that the claimant sustained a compensable injury by accident; and in awarding the claimant temporary total disability benefits because the doctor’s testimony that he did not expect the claimant to be able to return to work for three to six months supported the conclusion that the claimant was incapable of performing any work after his knee replacement. Holliday v. Tropical Nut & Fruit Co., 242 N.C. App. 562, 775 S.E.2d 885, 2015 N.C. App. LEXIS 703 (2015).

Paid Break from Employer’s Premises. —

In making the determination whether an injury that occurred off the employer’s premises during a scheduled break is within the scope of employment, there are several factors to consider: (1) the duration of the break period; (2) whether the employee is paid during the break period; (3) whether the employer provides a place for employees to take breaks, including vending facilities; (4) whether the employer permits off-premises breaks, or has acquiesced in such despite policies against such breaks; and (5) the proximity of the off-premises location where the employee was injured to the employment site. Shaw v. Smith & Jennings, Inc., 130 N.C. App. 442, 503 S.E.2d 113, 1998 N.C. App. LEXIS 935 (1998).

The Pickrell presumption that the employee’s death arose out of his employment applied in a widow’s action to recover death benefits, even though the medical cause of death was known to be positional asphyxia, where the employee was found dead in a one-vehicle accident while on a paid break from his employer’s premises. Shaw v. Smith & Jennings, Inc., 130 N.C. App. 442, 503 S.E.2d 113, 1998 N.C. App. LEXIS 935 (1998).

Injury While on Unpaid Break. —

Injury suffered when the employee slipped while walking from the bathroom to her cubicle after an unpaid lunch break “arose out of” her employment, as the employee was injured in common area of the building, which was not open to the public, where employees were encouraged to go. Mintz v. Verizon Wireless, 223 N.C. App. 433, 735 S.E.2d 217, 2012 N.C. App. LEXIS 1304 (2012).

And the Risk of Injury Must Be Incidental to Employment. —

“Arising out of ” means arising out of the work the employee is to do, or out of the service he is to perform. The risk must be incidental to the employment. Bell v. Dewey Bros., 236 N.C. 280, 72 S.E.2d 680, 1952 N.C. LEXIS 539 (1952); Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220, 1953 N.C. LEXIS 632 (1953); Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693, 1954 N.C. LEXIS 461 (1954); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633, 1966 N.C. LEXIS 992 (1966).

To have its origin in the employment, an injury must come from a risk which might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered employment. Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193, 1973 N.C. LEXIS 823 (1973).

Where the cause of the accident is unexplained but the accident is a natural and probable result of a risk of the employment, the finding of the Industrial Commission that the accident arose out of the employment will be sustained. Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, 1972 N.C. App. LEXIS 1891, cert. denied, 281 N.C. 755, 191 S.E.2d 353, 1972 N.C. LEXIS 1174 (1972).

Employment Must Be a Contributing Proximate Cause to Injury. —

Where an injury cannot fairly be traced to the employment as a contributing proximate cause, it does not arise out of the employment. Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410, 1954 N.C. LEXIS 457 (1954); Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693, 1954 N.C. LEXIS 461 (1954); Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862, 1957 N.C. LEXIS 507 (1957); Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570, 1962 N.C. LEXIS 687 (1962); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633, 1966 N.C. LEXIS 992 (1966); Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193, 1973 N.C. LEXIS 823 (1973); Eaton v. Klopman Mills, Inc., 2 N.C. App. 363, 163 S.E.2d 17, 1968 N.C. App. LEXIS 928 (1968); Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, 1972 N.C. App. LEXIS 1891, cert. denied, 281 N.C. 755, 191 S.E.2d 353, 1972 N.C. LEXIS 1174 (1972).

The test of whether an accidental injury “arises out of ” the employment is whether a contributing proximate cause of the injury was a risk inherent or incidental to the employment and one to which the employee would not have been equally exposed apart from the employment. Fortner v. J.K. Holding Co., 83 N.C. App. 101, 349 S.E.2d 296, 1986 N.C. App. LEXIS 2666 (1986), aff'd, 319 N.C. 640, 357 S.E.2d 167, 1987 N.C. LEXIS 2080 (1987).

To determine whether an injury or death by accident arose out of the employment, it is necessary to examine the findings of specific crucial facts. The basic question is whether the employment was a contributing cause of the injury. Roberts v. Burlington Indus., Inc., 321 N.C. 350, 364 S.E.2d 417, 1988 N.C. LEXIS 98 (1988).

Where a hospital employee was assaulted and injured by a man when she was going from her office to the morgue to retrieve records, and the employer acknowledged that the assault upon the employee occurred “in the course of” her employment but argued that it did not “arise out of” her employment, the evidence supported the finding that the employment was a contributing cause of the injury; thus, the employee was awarded total disability compensation, medical expenses, and psychological expenses under G.S. 97-2(6). D'Aquisto v. Mission St. Joseph's Health Sys., 171 N.C. App. 216, 614 S.E.2d 583, 2005 N.C. App. LEXIS 1269 (2005), rev'd, 360 N.C. 567, 633 S.E.2d 89, 2006 N.C. LEXIS 843 (2006).

But Need Not Be the Sole Causative Force. —

Where a claimant’s right to recovery is based on an injury by accident, the employment need not be the sole causative force to render the injury compensable. Walston v. Burlington Indus., 49 N.C. App. 301, 271 S.E.2d 516, 1980 N.C. App. LEXIS 3403 (1980), rev'd, 304 N.C. 670, 285 S.E.2d 822, 1982 N.C. LEXIS 1239 (1982).

As the Moving Force Can Be Something Other than Employment. —

When one speaks of an event “arising out of employment,” the initiative, the moving force, is something other than the employment; the employment is thought of more as a condition out of which the event arises than as the force producing the event in affirmative fashion. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

Hazards or Risks Incidental to Employment as Contributing Cause to Accident and Resulting Injuries. —

The North Carolina Industrial Commission neither (1) erred in relying on Allred v. Allred-Gardner, Inc., 253 N.C. 554 (1960), in finding that an employee’s injuries arose out of and in the course of his employment, nor (2) misapplied the increased risk analysis, when it determined that the risk of driving a truck aggravated, accelerated, or combined with plaintiff employee’s pre-existing condition (syncopal episode or blackout) to produce his injuries, and thus, that the injuries arose out of and in the course of his employment, because they resulted from his work-related accident. Facts were consistent with an interpretation of Allred that no showing was needed that plaintiff’s injury was made more severe or caused solely by driving a truck, and since the employee was returning to work after making a delivery for his employer when the accident occurred, an increased risk analysis was not relevant. Billings v. Gen. Parts, Inc., 187 N.C. App. 580, 654 S.E.2d 254, 2007 N.C. App. LEXIS 2560 (2007).

No Competent Evidence of Causation. —

North Carolina Industrial Commission properly found that no competent evidence supported a conclusion that a workers’ compensation claimant’s back injury occurred as a result of a traumatic incident where the claimant’s credibility as it related to his testimony about the events that caused his back injury and the competency of his medical causation evidence were at issue; the claimant’s medical evidence of causation was little more than speculation. Rogers v. Smoky Mt. Petroleum Co., 172 N.C. App. 521, 617 S.E.2d 292, 2005 N.C. App. LEXIS 1779 (2005).

The North Carolina Industrial Commission did not err by finding that an employee’s fall was not the result of an accident arising out of his employment because the facts fully supported the Commission’s conclusion that the employee’s fall was due to an idiopathic condition or physical infirmity, which caused his leg to give way; the employee’s fall was spontaneous and due to an unknown physical infirmity, and although the employee argued that the Commission erred in its finding that his fall resulted from his leg giving way due to an unknown physical infirmity, there was no evidence in the record that offered any explanation of a cause for the fall other than the fact that his leg “gave way” and he fell. Watkins v. Trogdon Masonry, Inc., 203 N.C. App. 289, 692 S.E.2d 112, 2010 N.C. App. LEXIS 554 (2010).

Employment Must Put Employee in Place of Accident. —

For an accident to “arise out of ” the employment, it is necessary that the conditions or obligations of the employment put the employee in the position or at the place where the accident occurs. Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899, 1983 N.C. App. LEXIS 2686 (1983).

And Subject Him to Additional Risks Incident Thereto. —

Where the conditions and obligations of the employment required the claimant to be at a place where the accident occurred, subjecting him to additional risks incident thereto, the injury arose out of the employment. Powers v. Lady's Funeral Home, 306 N.C. 728, 295 S.E.2d 473, 1982 N.C. LEXIS 1562 (1982).

Hazard Must Not Be Common to Public. —

An accident arises out of employment when it is the result of a risk or hazard incident to the employment and is not from a hazard common to the public. Martin v. Bonclarken Ass'y, 35 N.C. App. 489, 241 S.E.2d 848, 1978 N.C. App. LEXIS 3011 (1978), rev'd, 296 N.C. 540, 251 S.E.2d 403, 1979 N.C. LEXIS 1195 (1979).

Where an injury cannot fairly be traced to the employment as a contributing proximate cause, or comes from a hazard to which the worker would have been equally exposed apart from the employment or from a hazard common to others, it does not arise out of the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. Bryan v. T.A. Loving Co., 222 N.C. 724, 24 S.E.2d 751, 1943 N.C. LEXIS 414 (1943); Pope v. Goodson, 249 N.C. 690, 107 S.E.2d 524, 1959 N.C. LEXIS 412 (1959); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772, 1976 N.C. App. LEXIS 2087 (1976).

Occurrence on Employer’s Premises Is Not Dispositive. —

Even though an accident occurred on the employer’s premises at a time when the employee was within the compass of his employment, this alone is insufficient to justify a finding that the injury arose out of the employment. Strickland v. King, 293 N.C. 731, 239 S.E.2d 243, 1977 N.C. LEXIS 1020 (1977).

Employee Must Be Engaged in Authorized Activity in Furtherance of Employer’s Business. —

An accident arises out of employment when it occurs while the employee is engaged in some activity or duty which he is authorized to undertake, and which is calculated to further, indirectly or directly, the employer’s business. Smith v. Central Transp. & Liberty Mut. Ins. Co., 51 N.C. App. 316, 276 S.E.2d 751, 1981 N.C. App. LEXIS 2260 (1981).

And Must Be Acting for Employer’s Benefit at Time of Accident. —

Compensability of a claim basically turns upon whether or not the employee was acting for the benefit of his employer to any appreciable extent when the accident occurred. Such a determination depends largely upon the unique facts of each particular case; in close cases, the benefit of the doubt concerning this issue should be given to the employee in accordance with the established policy of liberal construction and application of the Workers’ Compensation Act. Hoffman v. Ryder Truck Lines, 306 N.C. 502, 293 S.E.2d 807, 1982 N.C. LEXIS 1487 (1982).

Preexisting Injury Barred Recovery. —

North Carolina Industrial Commission properly found that a claimant’s preexisting back injury barred his recovery where: (1) through the year, the claimant received pain treatment and physical therapy for a preexisting back injury; (2) the claimant’s testimony of a subsequent back injury was not supported by other competent evidence; and (3) the expert medical testimony failed to establish that the claimant’s current back problem was either caused or aggravated by an accident or specific traumatic work-related event. Rogers v. Smoky Mt. Petroleum Co., 172 N.C. App. 521, 617 S.E.2d 292, 2005 N.C. App. LEXIS 1779 (2005).

Whether an accident “arises out of the employment” is a mixed question of law and fact. Ridout v. Rose's 5-10-25 Cent Stores, 205 N.C. 423, 171 S.E. 642, 1933 N.C. LEXIS 577 (1933); Matthews v. Carolina Std. Corp., 232 N.C. 229, 60 S.E.2d 93, 1950 N.C. LEXIS 509 (1950); Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693, 1954 N.C. LEXIS 461 (1954); Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869, 1957 N.C. LEXIS 400 (1957); Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218, 1962 N.C. LEXIS 702 (1962); Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570, 1962 N.C. LEXIS 687 (1962); Clark v. Gastonia Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354, 1964 N.C. LEXIS 448 (1964); Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643, 1964 N.C. LEXIS 630 (1964); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772, 1976 N.C. App. LEXIS 2087 (1976).

Which Must Be Determined on a Case-by-Case Basis. —

The term “arising out of employment” must be interpreted in the light of the facts and circumstances of each case. Plemmons v. White's Serv., 213 N.C. 148, 195 S.E. 370, 1938 N.C. LEXIS 27 (1938); Taylor v. Town of Wake Forest, 228 N.C. 346, 45 S.E.2d 387, 1947 N.C. LEXIS 331 (1947); Berry v. Colonial Furn. Co., 232 N.C. 303, 60 S.E.2d 97, 1950 N.C. LEXIS 510 (1950); Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643, 1964 N.C. LEXIS 630 (1964); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569, 1968 N.C. LEXIS 670 (1968).

Whether the injury “arose out of ” the employment is to be decided on the facts of the individual case and cannot be precisely defined. Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183, 1971 N.C. App. LEXIS 1645 (1971), rev'd, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39, 1976 N.C. App. LEXIS 2327 (1976), rev'd, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977).

Claimant Failed to Meet His Burden of Proof. —

North Carolina Industrial Commission properly held that a claimant failed to show that he sustained a work-related back injury where: (1) he claimed having reported the injury to his supervisor, but his co-workers testified that he did not mention an injury to them, nor did they notice any change in the claimant’s physical activities during the day; (2) he did not report the injury to his treating physician when he went for a previously-scheduled epidural injection; (3) he did not inform a second doctor that he had been undergoing treatment for back pain; and (4) he erroneously informed the second doctor that he had been out of work. Rogers v. Smoky Mt. Petroleum Co., 172 N.C. App. 521, 617 S.E.2d 292, 2005 N.C. App. LEXIS 1779 (2005).

Effect of Commission’s Findings. —

Whether an accident arises out of the employment is a mixed question of fact and law, and the finding of the Commission is conclusive if supported by any competent evidence; otherwise, not. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976).

Whether an accident grew out of the employment is a mixed question of law and fact which the court has the right to review on appeal. If the detailed findings of fact force a conclusion opposite that reached by the Commission, it is the duty of the court to reverse the Commission. Warren v. City of Wilmington, 43 N.C. App. 748, 259 S.E.2d 786, 1979 N.C. App. LEXIS 3150 (1979).

Claimant Lacked Credibility. —

North Carolina Industrial Commission properly considered all of the competent evidence and properly found that a workers’ compensation claimant lacked credibility. Rogers v. Smoky Mt. Petroleum Co., 172 N.C. App. 521, 617 S.E.2d 292, 2005 N.C. App. LEXIS 1779 (2005).

Sufficient Evidence to Support Finding That Medical Treatment Directly Related to Compensable Injury. —

There was sufficient evidence to support the Industrial Commission’s findings of fact and conclusions of law that the medical treatment of an employee’s right shoulder was causally related to her compensable right shoulder injury because doctors’ testimony supported the presumption that additional medical treatment was directly related to the compensable right shoulder injury; the employer failed to present evidence to disprove the causal connection. Bell v. Goodyear Tire & Rubber Co., 252 N.C. App. 268, 798 S.E.2d 143, 2017 N.C. App. LEXIS 176 (2017).

C.In the Course of

Time, Place and Circumstances. —

The words “in the course of ” as used in the act refer to the time, place, and circumstances under which the injury occurs. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596, 1955 N.C. LEXIS 387 (1955); Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869, 1957 N.C. LEXIS 400 (1957); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963); Martin v. Bonclarken Ass'y, 296 N.C. 540, 251 S.E.2d 403, 1979 N.C. LEXIS 1195 (1979); Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196, 1982 N.C. LEXIS 1455 (1982); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968); Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183, 1971 N.C. App. LEXIS 1645 (1971), rev'd, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39, 1976 N.C. App. LEXIS 2327 (1976), rev'd, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977); Strickland v. King, 32 N.C. App. 222, 231 S.E.2d 193, 1977 N.C. App. LEXIS 1887, rev'd, 293 N.C. 731, 239 S.E.2d 243, 1977 N.C. LEXIS 1020 (1977); Brown v. Jim Brown's Serv. Station, 45 N.C. App. 255, 262 S.E.2d 700, 1980 N.C. App. LEXIS 2624 (1980); Powers v. Lady' Funeral Home, 57 N.C. App. 25, 290 S.E.2d 720, 1982 N.C. App. LEXIS 2608, rev'd, 306 N.C. 728, 295 S.E.2d 473, 1982 N.C. LEXIS 1562 (1982); Patterson v. Gaston County, 62 N.C. App. 544, 303 S.E.2d 182, 1983 N.C. App. LEXIS 2931 (1983); Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534, 1984 N.C. App. LEXIS 3613 (1984).

It is the conjunction of all three factors, time, place and circumstances, that brings a particular accident within the concept of course of employment. If, in addition to this, the accident arose out of employment, then any injury resulting therefrom is compensable under the act. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

Time, Place and Circumstances. —

Where an employee was struck and fatally injured by a car while walking to work across a shopping mall parking lot, his injuries were not compensable, as the North Carolina Industrial Commission properly found that the employee was not exposed to any traffic danger greater than the public in general. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 585 S.E.2d 264, 2003 N.C. App. LEXIS 1736 (2003).

What Time Is Covered. —

With respect to time, the course of employment begins a reasonable time before actual work begins, and continues for a reasonable time after work ends, and includes intervals during the workday for rest and refreshment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

With respect to time, the course of employment begins a reasonable time before work begins and continues for a reasonable time after work ends. Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899, 1983 N.C. App. LEXIS 2686 (1983).

What Place Is Covered. —

With respect to place, the course of employment includes the premises of the employer. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39, 1976 N.C. App. LEXIS 2327 (1976), rev'd, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977).

“Time and place” do not necessarily mean the regular hours of employment and on the premises of the employer. If the employee is doing work at the direction and for the benefit of the employer, the time and place of work are for the benefit of the employer and a part of the employment of the employee. This satisfies the condition of time and place although the work is done off the premises of the employer and after regular working hours. Brown v. Jim Brown's Serv. Station, 45 N.C. App. 255, 262 S.E.2d 700, 1980 N.C. App. LEXIS 2624 (1980).

Going to and from Work. —

An employee may be in the course of his employment when he is on the way to the place of his duties, leaving the place of his duties at the end of the day, or leaving upon learning that there was no work for him to do. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

The time of employment includes the working hours as well as such reasonable time as is required to pass to and from the employer’s premises. Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39, 1976 N.C. App. LEXIS 2327 (1976), rev'd, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977).

What Activity Is Covered. —

Where the employee is engaged in activity which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer’s business, the circumstances are such as to be within the course of employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968); Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899, 1983 N.C. App. LEXIS 2686 (1983).

The fact that the employee is not engaged in the actual performance of the duties of his job does not preclude an accident from being one within the course of employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

With respect to circumstances, injuries within the course of employment include those sustained while the employee is doing what a man so employed may reasonably do within a time which he is employed and at a place where he may reasonably be during that time to do that thing. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968); Brown v. Jim Brown's Serv. Station, 45 N.C. App. 255, 262 S.E.2d 700, 1980 N.C. App. LEXIS 2624 (1980).

An accident arising “in the course of ” the employment is one which occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time to do that thing; or one which occurs in the course of the employment and as the result of a risk involved in the employment, or incident to it, or to conditions under which it is required to be performed. Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569, 1968 N.C. LEXIS 670 (1968); Goldston v. Goldston Concrete Works, Inc., 29 N.C. App. 717, 225 S.E.2d 332, 1976 N.C. App. LEXIS 2634, cert. denied, 290 N.C. 660, 228 S.E.2d 452, 1976 N.C. LEXIS 1136 (1976); Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196, 1982 N.C. LEXIS 1455 (1982).

The words “in the course of ” the employment refer to the time, place, and circumstances of the accident, and an accident arises in the course of the employment if it occurs while the employee is engaged in a duty which he is authorized or directed to undertake or in an activity incidental thereto. Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, 1972 N.C. App. LEXIS 1891, cert. denied, 281 N.C. 755, 191 S.E.2d 353, 1972 N.C. LEXIS 1174 (1972).

An injury occurs “in the course of ” the employment when the injury occurs during the period of employment at a place where an employee’s duties are calculated to take him, and under circumstances in which the employee is engaged in an activity which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer’s business. Fortner v. J.K. Holding Co., 83 N.C. App. 101, 349 S.E.2d 296, 1986 N.C. App. LEXIS 2666 (1986), aff'd, 319 N.C. 640, 357 S.E.2d 167, 1987 N.C. LEXIS 2080 (1987).

Industrial Commission’s denial of benefits was vacated because the Commission’s inconsistent findings that the employee’s actions when the employee was injured removed the employee from the scope of employment but the employee might have initially performed work-related tasks precluded determining whether the Commission’s findings supported the Commission’s legal conclusion that the employee’s operation of a forklift removed the employee from the scope of employment. Weaver v. Dedmon, 253 N.C. App. 622, 801 S.E.2d 131, 2017 N.C. App. LEXIS 392 (2017).

Injury During Hours and at Place of Employment While Engaged in Duties. —

A conclusion that an injury arose in the course of the employment is required where there is evidence that it occurred during the hours of the employment and at the place of the employment while the claimant was actually engaged in the performance of the duties of the employment. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968); Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899, 1983 N.C. App. LEXIS 2686 (1983).

Injury While Performing Task Which Was Not Part of Job. —

Where it was not a part of the plaintiff ’s job to clean tote tank, the tote tank was not supposed to be cleaned and the cleaning of it did not further the business of the employer, the Industrial Commission was correct in concluding that plaintiff was “not about his work” when he was overcome by fumes while cleaning the tote tank. Parker v. Burlington Indus., Inc., 78 N.C. App. 517, 337 S.E.2d 589, 1985 N.C. App. LEXIS 4288 (1985).

Performance of Special Errand. —

Where automobile accident occurred as plaintiff was in route from worksite to a hospital in order to transport a fellow employee, even though travel was not an incident of plaintiff’s employment as a roofer and construction worker, the journey was brought into the course of employment because plaintiff was performing a “special errand” that directly benefited the employer. Aaron v. New Fortis Homes, Inc., 127 N.C. App. 711, 493 S.E.2d 305, 1997 N.C. App. LEXIS 1193 (1997).

The decedent’s fatal accident occurred in the course of his employment with his employer, where the decedent was killed in a one-vehicle accident while on a paid break, there was no food or drink on the employer’s premises, and the employer acquiesced in allowing employees to go off the job site to obtain refreshments. Shaw v. Smith & Jennings, Inc., 130 N.C. App. 442, 503 S.E.2d 113, 1998 N.C. App. LEXIS 935 (1998).

An employee’s kidnapping and murder by a former co-employee arose out of and in the course of her employment with employer, where the employee had prepared an informational sheet on unemployment benefits and she had been directed by her employer to talk to the former employee regarding his unemployment benefits. Hauser v. Advanced Plastiform, Inc., 133 N.C. App. 378, 514 S.E.2d 545, 1999 N.C. App. LEXIS 507 (1999).

Employee who was injured when thrown from a pick-up truck while riding from residence to a site where supervisor wanted employee to pick up a dump truck was on a special errand for employer and was covered under North Carolina’s Workers’ Compensation Act. Osmond v. Carolina Concrete Specialties, 151 N.C. App. 541, 568 S.E.2d 204, 2002 N.C. App. LEXIS 906 (2002).

If employee does something which he is not specifically ordered not to do by a then present superior and the thing he does furthers the business of the employer although it is not a part of the employee’s job, an injury sustained by accident while he is so performing is in the course of employment. This has been characterized as “being about his work.” Parker v. Burlington Indus., Inc., 78 N.C. App. 517, 337 S.E.2d 589, 1985 N.C. App. LEXIS 4288 (1985).

Preliminary preparations by an employee, reasonably essential to the proper performance of some required task or service, are generally regarded as being within the scope of employment, and any injury suffered while in the act of preparing to do a job is compensable. Thompson v. Refrigerated Transp. Co., 32 N.C. App. 693, 236 S.E.2d 312, 1977 N.C. App. LEXIS 2040 (1977).

In tending to his personal physical needs, an employee is indirectly benefiting his employer. Therefore, the course of employment continues when the employee goes to the washroom, takes a smoke break, takes a break to partake of refreshment, goes on a personal errand involving temporary absence from his post of duty, or voluntarily leaves his post to assist another employee. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

Activities which an employee undertakes in pursuit of his personal comfort constitute part of the circumstances of the course of employment. Dayal v. Provident Life & Accident Ins. Co., 71 N.C. App. 131, 321 S.E.2d 452, 1984 N.C. App. LEXIS 3791 (1984).

Mealtime is within the course of employment, even where such time is completely free for the employees. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

Injury While on Required Unpaid Break. —

Injury suffered when the employee slipped while walking from the bathroom to her cubicle after an unpaid lunch break occurred “in the course of” her employment, as the employer required employees to take lunch break; “in the course of” included time for rest and eating; and while the employer did not own the premises, it was the main tenant in the building and maintained and controlled all activities occurring in the building. Mintz v. Verizon Wireless, 223 N.C. App. 433, 735 S.E.2d 217, 2012 N.C. App. LEXIS 1304 (2012).

When an employee is required to live on the premises, either by his contract of employment or by the nature of the employment, and is continuously on call, whether or not actually on duty, the entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976).

Living in Company Housing. —

Where migrant farm worker who lived in company housing was injured while taking a shower after work, although the nature of his employment arguably required that he live on the premises, at the time of his injury he was not on call, and the connection between his employment and his injury was not sufficient to establish that the injury arose out of and in the course of his employment. Jauregui v. Carolina Vegetables, 112 N.C. App. 593, 436 S.E.2d 268, 1993 N.C. App. LEXIS 1199 (1993).

Accident While Off-Duty. —

Ordinarily, when an employee is off duty the relationship of master and servant is suspended; therefore, there is no causal relation between the employment and an accident which happens during such time. Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218, 1962 N.C. LEXIS 702 (1962).

Evidence Was Sufficient to Show Plaintiff ’s Injurious Exposure Occurred During Course of Employment. —

Where the record disclosed that plaintiff did not continue earning wages after 1969, her unsuccessful attempts to work during the years 1969 to 1980, when considered in conjunction with the medical evidence, merely demonstrated her total incapacity to earn wages; thus the commission’s determination that plaintiff ’s last injurious exposure to the hazards of her occupational disease occurred while she was employed in 1968, and its order that employer and its carrier in 1968 pay her an award under the provisions of G.S. 97-29 in effect on October 1, 1968, would be affirmed. Gregory v. Sadie Cotton Mills, Inc., 90 N.C. App. 433, 368 S.E.2d 650, 1988 N.C. App. LEXIS 556 (1988).

Where an employee, who was a traveling nursing assistant, had traveled to a patient’s home, left on a personal errand, and was injured in an automobile accident on her return to the patient’s home, the full North Carolina Industrial Commission’s award of temporary total disability benefits was upheld on appeal, because the personal errand had been completed and the employee had resumed her business travel route when the accident occurred; thus, the accident was properly determined to have occurred in the course of employment, making the injury compensable. Chavis v. TLC Home Health Care, 172 N.C. App. 366, 616 S.E.2d 403, 2005 N.C. App. LEXIS 1770 (2005).

Mall Parking Lot Is Not Employer’s Premises. —

Where an employee was struck and killed by a car while walking to work across a shopping mall parking lot, he did not sustain an injury by accident while in the course and scope of his employment under G.S. 97-2(6); since the right of the employer under its lease to use the parking lot and its obligation to share in the lot’s maintenance costs was not sufficient control over the lot to allow a finding that it was within the employer’s premises, the limited exception to the coming and going rule was inapplicable. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 585 S.E.2d 264, 2003 N.C. App. LEXIS 1736 (2003).

Performance of Special Errand. —

Where an employee was struck and fatally injured by a car while walking to work across a shopping mall parking lot, the fact that he was carrying work-related materials and was responsible for opening his employer’s store did not mean he was running a “special errand” for his employer that made his injuries compensable. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 585 S.E.2d 264, 2003 N.C. App. LEXIS 1736 (2003).

D.Risks Incident to the Employment

The injury must come from a risk which might have been contemplated by a reasonable person as incidental to the service when he entered the employment. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972).

When Risk Is Incidental to Employment. —

A risk may be said to be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the service owing to the special nature of the employment. Goodwin v. Bright, 202 N.C. 481, 163 S.E. 576, 1932 N.C. LEXIS 139 (1932); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772, 1976 N.C. App. LEXIS 2087 (1976).

The causative danger need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193, 1973 N.C. LEXIS 823 (1973); Patterson v. Gaston County, 62 N.C. App. 544, 303 S.E.2d 182, 1983 N.C. App. LEXIS 2931 (1983).

But must have been peculiar to the work and not common to the neighborhood, as well as incidental to the character of the business and not independent of the relation of master and servant. Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218, 1962 N.C. LEXIS 702 (1962); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972); Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193, 1973 N.C. LEXIS 823 (1973).

Injury by accident is not compensable if it results from a hazard to which the public generally is subject. Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, 1972 N.C. App. LEXIS 1891, cert. denied, 281 N.C. 755, 191 S.E.2d 353, 1972 N.C. LEXIS 1174 (1972).

When the cause of injury is known and is independent of, unrelated to, and apart from the employment, and results from a hazard to which others are equally exposed, compensation will not be allowed. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308, 1963 N.C. LEXIS 597 (1963); Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, 1972 N.C. App. LEXIS 1891, cert. denied, 281 N.C. 755, 191 S.E.2d 353, 1972 N.C. LEXIS 1174 (1972).

Injury Due to Peculiar Hazard of Employee’s Location. —

A causal relation exists between the accident and the employment when the duties of the employment require the employee to be in a place at which he is exposed to a risk of injury to which he would not otherwise be subject, and while there he is injured by an accident due to the peculiar hazard of that location. Stubblefield v. Watson Elec. Constr. Co., 277 N.C. 444, 177 S.E.2d 882, 1970 N.C. LEXIS 630 (1970); Hensley v. Caswell Action Comm., Inc., 35 N.C. App. 544, 241 S.E.2d 852, 1978 N.C. App. LEXIS 3022 (1978), rev'd, 296 N.C. 527, 251 S.E.2d 399, 1979 N.C. LEXIS 1193 (1979).

Accident Caused Partly or Solely by Idiopathic Condition. —

Where the accident and resultant injury arise out of both the idiopathic condition of the workman and hazards incident to the employment, the employer is liable. But not so where the idiopathic condition is the sole cause of the injury. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308, 1963 N.C. LEXIS 597 (1963).

Where the employment subjects a worker to a special or particular hazard from the elements, such as excessive heat or cold likely to produce sunstroke or freezing, death or disability resulting from such cause usually comes within the purview of the compensation acts; the test is whether the employment subjects the worker to a greater hazard or risk than that to which he or she otherwise would be exposed. Dillingham v. Yeargin Constr. Co., 320 N.C. 499, 358 S.E.2d 380, 1987 N.C. LEXIS 2269 (1987).

Risk of Injury from Lightning. —

The generally recognized rule is that where the injured employee is by reason of his employment peculiarly or specially exposed to a risk of injury from lightning, that is, one greater than other persons in the community, death or injury resulting from this source usually is compensable as an injury by accident arising out of and in the course of the employment. Pope v. Goodson, 249 N.C. 690, 107 S.E.2d 524, 1959 N.C. LEXIS 412 (1959).

North Carolina Industrial Commission properly found that circumstances incidental to a claimant’s employment peculiarly exposed him to a greater risk of injury from lightning under G.S. 97-2(6). The claimant did not need to present expert testimony to show an increased risk; rather, evidence that he was working at a home construction site located near the top of a mountain near metal towers, that the unfinished house had a metal roof, and that the claimant was standing in the unfinished garage, which did not have doors on it, several feet away from electrically charged objects, was sufficient to allow a finding of increased risk. Heatherly v. Hollingsworth Co., 211 N.C. App. 282, 712 S.E.2d 345, 2011 N.C. App. LEXIS 704 (2011).

Increased Risk of Assault While Going from One Part to Another Part of Workplace. —

Substantial evidence supported the conclusion under G.S. 97-2(6) that hospital employee who went from one part of the hospital to another part while on business was subjected to an increased risk of assault because there were fewer people present along her route. D'Aquisto v. Mission St. Joseph's Health Sys., 171 N.C. App. 216, 614 S.E.2d 583, 2005 N.C. App. LEXIS 1269 (2005), rev'd, 360 N.C. 567, 633 S.E.2d 89, 2006 N.C. LEXIS 843 (2006).

VII.Injuries While Acting for Benefit of Self or Third Person

Acts which are necessary to the health and comfort of an employee while at work, though personal to himself and not technically acts of service, such as visits to the washroom, are incidental to the employment. Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97, 1946 N.C. LEXIS 444 (1946).

Activities which are undertaken for the personal comfort of the employee are considered part of the “circumstances” element of the course of employment. Spratt v. Duke Power Co., 65 N.C. App. 457, 310 S.E.2d 38, 1983 N.C. App. LEXIS 3524 (1983).

Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment. Spratt v. Duke Power Co., 65 N.C. App. 457, 310 S.E.2d 38, 1983 N.C. App. LEXIS 3524 (1983).

Personal Comfort Not Applicable. —

Nurse’s dropping off time reports required to be turned into office that day on her way to patient’s home was not a distinct and total departure on a personal errand. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448, 2005 N.C. App. LEXIS 1265 (2005).

Acts of employee for the benefit of third persons generally preclude recovery of compensation for accidental injuries sustained during the performance of such acts, usually on the ground that they are not incidental to any service which the employee is obligated to render under his contract of employment, and the injuries therefore cannot be said to arise out of and in the course of the employment. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976).

An injury to an employee while he is performing acts for the benefit of third persons is not compensable if the acts are performed solely for the benefit or purpose of the employee or third person. Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7, 1971 N.C. App. LEXIS 1657 (1971). See also Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877, 1963 N.C. LEXIS 720 (1963).

Even If Employee Was Acting with Consent of Employer. —

Where an employee at the time of his injury is performing acts for his own benefit, and not connected with his employment, the injury does not arise out of his employment. This is true even if the acts are performed with the consent of the employer and the employee is on the payroll at the time. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877, 1963 N.C. LEXIS 720 (1963); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7, 1971 N.C. App. LEXIS 1657 (1971).

And Even If He Was Injured While on a Mission for Employer. —

If employee’s acts are not connected with his employment but are for the benefit of himself and third persons at the time of his injury, he is not entitled to compensation, even if he is injured while he is required by his employer to be away from his home and place of regular employment for a period of time on a mission for his employer. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877, 1963 N.C. LEXIS 720 (1963); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7, 1971 N.C. App. LEXIS 1657 (1971).

Unless Employee’s Acts Were of Benefit to Employer. —

Whether an injury to an employee received while performing acts for the benefit of third persons arises out of the employment depends upon whether the acts of the employee are for the benefit of the employer to any appreciable extent, or whether the acts are solely for the benefit or purpose of the employee or a third person. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596, 1955 N.C. LEXIS 387 (1955).

An injury to an employee while he is performing acts for the benefit of third persons is not compensable unless the acts benefit the employer to an appreciable extent. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877, 1963 N.C. LEXIS 720 (1963); Hales v. North Hills Constr. Co., 5 N.C. App. 564, 169 S.E.2d 24, 1969 N.C. App. LEXIS 1396 (1969); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7, 1971 N.C. App. LEXIS 1657 (1971); Roberts v. Burlington Indus., Inc., 321 N.C. 350, 364 S.E.2d 417, 1988 N.C. LEXIS 98 (1988).

Where competent proof exists that the employee understood, or had reasonable grounds to believe, that the act for the benefit of a third person resulting in injury was incidental to his employment, or was such as would prove beneficial to his employer’s interests, or was encouraged by the employer in the performance of the act or similar acts for the purpose of creating a feeling of good will, or authorized so to do by common practice or custom, compensation may be recovered, since then a causal connection between the employment and the accident may be established. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976).

Plaintiff, who was injured when she fell off a chair in her home while hanging plants on her porch, which plants she had been instructed by her employer to dispose of incident to the closing of employer’s place of business, was not entitled to compensation. Fortner v. J.K. Holding Co., 83 N.C. App. 101, 349 S.E.2d 296, 1986 N.C. App. LEXIS 2666 (1986), aff'd, 319 N.C. 640, 357 S.E.2d 167, 1987 N.C. LEXIS 2080 (1987); Fortner v. J.K. Holding Co., 319 N.C. 640, 357 S.E.2d 167, 1987 N.C. LEXIS 2080 (1987).

Employee Killed While Assisting Injured Pedestrian. —

Death of employee who, while returning home from a business trip, was struck by a car and killed as he assisted an injured pedestrian who had no connection to the employee’s duties or his employer’s business did not arise out of the employment and thus was not compensable under the Workers’ Compensation Act. Roberts v. Burlington Indus., Inc., 321 N.C. 350, 364 S.E.2d 417, 1988 N.C. LEXIS 98 (1988).

Special Errand and Dual Purpose Rule. —

Plaintiff employee, who was injured while on her way to a company gathering with her supervisor, the company president, when she was asked to run several errands for her supervisor, i.e. to go by the post office, to go by the mall to pick up pictures of her supervisor’s vacation, and to turn the car around and go look at a “trailer for rent,” the reasons for which gathering were to alleviate office tensions, celebrate several birthdays and cement relationships, was entitled to compensation under the special errand rule and the dual purpose rule. McBride v. Peony Corp., 84 N.C. App. 221, 352 S.E.2d 236, 1987 N.C. App. LEXIS 2491 (1987).

As to statement and application of “dual purpose rule,” see Felton v. Hospital Guild, 57 N.C. App. 33, 291 S.E.2d 158, 1982 N.C. App. LEXIS 2607, aff'd, 307 N.C. 121, 296 S.E.2d 297, 1982 N.C. LEXIS 1606 (1982).

Fall While in Rest Room. —

Evidence tending to show that the employee was suffering from a disease which weakened him and subjected him to frequent fainting spells, that during the course of his employment he went to the men’s washroom, and while there felt faint, and in seeking fresh air, went to the open window, slipped on the tile floor, and fell through the window to his death, held sufficient to support the finding of the Industrial Commission that his death was the result of an accident arising out of and in the course of his employment. Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97, 1946 N.C. LEXIS 444 (1946).

Vacation Pleasure Trip Furnished by Employer. —

An accidental injury received by an employee while riding in a truck on a vacation pleasure trip does not arise out of the employment, notwithstanding the fact that the employer furnished the vacation trip as a matter of goodwill and personal relations among the employees and paid the entire expenses of the trip in accordance with its agreement entered into at the time of the employment as a part of the remuneration and inducement to its employees. Berry v. Colonial Furn. Co., 232 N.C. 303, 60 S.E.2d 97, 1950 N.C. LEXIS 510 (1950).

The fact that a pleasure trip for the benefit of the employee is without expense to the employee does not entitle him to compensation for injury received while on such trip, even if all or a portion of the expense is borne by the employer as a gesture of goodwill. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877, 1963 N.C. LEXIS 720 (1963); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7, 1971 N.C. App. LEXIS 1657 (1971).

Recreational and Social Activities. —

Where, as a matter of goodwill, an employer at his own expense provides an occasion for recreation or an outing for his employees and invites them to participate, but does not require them to do so, and an employee is injured while engaged in the activities incident thereto, such injury does not arise out of the employment. Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643, 1964 N.C. LEXIS 630 (1964); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7, 1971 N.C. App. LEXIS 1657 (1971).

In determining whether employee injuries incurred at employer-sponsored recreational and social activities arise out of and in the course of the employment, several questions should be considered: (1) Did the employer in fact sponsor the event? (2) To what extent was attendance really voluntary? (3) Was there some degree of encouragement to attend evidenced by such factors as: (a) taking a record of attendance; (b) paying for the time spent; (c) requiring the employee to work if he did not attend; or (d) maintaining a known custom of attending? (4) Did the employer finance the occasion to a substantial extent? (5) Did the employees regard the activity as an employment benefit to which they were entitled as of right? (6) Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through such tangible advantages as having an opportunity to make speeches and awards? Martin v. Mars Mfg. Co., 58 N.C. App. 577, 293 S.E.2d 816, 1982 N.C. App. LEXIS 2786, cert. denied, 306 N.C. 742, 295 S.E.2d 759, 1982 N.C. LEXIS 1746 (1982).

Injury at Picnic. —

Attending a good-will picnic at the invitation of the employer was held not to invoke the relation of the master and servant where the employee did no work and was not paid for attendance, nor penalized for nonattendance, nor ordered to go. Barber v. Minges, 223 N.C. 213, 25 S.E.2d 837, 1943 N.C. LEXIS 244 (1943).

Plaintiff was not entitled to compensation for a broken ankle suffered while playing volleyball at an annual picnic for faculty members in the radiology department in defendant school, where it was not clear that the radiology department in fact sponsored the picnic; attendance at the picnic was voluntary; no record of attendance was taken; participants were not paid for the time spent at the picnic, nor was any employee required to work at the medical school if he did not attend; the picnic, while certainly an annual custom, was not an event that employee regarded as being a benefit to which he was entitled as a matter of right, and the radiology department did not utilize the picnic as an opportunity to give a “pep” talk or grant awards. Chilton v. Bowman Gray School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347, 1980 N.C. App. LEXIS 2575 (1980).

Injury at Christmas Party. —

Evidence established a sufficient nexus between injury and employment where employee injured her ankle while dancing at an annual Christmas party sponsored and paid for by employer, where wages were paid for the time employees spent at the party and where the plant manager considered the party an employee fringe benefit, one definite purpose of which was to improve employer-employee relations, and made a 20 to 30 minute speech praising the employees for their work and presenting service awards. Martin v. Mars Mfg. Co., 58 N.C. App. 577, 293 S.E.2d 816, 1982 N.C. App. LEXIS 2786, cert. denied, 306 N.C. 742, 295 S.E.2d 759, 1982 N.C. LEXIS 1746 (1982).

Injury While Washing Personal Car. —

Claimant, employed as a night watchman, was injured on the employer’s premises during his hours of duty when his trouser leg was caught on the bumper of his car, causing him to fall, as he was washing his personal car for his own purposes with the implied consent of the employer. There was no causal relationship between his employment and the injury, and therefore the injury did not arise out of the employment and was not compensable. Bell v. Dewey Bros., 236 N.C. 280, 72 S.E.2d 680, 1952 N.C. LEXIS 539 (1952).

Injury While Maintaining or Traveling in Personal Airplane. —

When a person owns an airplane which he maintains and keeps for his personal use as well as for use when traveling for his employer, he is not protected by workers’ compensation while he is doing something to maintain the airplane and not doing anything else to promote the employer’s business. The Workers’ Compensation Act was not intended to cover accidents which occur while an employee is repairing his own property which he uses for himself and for his employer. Pollock v. Reeves Bros., Inc., 70 N.C. App. 199, 319 S.E.2d 286, 1984 N.C. App. LEXIS 3652 (1984), rev'd, 313 N.C. 287, 328 S.E.2d 282, 1985 N.C. LEXIS 1535 (1985).

Where employee was killed in accident while traveling in fellow employee’s airplane, where the purpose of the trip was related to employer’s business, and where employees were acting in the course of their employment at the time of the accident, the accident was fairly traceable to the employment as a contributing cause and the death of employee was an injury by accident arising out of and in the course of his employment. Pollock v. Reeves Bros., Inc., 313 N.C. 287, 328 S.E.2d 282, 1985 N.C. LEXIS 1535 (1985).

Employee Assisting Another Contractor on Same Job. —

Evidence to the effect that deceased employee was working under the direct supervision and instruction of his superior in attempting to make repairs on a drum that actually belonged to another contractor working on the same job and that the two contractors on prior occasions had assisted each other without charges sustained the finding that the injury arose out of and in the course of employment. Butler v. Jones Plumbing & Heating Co., 244 N.C. 525, 94 S.E.2d 556, 1956 N.C. LEXIS 459 (1956).

Voluntarily Helping Another Employee. —

Claimant was employed as a lumber piler and was instructed to stay away from the saws, but there was evidence that on the day of his injury he was instructed to leave his regular job and to perform some work in the vicinity of one of the saws, and that while waiting at the place designated he started to assist another employee, in the absence of the regular sawyer, in cutting off a board, and suffered an injury when his hand came in contact with the saw. Two men were usually required to operate the saw. The court held that the evidence was sufficient to sustain the finding of the Industrial Commission that the injury arose out of and in the course of his employment. Riddick v. Richmond Cedar Works, 227 N.C. 647, 43 S.E.2d 850, 1947 N.C. LEXIS 490 (1947).

The employee’s injury arose out of and during the course of employment, where she sustained an injury when she slipped and fell in the employer’s icy parking lot after she temporarily left her work station to aid her co-employee, who also was the wife of the claimant’s nephew. Choate v. Sara Lee Prods., 133 N.C. App. 14, 514 S.E.2d 529, 1999 N.C. App. LEXIS 334, aff'd, 351 N.C. 46, 519 S.E.2d 523, 1999 N.C. LEXIS 1009 (1999).

Employee off Duty and on Personal Errand. —

The Commission found facts which clearly showed that the deceased employee, although temporarily assigned to work in a distant town in another state, with board and room furnished by the power company for which the emergency work was being done, was off duty and upon a personal errand, unrelated to any duty in connection with his employment when he was struck by an automobile and killed. Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218, 1962 N.C. LEXIS 702 (1962).

Injury While Working on Doghouse in Employer’s Shop. —

Injury to plaintiff salesman’s hand, sustained while he was operating a power saw in defendant employer’s shop, arose out of and in the course of his employment where plaintiff was working in the shop at the specific instruction of his employer but without any specific assignment, plaintiff had previously obtained permission to work on a doghouse in the shop during working hours when he had nothing else to do, plaintiff was allowed to use scrap material of the employer to build the doghouse, and plaintiff was operating the saw at the time of the injury to cut wood for the doghouse. Lee v. F.M. Henderson & Assocs., 17 N.C. App. 475, 195 S.E.2d 48, 1973 N.C. App. LEXIS 1388, aff'd, 284 N.C. 126, 200 S.E.2d 32, 1973 N.C. LEXIS 810 (1973).

Assistance to Dump Truck Driver. —

Findings of fact by the Industrial Commission that deceased employee drove his employer’s truck to the city dump to dispose of trash from the employer’s plant, and that the employee was killed at the city dump while trying to help a third party operate the dump mechanism on the third party’s truck were held to support the Commission’s determination that deceased was not acting for the benefit of his employer to any appreciable extent and that deceased’s injuries did not arise out of and in the course of his employment. Short v. Slane Hosiery Mills, 4 N.C. App. 290, 166 S.E.2d 479, 1969 N.C. App. LEXIS 1487 (1969).

Truck driver shot by security guards while trying to stop robber did not suffer injuries arising out of and in the course of his employment. Roman v. Southland Transp. Co., 350 N.C. 549, 515 S.E.2d 214, 1999 N.C. LEXIS 430 (1999).

Hunting Trip. —

Evidence that an employee customarily acted as chauffeur, cook and valet to a company official on the official’s trips to his cottage at a resort and that while on such a trip he went on a hunting trip with the official’s sons and was fatally injured in an automobile accident was insufficient to support a finding that the accident arose out of the employment. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877, 1963 N.C. LEXIS 720 (1963).

Group Picture. —

At the suggestion of her foreman, plaintiff joined with other employees to have a group picture taken for the sole benefit of the photographer. This was done during shifts. Plaintiff was injured by the collapse of the seat prepared by the photographer. It was held that it was error for the Commission to find that the injury arose out of the employment. Beavers v. Lily Mill & Power Co., 205 N.C. 34, 169 S.E. 825, 1933 N.C. LEXIS 452 (1933).

Assistance to Third Person in Reciprocity for Aid Requested for Employer’s Benefit. —

An employee sent to fix flat tires went to a filling station and requested free use of its air pump, but before inflation of the tires was completed, the filling station operator asked him to help push a stalled car, and while he was doing so he was struck by another car, resulting in permanent injury. It was held that the courtesies and assistance extended by the employee were in reciprocity for the courtesy of free air requested by the employee for the employer’s benefit, so that the employee had reasonable ground to apprehend that refusal to render the assistance requested of him might well have resulted in like refusal of the courtesy requested by him, and therefore the findings supported the conclusion that the accident arose out of and in the course of employment. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596, 1955 N.C. LEXIS 387 (1955).

VIII.Injuries While Going to and from Work
A.In General

Injury Suffered Going to or Returning from Work Is Not Generally Compensable. —

As a general rule an injury suffered by an employee while going to or returning from his work does not arise out of and in the course of his employment. Bray v. W.H. Weatherly & Co., 203 N.C. 160, 165 S.E. 332, 1932 N.C. LEXIS 335 (1932); Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862, 1957 N.C. LEXIS 507 (1957); Humphrey v. Quality Cleaners & Laundry, 251 N.C. 47, 110 S.E.2d 467, 1959 N.C. LEXIS 507 (1959); Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102, 1968 N.C. App. LEXIS 1014 (1968); Franklin v. Wilson County Bd. of Educ., 29 N.C. App. 491, 224 S.E.2d 657, 1976 N.C. App. LEXIS 2547 (1976); Robertson v. Shepherd Constr. Co., 44 N.C. App. 335, 261 S.E.2d 16, 1979 N.C. App. LEXIS 3246 (1979), cert. denied, 299 N.C. 545, 265 S.E.2d 405, 1980 N.C. LEXIS 1059 (1980); Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, 1980 N.C. LEXIS 1080 (1980); Powers v. Lady's Funeral Home, 306 N.C. 728, 295 S.E.2d 473, 1982 N.C. LEXIS 1562 (1982). See also Hunt v. State, 201 N.C. 707, 161 S.E. 203, 1931 N.C. LEXIS 75 (1931); Lassiter v. Carolina Tel. & Tel. Co., 215 N.C. 227, 1 S.E.2d 542, 1939 N.C. LEXIS 235 (1939); Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, 1986 N.C. App. LEXIS 2271 (1986).

An employee is not engaged in the prosecution of his employer’s business while operating his personal car to the place where he is to perform the duties of his employment, nor while leaving his place of employment to go to his home. Ellis v. American Serv. Co., 240 N.C. 453, 82 S.E.2d 419, 1954 N.C. LEXIS 459 (1954).

The disallowance of recovery in the usual coming and going case is based, not upon the ground that the circumstances (i.e., the employee’s going to or leaving work) are not within the course of employment, but upon considerations of time and place. In addition, the question of arising out of is not satisfied in many of these cases, especially where the injury is due to the hazards of the public highway, i.e., risks common to the general public. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

Unless Transportation Is Part of Employment Contract. —

An injury sustained by an employee while going to or from work does not arise in the course of his employment and is not compensable unless the employer is under a contractual duty to transport employee or furnishes the means of transportation as an incident of the contract of employment. Whittington v. A.J. Schnierson & Sons, 255 N.C. 724, 122 S.E.2d 724, 1961 N.C. LEXIS 686 (1961).

An injury sustained in accidents occurring off the employer’s premises while the employee is going to or returning from work is compensable when it is established that the employer, as an incident of the contract of employment, provides the means of transportation to and from the place where the work of the employment is performed. Harris v. Jack O. Farrell, Inc., 31 N.C. App. 204, 229 S.E.2d 45, 1976 N.C. App. LEXIS 1952 (1976).

Or Unless Injury Was Due to Risk Incident to Employment. —

While recovery may be denied where an injury is sustained while the employee is going to or coming from work, such denial is not upon the ground that going and coming are circumstances not within the course of employment. To the contrary, such activity is within the course of employment if the time and place requisites are satisfied, and injuries sustained while engaged therein are compensable if the injury arose out of employment, i.e., that they were due to an employment-connected risk. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

But Injury on Employer’s Premises May Be Compensable. —

The moment when the employee begins his work is not necessarily the moment when he gets into the employment, because a reasonable margin must be allowed him to get to the place of work if he is on the premises of the employer or on some access to the premises which the employer has provided. Hunt v. State, 201 N.C. 707, 161 S.E. 203, 1931 N.C. LEXIS 75 (1931). See also Bryan v. T.A. Loving Co., 222 N.C. 724, 24 S.E.2d 751, 1943 N.C. LEXIS 414 (1943).

Injuries sustained by an employee while going to or from the work place on premises owned or controlled by the employer are generally deemed to have arisen out of and in the course of employment. Strickland v. King, 293 N.C. 731, 239 S.E.2d 243, 1977 N.C. LEXIS 1020 (1977).

Employee injured while traveling to and from his employment on the employer’s premises is covered by this Chapter. Chandler v. Nello L. Teer Co., 53 N.C. App. 766, 281 S.E.2d 718, 1981 N.C. App. LEXIS 2724 (1981), aff'd, 305 N.C. 292, 287 S.E.2d 890, 1982 N.C. LEXIS 1264 (1982).

The “coming and going” rule provides that injuries which occur while an employee travels to and from work are not compensable; however, the “premises” exception applies when an employee is injured while on the employer’s premises. Jennings v. Backyard Burgers, 123 N.C. App. 129, 472 S.E.2d 205, 1996 N.C. App. LEXIS 567 (1996).

Employee who waited almost 30 minutes to get a ride home from another employee and who was injured when the other employee caused a vehicle accident in the employer’s parking lot was covered by the North Carolina Workers’ Compensation Act and the trial court properly dismissed a lawsuit which the injured employee filed against the employee who gave the injured employee a ride. Ragland v. Harris, 152 N.C. App. 132, 566 S.E.2d 827, 2002 N.C. App. LEXIS 894 (2002).

Provided No Unreasonable Delay Is Chargeable to Employee. —

Where an employee sustains injury going to or from his place of work on employer’s premises or premises controlled by employer, the injury is compensable, provided no unreasonable delay is chargeable to employee. Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102, 1968 N.C. App. LEXIS 1014 (1968).

As an exception to the general rule, known as the “going and coming rule,” that injuries sustained by the employee while going to or from work are not ordinarily compensable, the great weight of authority holds that injuries sustained by an employee while going to or from his place of work upon premises owned or controlled by his employer are generally deemed to have arisen out of and in the course of employment within the act and are compensable, provided the employee’s act involves no unreasonable delay. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570, 1962 N.C. LEXIS 687 (1962); Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432, 1966 N.C. LEXIS 1357 (1966); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39, 1976 N.C. App. LEXIS 2327 (1976), rev'd, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977).

Coming and Going Rule Has Exceptions. —

The general rule barring compensability of injuries sustained while traveling to or from work is subject to several exceptions, including the traveling salesman exception, the contractual duty exception, the special errand exception, and the dual purpose exception. Dunn v. Marconi Communs., Inc., 161 N.C. App. 606, 589 S.E.2d 150, 2003 N.C. App. LEXIS 2260 (2003).

Where an employee worked as a health care aide and was involved in a car accident while driving from the employee’s residence to the home of the employee’s first patient for the day, the employee was entitled to workers’ compensation benefits under an exception to the going and coming rule because the employee was acting within the course of employment at the time the injuries were sustained, since the employee was required to use the employee’s private vehicle as part of the employee’s employment and the employee was injured going to work. Hollin v. Johnston County Council on Aging, 181 N.C. App. 77, 639 S.E.2d 88, 2007 N.C. App. LEXIS 76 (2007).

Parking Lot as Part of Premises. —

It is usually held that an injury on a parking lot owned or maintained by the employer for his employees is an injury on the employer’s premises. Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432, 1966 N.C. LEXIS 1357 (1966); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

Injuries sustained in automobile mishaps in company parking lots arise out of employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

Employees Required to Furnish Own Vehicles. —

Where an employee who is required to furnish their own vehicle as part of their employment is injured going to or coming from work, such injuries are covered by the Workers’ Compensation Act. Hollin v. Johnston County Council on Aging, 181 N.C. App. 77, 639 S.E.2d 88, 2007 N.C. App. LEXIS 76 (2007).

Attempt to Climb Locked Parking Lot Gate. —

Employee’s negligence in attempting to climb employer’s locked parking lot gate after his shift ended so as to reach his ride did not defeat the applicability of the “premises exception” to the “coming and going rule”; since the full Commission was the ultimate fact finder, it did not have to make specific findings of fact when it modified hearing commissioner’s findings. Arp v. Parkdale Mills, Inc., 150 N.C. App. 266, 563 S.E.2d 62, 2002 N.C. App. LEXIS 510 (2002), rev'd, 356 N.C. 657, 576 S.E.2d 326, 2003 N.C. LEXIS 36 (2003).

Adjacent Premises Used as Means of Ingress and Egress. —

Employment may be said to begin when the employee reaches the entrance to the employer’s premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

Route Chosen By Employer Not in Course of Employment. —

Plaintiff’s accidental injury, which resulted from a hazardous condition on property adjacent to his employer’s premises, did not arise out of and in the course of employment although defendant employer instructed the employee to use that route for ingress and egress. Jennings v. Backyard Burgers, 123 N.C. App. 129, 472 S.E.2d 205, 1996 N.C. App. LEXIS 567 (1996).

Special Errand Exception to General Rule. —

The special errand exception to the “coming and going” rule is no more than that — an exception to the general rule that accidents occurring while the employee is in transit to and from work are not compensable. Therefore, the special errand doctrine does not transform all employees covered by the Workers’ Compensation Act into absolute insurers of the safety of employees called away on some special mission. Powers v. Lady' Funeral Home, 57 N.C. App. 25, 290 S.E.2d 720, 1982 N.C. App. LEXIS 2608, rev'd, 306 N.C. 728, 295 S.E.2d 473, 1982 N.C. LEXIS 1562 (1982).

The “special errand” exception permits coverage of the employee from “portal to portal.” Powers v. Lady's Funeral Home, 306 N.C. 728, 295 S.E.2d 473, 1982 N.C. LEXIS 1562 (1982).

As to statement and application of “special errand rule,” see Felton v. Hospital Guild, 57 N.C. App. 33, 291 S.E.2d 158, 1982 N.C. App. LEXIS 2607, aff'd, 307 N.C. 121, 296 S.E.2d 297, 1982 N.C. LEXIS 1606 (1982).

The “special errand” exception provides that an injury is in the course of the employment if it occurs while the employee is engaged in a special duty or special errand for his employer. Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, 1986 N.C. App. LEXIS 2271 (1986).

Traveling Salesman Exception. —

Where an employee worked as a health care aide and was involved in a car accident while driving from the employee’s residence to the home of the employee’s first patient for the day, the “traveling salesman” exception to the going and coming rule did not apply, because the employee had fixed work locations and fixed work hours, saw the same patients each week, and traveled to the same homes week after week. Hollin v. Johnston County Council on Aging, 181 N.C. App. 77, 639 S.E.2d 88, 2007 N.C. App. LEXIS 76 (2007).

Same — Illustrative Case. —

Where decedent was required, as a condition of his employment, to attend a four-week training seminar which was not offered at his regular place of employment, he was on a special errand to attend a training course at the direction of and for the benefit of his employer. Kirk v. State Dep't of Cor., 121 N.C. App. 129, 465 S.E.2d 301, 1995 N.C. App. LEXIS 1033 (1995).

Employee Held Not on Special Errand. —

Evidence that church custodian, who was killed in an automobile accident late in the evening on the way from his parents’ house to visit his fiancee, was planning to spend the night at the church following this visit so that despite an anticipated snowstorm he would be able to let a certain nonsupervisory volunteer into the church at 8:00 a.m. the next morning, when his work day ordinarily began, was not sufficient to establish that the custodian was on a special errand for his employer when he met his death. Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, 1986 N.C. App. LEXIS 2271 (1986).

The period of employment covers the working hours and such reasonable time as is required to pass to and from the employer’s premises. Yates v. Hajoca Corp., 1 N.C. App. 553, 162 S.E.2d 119, 1968 N.C. App. LEXIS 1130 (1968).

Injury While Returning to Jobsite at Direction of Foreman. —

Where plaintiff ’s return to jobsite to pick up his final paycheck was at foreman’s direction, even though foreman had earlier discharged plaintiff, the employment relationship was still in effect; however, plaintiff ’s injuries, sustained while he looked for foreman in a place other than where foreman had directed him to pick up the check, were not suffered in the course of employment. Byrd v. George W. Kane, Inc., 92 N.C. App. 490, 374 S.E.2d 480, 1988 N.C. App. LEXIS 1074 (1988).

Accident While Driving Employer’s Truck from Employee’s Home to Place of Employment. —

Where deceased was killed in a collision as he was driving a truck, owned and maintained by his employer, from his home to his place of employment, it was found that transportation to and from work was an incident of the employment, and that the accident arose out of and in the course of deceased’s employment. Phifer v. Foremost Dairy, 200 N.C. 65, 156 S.E. 147, 1930 N.C. LEXIS 28 (1930).

Special Errand for Employer on Way to Work. —

While on his way to work, plaintiff was injured in crossing the street to purchase supplies for defendant school. This was done at the request of the principal. It was held that plaintiff was employed in a special errand for his master. In such case employment begins from the time the employee leaves his home. Massey v. Board of Educ., 204 N.C. 193, 167 S.E. 695, 1933 N.C. LEXIS 356 (1933).

Contractual Duty Exception. —

Where an employee worked as a health care aide and was involved in a car accident while driving from the employee’s residence to the home of the employee’s first patient for the day, the “contractual duty” exception to the going and coming rule did not apply, because, although the employee was reimbursed for travel as part of the job, the employee was not reimbursed for travel to the first patient’s home in the morning and from the last patient’s home to the employee’s home in the afternoon. Hollin v. Johnston County Council on Aging, 181 N.C. App. 77, 639 S.E.2d 88, 2007 N.C. App. LEXIS 76 (2007).

Injury to Police Officer on Call at All Times. —

Recovery would be denied where a rural policeman on call at all times was killed in an automobile accident while driving his own car from his home to police headquarters to report for his regular working day. Davis v. Mecklenburg County, 214 N.C. 469, 199 S.E. 604, 1938 N.C. LEXIS 381 (1938).

Where the deceased was a motorcycle policeman with fixed hours of active patrol duty as well as a general obligation to make arrests at other hours when law violations came to his notice and to be “on call” at all times, his cycle was furnished by the city and he had the entire care of it, and he was privileged to keep it at home and did so and was riding home after regular hours when he was killed in a collision, the Commission properly found that his death was compensable. Smith v. City of Gastonia, 216 N.C. 517, 5 S.E.2d 540, 1939 N.C. LEXIS 31 (1939).

Policeman Killed While Returning to Work from Leave of Absence. —

Where the evidence showed that a policeman was killed in an accident while returning to work from a leave of absence, the conclusion that he did not sustain injury by accident arising out of and in the course of his employment was sustained. McKenzie v. City of Gastonia, 222 N.C. 328, 22 S.E.2d 712, 1942 N.C. LEXIS 93 (1942).

Injury While Crossing Public Highway. —

Where the evidence tended to show that plaintiff ’s intestate, a civilian guard of a construction company, stationed at a main gate of a marine base to direct traffic and parking about such gate and on the highway immediately adjoining, was at the time of the accident on his way to his place of employment to report for work and was killed, after alighting from a bus, on a public highway immediately in front of such main gate, as he attempted to cross the highway ahead of an oncoming car, an award was error, as deceased was not on the premises of his employer and his injury and death did not arise out of and in the course of his employment. Bryan v. T.A. Loving Co., 222 N.C. 724, 24 S.E.2d 751, 1943 N.C. LEXIS 414 (1943).

Injury During Lunch Hour. —

Findings to the effect that during lunch hour the employees were free to go as they pleased, that deceased employee had stopped his work for the lunch period and, in attempting to board a truck moving within the premises of the employer, fell and was fatally injured, with further evidence that the employee had been given no order and had no duty connected either with the truck or its contents, and was acting according to his own will, was held insufficient to show affirmatively that the injury resulted from a hazard incident to the employment, and supported the ruling of the Industrial Commission that it did not arise out of the employment. Matthews v. Carolina Std. Corp., 232 N.C. 229, 60 S.E.2d 93, 1950 N.C. LEXIS 509 (1950).

An employee who was hit by a car while crossing highway to eat lunch on employer’s parking lot did not sustain an injury arising out of and in the course of employment. Horn v. Sandhill Furn. Co., 245 N.C. 173, 95 S.E.2d 521, 1956 N.C. LEXIS 553 (1956).

Injury to Employee at Plant After Hours on Private Business. —

Where claimant, a foreman, returned to the employer’s plant after his regular working hours to attend to certain private business, but before entering upon such business he assisted with certain work of the employer, and then sat down on a wall to rest, whereupon he fell and was injured, it was held that the evidence was insufficient to sustain a finding that plaintiff ’s injury arose out of and in the course of his employment. Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693, 1954 N.C. LEXIS 461 (1954).

Farm Employee Killed While Crossing Highway on Return from Barn to Home. —

Where farm employee who lived on farm was killed while crossing highway when returning from barn to which he had gone to feed livestock to area of house in which he lived, the injury arose out of and in the course of his employment. Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862, 1957 N.C. LEXIS 507 (1957).

Fall in Parking Lot. —

Where the employer provided a parking lot on its premises next to its factory and permitted its employees to park their cars in the lot, an injury received by an employee in a fall while she was walking from her parked car on her way to the other part of the employer’s premises where she actually worked was an injury arising out of and in the course of her employment within the purview of this section. Davis v. Devil Dog Mfg. Co., 249 N.C. 543, 107 S.E.2d 102, 1959 N.C. LEXIS 392 (1959).

Injury on Shopping Mall Parking Lot. —

Salesperson for department store at mall shopping center who was injured after she had parked her automobile in an area in the mall parking lot designated for department store employees by the mall owners did not sustain an injury by an accident arising out of and in the course of her employment. Glassco v. Belk-Tyler Co., 69 N.C. App. 237, 316 S.E.2d 334, 1984 N.C. App. LEXIS 3379 (1984).

Injuries on Employer’s Private Road. —

Injuries received by employees when their car went out of control as they were leaving work on a private road controlled and maintained by employer and leading from the area where the employees reported to work were held to have arisen out of and in the course of their employment. Robinson v. North Carolina State Hwy. Comm'n, 13 N.C. App. 208, 185 S.E.2d 333, 1971 N.C. App. LEXIS 1196 (1971).

Injury After Leaving Premises. —

Where accident occurred at a time after plaintiff had completed her regular work shift, had “clocked out” on the time clock provided by her employer for that purpose, and had left her employer’s premises for the day and at a place which was not on her employer’s premises and over which it had no control, the accident did not arise “in the course of ” her employment. Taylor v. Albain Shirt Co., 28 N.C. App. 61, 220 S.E.2d 144, 1975 N.C. App. LEXIS 1676 (1975), cert. denied, 289 N.C. 302, 222 S.E.2d 703, 1976 N.C. LEXIS 1287 (1976).

Accident in Truck Operated by Fellow Employee. —

Where the fatal accident occurred after the employees had completed their day’s work at the job site, had punched out on the time clock, had left the place of their employment, and had started homeward in a truck owned and operated by a fellow employee whom they paid to transport them, the injury by accident did not arise out of and in the course of employment with defendant employer. Harris v. Jack O. Farrell, Inc., 31 N.C. App. 204, 229 S.E.2d 45, 1976 N.C. App. LEXIS 1952 (1976).

Accident Returning from Meeting Where Going to and from Same Was Part of Duties. —

Plaintiff ’s accident on a city street as she was returning home to write a report about a work-related meeting which she had just attended was an accident in the course of her employment where going to and from the meetings was a part of plaintiff ’s job duties for which she was paid the same as when actually in the office or at community meetings. Warren v. City of Wilmington, 43 N.C. App. 748, 259 S.E.2d 786, 1979 N.C. App. LEXIS 3150 (1979).

Accident Returning from Meeting Held Not Part of Duties. —

Although plaintiff’s presence was required at a meeting after which his accident occurred, his travel from that meeting should not be included within the scope of his employment duties. Being required to drive one’s car to a meeting is no different from being required to drive one’s car to work. When plaintiff left the meeting he was not traveling to a destination required by his employer nor was he engaged in the furtherance of his employer’s business. Wright v. Wake County Pub. Schs., 103 N.C. App. 282, 405 S.E.2d 228, 1991 N.C. App. LEXIS 640 (1991).

Fall in Loading Zone. —

An injury to plaintiff grocery store employee when she slipped and fell on ice in a loading zone in front of defendant employer’s store in a shopping center while she was walking to her work site after parking her car in the shopping center parking lot did not occur on her employer’s premises and thus did not arise out of and in the course of her employment, where plaintiff failed to show that she was performing any duties for employer at the time of her injury or that she was exposed to any danger greater than that of the public generally. Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, 1980 N.C. LEXIS 1080 (1980).

Illustrative Cases. —

An employee injured in an automobile accident while returning to work from his home was not entitled to any of those exceptions where he was on a personal errand at the time of his accident and the trip did not serve any business purpose. Dunn v. Marconi Communs., Inc., 161 N.C. App. 606, 589 S.E.2d 150, 2003 N.C. App. LEXIS 2260 (2003).

B.Where Employer Furnishes Transportation

Employer would not expose himself to liability for workers’ compensation purposes by gratuitously furnishing transportation for his employees. Travelers Ins. Co. v. Curry, 28 N.C. App. 286, 221 S.E.2d 75, 1976 N.C. App. LEXIS 2666, cert. denied, 289 N.C. 615, 223 S.E.2d 396, 1976 N.C. LEXIS 1347 (1976).

But Employer Who Furnishes Transportation as Incident to Contract of Employment May Be Liable. —

While ordinarily an employer is not liable under this Chapter for an injury suffered by an employee while going to or returning from work, the employer may be held liable when he furnishes the means of transportation as an incident to the contract of employment. Smith v. City of Gastonia, 216 N.C. 517, 5 S.E.2d 540, 1939 N.C. LEXIS 31 (1939); Robertson v. Shepherd Constr. Co., 44 N.C. App. 335, 261 S.E.2d 16, 1979 N.C. App. LEXIS 3246 (1979), cert. denied, 299 N.C. 545, 265 S.E.2d 405, 1980 N.C. LEXIS 1059 (1980).

Injuries received by an employee while traveling to or from his place of employment are usually not covered by the act unless the employer furnishes the means of transportation as an incident of the contract of employment. Strickland v. King, 293 N.C. 731, 239 S.E.2d 243, 1977 N.C. LEXIS 1020 (1977).

North Carolina has long held as compensable injuries sustained by employees while on the way to or returning from work where the employer provides the means of transportation. Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102, 1968 N.C. App. LEXIS 1014 (1968).

Injuries sustained by an employee while being transported to or from work in a conveyance furnished by his employer pursuant to an express or implied term of the contract of employment are compensable. Enroughty v. Black Indus., Inc., 13 N.C. App. 400, 185 S.E.2d 597, 1972 N.C. App. LEXIS 2249 (1972).

When the journey to or from work is made in the employer’s conveyance, the journey is in the course of employment, the reason being that the risks of the employment continue throughout the journey. Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, 1972 N.C. App. LEXIS 1891, cert. denied, 281 N.C. 755, 191 S.E.2d 353, 1972 N.C. LEXIS 1174 (1972).

As May Employer Who Makes Allowances to Cover Cost of Transportation. —

Injuries sustained in an automobile accident by employees while on their way to or from work in an automobile owned by one of them arise out of and in the course of their employment when, under the terms of the employment and as an incident to the contract of employment, allowances are made by the employer to cover the cost of such transportation. Puett v. Bahnson Co., 231 N.C. 711, 58 S.E.2d 633 (1950). See also Phifer v. Foremost Dairy, 200 N.C. 65, 156 S.E. 147 (1930) where defendant provided deceased with a truck for use in defendant’s business and in taking deceased to and from work Edwards v. T.A. Loving Co., 203 N.C. 189, 165 S.E. 356, 1932 N.C. LEXIS 344 (1932) (where deceased’s contract of service provided for transportation by the employer) .

An injury suffered by an employee while going to or from his work arises out of and in the course of employment when the employee, under the terms of the employment and, as an incident to the contract of employment, is paid an allowance to cover the cost of such transportation. Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102, 1968 N.C. App. LEXIS 1014 (1968).

The test in such cases is whether the vehicle furnished by employer is one which the employees are required, or as a matter of right are permitted, to use by virtue of their contract, or whether it is furnished gratuitously for the mere accommodation of the workmen. Lassiter v. Carolina Tel. & Tel. Co., 215 N.C. 227, 1 S.E.2d 542, 1939 N.C. LEXIS 235 (1939). See also Geiger v. Guilford College Community Volunteer Firemen's Ass'n, 668 F. Supp. 492, 1987 U.S. Dist. LEXIS 7721 (M.D.N.C. 1987).

Trips to and from Lunch. —

The rule that traveling to and from work on a conveyance furnished by the employer is in the course of employment is applicable to trips to and from lunch. Enroughty v. Black Indus., Inc., 13 N.C. App. 400, 185 S.E.2d 597, 1972 N.C. App. LEXIS 2249 (1972).

Transportation Furnished in Accordance with Custom. —

Where employer hired two employees to ride on truck to help driver unload, and on the last trip the driver consented to let the employees off at the place on his route nearest their homes, in accordance with established custom, and one of the employees attempted to alight before the truck had completely stopped, contrary to express orders, and fell to his mortal injury, the evidence was sufficient to sustain the finding that the accident arose out of and in the course of the employment. Latham v. Southern Fish & Grocery Co., 208 N.C. 505, 181 S.E. 640, 1935 N.C. LEXIS 63 (1935).

Riding in Another Vehicle at Direction of Employer’s Foreman. —

The evidence tended to show that defendant’s employees were required to check in at the office in the morning, were then transported to the job, and after completion of the day’s work were transported back to the office where they received instructions as to the next day’s work before checking out, their working time being computed from the time of checking in until the time of checking out, that on the date in question they were carried to the job in a truck, but that the president’s car was sent to bring them back because of rain, that when deceased started to get in the car there were already six persons, including the driver, in the car, that the foreman said he could crowd in the car or ride in with another employee who was driving his own car, and that deceased then rode in with the other employee, and was fatally injured in an accident occurring after they had reached the city in which defendant’s place of business was maintained and while they were on their way to defendant’s office to check out. The evidence was sufficient to support the finding of the Industrial Commission that death resulted from an accident arising out of and in the course of the employment, the general rule of nonliability for an accident occurring while an employee is being transported to or from work in a conveyance of a third person over which the employer has no control not being applicable upon the evidence. Mion v. Atlantic Marble & Tile Co., 217 N.C. 743, 9 S.E.2d 501, 1940 N.C. LEXIS 339 (1940).

Abandoning Vehicle Furnished by Employer. —

Where an employer was under obligation to transport its employees from the woods where they worked to a camp, and provided for that purpose a safety car attached to its railroad train, having forbidden its employees to use the more hazardous log train, and deceased was killed in attempting to get on the log train and thus return to camp, the employee was killed as result of injury by accident arising out of and in the course of his employment. Archie v. Greene Bros. Lumber Co., 222 N.C. 477, 23 S.E.2d 834, 1943 N.C. LEXIS 354 (1943).

Where making a trip to a farm to load poultry and a return trip to the place of business of the employer after the poultry was loaded constituted a substantial part of the services for which claimant was employed, the transfer of claimant from the truck of the employer to his own automobile in order that he might have it so that he could return home after he made his required report at the office of his employer did not constitute a distinct departure on a personal errand disassociated from his master’s business, where claimant’s home was located on the most direct route between the farm and the plant, and where when the collision occurred claimant was proceeding on this direct route to the place of business of his employer. Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608, 1962 N.C. LEXIS 432 (1962).

Abandonment of Employment. —

Findings to the effect that the deceased employee was furnished a car for transportation to and from his work, that he quit work about 7:00 P.M., met a friend for dinner, took repeated drinks throughout the evening, made several trips, on one of which he drove approximately 100 miles per hour, in search of a girl to join the party, and some five hours thereafter started for home in the employer’s car, and was killed in a wreck occurring on the direct route from the employer’s place of business to the employee’s home, held to show an abandonment of employment rather than a deviation from it, and therefore the accident did not arise in the course of the employment. Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869, 1957 N.C. LEXIS 400 (1957).

Isolated Instance of Permission to Drive Company Truck Home. —

Where deceased employee had permission to drive company truck home the day of the accident, the permission given the deceased on this single, isolated occasion would not make the operation of the pickup truck an incident of his contract of employment. Robertson v. Shepherd Constr. Co., 44 N.C. App. 335, 261 S.E.2d 16, 1979 N.C. App. LEXIS 3246 (1979), cert. denied, 299 N.C. 545, 265 S.E.2d 405, 1980 N.C. LEXIS 1059 (1980).

IX.Injuries Where Employment Entails Traveling

Employees whose work entails travel away from the employer’s premises are held to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown, in the majority of jurisdictions. Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608, 1962 N.C. LEXIS 432 (1962); Kiger v. Bahnson Serv. Co., 260 N.C. 760, 133 S.E.2d 702, 1963 N.C. LEXIS 815 (1963); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569, 1968 N.C. LEXIS 670 (1968); Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E.2d 790, 1969 N.C. App. LEXIS 1279 (1969); Smith v. Central Transp. & Liberty Mut. Ins. Co., 51 N.C. App. 316, 276 S.E.2d 751, 1981 N.C. App. LEXIS 2260 (1981); Chandler v. Nello L. Teer Co., 53 N.C. App. 766, 281 S.E.2d 718, 1981 N.C. App. LEXIS 2724 (1981), aff'd, 305 N.C. 292, 287 S.E.2d 890, 1982 N.C. LEXIS 1264 (1982).

When travel is contemplated as part of the work, the rule is that the employment includes not only the actual doing of the work, but also a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done, when the latter is expressly or impliedly included in the terms of the employment. Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869, 1957 N.C. LEXIS 400 (1957); Yates v. Hajoca Corp., 1 N.C. App. 553, 162 S.E.2d 119, 1968 N.C. App. LEXIS 1130 (1968).

As a general rule, accidents sustained while an employee is going to and from work are not within the course of the employment. However, where travel is contemplated as a part of the work, accident in travel is compensable. This exception is often referred to as the “traveling salesman’s exception” to the going and coming rule. Ross v. Young Supply Co., 71 N.C. App. 532, 322 S.E.2d 648, 1984 N.C. App. LEXIS 3914 (1984).

An employee whose work entails travel away from the employer’s premises acts within the course of his employment continuously during the trip, unless there is proof of distinct or total departure on a personal errand. Hobgood v. Anchor Motor Freight, 68 N.C. App. 783, 316 S.E.2d 86, 1984 N.C. App. LEXIS 3431 (1984).

Distinct and Total Departure Not Applicable. —

Nurse’s going to her employer’s office on way to her patient’s home in the same town as the office to drop off required time reports was not a distinct and total departure on a personal errand even if she deviated from the most direct route to the home. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448, 2005 N.C. App. LEXIS 1265 (2005).

Injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable. Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E.2d 790, 1969 N.C. App. LEXIS 1279 (1969); Smith v. Central Transp. & Liberty Mut. Ins. Co., 51 N.C. App. 316, 276 S.E.2d 751, 1981 N.C. App. LEXIS 2260 (1981).

Injury While Retrieving Laundry at Hotel. —

In a workers’ compensation action brought after the employee fell while retrieving laundry at a hotel, denial of the employee’s claim was not erroneous because the employee was not injured while attending to personal needs that had to be met before his traveling duties for his employer were completed. The North Carolina Industrial Commission made no finding to suggest that the act by the employee of doing his laundry was necessary to further, directly or indirectly, the business of his employer. McSwain v. Industrial Commer. Sales & Serv., LLC, 270 N.C. App. 713, 841 S.E.2d 345, 2020 N.C. App. LEXIS 250 (2020).

When a traveling man slips in the street or is struck by an automobile between his hotel and a restaurant, the injury has been held compensable, even though the accident occurred on a Sunday evening, or involved an extended trip occasioned by employee’s wish to eat at a particular restaurant. Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E.2d 790, 1969 N.C. App. LEXIS 1279 (1969).

Necessary Business Trip Combining Simultaneous Private Purpose. —

If the work of the employee creates the necessity for travel, such is in the course of his employment, even though he is serving at same time some purpose of his own. Bee v. Yates Aluminum Window Co., 46 N.C. App. 96, 264 S.E.2d 368, 1980 N.C. App. LEXIS 2763 (1980).

Trip Made Primarily for Personal or Social Reasons. —

Injuries received while on a trip being made primarily for personal or social reasons and not in performance of duty are not compensable, even if the employer is incidentally benefited by the trip. Ridout v. Rose's 5-10-25 Cent Stores, 205 N.C. 423, 171 S.E. 642, 1933 N.C. LEXIS 577 (1933) (in which deceased went with another to visit the other’s girlfriend and while on the visit stopped to get certain goods for his employer) .

Continuity Between Employment and Travel. —

If it be conceded the course of employment included the travel home, then certainly there must be reasonable continuity between the employment and the travel. Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869, 1957 N.C. LEXIS 400 (1957); Yates v. Hajoca Corp., 1 N.C. App. 553, 162 S.E.2d 119, 1968 N.C. App. LEXIS 1130 (1968).

Traveling Salesman Exception. —

Nurse, who was required to see only one patient per day, to be paid excess mileage, and to turn in time and mileage that day, had a compensable accident going to the hospital’s office while going to her patient’s home in the same town under the traveling salesman exception. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448, 2005 N.C. App. LEXIS 1265 (2005).

Because hospital’s home health care nurse had multiple patients and work locations and did not have a fixed work location as in Hunt v. Tender Loving Care Home Care Agency, Inc., 153 N.C. App. 266, 569 S.E.2d 675 (2002), her accident was compensable under the traveling salesman exception. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448, 2005 N.C. App. LEXIS 1265 (2005).

Injury to Salesman on Weekend Trip. —

Evidence that plaintiff, a traveling salesman, used his employer’s car for a weekend trip and was injured in a wreck in returning was held to support the finding of the Industrial Commission that the accident did not arise out of and in the course of the employment, notwithstanding that the injured employee, at the destination of the trip, met and conversed with a representative of the employer, without appointment or direction of the employer, primarily in regard to a personal matter. Porter v. Noland Co., 215 N.C. 724, 2 S.E.2d 853, 1939 N.C. LEXIS 358 (1939).

Fishing Trip. —

Injury to a Boy Scout executive by accident while on a fishing trip on the high seas while attending an executive’s conference arose out of and in the course of his employment when the executive was directed to attend the conference with all expenses paid by Boy Scout council, and the council prepared an agenda of recreational projects, including deep sea fishing, and impliedly required each executive to select one of the projects as an aid to his advancement and better qualifications to carry on his work in scouting. Rice v. Uwharrie Council Boy Scouts of Am., 263 N.C. 204, 139 S.E.2d 223, 1964 N.C. LEXIS 798 (1964).

Contractual Duty Exception. —

Nurse, who was required to see only one patient per day, to be paid excess mileage, and to turn in time and mileage that day, had a compensable accident going to the hospital’s office while going to her patient’s home in the same town under the contractual duty exception. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448, 2005 N.C. App. LEXIS 1265 (2005).

Choking on Food in Restaurant. —

There was no causal relationship between decedent’s employment and his choking on a piece of meat when his day’s work was over and, business engagements scheduled for the morrow, he was having a leisurely evening meal at a public restaurant with an old friend whom the trip had enabled him to visit. Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193, 1973 N.C. LEXIS 823 (1973).

Employee Sent to Africa by Employer. —

Where employer sent employees on a business trip to an isolated part of Africa and provided employees with sleeping, eating and recreational facilities within various company project areas, while they were within the project areas the employees were continuously in an employment situation and were protected by this Chapter. Chandler v. Nello L. Teer Co., 53 N.C. App. 766, 281 S.E.2d 718, 1981 N.C. App. LEXIS 2724 (1981), aff'd, 305 N.C. 292, 287 S.E.2d 890, 1982 N.C. LEXIS 1264 (1982).

Employee sent to Africa by employer to work on road project, who went on a personal detour to visit a nearby sugar plantation but was back within the confines of the road project when accident occurred, returning to his place of employment and the sleeping accommodations provided, was entitled to compensation under this Chapter. Chandler v. Nello L. Teer Co., 53 N.C. App. 766, 281 S.E.2d 718, 1981 N.C. App. LEXIS 2724 (1981), aff'd, 305 N.C. 292, 287 S.E.2d 890, 1982 N.C. LEXIS 1264 (1982).

X.Assaults and Fights

Assault as Accident When Unexpected. —

Although an assault is an intentional act, it may be an accident within the meaning of the act when it is unexpected and without design on the part of the employee who suffers from it. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972).

An assault is an “accident” within the meaning of the Workers’ Compensation Act when from the point of view of the worker who suffers from it, it is unexpected and without design on his part, although intentionally caused by another. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949); Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977).

An unexpected assault may be considered as an accident despite its characterization as an intentional act. Daniels v. Swofford, 55 N.C. App. 555, 286 S.E.2d 582, 1982 N.C. App. LEXIS 2260 (1982).

And When Arising Out of Work. —

Where men are working together at the same work, disagreements may be expected to arise about the work, the manner of doing it, the use of tools, interference with one another, and many other details which may be trifling or important. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. When the disagreement arises out of the work in which two men are engaged, and as a result of it one injures the other, it may be inferred that the injury arose out of employment. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949).

Where a worker is injured by a fellow employee because of a dispute about the manner of doing the work he is employed to do, the accident to the injured worker grows out of the employment and is compensable. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949).

North Carolina Industrial Commission properly concluded that a truck driver’s injury and death following a road rage incident with another driver, in which the other driver ran over the decedent when the decedent exited his vehicle to confront the other driver, resulted from an injury by accident arising out of and in the course of his employment. Dodson v. Dubose Steel, Inc., 159 N.C. App. 1, 582 S.E.2d 389, 2003 N.C. App. LEXIS 1419 (2003), rev'd, 358 N.C. 129, 591 S.E.2d 548, 2004 N.C. LEXIS 13 (2004).

The danger which causes the assault must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977).

Where the assault upon the employee grows out of a motive foreign to the employment relationship, the necessary connection between the injury and the employment is not present and no compensation for the injury is proper. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977).

Assault by Third Person. —

The mere fact that injury is the result of the willful or criminal assault of a third person does not prevent the injury from being accidental. Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39, 1976 N.C. App. LEXIS 2327 (1976), rev'd, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977).

Substantial evidence supported the award of total disability compensation, medical expenses, and psychological expenses under G.S. 97-2(6) to a hospital employee who was assaulted and injured by a man when she was going from her office to the morgue to retrieve records. D'Aquisto v. Mission St. Joseph's Health Sys., 171 N.C. App. 216, 614 S.E.2d 583, 2005 N.C. App. LEXIS 1269 (2005), rev'd, 360 N.C. 567, 633 S.E.2d 89, 2006 N.C. LEXIS 843 (2006).

Assault by Fellow Servant. —

The mere fact that the injury is the result of a willful and criminal assault of a fellow servant does not of itself prevent the injury from being accidental. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 1930 N.C. LEXIS 459 (1930).

If one employee assaults another solely from anger, hatred, revenge, or vindictiveness, not growing out of or as an incident to the employment, the injury is to be attributed to the voluntary act of the assailant, and not as an incident of the employment. But if the assault is incidental to some duty of the employment, the injuries suffered thereby may properly be said to arise out of the employment. Ashley v. F-W Chevrolet Co., 222 N.C. 25, 21 S.E.2d 834, 1942 N.C. LEXIS 8 (1942) (wherein finding held to sustain award) .

No Compensation Where Cause of Assault Is Personal. —

When the moving cause of an assault upon an employee by a third person is personal, or the circumstances surrounding the assault furnish no basis for a reasonable inference that the nature of the employment created the risk of such an attack, the injury is not compensable. This is true even though the employee was engaged in the performance of his duties at the time, for even though the employment may have provided a convenient opportunity for the attack it was not the cause. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972).

Injury is not compensable when it is inflicted in an assault upon an employee by an outsider as the result of a personal relationship between them, so that the attack was not created by and not reasonably related to the employment; to be compensable, the assault must have had such a connection with the employment that it can be found logically that the nature of the employment created the risk of the attack. Hemric v. Reed & Prince Mfg. Co., 54 N.C. App. 314, 283 S.E.2d 436, 1981 N.C. App. LEXIS 2820 (1981).

Injuries which an employee suffered when the employee’s ex-boyfriend entered the employee’s workplace and shot the employee three times were not compensable under North Carolina’s Workers’ Compensation Act even though the employee’s supervisor knew that the the ex-boyfriend had assaulted the employee and threatened to kill the employee and the supervisor might have prevented the incident by calling police. Dildy v. MBW Invs., Inc., 152 N.C. App. 65, 566 S.E.2d 759, 2002 N.C. App. LEXIS 875 (2002).

Killing as Result of Personal Enmity Alone. —

In order for compensation to be recovered for the death of an employee under this act it is required that the injury causing death result from an accident arising out of and in the course of the employment, as a proximate cause, and where compensation is sought for the killing of one employee by another for purely personal and unrelated grounds, or when one was employed at night and the other by day, and the killing at night was a result of personal enmity alone, and these facts are found by the Commission and approved by the trial judge, the judgment denying the right of compensation will be affirmed on appeal. Harden v. Thomasville Furn. Co., 199 N.C. 733, 155 S.E. 728, 1930 N.C. LEXIS 234 (1930).

The risk of murder by a jealous spouse is not one which a rational mind would anticipate as an incident of the employment of both sexes in a business or industry. The possibility that an employee’s spouse will become jealous of an associate, with or without cause, is a hazard common to the neighborhood; it is independent of the relation of master and servant and is not a risk arising out of the nature of the employment. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350, 1972 N.C. LEXIS 1049 (1972).

Employer’s Knowledge of Threats Irrelevant. —

Where an employee is injured in the course of employment by an outsider because of hate, jealousy, or revenge based on a personal relationship, the fact that the employer has knowledge of prior threats of death or bodily harm does not result in the injury’s arising out of the employment; to allow compensation under such circumstances would have the practical effect of placing on the employer the duty of yielding to such threats of violence and terminating the employment of any worker so threatened, which would saddle the employer with a grossly unfair burden and the employee, in many cases, with an unjust job termination. Hemric v. Reed & Prince Mfg. Co., 54 N.C. App. 314, 283 S.E.2d 436, 1981 N.C. App. LEXIS 2820 (1981).

Shooting by Assistant. —

Where in a proceeding under this Act the evidence tended to show that the employee was a moulder in the employer’s foundry, and that he struck his assistant with a shovel after the assistant had spoken words to him which he deemed insulting, whereupon the assistant left the employment and returned and shot the claimant while he was doing his work, causing permanent injury, the evidence was sufficient to bring the case within the intent and meaning of the terms “injury by accident arising out of and in the course of the employment.” Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 1930 N.C. LEXIS 459 (1930).

Shooting of Night Watchman. —

Even though one be engaged in duties involving peculiar risks, one may not recover for any injury not arising out of those risks. Harden v. Thomasville Furn. Co., 199 N.C. 733, 155 S.E. 728, 1930 N.C. LEXIS 234 (1930) (where a night watchman was shot by a fellow employee because of a domestic affair) .

Deceased was a night watchman. While in a small store on defendant’s premises which was operated by a third person, he was shot by one who attempted to rob the store. It was held that the injury bore no relation to deceased’s employment. Smith v. Newman Mach. Co., 206 N.C. 97, 172 S.E. 880, 1934 N.C. LEXIS 116 (1934).

Employee Shot by Hunter. —

Plaintiff was shot in the eye by a hunter while he was working on his employer’s truck. The injury did not result from a cause peculiar to the employment in which plaintiff was engaged. Whitley v. North Carolina State Hwy. Comm'n, 201 N.C. 539, 160 S.E. 827, 1931 N.C. LEXIS 30 (1931); Bain v. Travora Mfg. Co., 203 N.C. 466, 166 S.E. 301, 1932 N.C. LEXIS 10 (1932).

Murder by Robber. —

Deceased was required to report at defendant’s mill before the other employees. It was known that many hoboes slept near the boiler room where he worked. He was murdered by a robber while he was engaged in his duties and before any other employees reported for work. It was held that the injury arose out of the employment. Goodwin v. Bright, 202 N.C. 481, 163 S.E. 576, 1932 N.C. LEXIS 139 (1932). See also West v. East Coast Fertilizer Co., 201 N.C. 556, 160 S.E. 765, 1931 N.C. LEXIS 34 (1931) (where deceased, a night watchman, was killed by a robber) .

Assault upon Employee Collecting Accounts. —

Where there was evidence that it was employee’s duty to collect accounts of his employer for goods sold upon the installment plan and that the employee endeavored to collect an account from a debtor and was struck by another also owing an account to the employer, the injury resulting in death, the evidence was sufficient to sustain a finding by the Industrial Commission that the injury was the result of an accident arising out of and in the course of the employment, and such a finding of fact was conclusive and binding. Winberry v. Farley Stores, 204 N.C. 79, 167 S.E. 475, 1933 N.C. LEXIS 326 (1933).

Game Warden Killed by Person Against Whom He Testified in Criminal Action. —

Where decedent, a game warden, was killed by a person against whom he had testified in a criminal action for violation of the game law, the court held that the injury did not arise out of and in the course of employment. Hollowell v. North Carolina Dep't of Conservation & Dev., 206 N.C. 206, 173 S.E. 603, 1934 N.C. LEXIS 144 (1934).

Fall Suffered While Running from Assailant. —

A fellow employee, who was drunk at the time, ran plaintiff away from his work. Plaintiff returned, only to run again when he saw his assailant approaching. Plaintiff ’s foreman was present. In leaving the second time, plaintiff fell and broke his leg. The Commission’s award of compensation was affirmed. The injury had its origin in plaintiff ’s employment. It was immaterial that it was unexpected. Wilson v. Boyd & Goforth, 207 N.C. 344, 177 S.E. 178, 1934 N.C. LEXIS 463 (1934).

Employee in Moving Vehicle Struck by Flying Object. —

Where a deliveryman was driving a truck in the course of his employment and, while passing a group of boys playing baseball, a baseball struck the windshield and a piece of glass from the windshield struck him in the eye, resulting in serious injury, it was held that the injury resulted from an accident arising out of and in the course of the employment, within the meaning of this section. Perkins v. Sprott, 207 N.C. 462, 177 S.E. 404, 1934 N.C. LEXIS 495 (1934) (distinguishing) Whitley v. North Carolina State Hwy. Comm’n, 201 N.C. 539, 160 S.E. 827, 1931 N.C. LEXIS 30 (1931) and Bain v. Travora Mfg. Co., 203 N.C. 466, 166 S.E. 301, 1932 N.C. LEXIS 10 (1932) (apparently on the ground that in those cases the plaintiff was struck by a bullet, whereas here, the glass and not the ball directly injured plaintiff) .

Dispute over Matters Foreign to Employment. —

Evidence tending to show that a night watchman employed to watch over one section of a highway under construction came over to a night watchman employed to watch over another section thereof, and engaged in an altercation relating to matters foreign to the employment, and that one of them killed the other as a result thereof, was sufficient to support the finding of the Industrial Commission that the deceased’s death was not the result of an accident arising out of and in the course of the employment, and therefore such finding was conclusive on the courts. McNeill v. C.A. Ragland Constr. Co., 216 N.C. 744, 6 S.E.2d 491, 1940 N.C. LEXIS 384 (1940).

As to assault by foreman in discharging employee, see McCune v. Rhodes-Rhyne Mfg. Co., 217 N.C. 351, 8 S.E.2d 219, 1940 N.C. LEXIS 240 (1940).

Assault Arising from Dispute over Work. —

Where the evidence disclosed that two employees had no personal contacts outside of the employment, and there was evidence that the dispute between them arose over the work they were performing for their common employer, the evidence was sufficient to sustain the finding by the Industrial Commission that an assault made by the one upon the other arose out of the employment. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949).

Where there was friction and enmity between two employees, growing out of criticism of the work of one of them by the other and complaint thereof to the employer, and the employee whose work was criticized assaulted his fellow worker from anger and revenge over such criticism, which resulted in the death of the one assaulted, such death occurred from an accident in the course of the employment. Hegler v. Cannon Mills Co., 224 N.C. 669, 31 S.E.2d 918, 1944 N.C. LEXIS 445 (1944).

Shooting of three employees by mentally disturbed coemployee while they were at work in locker plant arose out of and in the course of employment though shooting was “triggered” by a draft board incident, where shooter stated that reason for shooting was resentment of “domination” by coemployees. Zimmerman v. Elizabeth City Freezer Locker, 244 N.C. 628, 94 S.E.2d 813, 1956 N.C. LEXIS 494 (1956).

Shooting by Boyfriend of Coworker. —

Injuries received by plaintiff at place of employment when the boyfriend of a coworker shot both plaintiff and coworker did not arise out of his employment, where the assault resulted from the personal relationship between the coworker and her boyfriend and was not created by or reasonably related to the employment, notwithstanding the fact that plaintiff was present in the office in which the shooting occurred because he had been instructed to keep a record of coworker’s hours. Hemric v. Reed & Prince Mfg. Co., 54 N.C. App. 314, 283 S.E.2d 436, 1981 N.C. App. LEXIS 2820 (1981).

XI.Horseplay

Horseplay as Risk Assumed by Employer. —

The act contemplates the gathering together of workers of varying characteristics, and the risks and hazards of such close contact, including joking and pranks by the workers, are incidents to the business and grow out of it and are ordinary risks assumed by the employer under the act. Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594, 1930 N.C. LEXIS 55 (1930). See also Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907, 1942 N.C. LEXIS 84 (1942).

Injuries resulting from horseplay initiated and participated in by a claimant have not been excluded from the Workers’ Compensation Act by the decision of the State Supreme Court in Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594 (1930). Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534, 1984 N.C. App. LEXIS 3613 (1984).

Where Injured Employee Did Not Participate in Horseplay He May Recover. —

Where the injured employee does not participate in the sportive acts of his fellow employee, the injury is compensable. Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594, 1930 N.C. LEXIS 55 (1930) (where claimant was accidentally shot by the discharge of a gun, which a fellow truck driver carried in his truck, while he was putting oil in his own truck, commented on in 9 N.C.L. Rev. 105 (1931)) .

If an employee is injured as a result of the horseplay of a fellow worker, the injured employee is not precluded from recovering his damages under this act if he did not participate therein. Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594, 1930 N.C. LEXIS 55 (1930).

Injuries occurring after the employee has ceased his horseplay and returned to work are compensable. Michaux v. Gate City Orange Crush Bottling Co., 205 N.C. 786, 172 S.E. 406, 1934 N.C. LEXIS 73 (1934) (affirming award of compensation to deceased, who was killed in trying to catch his employer’s truck, which had left him while he was wrestling with a stranger) .

Thrill seeking which bears no conceivable relation to accomplishing the job for which the employee was hired moves the employee from the scope of his employment. Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196, 1982 N.C. LEXIS 1455 (1982).

Back Injury Caused by Fellow Employee. —

Plaintiff employee, who was injured when he told co-worker who was sitting on a box of cloth in employer’s dyeing department that he was going to turn him over onto the floor, upon which co-employee got up and grabbed the front of plaintiff ’s belt and jerked him, causing an injury to plaintiff ’s back which eventually resulted in plaintiff having a disc removed from his back by surgery, sustained his injury by accident arising out of and in the course of his employment as a result of horseplay, and was entitled to compensation. McGraw v. Fieldcrest Mills, Inc., 84 N.C. App. 307, 352 S.E.2d 435, 1987 N.C. App. LEXIS 3317 (1987).

Death by Drowning — Held Compensable. —

The death of a 14-year-old employee of a sanitary district by drowning while he was attempting to wade across a reservoir to complete his work of cutting weeds on the side arose out of and in the course of his employment, although he had received general instructions at an earlier time not to go into the water, where the place at which he stepped into the water was shallow and the danger was not obvious, and decedent’s actions were thus not so extreme as to break the causal connection between his employment and his death. Hensley v. Caswell Action Comm., Inc., 296 N.C. 527, 251 S.E.2d 399, 1979 N.C. LEXIS 1193 (1979).

Same — Held Not Compensable. —

The death of a 15-year-old laborer by drowning while swimming in a lake on his employer’s premises during his lunch hour when the lifeguard was not on duty did not arise out of and in the course of his employment where all the evidence showed that deceased was acting in contravention of specific instructions from his employer and that he was engaged in an independent recreational activity totally unrelated to his work of cutting grass. Martin v. Bonclarken Ass'y, 296 N.C. 540, 251 S.E.2d 403, 1979 N.C. LEXIS 1195 (1979).

XII.Deviation, Departure, and Abandonment

Employee Need Not Be in Exact Spot Designated by Employer. —

The Workers’ Compensation Act must be liberally construed, and the term “out of the employment” will not preclude recovery for an accident occurring while an employee is not in the exact spot designated by the employer if the employee is at the place he is required to be in the performance of his duties. Howell v. Standard Ice & Fuel Co., 226 N.C. 730, 40 S.E.2d 197, 1946 N.C. LEXIS 316 (1946).

Performance of Forbidden Task. —

Where an employee is employed solely for a particular job, such as operating a chain saw, and is positively forbidden to perform another job connected with the work, such as operating a tractor, and injury received while performing the forbidden task does not arise out of a hazard of the employment, and is not compensable. Taylor v. Dixon, 251 N.C. 304, 111 S.E.2d 181, 1959 N.C. LEXIS 556 (1959).

Violation of Orders. —

Disobedience of a direct and specific order by a then present superior breaks the causal relation between the employment and the resulting injury. Conversely, when there is a rule or a prior order and the employee is faced with the choice of remaining idle in compliance with the rule or order or continuing to further his employer’s business in contravention of it, no superior being present, the employer who would reap the benefits of the employee’s acts if successfully completed should bear the burden of injury resulting from such acts. Under such circumstances, engaging in an activity which is outside the narrow confines of the employee’s job description, but which is reasonably related to the accomplishment of the task for which the employee was hired, does not ordinarily constitute a departure from the scope of employment. Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196, 1982 N.C. LEXIS 1455 (1982).

Emergency. —

Deceased slept on employer’s premises. On the night of the accident, some machinery had broken and deceased voluntarily went after a foreman who could fix it. No one had requested deceased to do this, although the evidence showed that he expected to receive pay for his time. He was killed by a passing car while on his way to get the foreman. It was held that the breakdown of machinery could not be classified as sufficient emergency to justify recovery. Davis v. North State Veneer Corp., 200 N.C. 263, 156 S.E. 859, 1931 N.C. LEXIS 295 (1931).

Salesman Going Out of His Way to Buy Cigars. —

The injured employee was a salesman and collector who was furnished with a car and who had no fixed hours of employment. One evening, while on his way to make a business visit, he deviated less than a mile to buy some cigars, which he regarded as expedient to the purpose of his visit. While going from the drugstore, he was injured. Compensation award was affirmed; the accident arose out of and in the course of the employment. Parrish v. Armour & Co., 200 N.C. 654, 158 S.E. 188, 1931 N.C. LEXIS 407 (1931).

Attempt to Get a Job for a Friend. —

Claimant was an employee in defendant’s mill. Her work ceased at 11 o’clock one day, but she was not permitted to leave until 11:30. During this interval she was injured as she returned from downstairs to see about getting a friend a job. It was held that plaintiff ’s mission was “not such a departure from the employer’s business . . . that it was not in the course of the employment.” Bellamy v. Great Falls Mfg. Co., 200 N.C. 676, 158 S.E. 246, 1931 N.C. LEXIS 410 (1931).

Return to Employment after Deviation. —

After working steadily for 15 hours, claimant stopped to eat and get a haircut. He then returned to his employer’s truck. He was injured in taking the truck to defendant’s place of business. It was held that the temporary deviation from the course of duty was not an abandonment. Furthermore, the accident occurred after the employee had resumed his work. Jackson v. Dairymen's Creamery, 202 N.C. 196, 162 S.E. 359, 1932 N.C. LEXIS 459 (1932).

Evidence that claimant was not sure that the mill in which he was employed would be operated on the day in question and that he rode to work with another employee, requesting his son to follow in his car to drive him home in case the mill was not operated, and that upon getting to work and ascertaining that the mill would be operated, he put his lunch in the room where he worked and went to a platform at the front of the mill to tell his son not to wait for him, and that he there slipped on ice and fell to his injury, was sufficient to support the finding that the injury resulted from an accident arising out of and in the course of his employment. Gordon v. Thomasville Chair Co., 205 N.C. 739, 172 S.E. 485, 1934 N.C. LEXIS 53 (1934).

Accidental Discharge of Gun. —

Deceased, a delivery boy, went to employer’s storeroom after groceries. He stopped by a private bedroom and was killed by the accidental discharge of a gun which he had found in the room. The evidence was held sufficient to support the Commission’s finding that the accident did not arise out of and in the course of the employment. Smith v. S.E. Hauser & Co., 206 N.C. 562, 174 S.E. 455, 1934 N.C. LEXIS 244 (1934).

Acting at Request of Superior. —

Recovery was denied where deceased was killed while attending a furniture market at the request of his superior. It was shown that the deceased was invited to attend, not for the purpose of learning anything helpful to his work, but to enable him to have a pleasure trip. Hildebrand v. McDowell Furn. Co., 212 N.C. 100, 193 S.E. 294, 1937 N.C. LEXIS 249 (1937).

When plaintiff injured his arm in raising a window to obtain a bottle of milk which he had purchased from defendant’s confectionery wagon and set aside to cool, recovery was allowed, the court saying that plaintiff ’s conduct did not constitute such a deviation as to deprive him of the benefits of the act. Pickard v. E.M. Holt Plaid Mills, 213 N.C. 28, 195 S.E. 28, 1938 N.C. LEXIS 5 (1938).

Drowning After Violation of Orders. —

Recovery was denied where a painter dropped his brush in a river and in violation of the foreman’s orders went in after it and was drowned. Morrow v. State Hwy. & Pub. Works Comm'n, 214 N.C. 835, 199 S.E. 265, 1938 N.C. LEXIS 436 (1938).

Fall After Resting on Plank. —

The findings of fact of the Industrial Commission, supported by the evidence, were to the effect that deceased employee was a night watchman, that his duties were to make periodic inspection and to attend the furnaces and to get up steam, that on the night in question he procured his son to help him, that he instructed his son to do certain of his duties in the boiler room, that he placed a small box and plank on a walkway eight or nine feet high, with one end of the plank resting on the box, and lay down on the plank, that his son called him in time to make a periodic inspection some 30 minutes later, and that in getting up from his recumbent position, while his son was engaged in the performance of the employee’s active duties in the boiler room, the employee fell from the walkway and was fatally injured. The facts did not compel the conclusion, as a matter of law, that at the time of injury the employee had not deviated from or abandoned his employment, and therefore the award of the Industrial Commission denying compensation was upheld. Stallcup v. Carolina Wood Turning Co., 217 N.C. 302, 7 S.E.2d 550, 1940 N.C. LEXIS 227 (1940).

Riding Conveyor. —

Deceased was killed in rising from basement to ground floor on a mechanical crate conveyor. Steps were provided by the employer, and none of the employees rode the conveyor when the foreman was around. It was held that the denial of compensation was proper in that deceased stepped aside from the sphere of his employment in getting on the conveyor. Teague v. Atlantic Co., 213 N.C. 546, 196 S.E. 875, 1938 N.C. LEXIS 138 (1938).

The fact that deceased was not actually engaged in the performance of his duties as watchman at the time he was pushed over and injured unintentionally by a fellow employee in a hurry did not perforce defeat his claim for compensation under this Act, where both employees had checked in for work and were on the premises and where they had a right to be. Brown v. Carolina Aluminum Co., 224 N.C. 766, 32 S.E.2d 320, 1944 N.C. LEXIS 243 (1944).

Selection of More Hazardous Route. —

The evidence tended to show that claimant, in the performance of his duty to go to a guard tower outside of a high wire fence, elected to climb over the fence rather than go around by the gate, which would require approximately 200 yards of travel, and was injured when he jumped from the top of the fence to avoid falling therefrom. It was held that the evidence sustained the award of compensation, and the contention that claimant climbed the fence for his own convenience rather than as a part of his duties was untenable, since the mere fact that an employee selected the more hazardous route in the performance of his duties does not defeat recovery. Hartley v. North Carolina Prison Dep't, 258 N.C. 287, 128 S.E.2d 598, 1962 N.C. LEXIS 693 (1962).

Injury On the Way to Move Truck. —

Where plaintiff (mayor of town) set out on bike to move an improperly parked city truck, but first stopped at his place of business and consumed an alcoholic beverage, then resumed his errand and was subsequently injured in a bicycle accident, his injury arose out of and in the course of his employment. Creel v. Town of Dover, 126 N.C. App. 547, 486 S.E.2d 478, 1997 N.C. App. LEXIS 620 (1997).

Effect of Intoxication. —

The relevant question in determining whether intoxication operates to bar benefits to a claimant under the Act is not whether the claimant was intoxicated at the time of the accident, but whether the claimant’s intoxication was more probably than not a cause in fact of the accident. Creel v. Town of Dover, 126 N.C. App. 547, 486 S.E.2d 478, 1997 N.C. App. LEXIS 620 (1997).

XIII.Aggravation of Existing Condition or Infirmity

Injury Aggravating Preexisting Infirmity or Disease Is Compensable. —

When an employee afflicted with a preexisting disease or infirmity suffers a personal injury by accident arising out of and in the course of his employment, and such injury materially accelerates or aggravates the preexisting disease or infirmity and thus proximately contributes to the death or disability of the employee, the injury is compensable even if it would not have caused death or disability to a normal person. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265, 1951 N.C. LEXIS 604 (1951).

If the employee by reason of constitutional infirmities is predisposed to sustain injuries while engaged in labor, nevertheless the leniency and humanity of the law permit him to recover compensation if the physical aspects of the employment contribute in some reasonable degree to bring about or intensify the condition which renders him susceptible to such accident and consequent injury. Moore v. J.P. Stevens & Co., 47 N.C. App. 744, 269 S.E.2d 159, 1980 N.C. App. LEXIS 3210 (1980); Walston v. Burlington Indus., 49 N.C. App. 301, 271 S.E.2d 516, 1980 N.C. App. LEXIS 3403 (1980), rev'd, 304 N.C. 670, 285 S.E.2d 822, 1982 N.C. LEXIS 1239 (1982); Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101, 1981 N.C. LEXIS 1336 (1981).

Employment Need Not Be Sole Causative Force. —

In workers’ compensation actions the rule of causation is that where the right to recover is based on injury by accident, the employment need not be the sole causative force to render an injury compensable. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101, 1981 N.C. LEXIS 1336 (1981); Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E.2d 122, 1986 N.C. App. LEXIS 2155 (1986).

Where the accident and resultant injury arise out of both the idiopathic condition of the worker and hazards incident to the employment, the employer is liable. But not so where the idiopathic condition is the sole cause of the injury. Norris v. Kivettco, Inc., 58 N.C. App. 376, 293 S.E.2d 594, 1982 N.C. App. LEXIS 2759 (1982).

Relative Contributions of Accident and Preexisting Condition Not Weighed. —

An employer accepts an employee has he is, and if a compensable injury precipitates a latent physical condition, such as heart disease, cancer, back weakness, or the like, the entire disability is compensable; no attempt is made to weigh the relative contribution of the accident and the preexisting condition. Anderson v. A.M. Smyre Mfg. Co., 54 N.C. App. 337, 283 S.E.2d 433, 1981 N.C. App. LEXIS 2841 (1981).

Aggravation of Heart Condition. —

Findings to the effect that employee suffered an injury arising out of and in the course of the employment, which injury aggravated a preexisting heart condition and caused death, would support an award for compensation and burial expenses. Wyatt v. Sharp, 239 N.C. 655, 80 S.E.2d 762, 1954 N.C. LEXIS 630 (1954).

Aggravation of Carpal Tunnel Syndrome. —

Employee’s carpal tunnel syndrome was a compensable injury, even though there was no direct evidence of initial causation because a doctor confirmed another doctor’s diagnosis, which was based on test results and was not reliant on facts not in evidence or the maxim post hoc ergo propter hoc. The employee’s carpal tunnel syndrome was compensable even if it was preexisting; it was aggravated by a work injury. Raper v. Mansfield Sys., 189 N.C. App. 277, 657 S.E.2d 899, 2008 N.C. App. LEXIS 540 (2008).

Evidence Held Insufficient to Show Death as Natural Result of Accident. —

Deceased broke his leg from a fall on the job. He was then 65 and had arteriosclerosis, arthritis, and heart trouble. While laid up he suffered with a bladder ailment which two attending physicians thought was caused or aggravated by his inactivity in bed. Over seven months later he died from the heart ailment and arthritis, which a different attending physician thought possibly or even probably would have been aggravated by a bladder condition such as reported by the physicians who first looked after him but of which the witness had no knowledge. This physician thought the accident to have been only a remote cause of his death. It was held that the evidence was insufficient to support the Commission’s finding that deceased died while totally disabled from the accident and as a natural result of it. Gilmore v. Hoke County Bd. of Educ., 222 N.C. 358, 23 S.E.2d 292, 1942 N.C. LEXIS 101 (1942).

Sufficient Evidence. —

North Carolina Industrial Commission’s finding that a workers’ compensation claimant’s shoulder injury, which occurred when a coworker grabbed her by her arm and spun her around at work, arose out of and in the course of her employment, pursuant to G.S. 97-2(6) and aggravated a pre-existing shoulder condition was supported by sufficient evidence. This finding supported the Commission’s conclusion that the claimant’s injury by accident exacerbated her pre-existing condition and, thus, entitled her to temporary total disability compensation. Davis v. Columbus County Schs., 175 N.C. App. 95, 622 S.E.2d 671, 2005 N.C. App. LEXIS 2709 (2005).

Injury Caused by Previous Compensable Injury. —

Plaintiff ’s compensable spinal injury which caused permanent paralysis of his legs was a proximate cause of burns received by plaintiff on the lower portions of his body when a cigarette he had been smoking set the clothing on his bed on fire. Plaintiff suffered the burns because of a loss of feeling and sensitivity in the lower portions of his body as a result of the original compensable accident, and the act of leaving the cigarette where it could set fire to the bedclothing was insufficient to break the chain of causation between the original injury and the burns sustained. Starr v. Charlotte Paper Co., 8 N.C. App. 604, 175 S.E.2d 342, 1970 N.C. App. LEXIS 1633 (1970).

Back Injury Following Previous Back Surgery. —

Under the evidence the Commission could determine that plaintiff ’s work-related back injury and the surgery which followed contributed to his disability in a reasonable degree, regardless of the fact that he had two previous laminectomies, and that, as a result, plaintiff was entitled to compensation. Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E.2d 122, 1986 N.C. App. LEXIS 2155 (1986).

Mere Speculation was Insufficient to Support Finding of Aggravation of Kyphotic Deformity. —

Where employee sustained an injury to his back as a direct result of a specific traumatic incident arising out of and in the course of employment, the finding that the employee’s kyphotic deformity was aggravated by the work-related injury was vacated because the testimony of a neurosurgeon that indicated the condition “likely” was aggravated, was insufficient to support such a finding as the opinion was mere speculation. Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 614 S.E.2d 440, 2005 N.C. App. LEXIS 1254 (2005).

Compensation for Entire Resulting Disability. —

When a preexisting, nondisabling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment or by an occupational disease so that disability results, then the employer must compensate the employee for the entire resulting disability, even though it would not have disabled a normal person to that extent. In such a case, where an injury has aggravated an existing condition and thus proximately caused the incapacity, the relative contributions of the accident and the preexisting condition will not be weighed. Wilder v. Barbour Boat Works, 84 N.C. App. 188, 352 S.E.2d 690, 1987 N.C. App. LEXIS 2489 (1987).

While the case law interpreting the specific traumatic incident provision of G.S. 97-2(6) requires the plaintiff to prove an injury at a cognizable time, this does not compel the plaintiff to allege the specific hour or day of the injury; following a work-related injury, was not an intervening cause that precluded compensation for aggravation of the employee’s work-related injury since the accident was not the fault of the employee. Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 614 S.E.2d 440, 2005 N.C. App. LEXIS 1254 (2005).

XIV.Injury from Disease

G.S. 97-52 et seq. Constitute Implied Amendment to This Section. —

The Occupational Disease Act, G.S. 97-52 et seq., constitutes an implied amendment to this section. Under that act, specified occupational diseases are compensable. In adopting this amendment, the legislature was not making provision for compensation for injuries by accident as that term is ordinarily understood. Provision for that type of injury had already been made in the original act. It was considering those diseases the causative origin of which is occupational and designating those which are to be deemed within the new and extended definition of “injury by accident” which it was then providing. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

But Compensation for Disease Resulting from Accident Is Not Precluded by G.S. 97-52 et seq. —

G.S. 97-52, providing that only the occupational diseases therein specified should be compensable, relates only to occupational diseases, which are those resulting from long and continued exposure to risks and conditions inherent and usual in the nature of the employment, and this section does not preclude compensation for a disease not inherent in or incident to the nature of the employment when it results from an accident arising out of and in the course of the employment. MacRae v. Unemployment Comp. Comm'n, 217 N.C. 769, 9 S.E.2d 595, 1940 N.C. LEXIS 344 (1940).

Employer is responsible for any disease resulting naturally and unavoidably from an accident. Williams v. Thompson, 200 N.C. 463, 157 S.E. 430 (1931) where plaintiff injured his eye and later unavoidably contracted gonorrhea ophthalmia in the injured organ Clark v. Carolina Cotton & Woolen Mills, 204 N.C. 529, 168 S.E. 816, 1933 N.C. LEXIS 186 (1933) (in which evidence was sufficient to support the finding that plaintiff ’s fall resulted in myelitis. See also) Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E.2d 638, 1984 N.C. App. LEXIS 3917 (1984). And see 10 N.C.L. Rev. 407 (1932).

Apportionment Between Incapacitating Disease and Other Factors Not Proper. —

Where an industrial disease renders an employee actually incapacitated to earn any wages, the employer may not ask that a portion of the disability be charged to the employee’s advanced age and poor learning on the grounds that if it were not for these factors he might still retain some earning capacity. Anderson v. A.M. Smyre Mfg. Co., 54 N.C. App. 337, 283 S.E.2d 433, 1981 N.C. App. LEXIS 2841 (1981).

Ordinarily, heart disease is not an injury and death therefrom is not ordinarily compensable. West v. North Carolina Dep't of Conservation & Dev., 229 N.C. 232, 49 S.E.2d 398, 1948 N.C. LEXIS 452 (1948); Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410, 1954 N.C. LEXIS 457 (1954).

In heart cases the decisions require a showing that the exertion was in some way unusual or extraordinary. Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410, 1954 N.C. LEXIS 457 (1954).

Dilatation of the Heart Due to Unusual Exertion. —

A policeman 56 years of age, who was in good health and without any physical defect or disease, arrested a young man, who, because of intoxication, violently and viciously resisted, and after the officer subdued him and transported him to the jail, the officer and another had to carry the prisoner up three flights of stairs because the elevator was out of order. The officer collapsed with acute dilatation of the heart due to the unusual exertion. This injury to the heart muscle was chronic and progressive and the policeman suffered a fatal heart attack some 10 months thereafter. It was held that the evidence warranted the conclusion that the injury to the heart resulted not from inherent weakness or disease but from an unusual and unexpected happening, and that therefore death resulted from an accident within the meaning of this section. Gabriel v. Town of Newton, 227 N.C. 314, 42 S.E.2d 96, 1947 N.C. LEXIS 412 (1947). See Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410, 1954 N.C. LEXIS 457 (1954).

Coronary Occlusion. —

Evidence that plaintiff suffered a coronary occlusion while rolling a heavy rope net in the course of his employment, with medical expert testimony that the exercise could not be the cause of the condition, although the attack might have been accelerated or precipitated by the exertion, was insufficient to sustain a finding that the coronary occlusion and resulting myocardial infarction arose out of and in the course of the employment. Bellamy v. Morace Stevedoring Co., 258 N.C. 327, 128 S.E.2d 395, 1962 N.C. LEXIS 676 (1962).

Accident and Exposure as Contributing to Death from Acute Nephritis. —

The evidence before the Industrial Commission tended to show that the deceased employee, for whose death compensation was sought, had been in exceptionally good health up to the time of the accident, that he fell from a platform, breaking his leg, and lay where he fell for about half an hour, exposed to the cool weather, that he was then discovered and carried into the office, where he had to wait some two hours for medical attention. There was expert testimony to the effect that the exposure was a contributing factor causing acute nephritis resulting in death, and that the accident and exposure accelerated the employee’s death. It was held that the evidence was sufficient to support the finding of the Industrial Commission that the disease resulted naturally and unavoidably from the accident. Doggett v. South Atl. Whse. Co., 212 N.C. 599, 194 S.E. 111, 1937 N.C. LEXIS 378 (1937).

Hemorrhagic Pachymeningitis Resulting from Blow to Head. —

Plaintiff, while about his employer’s business, was struck on the back of the head by hides which he was jerking from hooks about 10 feet from the floor, and had to stop work for a very short time. As a result of the blow plaintiff contracted hemorrhagic pachymeningitis which caused his total disability. This was held to be an injury by accident, arising out of and in the course of his employment within this section. Eller v. Lawrence Leather Co., 222 N.C. 23, 21 S.E.2d 809, 1942 N.C. LEXIS 7 (1942), modified, 222 N.C. 604, 24 S.E.2d 244, 1943 N.C. LEXIS 383 (1943).

Gonorrhea Ophthalmia Resulting from Accident. —

Plaintiff, a truck driver, sustained an injury to his eye while cleaning a carburetor. The injury irritated his eye and resulted in ulcer. Seven days after the accident the plaintiff was treated by a doctor, who gave the plaintiff some lotion to use. He visited the doctor three times. Then gonorrhea ophthalmia showed up, which was on the thirteenth day after the accident. As a result of the infection the plaintiff lost one eye and suffered a partial loss of use in the other eye. Compensation was allowed. Williams v. Thompson, 200 N.C. 463, 157 S.E. 430, 1931 N.C. LEXIS 360 (1931). See 8 N.C.L. Rev. 421 (1930).

Contraction of Tuberculosis from Coworker. —

Tuberculosis contracted from exposure to the cough of one actively infected who was seated in close proximity at work is not an occupational disease, but may be found to have resulted naturally and avoidably from an accident. MacRae v. Unemployment Comp. Comm'n, 217 N.C. 769, 9 S.E.2d 595, 1940 N.C. LEXIS 344 (1940). And see 10 N.C.L. Rev. 407 (1932).

Employee Contracting Pneumonia. —

Where an employee got wet in washing certain machines, although furnished with special clothes, and while removing ashes, was in the sunshine and open air, and the sudden change in temperature caused him to contract pneumonia, from which he died, it was held that the death was not the result of an accidental injury. Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844, 1936 N.C. LEXIS 360 (1936).

Asbestosis. —

In an action brought at common law on the ground that, due to defendant’s negligence over a period of months, plaintiff had contracted pulmonary asbestosis, the court held that since defendant was negligent, plaintiff ’s injury was not incidental to his employment and, furthermore, was not deprived of its accidental character by the mere fact of its requiring several months to develop. Accordingly, recovery was denied plaintiff in his suit at common law because the injury was declared to be covered by the act. McNeely v. Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509, 1934 N.C. LEXIS 249 (1934). See also Johnson v. Hughes & S. Dairies, Inc., 207 N.C. 544, 177 S.E. 632, 1935 N.C. LEXIS 200 (1935).

Where claimant worked in an asbestos plant for six or seven years, and a dust removing system was not installed until about a year before claimant’s discharge, at which time a medical examination disclosed that he was suffering from asbestosis, the evidence showed that the injury was the result of an occupational disease not compensable under the act prior to its amendment by Laws 1935, c. 123. Swink v. Carolina Asbestos Co., 210 N.C. 303, 186 S.E. 258, 1936 N.C. LEXIS 92 (1936). See G.S. 97-52 and G.S. 97-76 .

Silicosis. —

The clear intent of G.S. 97-61.6 to provide compensation for death occurring within 350 weeks from the date of last exposure to silicosis if the employee was at the time of death receiving compensation for disablement due to silicosis, even though the death does not result from silicosis, must be given effect, notwithstanding subdivisions (6) and (10) of this section and G.S. 97-52, since the specific provisions relating to silicosis, which were enacted because of the peculiar course of the disease, must be construed as an exception to the general tenor of the compensation act to provide compensation for death only if it results from an accident arising out of and in the course of the employment. Davis v. North Carolina Granite Corp., 259 N.C. 672, 131 S.E.2d 335, 1963 N.C. LEXIS 603 (1963).

Phlebitis, Arthritis and Severe Body Pain Resulting from Primary Injury. —

The complications of phlebitis, arthritis and severe body pain, whether the complications were considered subsequent injuries or diseases, were compensable under the act where they were the natural and unavoidable result of the primary injury to plaintiff ’s hip and upper leg. Roper v. J.P. Stevens & Co., 65 N.C. App. 69, 308 S.E.2d 485, 1983 N.C. App. LEXIS 3386 (1983).

XV.Hernia

Editor’s Note. —

Most of the cases cited below were decided prior to the 1987 amendment to subdivision (18) of this section, which deleted paragraph c thereof, regarding accompaniment of the hernia with pain, and added the second sentence of paragraph d thereof.

Subdivision (18) of this section is given a liberal construction, with primary consideration being given to compensation for the injured employee. McMahan v. Hickey's Supermarket, 24 N.C. App. 113, 210 S.E.2d 214, 1974 N.C. App. LEXIS 1944 (1974).

Legislative Use of the Term. —

The medical condition known as “hernia” is not specifically defined in either the Worker’s Compensation Act or in the case law. Although the Court of Appeals has declined to define the term hernia, it has noted that the legislature’s use of the term hernia in conjunction with the word rupture in the statute, “hernia or rupture,” seems to indicate that something less than full extension through the organ wall is contemplated. Pernell v. Piedmont Circuits, 104 N.C. App. 289, 409 S.E.2d 618, 1991 N.C. App. LEXIS 1013 (1991).

Failure to Prove Any Element of Subdivision (18) Nullifies Claim. —

Failure to prove the existence of any one of the five elements of subdivision (18) of this section nullifies plaintiff ’s claim. Lutes v. Export Leaf Tobacco Co., 19 N.C. App. 380, 198 S.E.2d 746, 1973 N.C. App. LEXIS 1658 (1973).

To recover compensation for a hernia, a plaintiff must prove the existence of each of the five elements of subdivision (18). The absence of any one of them will result in the denial of compensation. Long v. Morganton Dyeing & Finishing Co., 84 N.C. App. 81, 351 S.E.2d 767, 1987 N.C. App. LEXIS 2453, rev'd, 321 N.C. 82, 361 S.E.2d 575, 1987 N.C. LEXIS 2507 (1987).

This section, in effect, defines what constitutes a causal connection for purposes of hernia injury, and when any one of the section’s elements is not proven, a causal connection does not exist. This is true even if the Commission is otherwise convinced that the hernia was caused by an accident arising out of and in the course of employment. Long v. Morganton Dyeing & Finishing Co., 84 N.C. App. 81, 351 S.E.2d 767, 1987 N.C. App. LEXIS 2453, rev'd, 321 N.C. 82, 361 S.E.2d 575, 1987 N.C. LEXIS 2507 (1987).

Hernia Must Result from Accident. —

In every case it must definitely appear that the hernia resulted immediately from an accident. Ussery v. Erlanger Cotton Mills, 201 N.C. 688, 161 S.E. 307, 1931 N.C. LEXIS 69 (1931).

Unusual Conditions Required. —

In cases involving back injury or hernia, the elements constituting accident are the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences. Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747, 1963 N.C. LEXIS 707 (1963).

This section requires an interruption of the usual work routine or the introduction of some new circumstance not a part of the usual work routine before a compensable injury arises in a hernia case. Gray v. Durham Transf. & Storage, Inc., 10 N.C. App. 668, 179 S.E.2d 883, 1971 N.C. App. LEXIS 1693 (1971).

A back injury or hernia suffered by an employee does not arise by accident if the employee at the time was merely carrying out his usual and customary duties in the usual way. Faires v. McDevitt & St. Co., 251 N.C. 194, 110 S.E.2d 898, 1959 N.C. LEXIS 551 (1959); Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747, 1963 N.C. LEXIS 707 (1963); Gray v. Durham Transf. & Storage, Inc., 10 N.C. App. 668, 179 S.E.2d 883, 1971 N.C. App. LEXIS 1693 (1971); Southards v. Byrd Motor Lines, 11 N.C. App. 583, 181 S.E.2d 811, 1971 N.C. App. LEXIS 1588 (1971); Beamon v. Stop & Shop Grocery, 27 N.C. App. 553, 219 S.E.2d 508, 1975 N.C. App. LEXIS 1899 (1975); Curtis v. Carolina Mechanical Sys., 36 N.C. App. 621, 244 S.E.2d 690, 1978 N.C. App. LEXIS 2563 (1978).

As to requirement of unusual circumstances or exertion, see Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605, 1938 N.C. LEXIS 368 (1938).

Onset of Pain. —

The pain that prior to the 1987 amendment to this section had to accompany an injury resulting in a hernia to render the injury compensable under former paragraph (18)c did not have to occur simultaneously with the sustaining of the injury. Long v. Morgantown Dyeing & Finishing Co., 321 N.C. 82, 361 S.E.2d 575, 1987 N.C. LEXIS 2507 (1987).

Hernia Not Discovered Until Some Days After Commencement of Pain. —

It is sufficient for the Commission to find the facts required under this section and award compensation if the pain immediately followed the accident, even if the hernia was not discovered until diagnosis by a physician some days thereafter. Ussery v. Erlanger Cotton Mills, 201 N.C. 688, 161 S.E. 307, 1931 N.C. LEXIS 69 (1931).

Findings of Commission Binding on Appeal. —

Where the Commission finds and concludes that there was no causal connection between “accident” and hernia, the findings of the Commission when supported by any competent evidence are binding on appeal. Lutes v. Export Leaf Tobacco Co., 19 N.C. App. 380, 198 S.E.2d 746, 1973 N.C. App. LEXIS 1658 (1973).

Sudden Appearance of Lesion and Enlargement of Inguinal Ring. —

Plaintiff was a plumbing foreman. He had been instructed to lay off his workmen and to finish a job with one other employee. In helping the other employee lift a heavy pipe, he felt a pain in his abdomen. He consulted a physician who found an enlargement of the left inguinal ring and a bulge but no protrusion. The doctor strapped plaintiff and gave him a truss. Eighteen days later an actual hernia was found. An award granting compensation for hernia was affirmed, the court saying that the accident consisted of the plaintiff ’s having to do unusual work and that the lesion and enlargement of the inguinal ring, from which the fully developed hernia naturally comes, did result immediately. Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605, 1938 N.C. LEXIS 368 (1938).

Evidence Held to Justify Finding Compensable Hernia. —

Claimant’s injury resulted from an accident within the contemplation of the act and the evidence justified the Industrial Commission in finding that hernia appeared “suddenly” within the meaning of this section. Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605, 1938 N.C. LEXIS 368 (1938).

Claimant, in delivering milk to a cafe, had to lift a box of chipped ice from the storage box. On this occasion he felt a sharp abdominal pain as he lifted and “he got sick,” but after a short rest, he worked till noon, when he reported that he had strained his side and went home. Hernia appeared a few days later. The employer contended that the injury was not caused by accident but only by the doing of regular work in the regular way. It was held that the sudden and unexpected rupture was not a natural and probable consequence of the work, but an accidental injury and compensable. Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231, 1940 N.C. LEXIS 263 (1940).

Evidence held sufficient to sustain the finding of the Industrial Commission that the hernia was compensable under subdivision (18) of this section. Rice v. Thomasville Chair Co., 238 N.C. 121, 76 S.E.2d 311, 1953 N.C. LEXIS 380 (1953).

Evidence tending to show that the employee was a carpenter and customarily did the work of a carpenter, that in removing concrete forms carpenters usually “stripped” the forms and laborers lifted and removed them, that on the occasion in question other carpenters and helpers had been withdrawn from the job, that the lifting of the forms was usually and customarily done by two men, and that while the employee was attempting to lift one of the forms by himself, requiring extreme exertion and strain in a confined and difficult place of work, he felt a sharp pain which continued until he had received medical treatment for the hernia, was sufficient to support a finding of the Industrial Commission that the employee suffered an injury by accident arising out of and in the course of his employment, resulting in the hernia. Faires v. McDevitt & St. Co., 251 N.C. 194, 110 S.E.2d 898, 1959 N.C. LEXIS 551 (1959).

Evidence Held Not to Show Compensable Hernia. —

Where the evidence showed that a hernia occurred while the employee was performing his work in the customary and usual manner, and there was no evidence of any unusual condition or any slipping or falling by the employee, there was no evidence to justify a finding that the hernia resulted from an accident, and an award of compensation would be reversed. Hensley v. Farmers Fed'n Coop., 246 N.C. 274, 98 S.E.2d 289, 1957 N.C. LEXIS 413 (1957); Holt v. Cannon Mills Co., 249 N.C. 215, 105 S.E.2d 614, 1958 N.C. LEXIS 445 (1958).

The mere fact that plaintiff was handling a different commodity than usual, without more, and that the weather was hot, were not enough to satisfy the requirement of an “interruption of the work routine and the introduction of unusual conditions likely to result in unpredicted consequences.” Nor was the mere fact that plaintiff was in a hurry. Southards v. Byrd Motor Lines, 11 N.C. App. 583, 181 S.E.2d 811, 1971 N.C. App. LEXIS 1588 (1971).

Speculative testimony of physicians before the North Carolina Industrial Commission was insufficient to support the conclusion that the employee’s hernia injury was caused by his work related activity. Hodgin v. Hodgin, 159 N.C. App. 635, 583 S.E.2d 362, 2003 N.C. App. LEXIS 1490 (2003).

Industrial commission properly denied compensability pursuant to G.S. 97-2 for three hernias suffered after a worker left his employment; the subject hernias were not recurrences of two earlier compensable hernias, but instead were new non-work injuries. Bondurant v. Estes Express Lines, Inc., 167 N.C. App. 259, 606 S.E.2d 345, 2004 N.C. App. LEXIS 2184 (2004).

XVI.Illustrative Cases
A.Falls

A fall itself is usually regarded as a compensable accident. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308, 1963 N.C. LEXIS 597 (1963); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963); Hollar v. Montclair Furn. Co., 48 N.C. App. 489, 269 S.E.2d 667, 1980 N.C. App. LEXIS 3286 (1980).

There is a clear line of distinction in fall cases, which holds that: (1) where the injury is clearly attributable to an idiopathic condition of the employee, with no other factors intervening or operating to cause or contribute to the injury, no award should be made; (2) where the injury is associated with any risk attributable to the employment, compensation should be allowed, even though the employee may have suffered from an idiopathic condition which precipitated or contributed to the injury. Hollar v. Montclair Furn. Co., 48 N.C. App. 489, 269 S.E.2d 667, 1980 N.C. App. LEXIS 3286 (1980).

When Fall Constitutes Compensable Accident. —

It has been held that a fall is an accident, and where it is not shown to have resulted from the employee’s physical infirmity or from external force unconnected with the employment, it may be found by the Commission to arise out of the employment. No affirmative evidence as to what caused the fall is necessary to support the finding. Here the employee, reaching up to a rack in the course of her work, lost her balance and fell. Robbins v. Bossong Hosiery Mills, 220 N.C. 246, 17 S.E.2d 20, 1941 N.C. LEXIS 516 (1941) (involving an employee who lost her balance and fell while reaching up to a rack in the course of her work, and distinguishing cases of heart failure, dizzy spells, etc) .

The rule that compensation will be awarded in unexplained-fall cases is applied in North Carolina. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963).

The effects of a fall are compensable if the fall results from an idiopathic cause and the employment has placed the employee in a position which increases the dangerous effects of the fall. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963).

When Injury From Fall Is Not Compensable. —

If a fall and the resultant injury arise solely from an idiopathic cause, or a cause independent of the employment, the injury is not compensable. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963).

The fall itself is the unusual, unforeseen occurrence which is the accident. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963).

Hence, Evidence of Unusual Occurrence Is Unnecessary. —

To prove an accident in industrial injury cases, it is not essential that there be evidence of any unusual or untoward condition or occurrence causing a fall which produces injury. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963).

Slipping on Fruit. —

Plaintiff got into his car to leave defendant’s plant. A night watchman beckoned to him, and in getting out of the car to learn what the watchman wanted, plaintiff slipped on a fruit peeling. Recovery was denied, the court saying, “When an injury cannot fairly be traced to the employment as a contributing proximate cause or comes from a hazard to which the worker would have been equally exposed apart from the employment, or from a hazard common to others, it does not arise out of the employment.” Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 S.E. 342, 1938 N.C. LEXIS 86 (1938).

Circumstances Permitting Inference That Fall Arose Out of and in Course of Employment. —

Employee was suffering from a disease which subjected him to fainting spells. While in the men’s washroom he called to a person in an adjacent booth, “Please help me to the window, I am about to faint.” The floor was of tile and very slick when wet. It was washed each morning. The employee was afterwards found on the roof of the adjacent building, directly beneath the open windows. The circumstances permit the inference that employee slipped and fell to his death. Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97, 1946 N.C. LEXIS 444 (1946). See also DeVine v. Dave Steel Co., 227 N.C. 684, 44 S.E.2d 77, 1947 N.C. LEXIS 506 (1947) (where the employee was subject to fainting spells, but it was not shown that the fatal fall resulted from such a spell) .

Injuries sustained in a fall in which the employee’s leg unexplainedly gave way were held to be attributable solely to the employee’s idiopathic condition, and thus recovery was denied. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308, 1963 N.C. LEXIS 597 (1963).

Injury Caused by Epileptic Seizure. —

The evidence tended to show that plaintiff employee was subject to epileptic fits, that while driving the employer’s truck in the course of his employment he felt a seizure approaching, stopped the truck on the side of the road, opened the door and lay down on the seat of the truck with his head on the seat opposite the steering wheel and his feet hanging out of the truck, that he immediately suffered an epileptic seizure causing him to lose consciousness, and that when he “came to” his body was on the outside of the truck and his hands on the steering wheel. The expert medical testimony was to the effect that the employee had suffered broken bones caused by the fall from the seat of the truck and that the fall resulted from the epileptic seizure. It was held that the evidence disclosed that the sole cause of the employee’s moving from a position of safety to his injury was the epileptic seizure, and therefore the fall was independent of, unrelated to, and apart from the employment, and the evidence could not support a finding of the Industrial Commission that the injury resulted from an accident arising out of the employment. Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173, 1951 N.C. LEXIS 558 (1951).

Injury in Public Street During Fatigue Break. —

Claimant’s injury by accident did not arise out of her employment where claimant left her employer’s premises during a fatigue break and walked down a public street to where oil tanks for the use of defendant employer were being buried in the street and there stumbled over a cement block and fell in the street, injuring her hip and back. Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772, 1976 N.C. App. LEXIS 2087 (1976).

Unexplained Injury Where Performance of Duties Was Only Active Force Involved. —

Where the cause of plaintiff ’s fall was unknown, but the only active force involved was plaintiff ’s exertion in the performance of his duties, the court gave effect to the liberal intent of the law by finding the accident to have arisen out of plaintiff ’s employment. Slizewski v. International Seafood, Inc., 46 N.C. App. 228, 264 S.E.2d 810, 1980 N.C. App. LEXIS 2803 (1980).

Findings supported the conclusion that death was not accelerated or aggravated by the injury; there was ample evidence presented and findings made regarding the rupture of decedent’s aneurysm prior to the collision, and although there was evidence that the windshield of the car in which decedent was traveling was broken, there was no evidence nor finding that the cause of the break was contact with decedent’s head. Strickland v. Central Serv. Motor Co., 94 N.C. App. 79, 379 S.E.2d 645, 1989 N.C. App. LEXIS 437 (1989).

Conversion Hysteria. —

The Commission’s finding that accidental fall in which employee was involved did not cause plaintiff ’s subsequent paralysis, but that his condition represented “conversion hysteria” due to unresolved emotional conflicts was supported by the evidence, and the fact that employee’s fall was a “precipitating” or “triggering” event for his conversion disorder did not, without more, establish causation. Brewington v. Rigsbee Auto Parts, 69 N.C. App. 168, 316 S.E.2d 336, 1984 N.C. App. LEXIS 3378 (1984).

Injury Held Compensible. —

Employee was entitled to receive disability benefits because the evidence showed that the employee’s capacity to earn was causally related to the employee’s physical restrictions resulting from a hip injury, and that the employee had made a reasonable effort to obtain employment. Even if the employee had been terminated due to an economic downturn, it did not preclude a finding that the employee was disabled and eligible for benefits. Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755, 656 S.E.2d 676, 2008 N.C. App. LEXIS 276 (2008).

B.Storm and Weather-Related Injuries

Where the employment subjects a worker to a special or particular hazard from the elements, such as excessive heat or cold, likely to produce sunstroke or freezing, death or disability resulting from such cause usually comes within the purview of the compensation acts. On the other hand, where the employee is not by reason of his work peculiarly exposed to injury by sunstroke or freezing, such injuries are not ordinarily compensable. The test is whether the employment subjects the worker to a greater hazard or risk than that to which he otherwise would be exposed. Fields v. Tompkins-Johnston Plumbing Co., 224 N.C. 841, 32 S.E.2d 623, 1945 N.C. LEXIS 235 (1945).

Where a bus driver was compelled to change a tire on defendant’s bus during very cold weather and he contracted pneumonia, the Commission’s ruling denying recovery was affirmed. Carter v. Carolina Coach Co., 208 N.C. 849, 182 S.E. 493, 1935 N.C. LEXIS 171 (1935).

Tornado. —

Claimant was in the plant of his employer when it was struck by a tornado and was injured as a result of the partial collapse of the building. It was held that the accident resulting in the injury did not arise out of the employment, there being no causal relation between the employment and the accident. Walker v. J.D. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89, 1937 N.C. LEXIS 385 (1937); Marsh v. Bennett College for Women, 212 N.C. 662, 194 S.E. 303, 1937 N.C. LEXIS 397 (1937).

Death from Bite of Mad Dog. —

Where intestate died of hydrophobia resulting from a dog bite received by him while engaged in his duties as attendant in a filling station, it was held that claimant was not entitled to compensation for the employee’s death, since there was no causal connection between the employment and the bite of a dog running at large, and the accident was not from a risk incidental to the employment. Plemmons v. White's Serv., 213 N.C. 148, 195 S.E. 370, 1938 N.C. LEXIS 27 (1938).

Heat Exhaustion or Sunstroke. —

Determination of the Industrial Commission that employee’s death resulting from heat exhaustion or sunstroke was an injury which arose out of and in course of employment was supported by the evidence, where such evidence showed that the general outside temperature was 104~ Fahrenheit, and employee’s work required that he be in close proximity to melted lead which increased the temperature in the partly finished building where employee was working on day of his death. Fields v. Tompkins-Johnston Plumbing Co., 224 N.C. 841, 32 S.E.2d 623, 1945 N.C. LEXIS 235 (1945).

Lightning. —

Where a carpenter, caught in a storm while working, went to a nearby house under construction by his employer to get out of the rain and, while standing near a window talking with his employer and wearing wet clothes, including a carpenter’s nail apron with nails therein, was killed by lightning, all damage to the clothes and marks on the body being from the waist down, with the nail apron knocked off, a hole burned in it, and a majority of the nails in it fused, the evidence was sufficient to support the conclusion that the circumstances of the carpenter’s employment peculiarly exposed him to the risk of injury from lightning greater than that of others in the community, and to sustain an award of compensation. Pope v. Goodson, 249 N.C. 690, 107 S.E.2d 524, 1959 N.C. LEXIS 412 (1959).

C.Street and Highway Accidents

When Highway Accidents Are Compensable. —

An injury caused by a highway accident is compensable if the employee at the time of the accident is acting in the course of his employment and in the performance of some duty incident thereto. Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862, 1957 N.C. LEXIS 507 (1957) (involving a farm employee killed while crossing highway on return from barn) .

Injury Occurring on Highway Close to Employer’s Premises. —

North Carolina has allowed compensation where the injury occurred on the highway close to employer’s premises and the employee was using the only means of ingress and egress to and from the work he was to perform, saying that the hazards of that route become the hazards of the employment. Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102, 1968 N.C. App. LEXIS 1014 (1968).

Cemetery Keeper Crossing Street on Way to Funeral Home. —

When as an incident of his employment as cemetery keeper and in the performance of a duty connected therewith, as shown by the established custom, the decedent crossed the street en route to a funeral home, the hazard of the journey could properly be regarded as within the scope of the Workers’ Compensation Act. Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220, 1953 N.C. LEXIS 632 (1953).

Cemetery Caretaker Making Rounds of Funeral Homes. —

Where a cemetery caretaker employed by the city, who had no telephone, regularly and daily made rounds of the funeral homes at night to determine what graves needed to be dug the next day, injury sustained by him when he was hit by an automobile while engaged in making these rounds was compensable. The employer was said to have consented to the making of the trip because of the established custom of the caretaker. Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102, 1968 N.C. App. LEXIS 1014 (1968).

Off-Premises Accident Hours After Work. —

Recovery would be denied for injury sustained in a highway accident, away from the premises, some five hours after the employee left work. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, 1968 N.C. App. LEXIS 1109 (1968).

Teacher Killed in Accident at End of School Day. —

In an action to recover death benefits for the death of a school teacher which occurred when she backed her car, at the end of the school day, into the path of a truck, evidence and findings that the deceased was required as part of her duties to visit students in their homes after school hours, and that she was also required from time to time to purchase incidental supplies at retail stores for use in her class, along with related evidence and findings, presented nothing more than a scenario of what the deceased might do on a given day, and was not sufficient to support a finding that the deceased was performing one of the duties of her employment at the time of the accident. Franklin v. Wilson County Bd. of Educ., 29 N.C. App. 491, 224 S.E.2d 657, 1976 N.C. App. LEXIS 2547 (1976).

Injury on Employer-Owned Road. —

Plaintiffs were not injured by accident arising out of and in the course of their employment when they were injured in a collision between two automobiles driven by fellow employees while they were leaving work on a two mile long private road maintained by the employer to provide ingress to and egress from the employer’s plant where defendants, in driving plaintiffs home pursuant to a private arrangement, were not performing assigned duties for their employer; the accident occurred one and one-half miles from the employer’s plant and parking lot on a road which was designed and constructed like a public highway; and the risks which the employees were exposed to on the private road were not materially different from those encountered on a public highway. Strickland v. King, 293 N.C. 731, 239 S.E.2d 243, 1977 N.C. LEXIS 1020 (1977).

Injuries sustained by job applicant in a car accident that occurred when the applicant was on the way home from a drug-screen required by a prospective employer did not arise out of and the course of the applicant’s employment with a temporary employer who had placed the applicant, temporarily, with the prospective employer, because the applicant’s employment with the temporary employer was not a contributing proximate cause to the applicant’s injury and the applicant’s injury occurred on the applicant’s own time, not company time. Floyd v. Exec. Personnel Group, 194 N.C. App. 322, 669 S.E.2d 822, 2008 N.C. App. LEXIS 2246 (2008).

Job applicant failed to prove the requisite employer-employee relationship necessary to recover workers’ compensation benefits from the prospective employer for injuries the applicant sustained in a car accident that occurred on the applicant’s way home from a drug-screen, because the applicant had not completed the pre-employment screens and was not employed by the prospective employer at the time. Floyd v. Exec. Personnel Group, 194 N.C. App. 322, 669 S.E.2d 822, 2008 N.C. App. LEXIS 2246 (2008).

D.Miscellaneous Cases

Editor’s Note. —

Earlier cases dealing with back injuries should be read in light of the 1983 amendment to subdivision (6) of this section, which modified the definition of “injury” with respect to back injuries so as to cover “specific traumatic incidents.” Caskie v. R.M. Butler & Co., 85 N.C. App. 266, 354 S.E.2d 242 (1987).

Employee Drowned in Attempt to Extricate Car from Employer’s Millrace. —

Where deceased, whose duty it was to keep his employer’s millrace clean, was drowned in an attempt to extricate a car and its occupants that had plunged into the water, there was sufficient evidence to support a finding that the accident arose out of and in the course of the employment. Southern v. Morehead Cotton Mills Co., 200 N.C. 165, 156 S.E. 861, 1931 N.C. LEXIS 275 (1931).

Inhaling Carbon Monoxide Gas. —

Deceased died as a result of carbon monoxide gas inhaled by him during the course of one night. It was held that it was error for the Industrial Commission to refuse compensation on the grounds that death resulted from an occupational disease rather than an accident. Cabe v. Parker-Graham-Sexton, Inc., 202 N.C. 176, 162 S.E. 223, 1932 N.C. LEXIS 457 (1932).

Death From Dysrhythmia After Heat Exposure. —

Industrial Commission did not err in applying the Pickrell presumption based on its finding that the decedent, after being exposed to extreme heat in the course of his employment, was found dead in his work truck and that there was an unknown cause of the dysrhythmia which ultimately resulted in his death; furthermore, the Commission properly found that defendants had not rebutted the presumption, as their expert acknowledged that heat could be a precipitating cause of a cardiac event and that preexisting coronary artery disease would not by itself have caused the decedent’s death. Reaves v. Indus. Pump Serv., 205 N.C. App. 417, 696 S.E.2d 548, 2010 N.C. App. LEXIS 1317 (2010).

Arrest Outside Scope of Employment of Jailer. —

Deceased, who was employed by the sheriff as his deputy and by the county commissioners as jailer, met his death in attempting to arrest an individual who had just shot his own wife at a house two doors from the rear of the jail. The Commission was of the opinion that death resulted from accident arising out of and in the course of employment either as deputy sheriff or as jailer or as “deputy-sheriff jailer.” The statute did not then treat deputies as employees of the county and the Supreme Court remanded the case for a finding specifically on whether the accident was in the course of deceased’s employment as jailer. Gowens v. Alamance County, 214 N.C. 18, 197 S.E. 538 (1938). The Commission then found that question in the affirmative, but was later overruled on the ground that the attempted arrest was clearly “outside the scope of his employment as jailer” .

Injury Produced by Inhaling Asbestos Dust. —

The word “accident” within the meaning of this act should be construed in its wide and practical sense to give effect to the intent of the act, and an injury produced by inhaling asbestos dust for a period of five months is an accidental injury within the terms of this section, the test being not the amount of time taken to produce the injury but whether it was produced by unexpected and unforeseen, and therefore, accidental means. McNeeley v. Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509 (1934). As to compensation for occupational diseases, see G.S. 97-52 to 97-76 .

Infection After Getting Lime Dust in Eye. —

Plaintiff, an employee at defendant’s water company, got lime dust in his eye as he was dumping lime into a feeder. This had happened many times before, but this time his eye became infected. Recovery was allowed. Lover v. Town of Lumberton, 215 N.C. 28, 1 S.E.2d 121, 1939 N.C. LEXIS 184 (1939).

Loss of Sight Subsequent to Splashing of Fuel in Eye. —

Employee who suffered a loss of sight in his left eye incident to a hemorrhagic central retinal vein occlusion subsequent to an accidental splashing of fuel in the eye could be awarded compensation if the Commission found that the burning and itching occasioned by the fuel-splashing caused employee, through a natural reflex, to vigorously rub his eyes and that the rubbing caused, aggravated, accelerated, or precipitated the hemorrhagic vein occlusion, even if the employee were to have a predisposition toward developing this condition. To deny compensation, the Commission would have to find and conclude that the vigorous rubbing did not significantly cause, aggravate, accelerate, or precipitate the occlusion. Jackson v. L.G. DeWitt Trucking Co., 82 N.C. App. 208, 346 S.E.2d 160, 1986 N.C. App. LEXIS 2464 (1986).

Employee Mowing Lawn at Employer’s Residence. —

Where the claimant was employed to drive a delivery truck and to do janitorial work both in the employer’s place of business and at the employer’s home, and was injured while mowing the lawn at the employer’s residence, the injury was not compensable and was not covered by a compensation insurance policy which provided coverage solely in connection with the employer’s business having a definite location. Burnett v. Palmer-Lipe Paint Co., 216 N.C. 204, 4 S.E.2d 507, 1939 N.C. LEXIS 123 (1939).

Temporary Sickness and Blindness. —

The Industrial Commission found, upon supporting evidence, that claimant became temporarily sick and blind while performing usual manual labor in the usual manner, that his condition improved and he went back to work and that shortly thereafter he again suffered a similar disability. The findings support the conclusion that the injury did not result from an accident arising out of and in the course of claimant’s employment within the purview of this Chapter. Buchanan v. State Hwy. & Pub. Works Comm'n, 217 N.C. 173, 7 S.E.2d 382, 1940 N.C. LEXIS 201 (1940).

Infection Following Cut. —

Where the claimant, while working in an upholstering plant, discovered that an upholstering tack had gone through his shoe and cut his toe, and subsequently infection set in, the Commission’s finding that the injury arose out of and in the course of the employment was conclusive. Kearns v. Biltwell Chair & Furn. Co., 222 N.C. 438, 23 S.E.2d 310, 1942 N.C. LEXIS 119 (1942).

Rupture of Disc. —

The evidence tended to show that employee lifted a plate weighing 40 or 50 pounds in the regular and usual course of his employment, and while handing it to the pressman with his body in a twisted position, felt a sharp pain. Expert testimony was introduced to the effect that the employee had ruptured an intervertebral disc and that the lifting of the weight in the manner described was sufficient to have produced the injury. Plaintiff employee admitted that on two different occasions, several years previously, when he arose from a sitting position he had a catch in his back. It was held that the evidence was sufficient to support the finding of the Industrial Commission that the injury resulted from an accident. Edwards v. Piedmont Publishing Co., 227 N.C. 184, 41 S.E.2d 592, 1947 N.C. LEXIS 374 (1947).

Evidence that while digging a ditch 12 inches wide by 14 inches deep, claimant came upon a rock some 24 inches long and 12 inches wide, weighing 50 to 100 pounds, that claimant dug around the rock, bent down to pick it up, and, as he twisted to heave it out of the ditch felt a catch in his back, together with expert testimony that the rupture of claimant’s spinal disc was caused by the lifting episode and that lifting from such a twisted and cramped position multiplied the intensity of the stress upon the vertebrae, was sufficient to sustain the Commission’s findings that the injury resulted from an accident arising out of and in the course of the employment. Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342, 1963 N.C. LEXIS 539 (1963).

The evidence was sufficient to support the commission’s conclusion that the ruptured disc suffered by the claimant was an injury by accident where the evidence showed that the claimant was not carrying out his usual and customary duties, and that the circumstances involved an interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences. Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254, 1977 N.C. App. LEXIS 2185 (1977).

The Industrial Commission properly determined that plaintiff suffered an injury by “accident” where the evidence supported findings by the commission that plaintiff, in the course of her duties as a knitter, was pulling a rod out of a roll of cloth; this activity was a part of plaintiff ’s regular and customary job; on this occasion, the withdrawal of the rod was more difficult than usual because the roll of cloth was “extra tight”; and the extraordinary effort plaintiff exerted in her attempt to withdraw the rod injured her back, causing a ruptured intervertebral disc. Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360, 1980 N.C. App. LEXIS 2762 (1980).

The Industrial Commission erred in awarding plaintiff compensation for a herniated intervertebral disc in the absence of expert medical testimony tending to establish a causal relationship between plaintiff ’s work-related accident and the injury for which compensation was sought. Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389, 1980 N.C. LEXIS 1048 (1980).

Highway Patrolman Using Airplane to Search for Escaped Convict. —

Two highway patrolmen were killed while in an airplane searching for an escaped convict. The award of the commissioner granting compensation was reversed by the full Commission, and reinstated on appeal to the superior court. The Supreme Court affirmed the award. The case turned on the question of the authority of the patrolmen to attempt to apprehend the fugitive. The court found such authority, and held that the use of an airplane was not a novel or unusual method of carrying out such a purpose. Galloway v. Department of Motor Vehicles, 231 N.C. 447, 57 S.E.2d 799, 1950 N.C. LEXIS 492 (1950).

Death from Coronary Occlusion After Making Arrest. —

A game warden arrested several men, one of whom offered slight resistance. Later that day, the warden died of a coronary occlusion. It was held that mere resistance of arrest by one who is being taken into custody by an officer does not constitute an accident; it may be considered as one of his duties. Also, heart disease is not an occupational disease. West v. North Carolina Dep't of Conservation & Dev., 229 N.C. 232, 49 S.E.2d 398, 1948 N.C. LEXIS 452 (1948) (distinguishing) Gabriel v. Town of Newton, 227 N.C. 314, 42 S.E.2d 96, 1947 N.C. LEXIS 412 (1947). See Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410, 1954 N.C. LEXIS 457 (1954).

Electric Shock. —

The record disclosed competent evidence sufficient to support the Industrial Commission in finding that death was caused by electric shock by accident arising out of and in the course of employment. Blalock v. City of Durham, 244 N.C. 208, 92 S.E.2d 758, 1956 N.C. LEXIS 665 (1956).

Injury Sustained While Taking Medical Test. —

An injury sustained by an employee while taking a medical test or examination, which test or examination was required by law in order for the employee to continue to hold her job, did not constitute an accident arising out of and in the course of her employment within the meaning of this section. King v. Arthur, 245 N.C. 599, 96 S.E.2d 846, 1957 N.C. LEXIS 619 (1957).

Death of Policeman Held Compensable. Andrews v. Town of Princeville, 245 N.C. 669, 97 S.E.2d 110, 1957 N.C. LEXIS 628 (1957).

Lifting of 175 Pound Cabinet. —

Evidence that claimant received an injury while attempting, alone, to elevate and hold a 175 pound cabinet in place while another worker secured it to the wall, and that three men were usually assigned to the installation of such cabinets on the construction job, was sufficient to sustain a finding that claimant suffered a compensable injury by accident arising out of and in the course of his employment. Davis v. Summitt, 259 N.C. 57, 129 S.E.2d 588, 1963 N.C. LEXIS 478 (1963).

Death from Coronary Thrombosis. —

Where the evidence does not disclose that the employee was doing work essentially different from that which had been customarily performed by him over the years, his death as a result of a coronary thrombosis is not the result of an accident within the meaning of the act. Ferrell v. Montgomery & Aldridge Sales Co., 262 N.C. 76, 136 S.E.2d 227, 1964 N.C. LEXIS 599 (1964).

Seed Processor Bush Hogging for Employer on Saturday. —

Plaintiff, who worked on Saturdays by choice and with the agreement of his employer, and whose primary duties involved processing soybeans, oats and barley through the gin, but who, on the Saturday of his accident, when the gin was not in operation, was instructed by his employer to “bush hog” in the area around the gin and in a field leased by his employer, which job was related to his employer’s business, sustained an injury by accident which arose out of and in the course of his employment. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, 1986 N.C. App. LEXIS 2325 (1986).

Injury to Minister Moving from Parsonage. —

Where claimant, who was employed as a minister by defendant church and was furnished a parsonage as part of his remuneration, agreed for the benefit of the church to move out of the parsonage two weeks before the termination of his employment in order that repairs might be made, and while he was moving his stove from the parsonage he suffered a back injury, the injury could not be traced to his employment as minister, since the evidence plainly showed that his injury arose out of the performance of an act personal to himself and his family. Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633, 1966 N.C. LEXIS 992 (1966).

Back Injury. —

Evidence tending to show that an employee, while engaged in moving cases of soup in the ordinary manner and free from confining or otherwise exceptional conditions and surroundings, suffered a back injury which was accentuated by a congenital condition, was insufficient to support a finding that the injury resulted from an accident within the purview of the act. Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1, 1967 N.C. LEXIS 1247 (1967).

There was no accident when a painter moved from a squatting position to a standing position and experienced pain in his lower back. Hewett v. Constructor's Supply Co., 29 N.C. App. 395, 224 S.E.2d 297, 1976 N.C. App. LEXIS 2489, cert. denied, 290 N.C. 550, 226 S.E.2d 510, 1976 N.C. LEXIS 1097 (1976).

Plaintiff ’s cleaning of an oil breather cap from a co-employee’s car during his lunch period was a reasonable activity and the risk inherent in such activity was a risk of the employment giving rise to compensation because of injury sustained in cleaning the cap. Watkins v. City of Wilmington, 28 N.C. App. 553, 221 S.E.2d 910, 1976 N.C. App. LEXIS 2754, aff'd, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976).

Injuries to Trucker Preparing Truck for Job. —

Injuries to an owner-operator of a truck leased to an Interstate Commerce Commission franchise holder arose out of and in the course of employment where the plaintiff accepted the offer of a job driving from Greensboro to San Francisco, a part of the duties of the employment was to present the tractor-trailer in condition to make the trip, and plaintiff was injured while preparing the truck. Thompson v. Refrigerated Transp. Co., 32 N.C. App. 693, 236 S.E.2d 312, 1977 N.C. App. LEXIS 2040 (1977).

Injuries to Truck Driver on Route. —

Findings of commission that heart attack suffered by truck driver while driving his route was not the result of an accident or occupational disease caused by stress, equipment, and long hours upheld. Dye v. Shippers Freight Lines, 118 N.C. App. 280, 454 S.E.2d 845, 1995 N.C. App. LEXIS 170 (1995).

Nurse Turning Obese Patient. —

Plaintiff ’s injury suffered during the course of her employment was not the result of an accident within the meaning of subdivision (6) of this section where the injury occurred while plaintiff nurse was turning an unconscious, obese patient, where turning patients was part of plaintiff ’s job, and where there was no evidence that the hospital room and its condition were any different than those in which plaintiff was used to working and where the patient, although obese, did not present an exceptional condition to plaintiff. Artis v. North Carolina Baptist Hosps., 44 N.C. App. 64, 259 S.E.2d 789, 1979 N.C. App. LEXIS 3149 (1979).

Heart Attack After Chasing Suspect. —

Where it was clear from the evidence that acute myocardial infarction suffered by plaintiff deputy sheriff occurred suddenly and immediately after the foot chase of a suspect, and that it was the overexertion experienced during the foot chase that caused the injury to his heart, it was not necessary for plaintiff to show that the overexertion which was the cause of his injury occurred while he was engaged in some unusual activity, since it was the extent and nature of the exertion that classified the resulting injury to the plaintiff ’s heart as an injury by accident within the meaning of this section. King v. Forsyth County, 45 N.C. App. 467, 263 S.E.2d 283, 1980 N.C. App. LEXIS 2641 (1980).

Rupture of Aneurysm. —

Under the evidence, the Industrial Commission properly determined that the death of a traveling mechanic from the rupture of a congenital aneurysm in the left carotid artery did not result from an accident arising out of and in the course of his employment. King v. Exxon Co., 46 N.C. App. 750, 266 S.E.2d 37, 1980 N.C. App. LEXIS 2908 (1980).

Subarachnoid Hemorrhage. —

Where the evidence indicated that decedent died from a subarachnoid hemorrhage, which is not a compensable cause, the presumption of compensability was not applicable and the Commission did not err by not applying it. Gilbert v. Entenmann's, Inc., 113 N.C. App. 619, 440 S.E.2d 115, 1994 N.C. App. LEXIS 158 (1994).

Filling in for Absent Employee. —

Evidence was sufficient to support a finding by the Industrial Commission that there was no interruption of plaintiff ’s work routine or the introduction of some new circumstance not a part of the usual work routine, the fact that plaintiff was filling in for absent employees and therefor engaged in a greater volume of lifting than was her ordinarily assigned task not rendering her performance at the time of the injury other than a part of the usual work routine. Dyer v. Mack Foster Poultry & Livestock, Inc., 50 N.C. App. 291, 273 S.E.2d 321, 1981 N.C. App. LEXIS 2095 (1981).

Lifting Object Heavier Than Usual. —

Where plaintiff ’s work routine, the lifting of lighter crates, was interrupted by introduction of a crate heavier than expected and heavier than usual, the Commission was warranted in concluding as a matter of law that plaintiff suffered an injury “by accident.” Gladson v. Piedmont Stores/Scotties Disct. Drug Store, 57 N.C. App. 579, 292 S.E.2d 18, 1982 N.C. App. LEXIS 2657 (1982).

Injury During Regularly Scheduled Rest Break. —

Plaintiff ’s injury arose out of and in the course of his employment, that is, had its origin in an employment-connected risk as opposed to one common to the public at large, where he was locked inside the plant yard which was enclosed with a high chain link fence with a large crowd of fellow employees as was customary during a regularly scheduled rest break, the railroad track over which he tripped and injured his knee was an integral part of the equipment of the plant, and it ran directly through the area in which he took his relaxation breaks, and permission from the plant supervisor was necessary in order for an employee to leave the plant premises during these scheduled rest breaks. Williams v. Hydro Print, Inc., 65 N.C. App. 1, 308 S.E.2d 478, 1983 N.C. App. LEXIS 3385 (1983).

Injury Incident to New Job. —

Employee who ruptured a tendon as he was twisting and jerking hose off a mandrel incident to a new job in the curved hose department of employer, to which he had been assigned when, to avoid being laid off, he exercised his contractual right to displace another employee in a different department with less union seniority, and who had spent two days observing the new job and two days and a few hours doing the new job, was entitled to compensation for an injury arising by accident. Gunter v. Dayco Corp., 317 N.C. 670, 346 S.E.2d 395, 1986 N.C. LEXIS 2432 (1986).

Unexplained Death. —

Where the undisputed evidence indicated that decedent died while acting in the scope of his employment, and no evidence indicated that he died other than by accident, under these circumstances decedent’s widow may rely on a presumption that decedent’s death occurred via a work related cause, thereby making the death compensable even though the cause of death was unknown. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582, 1988 N.C. LEXIS 375 (1988).

Claimant, mother of a 34-year-old cablevision lineman who was found dead at the base of a utility pole by two co-workers, was not entitled to benefits, where the examining pathologist attributed the probable cause of her son’s death to marked atherosclerotic coronary artery disease, although he noted that the possibility of a low voltage injury could not be completely excluded, and she was not entitled to a presumption that, upon an unexplained death, there was an inference the death arose out of the employment and was compensable, nor to a presumption that close cases should be decided to the employee’s benefit. Gilbert v. B & S Contractors, 81 N.C. App. 110, 343 S.E.2d 609, 1986 N.C. App. LEXIS 2265 (1986).

Heart Attack After Tugging on Tarp. —

Commission properly concluded that a tractor-trailer driver’s heart attack was not the result of an accident arising out of and in the course of employment, where the driver’s frustration and physical exertion in tugging on a tarp was not the precipitating cause of the heart attack. Cody v. Snider Lumber Co., 328 N.C. 67, 399 S.E.2d 104, 1991 N.C. LEXIS 12 (1991).

For additional cases in which compensation was not awarded, see Plyler v. Charlotte Country Club, 214 N.C. 453, 199 S.E. 622, 1938 N.C. LEXIS 374 (1938); Thornton v. J.A. Richardson Co., 258 N.C. 207, 128 S.E.2d 256, 1962 N.C. LEXIS 670 (1962); Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3, 1965 N.C. LEXIS 977 (1965).

Parents’ Travel Expenses. —

Workers’ compensation claimant was entitled to reimbursement for the travel expenses of the claimant’s parents as: (1) Workers’ Comp. R. N.C. Indus. Comm’n 407(6) did not limit the party incurring the travel expenses; (2) the care provided by the claimant’s mother was medically necessary; (3) the care by the claimant’s mother was reasonably required to effect a cure or give relief under G.S. 97-2(19), and was a necessary medical cost incurred as a result of the claimant’s injuries. Price v. Piggy Palace, 205 N.C. App. 381, 696 S.E.2d 716, 2010 N.C. App. LEXIS 1304 (2010).

XVII.Disability

To obtain an award of compensation an employee must establish that his injury caused him disability, unless it is included in the schedule of injuries made compensable by G.S. 97-31 without regard to loss of wage-earning power. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265, 1951 N.C. LEXIS 604 (1951).

To support a conclusion of disability, the Commission must find: (1) That the plaintiff was incapable after his injury of earning the same wages he earned before his injury in the same employment, (2) that the plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment and (3) that the plaintiff ’s incapacity to earn was caused by his injury. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986); Gregory v. Sadie Cotton Mills, Inc., 90 N.C. App. 433, 368 S.E.2d 650, 1988 N.C. App. LEXIS 556 (1988).

To establish disability a claimant must prove: (1) he was incapable of earning the same wages in the same employment, (2) he was incapable of earning the same wages in any other employment, and (3) his incapacity to earn was caused by the injury. Arrington v. Texfi Indus., 123 N.C. App. 476, 473 S.E.2d 403, 1996 N.C. App. LEXIS 696 (1996).

Disability is the event of being incapacitated from the performance of normal labor. Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876, 1975 N.C. App. LEXIS 1811 (1975), rev'd, 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

But disability is more than mere physical injury and is markedly different from technical or functional disability. Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876, 1975 N.C. App. LEXIS 1811 (1975), rev'd, 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

Ability to Carry Out “Normal Life Functions” Not Determinative. —

Physicians’ estimates of plaintiff ’s disability, which referred only to the degree of loss of use of her nervous system and to the impairment of her ability to carry out “total life functions,” were insufficient to support the commission’s finding that plaintiff was entitled to compensation for permanent partial disability or loss of use of her back and not to benefits for total incapacity to work, since a person may be wholly incapable of working and earning wages even though her ability to carry out normal life functions has not been wholly destroyed and even though she has not lost 100 percent use of her nervous system. Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743, 1978 N.C. LEXIS 1019 (1978).

A claimant’s post-injury earning capacity is the determinative factor in assessing disability. Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 403 S.E.2d 548, 1991 N.C. App. LEXIS 498 (1991).

Ability to Work For Others After Injury. —

Football player was properly awarded 299 weeks of workers’ compensation benefits as the North Carolina Industrial Commission’s finding that the football player made another team, but was released from the other team because of limitations from his injury with the employer, was supported by competent evidence. Swift v. Richardson Sports, Ltd., 173 N.C. App. 134, 620 S.E.2d 533, 2005 N.C. App. LEXIS 1898 (2005).

Under the act, disability refers not to physical infirmity but to a diminished capacity to earn money. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265, 1951 N.C. LEXIS 604 (1951); Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965); Burton v. Peter W. Blum & Son, 270 N.C. 695, 155 S.E.2d 71, 1967 N.C. LEXIS 1407 (1967); Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755, 1967 N.C. LEXIS 1159 (1967); Morgan v. Thomasville Furn. Indus., 2 N.C. App. 126, 162 S.E.2d 619, 1968 N.C. App. LEXIS 883 (1968); Snead v. Sandhurst Mills, Inc., 8 N.C. App. 447, 174 S.E.2d 699, 1970 N.C. App. LEXIS 1583 (1970); Willis v. Reidsville Drapery Plant, 29 N.C. App. 386, 224 S.E.2d 287, 1976 N.C. App. LEXIS 2486 (1976); Little v. Anson County Schools Food Serv., 33 N.C. App. 742, 236 S.E.2d 801, 1977 N.C. App. LEXIS 2335 (1977), rev'd, 295 N.C. 527, 246 S.E.2d 743, 1978 N.C. LEXIS 1019 (1978); Wood v. J.P. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692, 1979 N.C. LEXIS 1269 (1979); Lucas v. Burlington Indus., 57 N.C. App. 366, 291 S.E.2d 360, 1982 N.C. App. LEXIS 2645 (1982); Priddy v. Cone Mills Corp., 58 N.C. App. 720, 294 S.E.2d 743, 1982 N.C. App. LEXIS 2815 (1982); Fleming v. K-Mart Corp., 67 N.C. App. 669, 313 S.E.2d 890, 1984 N.C. App. LEXIS 3127 (1984), aff'd, 312 N.C. 538, 324 S.E.2d 214, 1985 N.C. LEXIS 1486 (1985); Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985); Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Disability is defined in terms of a diminution in earning power. Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876, 1975 N.C. App. LEXIS 1811 (1975), rev'd, 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

As used in the Workers’ Compensation Act, “disability” specifically relates to incapacity to earn wages. Fleming v. K-Mart Corp., 67 N.C. App. 669, 313 S.E.2d 890, 1984 N.C. App. LEXIS 3127 (1984), aff'd, 312 N.C. 538, 324 S.E.2d 214, 1985 N.C. LEXIS 1486 (1985).

“Disability” under this Chapter means an impairment in the employee’s wage-earning capacity because of injury, not merely a physical impairment. Hendrix v. Linn-Corriher Corp., 78 N.C. App. 373, 337 S.E.2d 106, 1985 N.C. App. LEXIS 4300 (1985), aff'd in part and rev'd in part, 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Fact that claimant may be capable of doing sedentary work does not establish that she is not disabled. Disability under the Workers’ Compensation Act is not to be equated with physical infirmity. Other factors tending to show the unemployability of the worker, such as age, education and experience, may be considered. McCubbins v. Fieldcrest Mills, Inc., 79 N.C. App. 409, 339 S.E.2d 497, 1986 N.C. App. LEXIS 2063 (1986).

An occupationally injured or diseased worker who is employable at wages equal to those earned before the injury or disease was incurred is not disabled. Bridges v. Linn-Corriher Corp., 90 N.C. App. 397, 368 S.E.2d 388, 1988 N.C. App. LEXIS 538 (1988).

In order to receive disability compensation under the Worker’s Compensation Act, the mere fact of an on the job injury is not sufficient; the injury must have impaired the worker’s earning capacity. Brown v. S & N Communications, Inc., 124 N.C. App. 320, 477 S.E.2d 197, 1996 N.C. App. LEXIS 1051 (1996).

Award Not Based on Capacity to Earn Is Erroneous. —

An award of compensation based upon a finding as to the amount the claimant had earned since the date on which total permanent disability had ceased, rather than upon his capacity or ability to earn, is erroneous. Hill v. DuBose, 237 N.C. 501, 75 S.E.2d 401, 1953 N.C. LEXIS 672 (1953).

The test for disability is whether and to what extent earning capacity is impaired, not the fact or extent of physical impairment. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982); Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70, 1986 N.C. App. LEXIS 2676 (1986).

Entitlement to compensation under this Chapter is rooted in and must be measured by plaintiff ’s capacity or incapacity to earn wages. Mills v. J.P. Stevens & Co., 53 N.C. App. 341, 280 S.E.2d 802, 1981 N.C. App. LEXIS 2608, cert. denied, 304 N.C. 196, 285 S.E.2d 100, 1981 N.C. LEXIS 1443 (1981).

Loss of Earning Power Is Criterion. —

The disability of an employee is to be measured by his capacity or incapacity to earn the wages he was receiving at the time of the injury. Loss of earning capacity is the criterion. If there is no loss of earning capacity, there is no disability within the meaning of the act. Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438, 1951 N.C. LEXIS 322 (1951); Peoples v. Cone Mills Corp., 69 N.C. App. 263, 317 S.E.2d 120, 1984 N.C. App. LEXIS 3503 (1984), modified, 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Loss of earning capacity is the criterion. Compensation must be based upon loss of wage-earning power rather than the amount actually received. It was intended by this section to provide compensation only for loss of earning capacity. Hill v. DuBose, 234 N.C. 446, 67 S.E.2d 371, 1951 N.C. LEXIS 483 (1951); Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755, 1967 N.C. LEXIS 1159 (1967).

The Commission’s finding of fact that “due to plaintiff’s accepted compensable carpal tunnel syndrome superimposed on fibromyalgia, [she] is unable to earn wages” was not supported by competent evidence; although evidence a plaintiff suffers from pain as a result of her compensable injury may be competent evidence to support a conclusion the plaintiff is disabled, the evidence must show that pain renders the plaintiff incapable of work in any employment. Demery v. Perdue Farms, Inc., 143 N.C. App. 259, 545 S.E.2d 485, 2001 N.C. App. LEXIS 266, aff'd, 354 N.C. 355, 554 S.E.2d 337, 2001 N.C. LEXIS 1084 (2001).

Termination of the employee’s temporary total disability benefits from the date the employee could no longer show that the employee was disabled was proper. Pursuant to G.S. 97-2(9), “disability” did not mean physical impairment but, instead, meant loss of earning capacity and the evidence showed that the employee’s earning capacity became the same about nine months after the employee’s work-related accident as it was before that accident. Cross v. Falk Integrated Techs., Inc., 190 N.C. App. 274, 661 S.E.2d 249, 2008 N.C. App. LEXIS 867 (2008).

Disability is measured by the capacity or incapacity of employee to earn the wages he was receiving at the time of the injury, by the same or any other employment. And the fact that the same wages are paid by the employer because of long service does not alter the rule. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986); Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438, 1951 N.C. LEXIS 322 (1951); Hill v. DuBose, 234 N.C. 446, 67 S.E.2d 371, 1951 N.C. LEXIS 483 (1951).

Statement in Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865 (1943), which is noted above, that there is no disability if the employee is receiving the same wages in the same or other employment is correct only so long as the employment reflects the employee’s ability to earn wages in the competitive market. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

The term “disability,” as used in the Workers’ Compensation Act, means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of injury. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971); Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876, 1975 N.C. App. LEXIS 1811 (1975), rev'd, 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976); Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360, 1980 N.C. App. LEXIS 2762 (1980).

In order for the Commission to award disability compensation, the plaintiff must prove and the Commission must find: (1) That he was incapable of earning the same wages he had earned before his injury in the same employment, (2) that he was incapable of earning the same wages he had earned before his injury in any other employment, and (3) that his incapacity was caused by his injury or occupational disease. Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70, 1986 N.C. App. LEXIS 2676 (1986); Taylor v. Margaret R. Pardee Mem. Hosp., 83 N.C. App. 385, 350 S.E.2d 148, 1986 N.C. App. LEXIS 2713 (1986).

Under the Workers’ Compensation Act, disability is defined by a diminished capacity to earn wages, not by physical infirmity; however, the fact that an employee is capable of performing employment tendered by the employer is not, as a matter of law, an indication of plaintiff’s ability to earn wages. Saums v. Raleigh Community Hosp., 346 N.C. 760, 487 S.E.2d 746, 1997 N.C. LEXIS 466 (1997).

In order to prove disability the burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment. The employee may meet this burden in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions. i.e. age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury. Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 425 S.E.2d 454, 1993 N.C. App. LEXIS 176 (1993).

And Not by Employer’s Willingness to Pay. —

Capacity to earn the same wages, and not the particular employer’s policy or willingness to pay wages for an undetermined time, is the test of disability. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755, 1967 N.C. LEXIS 1159 (1967).

The Workers’ Compensation Act does not permit an employer to avoid its duty to pay compensation by offering an injured employee employment which the employee under normally prevailing market conditions could find nowhere else and which the employer could terminate at will or for reasons beyond its control. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

When a person has been offered, but has not accepted, employment after an accident, and the proffered employment does not accurately reflect the person’s ability to compete with others for wages, it cannot be considered evidence of earning capacity. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Supply room position offered to employee by employer, which was so modified because of employee’s medical condition that the position would not be offered in the competitive job market, could not be considered as evidence of employee’s ability to earn wages. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

But there is no “disability” if the employee is receiving the same wages in the same or any other employment. The fact that “in the same” employment he is not required to perform all the physical work theretofore required of him can make no difference. Even so, if this is not “the same employment,” then it clearly comes within the term “other employment.” To remove the employment from one classification necessarily shifts it to the other. Furthermore, there is no language used in this section or in any other part of the statute which even suggests that “other employment” must be with a different employer. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Receipt of Same Wages After Injury Creates Rebuttable Presumption. —

Receipt of the same wages after injury should create no stronger presumption that disability has ended than the presumption which arises on an employee’s returning to work. In both instances a rebuttable presumption of fact arises. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755, 1967 N.C. LEXIS 1159 (1967).

If an award is made by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work, and likewise a presumption that disability ends when the employee returns to work at wages equal to those he was receiving at the time his injury occurred. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

But Is Not Conclusive Proof That No “Disability” Exists. —

The amount of wages received by the employee after his injury should be strong evidence of his capacity or incapacity to earn wages, but receipt of wages in the amount received before the injury cannot be conclusive proof that no “disability” exists. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755, 1967 N.C. LEXIS 1159 (1967).

Disability Not Presumed Where Payments Not Shown to be Payable During Disability. —

Presumption that disability continued until plaintiff returned to work did not apply, where parties stipulated plaintiff sustained injury arising out of and in the course of her employment, and parties stipulated Form 21 and Form 26 agreements were approved in which defendant admitted plaintiff was paid for compensation “for temporary total disability for a period not specifically identified in the record”, but the record did not include the forms or reveal whether payments made by defendant were payable during disability. Hoyle v. Carolina Associated Mills, 122 N.C. App. 462, 470 S.E.2d 357, 1996 N.C. App. LEXIS 450 (1996).

Employer Given Benefit of Any Wages Earned After Injury. —

Subdivision (9) of this section is drawn so as to give the employer the benefit of wages which plaintiff, after his injury, is able to earn from any other source. Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479, 1966 N.C. LEXIS 1364 (1966).

How Disability Measured for Second Compensable Injury. —

While, in the ordinary case, “disability” can be measured in terms of percentage, in those cases where the claimant has a preexisting “disability” to the same part of the body which is affected by a subsequent compensable injury, “disability” must be measured in terms of capacity to earn wages. Ridenhour v. Fisher Transp. Corp., 50 N.C. App. 126, 272 S.E.2d 889, 1980 N.C. App. LEXIS 3456 (1980).

It is insufficient for claimant to show that he has obtained no other employment since his retirement. He must prove that he is unable to earn wages in other employment. Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766, 1982 N.C. App. LEXIS 2714 (1982).

Workers’ compensation claimant’s temporary total disability benefits were properly terminated, regardless of his reasonable attempts to find employment, since he was not disabled as he failed to show any causal connection between his injury and subsequent wage loss since he was unable to find employment based on the economic downturn, not due to his injury; the claimant was physically able to perform his pre-injury job, sought the same type of position and was not subject to any restrictions that would affect his ability to work in his pre-injury position. Medlin v. Weaver Cooke Constr., LLC, 229 N.C. App. 393, 748 S.E.2d 343, 2013 N.C. App. LEXIS 938 (2013), aff'd, 367 N.C. 414, 760 S.E.2d 732, 2014 N.C. LEXIS 404 (2014).

The Workers’ Compensation Act does not ensure an employee any particular employment; subdivision (9) of this section speaks of incapacity to earn wages “in the same or any other employment.” Lucas v. Burlington Indus., 57 N.C. App. 366, 291 S.E.2d 360, 1982 N.C. App. LEXIS 2645 (1982).

Capacity of Particular Employee Must Be Considered. —

In determining disability, the Commission is not allowed to consider whether the average employee with plaintiff ’s injury is capable of working and earning wages. The question is whether this particular employee has such a capacity. Lucas v. Burlington Indus., 57 N.C. App. 366, 291 S.E.2d 360, 1982 N.C. App. LEXIS 2645 (1982).

Where an employee’s efforts to obtain employment would be futile because of age, inexperience, lack of education or other preexisting factors, the employee should not be precluded from compensation for failing to engage in the meaningless exercise of seeking a job which does not exist. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

The Commission must decide the disability issue based on the particular characteristics of the individual employee. This necessitates a consideration of the employee’s age, work experience, training, education and any other factors which might affect his ability to earn wages. Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70, 1986 N.C. App. LEXIS 2676 (1986).

Employee failed to meet her burden of showing a continuing disability for workers’ compensation purposes where: (1) the employee’s doctor released her to return to work, with few restrictions other than a limitation on prolonged standing; (2) although the employee’s condition prevented her from dance instruction, the employee’s physical limitations were not so restrictive as to render the employee incapable of performing well in alternate employment; and (3) the employer’s expert testified that with the employee’s level of education and transferable skills, she would be able to find comparable employment at a commensurate wage. Gilberto v. Wake Forest Univ., 152 N.C. App. 112, 566 S.E.2d 788, 2002 N.C. App. LEXIS 864 (2002).

Before it can be determined that a plaintiff is employable and can earn wages, it must be established, not merely that jobs are available or that the average job seeker can get one, but that plaintiff can obtain a job taking into account his specific limitations. Bridges v. Linn-Corriher Corp., 90 N.C. App. 397, 368 S.E.2d 388, 1988 N.C. App. LEXIS 538 (1988).

Individual, intellectual and vocational considerations may be taken into account on the issue of disability. Calloway v. Mills, 78 N.C. App. 702, 338 S.E.2d 548, 1986 N.C. App. LEXIS 1998 (1986).

Preexisting Conditions. —

If preexisting conditions such as an employee’s age, education and work experience are such that an injury causes him a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the incapacity which he or she suffers, and not for the degree of disability which would be suffered by someone with superior education or work experience or who is younger or in better health. Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743, 1978 N.C. LEXIS 1019 (1978).

Plaintiff may prove his wage-earning impairment by evidence of preexisting conditions such as his age, education and work experience which are such that an injury causes him a greater degree of incapacity for work than the same injury would cause some other person. Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766, 1982 N.C. App. LEXIS 2714 (1982).

Date of Disability. —

Date of a deceased employee’s disability from an occupational disease was found by the North Carolina Industrial Commission to have been the date that the employee became incapable of earning the wages that the employee was receiving at the time of the injury. Kelly v. Duke Univ., 190 N.C. App. 733, 661 S.E.2d 745, 2008 N.C. App. LEXIS 1073 (2008).

Total and Partial Disability Compared. —

If plaintiff is unable to work and earn any wages, he is totally disabled. If he is able to work and earn some wages, but less than he was receiving at the time of his injury, he is partially disabled. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982).

Definition Not Applicable to Cases of Asbestosis or Silicosis. —

The definition of “disability” contained in this section is not applicable to cases of disablement from asbestosis or silicosis. “Disability” resulting from asbestosis or silicosis means the event of becoming actually incapacitated from performing normal labor in the last occupation in which remuneratively employed. Thus, one actually incapacitated by asbestosis or silicosis is entitled to compensation under G.S. 97-29 even though he may be earning the same or greater wages in a different employment. Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426, 1952 N.C. LEXIS 419 (1952). See G.S. 97-54 and G.S. 97-55 .

Definition Read into G.S. 97-38. —

The definition of the word “disability” as it is defined in subdivision (9) of this section must be read into G.S. 97-38 in lieu of the word “disability” therein. Burton v. Peter W. Blum & Son, 270 N.C. 695, 155 S.E.2d 71, 1967 N.C. LEXIS 1407 (1967).

The determination of whether a disability exists is a conclusion of law, which must be based upon findings of fact supported by competent evidence. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682, 1982 N.C. LEXIS 1331 (1982); Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766, 1982 N.C. App. LEXIS 2714 (1982); Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

Findings Required to Support Conclusion of Disability. —

In order to support a conclusion of disability, the Industrial Commission must find: (1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this incapacity to earn was caused by plaintiff ’s injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682, 1982 N.C. LEXIS 1331 (1982); Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766, 1982 N.C. App. LEXIS 2714 (1982); Priddy v. Cone Mills Corp., 58 N.C. App. 720, 294 S.E.2d 743, 1982 N.C. App. LEXIS 2815 (1982); Peoples v. Cone Mills Corp., 69 N.C. App. 263, 317 S.E.2d 120, 1984 N.C. App. LEXIS 3503 (1984), modified, 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986); Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985); Hendrix v. Linn-Corriher Corp., 78 N.C. App. 373, 337 S.E.2d 106, 1985 N.C. App. LEXIS 4300 (1985), aff'd in part and rev'd in part, 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Remand was required when the Industrial Commission failed to make findings under G.S. 97-2(9) as to whether an employee claiming disability under the North Carolina Workers’ Compensation Act had demonstrated either that (1) he made a reasonable effort to obtain employment but was unsuccessful, or (2) any effort to obtain employment would have been futile because of preexisting conditions. Raper v. Mansfield Sys., 189 N.C. App. 277, 657 S.E.2d 899, 2008 N.C. App. LEXIS 540 (2008).

North Carolina Industrial Commission erred in concluding an employee had been unable to earn wages and was entitled to disability benefits because the medical evidence did not show the employee was incapable of working in any employment, so the Commission’s finding regarding disability, within the meaning of G.S. 97-2(9), could not be based on the first Russell prong and there was no basis in the Commission’s findings for the conclusion the employee was disabled based on either the second or third prong of Russell. Carr v. HHS, 218 N.C. App. 151, 720 S.E.2d 869, 2012 N.C. App. LEXIS 66 (2012).

Findings Held Inadequate to Establish Disability. —

Although pain can be part of a finding of disability, the term “disability” in the context of workers’ compensation is defined as the incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment; since the burden remained on the employee to prove his disability, the commission was obligated to make specific findings as to the existence and extent of any disability, and since evidence was presented that the employee was still able to perform some jobs, the commission’s findings were inadequate to establish that the employee was disabled because of pain. Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 599 S.E.2d 508, 2004 N.C. LEXIS 915 (2004).

Where the industrial commission found that a worker was unable to work in any capacity due to carpal tunnel syndrome, but the transcripts revealed no medical evidence that supported a finding that the worker was incapable of work in any employment, the commission erred in finding that the worker proved that she was temporarily totally disabled. Teras v. AT&T, 174 N.C. App. 735, 622 S.E.2d 145, 2005 N.C. App. LEXIS 2591 (2005), aff'd, 360 N.C. 584, 634 S.E.2d 888, 2006 N.C. LEXIS 1041 (2006).

Findings Adequate to Show Employee Not Permanently Disabled. —

Competent medical evidence supported a determination that an employee, who suffered from a back injury, was not permanently disabled because an expert witness testified that he did not believe that the employee had attained maximum medical improvement and that she was capable of sedentary work. Boylan v. Verizon Wireless, 201 N.C. App. 81, 685 S.E.2d 155, 2009 N.C. App. LEXIS 1854 (2009).

Inability to Earn Wages Earned Before Injury Must Be Shown. —

Before the plaintiff may receive compensation, he must show that he is not capable of earning the same wages he had earned before his injury. Merely showing that plaintiff is not earning the same wages after his injury than before is insufficient. Hendrix v. Linn-Corriher Corp., 78 N.C. App. 373, 337 S.E.2d 106, 1985 N.C. App. LEXIS 4300 (1985), aff'd in part and rev'd in part, 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Employee Able to Do Other Work Not Entitled to Compensation. —

Where the uncontradicted medical testimony indicated that plaintiff, a 46 year old man with an eighth grade education who was unable to read a newspaper or spell, suffered from a mild case of employment-related chronic obstructive lung disease, with a 20 to 30 percent lung impairment, but that plaintiff was capable of work involving a clean environment, moderate activity and anything requiring manual dexterity, plaintiff was not entitled to compensation under this Chapter. Hendrix v. Linn-Corriher Corp., 78 N.C. App. 373, 337 S.E.2d 106, 1985 N.C. App. LEXIS 4300 (1985), aff'd in part and rev'd in part, 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Refusal to Accept Tendered Work. —

Claimant unjustifiably refused an offer of suitable employment and was not entitled to temporary disability compensation for her neck injury after that date because the Full North Carolina Industrial Commission did not err by affording greater weight to the medical opinion of the licensed physical therapist who conducted the claimant’s functional capacity evaluation (FCE), than the medical opinion of the doctor who conducted the independent medical evaluation; and the pre-injury job offered was within the claimant’s work restrictions as her treating physicians believed that the work restrictions recommended in her FCE, if implemented, would allow her to work in her pre-injury position. Garrett v. Goodyear Tire & Rubber Co., 260 N.C. App. 155, 817 S.E.2d 842, 2018 N.C. App. LEXIS 643 (2018).

When Search for Work Need Not Be Shown. —

While in order to prove disability, an injured employee must prove that he is unable to work and not merely that he unsuccessfully sought work, the converse is not true. In order to prove disability, the employee need not prove that he unsuccessfully sought employment if the employee proves that he is unable to obtain employment. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Claimant Unable to Earn Wages in Any Job for Which Qualified Is Totally, Not Partially, Disabled. —

The Commission erred as a matter of law by awarding claimant compensation for partial disability when it found as fact that plaintiff was incapable of earning wages in any employment for which plaintiff was qualified. Based on the Commission’s findings, plaintiff was totally disabled within the meaning of G.S. 97-29. Carothers v. Ti-Caro, 83 N.C. App. 301, 350 S.E.2d 95, 1986 N.C. App. LEXIS 2695 (1986).

Where a plaintiff, due to an occupational disease, is fully incapacitated to earn wages at employment which is the only work he is qualified to do by reason of such factors as age and education, he is totally incapacitated. Carothers v. Ti-Caro, 83 N.C. App. 301, 350 S.E.2d 95, 1986 N.C. App. LEXIS 2695 (1986).

Uncontroverted evidence established that plaintiff, whom the court found to be 59 years old and to have a third-grade education, was totally disabled, where although the impairment rating of his left leg was only 45%, the evidence showed plaintiff to be totally and permanently unable to earn the wages he was receiving at the time of his injury. Wilder v. Barbour Boat Works, 84 N.C. App. 188, 352 S.E.2d 690, 1987 N.C. App. LEXIS 2489 (1987).

Employee exposed to toxic chemicals in the course of his employment spray-painting automobiles showed his disability, under G.S. 97-2(9), was permanent and total because he had a seventh grade education, his nervous system was permanently damaged, and he was unemployable due to his severe loss of cognitive function and his inability to sustain concentration and attention necessary for working a normal eight-hour day. Matthews v. City of Raleigh, 160 N.C. App. 597, 586 S.E.2d 829, 2003 N.C. App. LEXIS 1928 (2003).

Receipt of Higher Wages for Unsatisfactory Work. —

It was not error for the Commission to conclude that employee was permanently partially disabled even though the evidence showed that he had worked in the packing room at a wage higher than he had ever before earned after his impairing lung disease was diagnosed, where the Commission found without exception that he performed unsatisfactorily at this job in the packing department, and where the evidence demonstrated that although he was capable of performing less skilled jobs at the mill, which he did for more than 30 years, he had difficulty in a position requiring greater skills. Calloway v. Mills, 78 N.C. App. 702, 338 S.E.2d 548, 1986 N.C. App. LEXIS 1998 (1986).

In determining the extent to which an occupational disease affects an employee’s wage-earning ability in another position, the line of inquiry must center on that particular individual’s earning capacity and not that of a different individual. Thomas v. Hanes Printables, 91 N.C. App. 45, 370 S.E.2d 419, 1988 N.C. App. LEXIS 711 (1988).

Although the practice of comparing earnings before and after an injury is not the proper method to exhibit diminished earning capacity, it is a valid factor which deserves consideration. Thomas v. Hanes Printables, 91 N.C. App. 45, 370 S.E.2d 419, 1988 N.C. App. LEXIS 711 (1988).

Wages received by claimant after his injury are strong but not conclusive evidence of his ability to earn for purposes of determining whether he is disabled within the meaning of subdivision (9) of this section. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Inability to Earn Same Wages Due to Occupational Disease and Not Merely Lack of Skill. —

While it was correct that plaintiff ’s inability to earn the same wages as in her former employment was not due to a physical incapacity per se, the transfer of positions which resulted in a diminished earning capacity was necessitated by a compensable injury; therefore, plaintiff ’s inability to earn the same wages in other jobs was due to her occupational disease and not merely to her lack of skill in the job as the Industrial Commission found, and the commission’s conclusion of law that plaintiff was not entitled to benefits for partial disability because she was capable of earning the same wages she earned before contracting the occupational disease, was not supported by the findings of fact. Thomas v. Hanes Printables, 91 N.C. App. 45, 370 S.E.2d 419, 1988 N.C. App. LEXIS 711 (1988).

Evidence that plaintiff held “temporary” jobs was not sufficient to rebut the presumption of disability created by the Industrial Commission-approved Form 21 agreement. Davis v. Embree-Reed, Inc., 135 N.C. App. 80, 519 S.E.2d 763, 1999 N.C. App. LEXIS 923 (1999).

Evidence Supported Determination of Total and Permanent Disability to Employee’s Legs. —

The evidence was sufficient to support the Industrial Commission’s determination that plaintiff was totally and permanently disabled by reason of extensive burns sustained on both legs when he set fire to his trousers while using an electric welder’s torch. Martin v. Bahnson Serv. Co., 17 N.C. App. 359, 194 S.E.2d 223, 1973 N.C. App. LEXIS 1359, cert. denied, 283 N.C. 257, 195 S.E.2d 690, 1973 N.C. LEXIS 944 (1973).

Skin Condition Caused by Sensitivity to Chemicals Used in Work Held Not a Disability. —

A hair stylist was not entitled to disability compensation payments where her skin condition, caused by her sensitivity to chemicals used in her work, had completely cleared up within one month of her terminating her employment. While it might be true that her skin disease could recur if she returned to her previous job, there was no evidence of any continuing disability as a result of a disease contracted in the course of employment. She was not entitled to compensation for her susceptibility to the skin disease. Sebastian v. Mona Watkins Hair Styling, 40 N.C. App. 30, 251 S.E.2d 872, 1979 N.C. App. LEXIS 2583, cert. denied, 297 N.C. 301, 254 S.E.2d 921, 1979 N.C. LEXIS 1314 (1979).

Award Limited to Loss of Use of Back Held Insufficient. —

Where physicians indicated that an injury to the plaintiff ’s spinal cord resulted in weakness in all of her extremities and numbness or loss of sensation throughout her body, and the doctors further testified that she suffered diminished mobility and had difficulty with position sense and with recognition of things in her hands when objects were placed in her hands, the Commission could not limit the plaintiff to an award under G.S. 97-31(23) for loss of use of the back. Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743, 1978 N.C. LEXIS 1019 (1978).

Disability Is Presumed to Continue Until Employee Returns to Work. —

Once the disability is proven, there is a presumption that it continues until the employee returns to work at wages equal to those he was receiving at the time his injury occurred. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 374 S.E.2d 483, 1988 N.C. App. LEXIS 1057 (1988).

Plaintiff ’s Temporary Total Disability Was Presumed to Continue Until She Returned to Work. —

Where plaintiff was “ready, willing, and able” to return to work, but her employer declined to honor plaintiff ’s request to return due to her injuries, there was a presumption that plaintiff ’s temporary total disability continued until she returned to work, and Commission’s finding of maximum medical improvement was not the equivalent of the end of plaintiff ’s disability; therefore, on remand plaintiff was entitled to a determination of the extent of her disability for the period of time she was not allowed to work. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 374 S.E.2d 483, 1988 N.C. App. LEXIS 1057 (1988).

Evidence of Disability Held Sufficient. —

Evidence that an employee (1) reported an injury to her supervisor, (2) was advised by a doctor not to continue working because of a disease contracted while working, (3) was terminated because her injury rendered her unable to perform the requisite job duties, and (4) was unable to procure suitable alternative employment at the same wages for the same hours despite reasonable efforts, supported the Industrial Commission’s finding that she was disabled as defined in G.S. 92-2(9). Cialino v. Wal-Mart Stores, 156 N.C. App. 463, 577 S.E.2d 345, 2003 N.C. App. LEXIS 203 (2003).

North Carolina Industrial Commission did not err in finding that an employee was disabled as defined by G.S. 97-2 as a result of her falls in the workplace where the employee produced some medical evidence that she was physically incapable of work due to her workplace falls and, thus, there was some medical evidence supporting the Commission’s finding. Aboagwa v. Raleigh Lions Clinic for the Blind, Inc., 167 N.C. App. 554, 607 S.E.2d 1, 2004 N.C. App. LEXIS 2317 (2004).

Employee was disabled as a result of a right knee injury incurred when she fell on a degreaser at the employee’s restaurant; the evidence showed that the employee experienced pain and swelling even after a knee replacement, that ultimately caused total disability. Taylor v. Carolina Rest. Group, Inc., 170 N.C. App. 532, 613 S.E.2d 510, 2005 N.C. App. LEXIS 1079, aff'd, 360 N.C. 173, 622 S.E.2d 492, 2005 N.C. LEXIS 1308 (2005).

North Carolina Industrial Commission did not err by finding that an employee proved that a work-related accident was the cause of her disability under G.S. 97-2(9) because expert testimony was adequate to establish the claim; the expert ruled out other causes of the employee’s fibromyalgia; furthermore, the doctor’s medical excuse was sufficient to establish the extent of the disability as well. Singletary v. N.C. Baptist Hosp., 174 N.C. App. 147, 619 S.E.2d 888, 2005 N.C. App. LEXIS 2303 (2005).

Evidence supported the industrial commission’s finding that a workers’ compensation claimant was temporarily disabled under G.S. 97-2(9) as of June 1, 2002, as: (1) an employer did not dispute that the claimant was totally disabled due to the claimant’s compensable accident as of June 17, 2002, the date the claimant was first examined by an orthopedic doctor, who found a torn medial meniscus, and wrote the claimant out of work; and (2) the claimant’s testimony permitted an inference that the claimant’s condition as of June 1, 2002, was physically the same as on June 17, 2002. Britt v. Gator Wood, Inc., 185 N.C. App. 677, 648 S.E.2d 917, 2007 N.C. App. LEXIS 1950 (2007).

Employee was properly awarded temporary total disability benefits for bilateral carpal tunnel syndrome (CTS) because, inter alia, the evidence tended to show that any current effort by the employee to obtain sedentary light-duty employment would have been futile based on the employee’s medical problems, limited education, limited work experience, and limited training. Johnson v. City of Winston-Salem, 188 N.C. App. 383, 656 S.E.2d 608, 2008 N.C. App. LEXIS 209, aff'd, 362 N.C. 676, 669 S.E.2d 319, 2008 N.C. LEXIS 989 (2008).

Injured employee satisfied the employee’s initial burden of proving disability as a result of the employee’s work-related injuries because the employee’s treating physicians placed restrictions on the employee’s return to work and the employee was able to perform only light duty assignments when she attempted to return to work; however, the employer and its insurer failed to carry their burden of proving that the employee was capable of obtaining suitable employment. The employer and its insurer, therefore, failed to rebut the ongoing presumption of disability. Richardson v. Maxim Healthcare/ Allegis Group, 188 N.C. App. 337, 657 S.E.2d 34, 2008 N.C. App. LEXIS 213, aff'd in part and rev'd in part, 362 N.C. 657, 669 S.E.2d 582, 2008 N.C. LEXIS 973 (2008).

North Carolina Industrial Commission did not err in awarding an employee ongoing total disability compensation because its findings of fact were supported by competent evidence, and they supported the Commission’s conclusions of law that the employee established his disability and that the employer failed to rebut the presumption of disability; the employee testified that since the time of his injury he had been looking for trucking jobs but was unable to find employment and that he was unable to perform those jobs due to his limited ability to sit, and the doctor who treated the employee for symptoms related to his injury testified that the employee was unable to perform his job with the employer based upon his evaluations of the employee and his functional capacity evaluation. Freeman v. Rothrock, 202 N.C. App. 273, 689 S.E.2d 569, 2010 N.C. App. LEXIS 217 (2010).

North Carolina Industrial Commission properly found that a claimant was totally disabled under the third Knight method as a result of her compensable shoulder injury as: (1) the employer did not challenge the findings that the claimant missed work due to her compensable injury between the date of the injury and the date of the aneurysm surgery; (2) the claimant’s limited education and vocational history, in combination with her compensable injury, made a search for other employment futile; and (3) the employer did not challenge the conclusion that there was no evidence upon which to apportion the claimant’s disability. Church v. Bemis Mfg. Co., 228 N.C. App. 23, 743 S.E.2d 680, 2013 N.C. App. LEXIS 664 (2013).

Evidence of Disability Held Insufficient. —

Employee failed to prove disability under G.S. 97-2(9) with respect to the employer’s claim that he was no longer totally disabled, as the employee’s vocational expert provided self-contradictory testimony, such that it was given minimal weight by the North Carolina Industrial Commission. Nobles v. Coastal Power & Elec., Inc., 207 N.C. App. 683, 701 S.E.2d 316, 2010 N.C. App. LEXIS 2024 (2010).

Although evidence supported the finding that an employer’s insurer was responsible for an injured employee’s neck and back conditions related to the first of two auto accidents, because there was no evidence that the employee was totally unable to work following the second accident, after the employer’s insurance had expired, and because the employee failed to show that the employee was incapable of earning wages, benefits were not extended beyond the date of the second accident, which resulted in a mere flare-up of the employee’s conditions. Stippich v. Reese's Transit, Inc., 260 N.C. App. 430, 817 S.E.2d 615, 2018 N.C. App. LEXIS 693 (2018).

Evidence of Temporary Total Disability Held Sufficient. —

The Court upheld the Commission’s finding that the plaintiff had suffered a specific traumatic injury and its consequent award of temporary total disability compensation where the defendants failed to meet their burden of establishing that “suitable jobs [we]re available to plaintiff.” Webb v. Power Circuit, 141 N.C. App. 507, 540 S.E.2d 790, 2000 N.C. App. LEXIS 1303 (2000), cert. denied, 353 N.C. 398, 548 S.E.2d 159, 2001 N.C. LEXIS 414 (2001).

Though employee’s medical evidence was insufficient to show his temporary total disability, he proved such disability through evidence that, while capable of some work, he was, after reasonable efforts, unsuccessful in his effort to obtain employment. Bridwell v. Golden Corral Steak House, 149 N.C. App. 338, 561 S.E.2d 298, 2002 N.C. App. LEXIS 186 (2002).

Award of temporary total disability benefits to an employee who fell while working as a hair stylist at her employer’s salon was upheld on appeal because medical testimony established to a reasonable degree of medical certainty that a causal connection existed between employee’s degenerative neck condition and the work-related injury, which prohibited her from working. Barbour v. Regis Corp., 167 N.C. App. 449, 606 S.E.2d 119, 2004 N.C. App. LEXIS 2336 (2004).

North Carolina Industrial Commission’s finding that an employee could not work in any employment as a result of his psychological condition supported the Commission’s conclusion that the employee was entitled to continuing temporary total disability compensation; when the Commission’s finding was considered with a psychologist’s testimony, the correct interpretation of the finding was that the psychologist was unable to state whether the employee would ever be able to return to any employment. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66, 2016 N.C. App. LEXIS 127 (2016).

Employee’s Earning Capacity Negated His Proof of Temporary Total Disability. —

The Commission’s finding that plaintiff employee failed to sustain his burden of proving temporary total disability was supported by competent evidence which showed that the plaintiff earned income from three private businesses throughout the time he received temporary disability payments from defendants. Sims v. Charmes, 142 N.C. App. 154, 542 S.E.2d 277, 2001 N.C. App. LEXIS 46 (2001).

Evidence That Claimant No Longer Disabled. —

Evidence that claimant was released by his doctor to return to work and that he worked as a self-employed painter and then as a truck driver, earning more than he had while employed with defendant, was sufficient to support the conclusion that he was no longer entitled to temporary total disability payments. Snead v. Carolina Pre-Cast Concrete, Inc., 129 N.C. App. 331, 499 S.E.2d 470, 1998 N.C. App. LEXIS 523, cert. denied, 348 N.C. 501, 510 S.E.2d 656, 1998 N.C. LEXIS 443 (1998).

North Carolina Industrial Commission did not err by finding that an employee failed to prove that her disability under G.S. 97-2(9) extended past a medical leave granted by a doctor where no other evidence was provided; there was no presumption of continuing disability since there was no previous opinion or settlement agreement. Singletary v. N.C. Baptist Hosp., 174 N.C. App. 147, 619 S.E.2d 888, 2005 N.C. App. LEXIS 2303 (2005).

Evidence that an employee had been released to sedentary work with some restrictions, and the lack of evidence of the extent to which she was unable to work after that time, supported the North Carolina Industrial Commission’s finding that her period of disability had ended. Frost v. Salter Path Fire & Rescue, 176 N.C. App. 482, 628 S.E.2d 22, 2006 N.C. App. LEXIS 539 (2006), rev'd, 361 N.C. 181, 639 S.E.2d 429, 2007 N.C. LEXIS 35 (2007).

Effect of Retirement. —

Because disability measures an employee’s present ability to earn wages, and is unrelated to a decision to withdraw from the labor force by retirement, the Commission may not deny disability benefits because the claimant retired, where there is evidence of diminished earning capacity caused by an occupational disease. Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70, 1986 N.C. App. LEXIS 2676 (1986).

Evidence of Employee’s Inability to Earn Wages Held Sufficient. —

Testimony of two doctors and a vocational rehabilitation counselor was amply competent to support the Commission’s finding that employee had no capacity to earn wages in either the same or any other employment up to the date of a hearing before a deputy commissioner. Kennedy v. Duke Univ. Medical Center, 101 N.C. App. 24, 398 S.E.2d 677, 1990 N.C. App. LEXIS 1224 (1990).

Industrial commission could properly determine that a workers’ compensation claimant’s reduced wages were a manifestation of the claimant’s disability under G.S. 97-2(9) and that this diminished earning capacity entitled the claimant to temporary partial disability benefits, as the claimant presented evidence that the claimant obtained other employment at lower wages than the claimant had previously earned, as well as evidence showing agreement among all the doctors that the claimant had permanent restrictions on the type of work the claimant could perform; the burden shifted to the employer to show that the claimant could obtain a higher-paying job, and the employer did not do so. Britt v. Gator Wood, Inc., 185 N.C. App. 677, 648 S.E.2d 917, 2007 N.C. App. LEXIS 1950 (2007).

Evidence of Partial Disability Held Sufficient. —

Evidence held sufficient to support the finding that plaintiff was partially incapable of engaging in gainful employment by byssinosis and chronic obstructive lung disease as a result of 29 years of smoking and exposure to cotton dust and that his occupational disease, combined with his age, limited education and work experience, limited his ability to earn wages. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Claimant Must Show Disability Work-Related. —

Where evidence supported the Industrial Commission’s finding that plaintiff failed to establish his present disability was caused by a work-related injury, the commission’s decision would not be disturbed on appeal and plaintiff was entitled to compensation only for his temporary total disability. Lettley v. Trash Removal Serv., 91 N.C. App. 625, 372 S.E.2d 747, 1988 N.C. App. LEXIS 905 (1988).

Plaintiff did not meet her burden of showing she sustained a disability as a consequence of her injury where there was competent evidence in the record to show that plaintiff was released to return to work without restrictions four days after her injury , and that she was capable of earning her regular wages and performing her regular duties. Fuller v. Motel 6, 136 N.C. App. 727, 526 S.E.2d 480, 2000 N.C. App. LEXIS 150 (2000).

Plaintiff Carried Initial Burden of Showing That She Was Disabled. —

Where the record indicated that plaintiff began to receive temporary total disability payments in May 1984, the payments continued until November 1984, on November 21, 1984 her treating physician reported that she could return to work “as her comfort permits,” there was no “light” work available for plaintiff nor would her employer allow her to return to work to perform her old duties, and though not in the record, the briefs indicated and the opinion and award make reference to the fact that plaintiff had signed a statement in which it was recited that she had reached maximum medical improvement on November 22, 1984, plaintiff carried her initial burden of showing she was disabled. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 374 S.E.2d 483, 1988 N.C. App. LEXIS 1057 (1988).

Presumption of Disability Created. —

In a general sense, it is true an injured employee has the burden of showing he is incapable of earning the same wages he previously earned, either in the same or any other employment; however, upon execution of a Form 21 agreement, and subsequent approval by the Commission, the employee enjoys a presumption of disability. King v. Yeargin Constr. Co., 124 N.C. App. 396, 476 S.E.2d 898, 1996 N.C. App. LEXIS 1061 (1996).

The approval of a Form 21 by the Industrial Commission relieves the employee of his initial burden of proving a disability; further, once an agreement is approved, the employee receives the benefit of the presumption that he is totally disabled. Brown v. S & N Communications, Inc., 124 N.C. App. 320, 477 S.E.2d 197, 1996 N.C. App. LEXIS 1051 (1996).

Constructive Refusal to Accept Suitable Employment. —

For misconduct that causes a claimant to be discharged from employment to amount to “constructive refusal” to accept suitable employment that renders him ineligible for worker’s compensation, the misconduct need not occur during working hours or at the workplace, and it need not amount to a crime, but it must have been conduct for which a nondisabled employee ordinarily would have been terminated. Williams v. Pee Dee Elec. Membership Corp., 130 N.C. App. 298, 502 S.E.2d 645, 1998 N.C. App. LEXIS 916 (1998).

Failure to Make Required Findings Concerning Earning Capacity. —

Industrial commission erred in determining a worker’s permanent partial disability rating pursuant to G.S. 97-31; disability was defined by a diminished capacity to earn wages, not by physical infirmity alone, G.S. 97-2(9), and the commission failed to make required findings pursuant to G.S. 97-30 on whether the job offered to the worker by her employer accurately reflected her ability to earn wages. Baker v. Sam's Club, 161 N.C. App. 712, 589 S.E.2d 387, 2003 N.C. App. LEXIS 2255 (2003).

Case was remanded to the Industrial Commission to take additional evidence if necessary and to make specific findings addressing an employee wage-earning capacity, considering his compensable tinnitus in the context of all the preexisting and coexisting conditions bearing upon his wage-earning capacity, because the Commission made no related findings on how the employee’s compensable tinnitus and any related symptoms could have affected his ability to engage in wage-earning activities. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

Evidence of Incapacity to Earn Wages Held Sufficient. —

Where defendant failed to come forward with rebuttal evidence, the Industrial Commission did not err in finding that the medical evidence, plaintiff’s complaints of chronic leg and back pain related during each visit to her physicians, and plaintiff’s continuing pain treatment and doctor visits as of the hearing date provided competent evidence supporting a determination that plaintiff was incapable of earning the same wages from defendant or another employer as a result of lumbosacral strain. Barber v. Going West Transp., Inc., 134 N.C. App. 428, 517 S.E.2d 914, 1999 N.C. App. LEXIS 813 (1999).

Award of Disability Benefits Appropriate Remedy. —

Where the full Commission found that defendants had not presented convincing evidence that defendant-store had offered or obtained employment for plaintiff consistent with her limitations, and where plaintiff met the burden of showing injury to her wage earning capacity, the full Commission was correct in finding that the disability continued, and ongoing award of disability benefits was the appropriate remedy. Simmons v. Kroger Co., 117 N.C. App. 440, 451 S.E.2d 12, 1994 N.C. App. LEXIS 1265 (1994).

Plaintiff, after having shown credible evidence of diligent efforts to find employment, was entitled to receive compensation benefits where his inability to earn the same wages was caused in part by unavailability of area jobs consistent with his physical limitations. Fletcher v. Dana Corp., 119 N.C. App. 491, 459 S.E.2d 31, 1995 N.C. App. LEXIS 538 (1995).

Where the Industrial Commission weighed the evidence and determined the credibility of the witnesses before it and made findings of fact as to its award of temporary disability to an employee who had fallen at his workplace, this satisfied the fact-finding of G.S. 97-85; the finding that the employee had suffered a back injury within G.S. 97-2(6) was presumed to be correct on appeal, pursuant to N.C. R. App. P. 10(b) where the employer did not preserve that issue for review by separately contesting each particular finding of fact. Johnson v. Herbie's Place, 157 N.C. App. 168, 579 S.E.2d 110, 2003 N.C. App. LEXIS 640 (2003).

XVIII.Burden of Proof and Evidence

Burden of Proof Is on Claimant. —

The person claiming the benefit of compensation has the burden of showing that the injury complained of resulted from an accident arising out of and in the course of the employment. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760, 1950 N.C. LEXIS 478 (1950); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963); O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193, 1964 N.C. LEXIS 505 (1964); Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257, 1976 N.C. LEXIS 1243 (1976); Franklin v. Wilson County Bd. of Educ., 29 N.C. App. 491, 224 S.E.2d 657, 1976 N.C. App. LEXIS 2547 (1976); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772, 1976 N.C. App. LEXIS 2087 (1976).

One who seeks to avail himself of the act must come within its terms and must be held to prove that he is in a class embraced in the act. Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137, 1944 N.C. LEXIS 297 (1944); Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645, 1965 N.C. LEXIS 1279 (1965).

Claimant in a proceeding under the Workers’ Compensation Act has the burden of proving that his claim is compensable under the act. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760, 1950 N.C. LEXIS 478 (1950). See also Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763, 1982 N.C. App. LEXIS 2713 (1982).

The burden of proving each and every element of compensability is upon the plaintiff. Harvey v. Raleigh Police Dep't, 96 N.C. App. 28, 384 S.E.2d 549, 1989 N.C. App. LEXIS 941 (1989).

Claimant Has Burden of Proving Employer-Employee Relationship. —

In order to bring himself within the coverage of the Workers’ Compensation Act, the claimant has the burden of proving that the employer-employee relationship existed. Lloyd v. Jenkins Context Co., 46 N.C. App. 817, 266 S.E.2d 35, 1980 N.C. App. LEXIS 2910 (1980); Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3, 1982 N.C. App. LEXIS 3067 (1982); Doud v. K & G Janitorial Servs., 69 N.C. App. 205, 316 S.E.2d 664, 1984 N.C. App. LEXIS 3406 (1984).

Burden of Proving Disability. —

In workers’ compensation cases, a claimant ordinarily has the burden of proving both the existence of his disability and its degree. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682, 1982 N.C. LEXIS 1331 (1982); Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766, 1982 N.C. App. LEXIS 2714 (1982); Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986); Taylor v. Margaret R. Pardee Mem. Hosp., 83 N.C. App. 385, 350 S.E.2d 148, 1986 N.C. App. LEXIS 2713 (1986).

In order to receive disability compensation, the burden is on the claimant to prove that his illness has impaired his capacity to work and the extent of this impairment. Priddy v. Cone Mills Corp., 58 N.C. App. 720, 294 S.E.2d 743, 1982 N.C. App. LEXIS 2815 (1982).

The burden of proof of showing a disability is on the plaintiff. Donnell v. Cone Mills Corp., 60 N.C. App. 338, 299 S.E.2d 436, 1983 N.C. App. LEXIS 2463 (1983).

Submission of a Form 62 did not shift the burden from plaintiff to prove continuing disability, G.S. 97-2(9), under the North Carolina Workers’ Compensation Act. The burden remained on plaintiff to prove continuing disability. Treat v. Mecklenburg County, 194 N.C. App. 545, 669 S.E.2d 800, 2008 N.C. App. LEXIS 2233 (2008).

Employee to Establish Disability Before Employer Can Be Required to Prove the Availability of Suitable Employment. —

The Industrial Commission erred in placing the initial burden on the defendants/employers to prove the availability of suitable employment at pre-injury wages without first requiring plaintiff/injured illegal alien employee to establish the existence and extent of his disability. Before defendants could be required to prove the availability of suitable employment, plaintiff had to first come forward with evidence to show that his earning capacity was diminished as a result of his on-the-job injury. Olivares-Juarez v. Showell Farms, 138 N.C. App. 663, 532 S.E.2d 198, 2000 N.C. App. LEXIS 785 (2000).

Evidence of Effort to Find Other Employment. —

An injured employee seeking an award of total disability under this section who is unemployed, medically able to work, and possesses no preexisting limitations which would render him unemployable, must produce evidence of reasonable effort to find other employment. Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 425 S.E.2d 454, 1993 N.C. App. LEXIS 176 (1993).

North Carolina Industrial Commission erred in denying the claim for disability as it erred by concluding the claimant failed to make a reasonable effort to find suitable employment because the Commission’s finding regarding the claimant’s search was merely a conclusion that the claimant’s search for employment was unreasonable; and that conclusory finding was insufficient to support the Commission’s conclusion regarding the claimant’s failure to establish his disability because he failed to make a reasonable job search. Patillo v. Goodyear Tire & Rubber Co., 251 N.C. App. 228, 794 S.E.2d 906, 2016 N.C. App. LEXIS 1311 (2016).

North Carolina Industrial Commission properly found that an employee did not make a reasonable but unsuccessful effort to obtain employment and, thus, failed to establish the employee was disabled because the employee did not engage in a reasonable job search. Griffin v. Absolute Fire Control, Inc., 269 N.C. App. 193, 837 S.E.2d 420, 2020 N.C. App. LEXIS 9 (2020), cert. dismissed, 376 N.C. 885, 854 S.E.2d 588, 2021 N.C. LEXIS 185 (2021), aff'd, cert. dismissed, 376 N.C. 727, 854 S.E.2d 578, 2021- NCSC-9, 2021 N.C. LEXIS 167 (2021).

Claimant Must Show Disability Work-Related. —

Where evidence supported the Industrial Commission’s finding that plaintiff failed to establish his present disability was caused by a work-related injury, the Commission’s decision would not be disturbed on appeal and plaintiff was entitled to compensation only for his temporary total disability. Lettley v. Trash Removal Serv., 91 N.C. App. 625, 372 S.E.2d 747, 1988 N.C. App. LEXIS 905 (1988).

Whether an employee is disabled is a question of law which must be based on findings of fact supported by competent evidence. Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70, 1986 N.C. App. LEXIS 2676 (1986).

Plaintiff Carried Initial Burden of Showing That She Was Disabled. —

Where the record indicated that plaintiff began to receive temporary total disability payments in May 1984, the payments continued until November 1984, on November 21, 1984 her treating physician reported that she could return to work “as her comfort permits,” there was no “light” work available for plaintiff nor would her employer allow her to return to work to perform her old duties, and though not in the record, the briefs indicated and the opinion and award make reference to the fact that plaintiff had signed a statement in which it was recited that she had reached maximum medical improvement on November 22, 1984, plaintiff carried her initial burden of showing she was disabled. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 374 S.E.2d 483, 1988 N.C. App. LEXIS 1057 (1988).

Burden of Proof that Claimant Unsuited for Employment Due to Characteristics Peculiar to Him. —

The burden of proof rests upon the claimant to prove the existence of his disability and its extent, and relevant to these issues is evidence that the claimant may be unsuited for particular employment due to characteristics peculiar to him. Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 403 S.E.2d 548, 1991 N.C. App. LEXIS 498 (1991).

Including Inability to Earn Pre-Injury Wages. —

Industrial Commission misapplied the law by erroneously placing the initial burden on defendant to prove plaintiff’s capacity to earn pre-injury wages in other employment before plaintiff had met her burden of proof regarding pre-injury wages, in support of a showing of “disability” under this section, as laid out in Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). Coppley v. PPG Indus., Inc., 133 N.C. App. 631, 516 S.E.2d 184, 1999 N.C. App. LEXIS 607 (1999).

Continually placing the burden on an employee to prove that his or her symptoms are causally related to his or her admittedly compensable injury before he or she can receive further medical treatment ignores the prior award; accordingly, an admission of compensability approved under the Workers’ Compensation Act entitles an employee to a presumption that additional medical treatment is causally related to his or her compensable injury. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

In the compensation cases holding medical testimony unnecessary to make a prima facie case of causation, the distinguishing features are an uncomplicated situation, the immediate appearance of symptoms, the prompt reporting of the occurrence by the worker to his supervisor and consultation with a physician, and the fact that the plaintiff was theretofore in good health and free from any disability of the kind involved. A further relevant factor is the absence of expert testimony that the alleged precipitating event could not have been the cause of the injury. Slizewski v. International Seafood, Inc., 46 N.C. App. 228, 264 S.E.2d 810, 1980 N.C. App. LEXIS 2803 (1980).

Hearsay. —

It must not only appear by competent evidence that the injury was received in the course of the employment, but also that it arose out of the employment as well. Hearsay evidence is not competent to establish either fact. Plyler v. Charlotte Country Club, 214 N.C. 453, 199 S.E. 622, 1938 N.C. LEXIS 374 (1938).

Where no objection is made before the hearing commissioner to the introduction of hearsay evidence, the objection must be treated as waived and the evidence may be considered. The principle on which hearsay evidence is excluded by rules of evidence relates to its competency, not to its relevancy. Maley v. Thomasville Furn. Co., 214 N.C. 589, 200 S.E. 438, 1939 N.C. LEXIS 386 (1939).

The Commission is the sole judge of the credibility and weight to be given the testimony; it may accept or reject all of the testimony of a witness, or it may accept a part and reject a part. Blalock v. Roberts Co., 12 N.C. App. 499, 183 S.E.2d 827, 1971 N.C. App. LEXIS 1390 (1971).

The Commission has the duty and authority to resolve conflicts in the testimony of a witness or witnesses. Blalock v. Roberts Co., 12 N.C. App. 499, 183 S.E.2d 827, 1971 N.C. App. LEXIS 1390 (1971).

Regardless of whether the North Carolina Industrial Commission deemed a doctor’s testimony as speculative or not, as the court found that the Commission’s findings of fact were supported by the conclusion that the deceased employee’s heart attack was not the result of an accident arising out of his employment, the widow’s request for benefits under G.S. 97-2(6) was properly denied; the Commission judged the credibility and weight of the evidence. Gray v. UPS, 226 N.C. App. 15, 739 S.E.2d 590, 2013 N.C. App. LEXIS 288 (2013).

North Carolina Industrial Commission did not err in determining that an employee met his burden to establish a compensable injury because the Commission found the employee to be credible, and the court of appeals would not second-guess its credibility determination; the court of appeals would not hold that the testimony of the employee’s primary care physician and a psychologist was incompetent on the basis that they relied on the employee’s statements. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66, 2016 N.C. App. LEXIS 127 (2016).

Commission’s Factual Determinations Binding Upon Court. —

Whether a plaintiff was injured by accident and had a reasonable excuse for not giving the employer timely notice were factual issues that depended entirely upon her credibility. Since the Commission found, as its prerogative as fact finder permitted, that plaintiff’s testimony was not credible, that determination was binding upon the Court of Appeals. Elliot v. A.O. Smith Corp., 103 N.C. App. 523, 405 S.E.2d 799, 1991 N.C. App. LEXIS 791 (1991).

Where plaintiff’s treating physician opined, based on his physical examinations of plaintiff and plaintiff’s reports to him, that a work-related accident aggravated plaintiff’s pre-existing condition, the North Carolina Industrial Commission properly accepted his opinion, as his failure to examine all of plaintiff’s medical records went to the weight to be given the physician’s testimony, not to its competency. Yingling v. Bank of Am., 225 N.C. App. 820, 741 S.E.2d 395, 2013 N.C. App. LEXIS 224 (2013).

Sufficiency of Evidence Is Question of Law. —

The question whether the evidence is sufficient to support the findings is one of law to be determined by the courts. Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3, 1965 N.C. LEXIS 977 (1965).

Proof That Employee Was at Place of Employment Doing Usual Work Is Insufficient. —

It must be kept in mind that while an accident arising out of an employment usually occurs in the course of it, it does not necessarily or invariably do so. Nor does an accident which occurs in the course of an employment necessarily or inevitably arise out of it. Therefore proof that an employee was at his place of employment and was doing his usual work at the time of the injury, without more, is insufficient to support an award of compensation. Sweatt v. Rutherford County Bd. of Educ., 237 N.C. 653, 75 S.E.2d 738, 1953 N.C. LEXIS 698 (1953).

But Evidence Explaining Exact Cause of Accident Need Not Be Offered. —

It is not necessary for a plaintiff to offer evidence explaining the exact cause of the accident. Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, 1972 N.C. App. LEXIS 1891, cert. denied, 281 N.C. 755, 191 S.E.2d 353, 1972 N.C. LEXIS 1174 (1972).

Award Where Cause of Injury Not Explained. —

Where an employee, while about his work, suffers an injury in the ordinary course of employment, the cause of which is not explained, but which is a natural and probable result of a risk thereof, and the Commission finds from the evidence that the injury arose out of the employment, an award will be sustained. Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173, 1951 N.C. LEXIS 558 (1951); Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693, 1954 N.C. LEXIS 461 (1954); Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308, 1963 N.C. LEXIS 597 (1963); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963).

When an accident occurs in the course of employment, and there is no affirmative evidence that arose from a cause independent of the employment, an award will be sustained. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963).

Full Commission of the North Carolina Industrial Commission correctly ruled with respect to the replacement of a claimant’s right breast implant, which was established to have been damaged as a result of a motor vehicle accident while working, but erred in concluding that the claimant sustained compensable injuries to her left breast implant as well as the medical testimony indicated inconclusively that the rippling in the claimant’s left breast was caused by the accident, therefore, the claimant was only entitled to compensation for replacement of the right breast implant. Richardson v. Maxim Healthcare/Allegis Group, 2007 N.C. App. LEXIS 2112 (N.C. Ct. App. Oct. 2, 2007).

Insufficient Evidence of Earning Capacity. —

There was no competent evidence to support the Commission’s findings that plaintiff was capable of earning $12.00 per hour, that other suitable jobs for which plaintiff was qualified were available, that any other positions for which plaintiff was qualified would pay $12.00 per hour, that plaintiff would be able to secure such a position, and that plaintiff’s ability to obtain a temporary position paying $12.00 per hour meant that plaintiff, when permanently employed, would receive $12.00 per hour. Daughtry v. Metric Constr. Co., 115 N.C. App. 354, 446 S.E.2d 590, 1994 N.C. App. LEXIS 667 (1994).

Plaintiff met his burden of proving present earning capacity where he produced evidence that he had obtained employment as a driver at a wage less than that earned as a brick mason prior to the injury. Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 532 S.E.2d 583, 2000 N.C. App. LEXIS 803 (2000).

Presumption of Continuing Disability. —

The employer may not rebut the presumption of continuing disability by showing that the employee is capable of earning pre-injury wages in a temporary position or by creating a position within the employer’s own company that is not ordinarily in the competitive job market, because such positions do not accurately reflect the employee’s capacity to earn wages. Stamey v. North Carolina Self-Insurance Guar. Ass'n, 131 N.C. App. 662, 507 S.E.2d 596, 1998 N.C. App. LEXIS 1443 (1998).

The employer failed to rebut the presumption of continuing disability with medical evidence or with evidence that the claimant was capable of obtaining a suitable job in the competitive marketplace, where the claimant temporarily and unsuccessfully returned to work, the modified roller picker position offered to claimant was temporary, there was no evidence that this position was a real position that existed in the marketplace and was not “made” work, and the only medical evidence supported the claimant’s claims of shoulder pain. Stamey v. North Carolina Self-Insurance Guar. Ass'n, 131 N.C. App. 662, 507 S.E.2d 596, 1998 N.C. App. LEXIS 1443 (1998).

Court of appeals properly vacated the North Carolina Industrial Commission’s finding that an employee failed to establish that his anxiety and depression were a result of his work-related accident because the employee was entitled to a presumption that additional medical treatment was related to his compensable conditions; the Commission did not apply any presumption, and instead placed the initial burden on the employee to prove causation for any medical compensation he sought. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

Presumption of Reduction in Earning Capacity Rebutted. —

Where claimant presented no evidence contesting the availability of other jobs or her suitability for those jobs and furthermore presented no evidence that she sought employment at any of these places, employer offered sufficient evidence to rebut the presumption that claimant sustained a reduction in her earning capacity. Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 403 S.E.2d 548, 1991 N.C. App. LEXIS 498 (1991).

Termination of Benefits. —

Absent waiver, in order to terminate an employee’s benefits after execution of a Form 21 agreement, the employer must request a hearing at which it bears the burden of showing the employee is no longer disabled. King v. Yeargin Constr. Co., 124 N.C. App. 396, 476 S.E.2d 898, 1996 N.C. App. LEXIS 1061 (1996).

An employer may rebut the continuing presumption of total disability either by showing the employee’s capacity to earn the same wages as before the injury or by showing the employee’s capacity to earn lesser wages than before the injury. Brown v. S & N Communications, Inc., 124 N.C. App. 320, 477 S.E.2d 197, 1996 N.C. App. LEXIS 1051 (1996).

Medical Treatment. —

The claimant’s medical care constituted “medical treatment” under subdivision (19) of this section, even though the employer contended that the claimant was not referred to some of his doctors by specialists, where the employee was referred to a specialist by his family doctor, and each subsequent visit to a physician was on the basis of a valid medical referral. Sanders v. Broyhill Furn. Indus., 131 N.C. App. 383, 507 S.E.2d 568, 1998 N.C. App. LEXIS 1359 (1998).

Pursuant to G.S. 97-2(18) and 97-25, an employee was entitled to payment of medical expenses for treatment to relieve substantial and continual back pain arising from an accident where she fell and injured her back in the course of her employment, where the record reflected that she had obtained authorization from the Industrial Commission for such future treatment; however, there was no indication in the record of the necessary authorization in order to allow reimbursement for past medical treatments, and accordingly, an award rendered for that was vacated and further consideration had to be made on the issue of whether the proper authorization was obtained prior to such treatment or within a reasonable time thereafter. Whitfield v. Lab. Corp., 158 N.C. App. 341, 581 S.E.2d 778, 2003 N.C. App. LEXIS 1192 (2003).

Medical Certainty Was Not Required. —

North Carolina Industrial Commission properly concluded that medical certainty was not required for purposes of a widow’s request for benefits under G.S. 97-2(6), arising from the deceased employee’s death while at work; the widow’s benefits request was properly denied. Gray v. UPS, 226 N.C. App. 15, 739 S.E.2d 590, 2013 N.C. App. LEXIS 288 (2013).

Remand to Show Continued Disability. —

Where Commission’s determination that defendant who suffered back injury was credible was not supported by sufficient evidence, and there was competent evidence regarding business ownership and management by defendant, case would be remanded for plaintiff to show that he continued to be disabled. Deese v. Champion Int'l Corp, 133 N.C. App. 278, 515 S.E.2d 239, 1999 N.C. App. LEXIS 400 (1999), rev'd, 352 N.C. 109, 530 S.E.2d 549, 2000 N.C. LEXIS 432 (2000).

Employer Failed to Rebut Employee’s Evidence of Total Disability. —

Because an injured employee presented sufficient evidence of total disability, and the employer failed to rebut this evidence, the Industrial Commission did not err in concluding that the employee was temporarily totally disabled to the extent that the Commission awarded the employee benefits. Roset-Eredia v. F.W. Dellinger, Inc., 190 N.C. App. 520, 660 S.E.2d 592, 2008 N.C. App. LEXIS 1019 (2008).

Claimant Not Entitled to Presumption of Ongoing Disability. —

Workers’ compensation claimant was not entitled to a presumption of ongoing disability for purposes of the claimant’s total disability claim under G.S. 97-2(9) as: (1) the claimant had not filed an executed Form 21 or Form 26, and there had not been a prior disability award from the industrial commission; and (2) an orthopedic doctor released the claimant to work without restrictions a year earlier. Britt v. Gator Wood, Inc., 185 N.C. App. 677, 648 S.E.2d 917, 2007 N.C. App. LEXIS 1950 (2007).

Doctor’s diagnosis, which was based on test results and was not reliant on facts not in evidence or the maxim post hoc ergo propter hoc, was competent evidence of a compensable injury. Raper v. Mansfield Sys., 189 N.C. App. 277, 657 S.E.2d 899, 2008 N.C. App. LEXIS 540 (2008).

XIX.Compensation

“Compensation,” means money relief afforded according to a scale established and for the persons designated in this Chapter. Ivey v. North Carolina Prison Dep't, 252 N.C. 615, 114 S.E.2d 812, 1960 N.C. LEXIS 439 (1960); Bowman v. Comfort Chair Co., 271 N.C. 702, 157 S.E.2d 378, 1967 N.C. LEXIS 1267 (1967).

And Involves More Than Burial Expenses. —

The definition of compensation in this section includes burial expenses, but it takes the whole to constitute compensation and not one of its parts. Compensation for wrongful death involves more than the burial of the body. Ivey v. North Carolina Prison Dep't, 252 N.C. 615, 114 S.E.2d 812, 1960 N.C. LEXIS 439 (1960).

Types of Compensation. —

The Workers’ Compensation Act provides primarily for four types of compensation to be paid to employees covered by the act. They are: (1) Compensation for disability, dependent as to amount upon whether the injury produces a permanent total, a permanent partial, a total temporary or a partial temporary incapacity; (2) Compensation in stipulated amounts for loss of some part of the body such as a finger or toe, a leg or arm; (3) Compensation for death; and (4) Compensation for bodily disfigurement. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

It was not error to deny a quadriplegic employee’s request to order an employer to provide an adaptable van because the record showed transportation services available to the employee were satisfactory. Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 758 S.E.2d 169, 2014 N.C. App. LEXIS 418 (2014).

Presumption of Compensability When Employee Dies within Scope of Employment and Cause Is Unknown. —

The Court of Appeals erred in holding that a presumption of compensability does not apply when an employee dies within the course and scope of employment and the cause of death is unknown. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582, 1988 N.C. LEXIS 375 (1988).

Where claimant is entitled to rely on the presumption of compensability, the defendant must come forward with some evidence that death occurred as a result of a noncompensable cause; otherwise, the claimant prevails. In the presence of evidence that death was not compensable, the presumption disappears. In that event, the Industrial Commission should find the facts based on all the evidence adduced, taking into account its credibility, and drawing such reasonable inferences from the credible evidence as may be permissible, the burden of persuasion remaining with the claimant. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582, 1988 N.C. LEXIS 375 (1988).

Plaintiff was entitled to rely on a presumption of compensability, where the undisputed evidence indicated that plaintiff ’s decedent died while acting within the course and scope of his employment, and no evidence indicated decedent died other than by accident. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582, 1988 N.C. LEXIS 375 (1988).

Medical Compensation. —

Even though the Industrial Commission found the functional capacity evaluation (FCE) was not medical compensation, the Commission properly concluded that defendants’; motion to compel a FCE was not unreasonable as defendants reasonably acted within their statutory rights after treatments and claims of lack of pain to determine the status of the claimant’s compensable shoulder injury; thus, the Commission properly concluded an award of attorney’s fees in favor of the claimant was not allowed. Richardson v. Goodyear Tire & Rubber Co., 277 N.C. App. 614, 861 S.E.2d 356, 2021- NCCOA-234, 2021 N.C. App. LEXIS 244 (2021).

Payment of medical or hospital expenses constitutes no part of compensation to an employee or his dependents under the provisions of the act. Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109, 1948 N.C. LEXIS 254 (1948). See Thompson v. Virginia & C.S.R.R., 216 N.C. 554, 6 S.E.2d 38, 1939 N.C. LEXIS 46 (1939); Morris v. Laughlin Chevrolet Co., 217 N.C. 428, 8 S.E.2d 484, 1940 N.C. LEXIS 254 (1940).

Compensation must be based upon the loss of wage earning power rather than the amount actually received. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Calculation Based on Wages at Time of Diagnosis. —

Plaintiff who was diagnosed with silicosis was entitled to compensation calculated based on his average weekly wage at the time he was diagnosed, not at the time of his last exposure or at the time he was “removed from the industry”. Moore v. Standard Mineral Co., 122 N.C. App. 375, 469 S.E.2d 594, 1996 N.C. App. LEXIS 374 (1996).

A finding of maximum medical improvement is not the equivalent of a finding that the employee is able to earn the same wage earned prior to injury; the maximum medical improvement finding is solely the prerequisite to determination of the amount of any permanent disability for purposes of G.S. 97-31. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 374 S.E.2d 483, 1988 N.C. App. LEXIS 1057 (1988).

Claimant Entitled to Benefits For Expenses Arising Out of Cesarean Section. —

Workers’ Compensation claimant was entitled to benefits for expenses arising out of cesarean section surgery in light of evidence that claimant’s weakened back, which necessitated the surgery, was solely the result of an initial compensable injury; claimant’s pregnancy was not an independent intervening cause attributable to claimant’s own intentional conduct even though the pregnancy occurred subsequent to the compensable injury. English v. J.P. Stevens & Co., 98 N.C. App. 466, 391 S.E.2d 499, 1990 N.C. App. LEXIS 418 (1990).

A permanently and totally disabled employee is entitled to receive compensation under G.S. 97-29. This is true even though no single injury of claimant resulted in total and permanent disability, so long as the combined effect of all of the injuries caused permanent and total disability. Fleming v. K-Mart Corp., 312 N.C. 538, 324 S.E.2d 214, 1985 N.C. LEXIS 1486 (1985).

Employer could be ordered, under N.C. Gen. Stat. § 97-29, to pay to rent handicapped accessible housing for a quadriplegic employee because: (1) the employee had no home that could be renovated; (2) the employer had paid to house the employee in a skilled nursing or long-term care facility; and (3) such facilities were not in the employee’s medical best interest. Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 758 S.E.2d 169, 2014 N.C. App. LEXIS 418 (2014).

Partially Disabled Employee Held Entitled to Difference Between Wage Paid by Employer and Wage Received Thereafter. —

Where the evidence tended to show that plaintiff was permanently partially disabled by reason of occupational disease and that after failing to obtain employment in the cotton textile industry in which he had been employed for 29 years, the plaintiff made an earnest and highly commendable search for other employment, and was able to obtain a permanent job with a restaurant at the minimum wage but was released from that employment only because business conditions resulted in the restaurant going out of business, the Commission was required to enter an award setting the plaintiff ’s compensation at two-thirds of the difference between his average wage of $196.91 a week while working for the defendant and the minimum wage of $134.00 a week which he received thereafter, an award of $41.94 per week, not to exceed 300 weeks. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Offsetting Sickness and Disability Plan Payments Against Compensation. —

Since the wage payments under employee Sickness and Disability Plan belonged to claimant, using them to offset employer’s obligations to pay her compensation for other weeks is not authorized by G.S. 97-42 and would be confiscatory if it was. But though the wage payments were hers, offsetting them against compensation awarded her for the same weeks is authorized for two reasons: First, no compensation is due claimant for the weeks that her wages were paid because disability under the Workers’ Compensation Act is based upon decreased earnings, and she had sustained no wage loss; and second, the claimant cannot collect workers’ compensation for the weeks that her wages were paid because of the policy against employees receiving duplicating payments at the employers’ expense. Evans v. AT & T Technologies, 103 N.C. App. 45, 404 S.E.2d 183, 1991 N.C. App. LEXIS 576 (1991), rev'd, 332 N.C. 78, 418 S.E.2d 503, 1992 N.C. LEXIS 374 (1992).

Determination of Compensation for Former Employee Diagnosed with Asbestosis. —

Since the North Carolina General Assembly has made no specific provision for determining compensation pursuant to G.S. 97-64 when a former employee is diagnosed with asbestosis some time after his removal from the employment, the only statutory provision which was in fairness to be used was the “final method,” contained in the second full paragraph of G.S. 97-2(5). Abernathy v. Sandoz Chems./Clariant Corp., 151 N.C. App. 252, 565 S.E.2d 218, 2002 N.C. App. LEXIS 724, cert. denied, 356 N.C. 432, 572 S.E.2d 421, 2002 N.C. LEXIS 1220 (2002).

North Carolina Industrial Commission properly ordered an employer to pay for prescription expenses as part of the compensation awarded to an employee disabled as a result of asbestos exposure because the employee’s treating physician testified that there was no federally approved medication specifically designed to treat asbestosis and that the employee was being treated with medication approved to treat the symptoms of obstructive lung disease and to improve overall lung functioning; based on that testimony, there was competent evidence in the record to support the Commission’s finding that plaintiff’s prescription medications provided some relief to plaintiff by improving his overall lung functioning, thus, it was proper for the Commission to have ordered the employer to pay for the medications. Bolick v. ABF Freight Sys., 188 N.C. App. 294, 654 S.E.2d 793, 2008 N.C. App. LEXIS 81 (2008).

Workers’ compensation claimant was not entitled to reimbursement of the cost of heating her home pool under G.S. 97-25 because such compensation was not considered “medical compensation” under G.S. 97-2(19) because the claimant did not show that she was entitled to pool maintenance reimbursement rather than reimbursement for treatment at a center that provided pool therapy; further, although pool therapy was a compensable medical treatment, the record did not support a minimum of five days per week of pool therapy as there was no finding that a doctor had prescribed a minimum of five sessions a week. Winders v. Edgecombe County Home Health Care, 187 N.C. App. 668, 653 S.E.2d 575, 2007 N.C. App. LEXIS 2559 (2007).

Compensation for Lawn Services Prohibited. —

North Carolina Industrial Commission’s factual findings supported its conclusion that although a workers’ compensation claimant should refrain from mowing the claimant’s lawn due to the claimant’s medical condition, the lawn care services were ordinary life expenses that were not included in medical compensation under G.S. 97-2(19) and G.S. 97-25; providing the claimant with the resources to comply with a restrictive covenant as to yard upkeep on the claimant’s property was not “other treatment.” Scarboro v. Emery Worldwide Freight Corp., 192 N.C. App. 488, 665 S.E.2d 781, 2008 N.C. App. LEXIS 1616 (2008).

Attendant Services. —

Competent medical evidence supported a determination under G.S. 97-2(19) that attendant services were necessary for an employee, who suffered from a back injury, because the record showed that she was unable to care for herself and needed assistance in dressing, bathing, preparing meals, and performing various household duties. Boylan v. Verizon Wireless, 201 N.C. App. 81, 685 S.E.2d 155, 2009 N.C. App. LEXIS 1854 (2009).

There was sufficient competent evidence to support the factual findings of the North Carolina Industrial Commission with respect to the compensation rate awarded for plaintiff’s attendant care pursuant to G.S. 97-2(19), 97-25, and 97-25.1, although such care was provided by plaintiff’s daughter, who was unskilled; the compensation rate was deemed reasonable, even though the evidence only addressed compensation rates for professional caregivers. Boylan v. Verizon Wireless, 224 N.C. App. 436, 736 S.E.2d 773, 2012 N.C. App. LEXIS 1467 (2012).

Injured employee’s wife could be compensated for the attendant care she provided the employee even before the North Carolina Industrial Commission approved her rendering that service, contrary to the Commission’s Medical Fee Schedule, because such care was medical compensation within the meaning of G.S. 97-2(19), for which the employer was responsible under G.S. 97-25, and the approval requirement exceeded the Commission’s power. Mehaffey v. Burger King, 367 N.C. 120, 749 S.E.2d 252, 2013 N.C. LEXIS 1161 (2013).

Statute, as written, allows attendant care services only where such services have been determined medically necessary by a health care provider authorized by the employer, and thus cannot be based only upon “a variety of evidence” including testimony of the claimant or the claimant’s family member, or the very nature of the injury. Thompson v. Int'l Paper Co., 251 N.C. App. 697, 795 S.E.2d 615, 2017 N.C. App. LEXIS 25 (2017).

North Carolina Industrial Commission erred in its findings and conclusions of law regarding the attendant care services a wife provided to an employee after a certain date because attendant care had to be prescribed by a health care provider, and the employee’s physicians agreed he would continue to need attendant care; there was no need for a written prescription because a doctor directed that the employee continue to receive attendant care, and a burn center oversaw the care. Thompson v. Int'l Paper Co., 251 N.C. App. 697, 795 S.E.2d 615, 2017 N.C. App. LEXIS 25 (2017).

It was no error to award an employee attendant care compensation because (1) a physician’s testimony supported a finding that the services were medically necessary, and (2) the testimony of the employee’s mother supported a finding that the services were reasonable, so the findings were conclusive on appeal. Reed v. Carolina Holdings, Wolseley Mgmt., 251 N.C. App. 782, 796 S.E.2d 102, 2017 N.C. App. LEXIS 37 (2017).

Education Expenses. —

North Carolina Industrial Commission did not abuse its discretion in denying reimbursement of an employee’s educational expenses because there were no findings or evidence in the record showing that any medical or rehabilitative professional recommended the employee’s educational pursuits as part of a rehabilitation plan or that those educational pursuits were reasonably necessary to effect a cure, give relief, or will lessen a claimant’s period of disability. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180, 2015 N.C. App. LEXIS 50 (2015).

Accounting Fees. —

North Carolina Industrial Commission did not err in denying reimbursement of an employee’s accounting fees because there was no evidence presented that the accounting fees were part of any life care plan nor was there testimony or evidence from a medical or rehabilitative specialist stating that the expense was medically necessary because of the employee’s specific injuries. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180, 2015 N.C. App. LEXIS 50 (2015).

Form 22 Unnecessary Where Commission Denied Request for Indemnity Compensation. —

Because the North Carolina Industrial Commission’s findings were sufficient to address all matters in controversy, a Form 22 was used for wage calculation upon the grant of indemnity compensation, and the Commission denied the claimant’s request for indemnity compensation, a Form 22 was not necessary pursuant to the Commission’s award, and the claimant was not entitled to a specific finding regarding defendants’ failure to submit a Form 22. Patillo v. Goodyear Tire & Rubber Co., 251 N.C. App. 228, 794 S.E.2d 906, 2016 N.C. App. LEXIS 1311 (2016).

XX.Child, Grandchild, etc

Effect of Subdivision (12) on G.S. 97-40. —

The doctrine of pari materia does not apply and the provisions of G.S. 97-40 should not be construed with the provisions of subdivision (12) of this section. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

The imposition of the restrictions of dependency and age contained in subdivision (12) of this section upon G.S. 97-40 would result in a narrow and technical interpretation of the act. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

The dependency which this statute recognizes as the basis of the right of the child to compensation grows out of the relationship, which in itself imposes upon the father the duty to support the child, and confers upon the child the right to support by its father. The status of the child, social or legal, is immaterial. Lippard v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801, 1935 N.C. LEXIS 185 (1935); Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372, 1968 N.C. LEXIS 778 (1968).

Illegitimate Child. —

Subdivision (12) of this section recognizes a distinction between actual and legal dependency. A legal dependence is sufficient, and the law fixes that type of responsibility on the father of an illegitimate child. Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372, 1968 N.C. LEXIS 778 (1968).

The philosophy of the common law, which denied an illegitimate child any rights, legal or social, as against its father, and imposed no duty upon the father with respect to the child, is discarded by this statute. Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372, 1968 N.C. LEXIS 778 (1968).

When an illegitimate child qualifies as a child, this status, for compensation purposes, continues until the child becomes 18 years of age or unless she marries before reaching that age. Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372, 1968 N.C. LEXIS 778 (1968).

To qualify for survivor’s benefits under the act, an illegitimate child must be acknowledged in sufficient fashion by the father. Tucker v. City of Clinton, 120 N.C. App. 776, 463 S.E.2d 806, 1995 N.C. App. LEXIS 926 (1995).

Posthumous Illegitimate Child. —

Deceased supported a housekeeper who bore him a posthumous illegitimate child. The Supreme Court reversed the Commission’s opinion that the child was not a dependent. Lippard v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801, 1935 N.C. LEXIS 185 (1935).

How Child Acknowledged. —

The word “acknowledged,” referring to illegitimate children under this section, is not a term of art requiring a formal declaration before an authorized official; in regard to paternity actions, the term “acknowledgment” generally has been held to mean the recognition of a parental relation, either by written agreement, verbal declarations or statements, by the life, acts, and conduct of the parties, or any other satisfactory evidence that the relation was recognized and admitted. Carpenter v. Hawley, 53 N.C. App. 715, 281 S.E.2d 783, 1981 N.C. App. LEXIS 2725 (1981).

The wholly dependent provision of subdivision (12) applies only in case of married children. It does not apply to acknowledged illegitimate children or other children who are unmarried and who are under 18. Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372, 1968 N.C. LEXIS 778 (1968).

Married children must be “wholly” dependent. Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E.2d 66, 1985 N.C. App. LEXIS 3185 (1985).

Stepchildren. —

Stepchildren must be substantially dependent upon the deceased employee. This result is derived from the wording of the various dependency tests employed by the act. Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E.2d 66, 1985 N.C. App. LEXIS 3185 (1985).

The substantial dependency standard is a question of fact to be determined under the facts of each case, the burden of proof being on the stepchild under the evidentiary standards normally employed in workers’ compensation cases. The factors to be considered are the actual amount and consistency of the support derived by the stepchild from (1) the deceased stepparent, (2) the natural parent married to the stepparent, (3) the estranged natural parent, whether such support is voluntary or required by law, (4) the income of the stepchild, and (5) any other funds regularly received for the support of the stepchild. Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E.2d 66, 1985 N.C. App. LEXIS 3185 (1985).

Person over 18 Not Considered a Child. —

Subdivision (12) of this section defines a person over 18 at the time of his father’s death as not a child. Stevenson v. City of Durham, 12 N.C. App. 632, 184 S.E.2d 411, 1971 N.C. App. LEXIS 1421 (1971), rev'd, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

Legal Adoption Incomplete. —

Where adoption proceedings had begun but were not finalized, the minor plaintiff was not a child legally adopted prior to the injury of the employee. Lennon v. Cumberland County, 119 N.C. App. 319, 458 S.E.2d 240, 1995 N.C. App. LEXIS 466 (1995).

XXI.Widow and Widower

Presumption of Dependency. —

By statute, a widow is conclusively presumed to be wholly dependent for support upon the deceased employee, and shall receive benefits under the Workers’ Compensation Act. Rogers v. University Motor Inn, 103 N.C. App. 456, 405 S.E.2d 770, 1991 N.C. App. LEXIS 769 (1991).

To qualify as the “widow” under the act, the surviving wife must have been living with husband at time of death; if not, it must have been for justifiable cause or by reason of his desertion at such time. Jones v. Service Roofing & Sheet Metal Co., 63 N.C. App. 772, 306 S.E.2d 460, 1983 N.C. App. LEXIS 3169 (1983).

By using the word “or” before the second of the three listed methods in which a person can qualify as a widow under G.S. 97-39, the General Assembly intended that a wife can qualify as a widow if she is actually dependent on decedent whether or not living with him, and in method three, she qualifies if she is living apart for justifiable cause or desertion, whether or not dependent; accordingly, where evidence in the record before the Industrial Commission showed that a widow was dependent on the deceased employee for support, that she was a responsible person and was competent with money, she should have been found to be his widow under G.S. 97-2(14) and granted benefits. Goodrich v. R.L. Dresser, Inc., 161 N.C. App. 394, 588 S.E.2d 511, 2003 N.C. App. LEXIS 2204 (2003).

“Justifiable Cause” for Living Separate and Apart. —

A husband and wife are not living separate and apart for “justifiable cause” if they are living separate and apart as a result of a mutual agreement evidenced by a legally executed separation agreement. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246, 1971 N.C. App. LEXIS 1601 (1971); Sloop v. Williams Exxon Serv., 24 N.C. App. 129, 210 S.E.2d 111, 1974 N.C. App. LEXIS 1950 (1974).

If a separation agreement is in full force and effect at the time of the employee’s death, the employee and his wife are, as a matter of law, living separate and apart by mutual consent, which is not “justifiable cause” within the meaning of this section. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246, 1971 N.C. App. LEXIS 1601 (1971).

While “justifiable cause” is usually equated to some form of marital misconduct, it would also seem to be applicable where the separation is not intended by the parties to be permanent, the temporary living apart being merely for reasons of convenience. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246, 1971 N.C. App. LEXIS 1601 (1971).

There is authority in other jurisdictions to the effect that “justifiable cause,” as that term is employed in statutory provisions similar to subdivision (14) of this section, may not be interpreted as applicable to separations by mutual consent. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246, 1971 N.C. App. LEXIS 1601 (1971); Sloop v. Williams Exxon Serv., 24 N.C. App. 129, 210 S.E.2d 111, 1974 N.C. App. LEXIS 1950 (1974).

There is no specific formula for the definition of “justifiable cause” under the statute. A court must consider the complexity and history of the particular relationship in order to determine whether the marital partners were separated for justifiable cause in the months before the death of a recipient of benefits. Rogers v. University Motor Inn, 103 N.C. App. 456, 405 S.E.2d 770, 1991 N.C. App. LEXIS 769 (1991).

Adultery. —

A wife’s adulterous affair did not bar her from qualifying as her husband’s widow under subdivision (14) of this section and G.S. 97-39. Rogers v. University Motor Inn, 103 N.C. App. 456, 405 S.E.2d 770, 1991 N.C. App. LEXIS 769 (1991).

It is not within the authority of courts to create an exception to subdivision (14) of this section and G.S. 97-39 based upon adultery by a spouse. To find that the legislature intended such an exception, it must be apparent in the statute. Rogers v. University Motor Inn, 103 N.C. App. 456, 405 S.E.2d 770, 1991 N.C. App. LEXIS 769 (1991).

Surrender of Right to Support. —

There is no reason why a separated wife who has surrendered all right to look to the husband for support while he is living should, upon his death, receive benefits that are intended to replace in part the support which the husband was providing, or should have been providing. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246, 1971 N.C. App. LEXIS 1601 (1971); Sloop v. Williams Exxon Serv., 24 N.C. App. 129, 210 S.E.2d 111, 1974 N.C. App. LEXIS 1950 (1974).

Right to Compensation if Living Apart for Mutual Convenience. —

If the living apart of the husband and wife is merely for the mutual convenience or the joint advantage of the parties and the obligation of the husband to support her is recognized, the right of the wife to compensation exists as though they were living together. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246, 1971 N.C. App. LEXIS 1601 (1971).

A second or subsequent marriage is presumed legal until the contrary is proven, and the burden of the issue is upon a plaintiff who attempts to establish a property right which is dependent upon the invalidity of such a marriage. The plaintiff cannot recover because of the failure of defendant to carry the burden. Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871, 1945 N.C. LEXIS 285 (1945); Ivory v. Greer Bros., 45 N.C. App. 455, 263 S.E.2d 290, 1980 N.C. App. LEXIS 2639 (1980).

Whether Presumption of Subsequent Marriage’s Validity Is Overcome Is Question of Fact. —

The question of whether the first wife of a deceased employee had overcome the presumption of the validity of a subsequent marriage was a question of fact for the commission. Ivory v. Greer Bros., 45 N.C. App. 455, 263 S.E.2d 290, 1980 N.C. App. LEXIS 2639 (1980).

Divorce and Remarriage in Another State. —

On the conflict of laws question where there has been a divorce and remarriage in another state, and a subsequent controversy develops as to which is the “widow,” see Rice v. Rice, 336 U.S. 674, 69 S. Ct. 751, 93 L. Ed. 957, 1949 U.S. LEXIS 2534 (1949). And see 28 N.C.L. Rev. 265 (1950).

OPINIONS OF ATTORNEY GENERAL

As to the right of a city policeman injured outside the corporate limits while chasing a motorist to compensation under the act, see opinion of Attorney General to Mr. Everette L. Doffermyre, Dunn City Attorney, 40 N.C. Op. Att'y Gen. 181 (1969).

"Employee'' Does Not Include Person on Suspended Sentence Who Is Not a Prisoner. See opinion of Attorney General to Honorable Gilbert H. Burnett, 41 N.C. Op. Att'y Gen. 398 (1971).

§ 97-3. Presumption that all employers and employees have come under provisions of Article.

From and after January 1, 1975, every employer and employee, as hereinbefore defined and except as herein stated, shall be presumed to have accepted the provisions of this Article respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of his employment and shall be bound thereby.

History. 1929, c. 120, s. 4; 1973, c. 1291, s. 1.

Cross References.

As to exceptions from provisions of article, see G.S. 97-13.

Legal Periodicals.

For comment on injury by accident in workers’ compensation, see 59 N.C.L. Rev. 175 (1980).

For a survey of 1996 developments in the law regarding prisoner rights, see 75 N.C.L. Rev. 2428 (1997).

CASE NOTES

Presumption of Acceptance of Act. —

Under the Workers’ Compensation Act, every employer and employee, except as therein stated, is presumed to have accepted the provisions of the act and to pay and accept compensation for personal injury or death as therein set forth. Pilley v. Greenville Cotton Mills, 201 N.C. 426, 160 S.E. 479, 1931 N.C. LEXIS 266 (1931); Miller v. Roberts, 212 N.C. 126, 193 S.E. 286, 1937 N.C. LEXIS 252 (1937). See also Lee v. American Enka Corp., 212 N.C. 455, 193 S.E. 809, 1937 N.C. LEXIS 341 (1937).

Presumption Prevents Court from Exercising Jurisdiction. —

A claim in which the plaintiff/employee alleges only that he sustained injuries due to defendant/employer’s negligence while he was performing duties within the course and scope of his employment is within the exclusive jurisdiction of the Industrial Commission and cannot be heard by the court without further evidence that the employer refuses to accept the provisions of this Act. Reece v. Forga, 138 N.C. App. 703, 531 S.E.2d 881, 2000 N.C. App. LEXIS 790 (2000).

An allegation that the employee had not accepted the provisions of the act is immaterial, for the reason that this section provides in substance that every employer and employee coming within the purview of the act is presumed to have accepted the provisions thereof. Hanks v. Southern Pub. Util. Co., 204 N.C. 155, 167 S.E. 560, 1933 N.C. LEXIS 347 (1933).

But Allegation That Employers Were Not Operating Under Act Was Not Demurrable. —

The plaintiff instituted a common-law action, alleging that the defendants were not operating under the Workers’ Compensation Act. It was held that a demurrer to plaintiff ’s complaint should have been overruled because the above allegation laid the foundation for proof to rebut the presumption of acceptance of the act. Calahan v. Roberts, 208 N.C. 768, 182 S.E. 657, 1935 N.C. LEXIS 129 (1935).

And it was not necessary to allege facts showing defendant’s nonacceptance of the act. Cooke v. Gillis, 218 N.C. 726, 12 S.E.2d 250, 1940 N.C. LEXIS 75 (1940).

When Presumption Not Operative. —

Where the evidence does not show that the employer has regularly in service the requisite number of employees in the same business within this State, the presumption under this section is not operative. Dependents of Thompson v. Johnson Funeral Home, 205 N.C. 801, 172 S.E. 500, 1934 N.C. LEXIS 78 (1934).

Rebuttal of Presumption. —

Notwithstanding the presumption contained in this section, there are provisions in the act whereby employers, as well as employees, may except themselves from the operation thereof, and the presumption of acceptance may be rebutted by proof of nonacceptance. Calahan v. Roberts, 208 N.C. 768, 182 S.E. 657, 1935 N.C. LEXIS 129 (1935).

Action Against Third Party. —

In the absence of evidence that the employee or the employer had given notice of nonacceptance of the act, it must be presumed that both employee and employer are bound by the provisions of the act. However, where an employee was injured by the negligence of a third-party tort-feasor and filed no claim for compensation against the employer but instead instituted a common-law action against the third party, it was held that since the employee filed no claim against his employer under the act, he waived his rights thereunder and could proceed directly against the third party, and the provisions of the act provided no defense against such suit to the third party. Ward v. Bowles, 228 N.C. 273, 45 S.E.2d 354, 1947 N.C. LEXIS 314 (1947).

An infant employee is bound by the terms of the North Carolina Workers’ Compensation Act regardless of his age. Lineberry v. Town of Mebane, 219 N.C. 257, 13 S.E.2d 429, 1941 N.C. LEXIS 303 (1941).

In general, doctrines of waiver and estoppel do not apply in workers’ compensation cases and they may not be invoked to defeat rights granted or to avoid burdens imposed thereunder. Ashe v. Barnes, 255 N.C. 310, 121 S.E.2d 549, 1961 N.C. LEXIS 587 (1961).

Ordinarily, the parties may not by agreement or conduct extend the provisions of this Chapter, but continued and definite recognition of the relationship of employer and employee, based on knowledge of the work performed, and acceptance of the benefits of that status, may work an estoppel after loss. Pearson v. Newt Pearson, Inc., 222 N.C. 69, 21 S.E.2d 879, 1942 N.C. LEXIS 24 (1942).

School Principal And Office Assistant Co-Employees. —

Trial court correctly denied a school principal’s motion to dismiss an office assistant’s complaint alleging gross negligence because the assistant and principal were co-employees for purposes of the North Carolina Worker’s Compensation Act; because the assistant alleged that the principal’s conduct was willful, wanton, and recklessly negligent, she could proceed with her claim against him directly under an exception to the exclusivity of the Act. Trivette v. Yount, 217 N.C. App. 477, 720 S.E.2d 732, 2011 N.C. App. LEXIS 2598 (2011), aff'd in part and rev'd in part, 366 N.C. 303, 735 S.E.2d 306, 2012 N.C. LEXIS 1000 (2012).

§ 97-4. [Repealed]

Repealed by Session Laws 1973, c. 1291, s. 2.

§ 97-5. Presumption as to contract of service.

Every contract of service between any employer and employee covered by this Article, written or implied, now in operation or made or implied prior to July 1, 1929, shall, after that date, be presumed to continue, subject to the provisions of this Article; and every such contract made subsequent to that date shall be presumed to have been made subject to the provisions of this Article.

History. 1929, c. 120, s. 6; 1973, c. 1291, s. 3.

§ 97-5.1. Presumption that taxicab drivers are independent contractors.

  1. It shall be a rebuttable presumption under this Chapter that any person who operates, and who has an ownership or leasehold interest in, a passenger motor vehicle that is operated as a taxicab is an independent contractor for the purposes of this Chapter and not an employee as defined in G.S. 97-2. The presumption is not rebutted solely (i) because the operator is required to comply with rules and regulations imposed on taxicabs by the local governmental unit that licenses companies, taxicabs, or operators or (ii) because a taxicab accepts a trip request to be at a specific place at a specific time, but the presumption may be rebutted by application of the common law test for determining employment status.
  2. The following definitions apply in this section:
    1. Lease. —  A contract under which the lessor provides a vehicle to a lessee for consideration.
    2. Leasehold. —  Includes, but is not limited to, a lease for a shift or a longer period.
    3. Passenger motor vehicle that is operated as a taxicab. —  Any vehicle that:
      1. Has a passenger seating capacity that does not exceed seven persons; and
      2. Is transporting persons, property, or both on a route that begins or ends in this State and either:
        1. Carries passengers for hire when the destination and route traveled may be controlled by a passenger and the fare is calculated on the basis of any combination of an initial fee, distance traveled, or waiting time; or
        2. Is in use under a contract between the operator and a third party to provide specific service to transport designated passengers or to provide errand services to locations selected by the third party.

History. 2013-413, s. 17(a).

Editor’s Note.

Session Laws 2013-413, s. 17(b), made this section effective August 23, 2013, and applicable to causes of action arising on or after that date.

Session Laws 2013-413, s. 61(a) is a severability clause.

§ 97-6. No special contract can relieve an employer of obligations.

No contract or agreement, written or implied, no rule, regulation, or other device shall in any manner operate to relieve an employer in whole or in part, of any obligation created by this Article, except as herein otherwise expressly provided.

History. 1929, c. 120, s. 7.

Cross References.

As to settlements between employee and employer, see G.S. 97-17 and notes thereunder.

Legal Periodicals.

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For note discussing the nonexistence of a private right of action for retaliatory discharge resulting from pursuit of workers’ compensation benefits, see 15 Wake Forest L. Rev. 139 (1979).

For note on workers’ compensation and retaliatory discharge, see 58 N.C.L. Rev. 629 (1980).

CASE NOTES

An employer is not permitted to escape his liability or obligations under this Article through the use of a special contract or agreement if the elements required for coverage of the injured individual would otherwise exist. Hoffman v. Ryder Truck Lines, 306 N.C. 502, 293 S.E.2d 807, 1982 N.C. LEXIS 1487 (1982).

This section invalidated attempt by an Arkansas trucking company/employer to relieve itself of responsibility under the North Carolina Workers’ Compensation Act and to limit employee’s right to compensation in any state other than Arkansas. Perkins v. Arkansas Trucking Servs., Inc., 134 N.C. App. 490, 518 S.E.2d 36, 1999 N.C. App. LEXIS 801 (1999), aff'd in part, modified, 351 N.C. 634, 528 S.E.2d 902, 2000 N.C. LEXIS 356 (2000). But see Perkins v. Arkansas Trucking Servs., 351 N.C. 634, 528 S.E.2d 902, 2000 N.C. LEXIS 356 (2000).

North Carolina Industrial Commission, pursuant to G.S. 97-91, had jurisdiction over an employee’s claim after the employee’s employer sold the division for which the employee worked to a buyer that went bankrupt, and the sales agreement between the employer and the buyer, pursuant to G.S. 97-6, did not invalidate this jurisdiction by its terms for the transfer of liabilities. Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 615 S.E.2d 350, 2005 N.C. App. LEXIS 1315 (2005).

North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., prohibited contractual modification of the workers’ compensation statutory provisions to permit dollar-for-dollar credit to an award for payments made by an employer. Smith v. Richardson Sports Ltd., 2005 N.C. App. LEXIS 908.

Employer May Not Escape Liability or Obligations Because of Payment From Union. —

North Carolina Industrial Commission did not abuse its discretion by awarding a time credit of one week rather than a dollar-for-dollar credit for payments made to a former professional football player by his employer and its insurance carrier after the player was injured in the next to last game of the season because the player returned to professional football for one week in the next season and exhibited earning capacity comparable to his average weekly wage. Further, dollar-for-dollar credits were precluded by North Carolina law as a payment that the player received for the last game of the season that he missed was made by the player’s union under the terms of a collective bargaining agreement, and the agreement could not relieve the employer, in whole or in part, from its obligation to pay the player workers’ compensation. Swift v. Richardson Sports, Inc., 2005 N.C. App. LEXIS 725 (N.C. Ct. App. Apr. 5, 2005).

Contract Between Two Employers That One Shall Carry Compensation Insurance. —

Where two employers make a contract that one of them should carry compensation insurance on employees, the other is not relieved of liability under the act. Roth v. McCord, 232 N.C. 678, 62 S.E.2d 64, 1950 N.C. LEXIS 619 (1950).

Liability to Employee Suffering from Preexisting Infirmity. —

An employee who becomes disabled as the result of an accident while at work is not to be deprived of benefits because of any preexisting infirmity. And this liability of the employer cannot be waived or released or diminished by any agreement of the employee. NLRB v. Cranston Print Works Co., 258 F.2d 206, 1958 U.S. App. LEXIS 5062 (4th Cir. 1958).

Delegation of Authority. —

A corporation, having been given a franchise for the operation of motor trucks on the highway as a carrier of goods in interstate commerce, cannot evade its responsibility by delegating its authority to others. Watkins v. Murrow, 253 N.C. 652, 118 S.E.2d 5, 1961 N.C. LEXIS 361 (1961).

Leases. —

An employer may not, by leasing the truck of one not authorized to transport goods in interstate commerce and causing its operation under its own franchise and license plates for interstate transportation, avoid legal responsibility therefor. Watkins v. Murrow, 253 N.C. 652, 118 S.E.2d 5, 1961 N.C. LEXIS 361 (1961).

Employer May Make Provisions for Injured Employee Beyond Workers’ Compensation Benefits. —

There is nothing in the act that prohibits an employer from making special provisions for an injured employee beyond those benefits which the employee is entitled to receive under the provisions of the act. Ashe v. Barnes, 255 N.C. 310, 121 S.E.2d 549, 1961 N.C. LEXIS 587 (1961).

But He May Not Substitute Accident Insurance Policy for Such Benefits. —

There is no provision in the law which authorizes an employer subject to the act to substitute an accident policy in lieu of compensation and other benefits required by the act. Ashe v. Barnes, 255 N.C. 310, 121 S.E.2d 549, 1961 N.C. LEXIS 587 (1961).

Employer May Not Provide Substitute Benefits. —

This section proscribes a plan permitting a rejection of benefits. The language of the statute is unequivocal; employers may not provide benefits in lieu of paying workers’ compensation. Estes v. North Carolina State Univ., 89 N.C. App. 55, 365 S.E.2d 160, 1988 N.C. App. LEXIS 224 (1988).

Nor May Employee Elect Substitute Benefits. —

The act contains no exception for cases where the employee, pursuant to a choice provided by the employer, elects to receive other benefits in lieu of workers’ compensation benefits. Estes v. North Carolina State Univ., 89 N.C. App. 55, 365 S.E.2d 160, 1988 N.C. App. LEXIS 224 (1988).

State May Not Substitute Accumulated Sick and Vacation Leave for Workers’ Compensation. —

This section and G.S. 97-7 prohibit the State from paying accumulated sick and vacation leave as a substitute for workers’ compensation. Estes v. North Carolina State Univ., 89 N.C. App. 55, 365 S.E.2d 160, 1988 N.C. App. LEXIS 224 (1988).

Employee Accepting Policy Does Not Exempt Himself from Compensation Act. —

Where an employee elected to accept the insurance policy provided for him by his employer, he did not elect thereby to exempt himself from the provisions of the act. Ashe v. Barnes, 255 N.C. 310, 121 S.E.2d 549, 1961 N.C. LEXIS 587 (1961).

Nor Is He Estopped to Claim Compensation by Accepting Benefits Under Policy. —

Where an employee accepted benefits under an insurance policy, he did not thereby estop himself from claiming under the provisions of the Workers’ Compensation Act. Ashe v. Barnes, 255 N.C. 310, 121 S.E.2d 549, 1961 N.C. LEXIS 587 (1961).

Employer was not entitled to use accumulated sick and vacation leave to offset its obligations as determined by the Industrial Commission. Under this section and G.S. 97-7, employers, including the State, are prohibited from providing benefits in lieu of paying workers’ compensation. Estes v. North Carolina State Univ., 102 N.C. App. 52, 401 S.E.2d 384, 1991 N.C. App. LEXIS 195 (1991).

North Carolina Industrial Commission erred in offsetting an employee’s workers’ compensation award by the amount of wages an employer already paid to him while he was working in an unsuitable part-time position because the Commission mission found that the work the employee was performing for the employer was unsuitable, but it did not find that the payments made to the employee for that work were tantamount to workers’ compensation, that the payments were a wage-replacement benefit equivalent to workers’ compensation, or that they were meant to compensate him for his disability, and the Commission could not simply total the amounts the employer paid to determine whether those amounts equaled or exceeded the workers’ compensation to which the employee was entitled; during the period in which the employee was working in the unsuitable part-time job and not receiving total disability compensation, he was required to use up vacation or sick leave, but such benefits could not be used to offset unpaid workers’ compensation benefits. Clayton v. Mini Data Forms, Inc., 199 N.C. App. 410, 681 S.E.2d 544, 2009 N.C. App. LEXIS 1485 (2009).

Employer May Not Skirt Jurisdiction. —

Plaintiff’s principal place of employment was within North Carolina. Plaintiff was assigned to operate a tractor-trailer in an area consisting of twelve to thirteen southern states but no state, standing alone, had the same degree of significant contacts to plaintiff’s employment as North Carolina. Furthermore, the “Policies, Procedures and Agreement” form signed by plaintiff upon being hired was an invalid attempt to limit plaintiff’s rights to those enumerated under Arkansas workers’ compensation law as well as a violation of this section. Perkins v. Arkansas Trucking Servs., 351 N.C. 634, 528 S.E.2d 902, 2000 N.C. LEXIS 356 (2000).

§ 97-6.1. [Repealed]

Repealed by 1991 (Regular Session, 1992), c. 1021, s. 4.

Cross References.

For present provisions regarding retaliatory employment discrimination, see G.S. 95-240 et seq.

§ 97-7. State or subdivision and employees thereof.

Neither the State nor any municipal corporation within the State, nor any political subdivision thereof, nor any employee of the State or of any such corporation or subdivision, shall have the right to reject the provisions of this Article relative to payment and acceptance of compensation, and G.S. 97-100(c) does not apply to them: Provided, that all such corporations or subdivisions are hereby authorized to self-insure or purchase insurance to secure its liability under this Article and to include thereunder the liability of such subordinate governmental agencies as the county board of health, the school board, and other political and quasi-political subdivisions supported in whole or in part by the municipal corporation or political subdivision of the State. Each municipality is authorized to make appropriations for these purposes and to fund them by levy of property taxes pursuant to G.S. 153A-149 and G.S. 160A-209 and by the allocation of other revenues whose use is not otherwise restricted by law.

History. 1929, c. 120, s. 8; 1931, c. 274, s. 1; 1945, c. 766; 1957, c. 1396, s. 1; 1961, c. 1200; 1973, c. 803, s. 34; c. 1291, s. 4; 2006-105, s. 1.10.

Local Modification.

City of Raleigh: 1949, c. 1184; 2015-253, s. 11.

Cross References.

As to tort claims against State agencies, see G.S. 143-291 et seq.

Effect of Amendments.

Session Laws 2006-105, s. 1.10, effective July 13, 2006, substituted “G.S. 97-100(c) does” for “the provisions of G.S. 97-100(j) shall” in the first sentence.

CASE NOTES

State May Not Provide Substitute Benefits. —

While the State, like any other employer, may provide additional benefits to its injured workers, it may not substitute those benefits for workers’ compensation. Estes v. North Carolina State Univ., 89 N.C. App. 55, 365 S.E.2d 160, 1988 N.C. App. LEXIS 224 (1988).

Such as Accumulated Sick and Vacation Leave. —

This section and G.S. 97-6 prohibit the State from paying accumulated sick and vacation leave as a substitute for workers’ compensation. Estes v. North Carolina State Univ., 89 N.C. App. 55, 365 S.E.2d 160, 1988 N.C. App. LEXIS 224 (1988).

Employer was not entitled to use accumulated sick and vacation leave to offset its obligations as determined by the Industrial Commission. Under G.S. 97-6 and this section, employers, including the State, are prohibited from providing benefits in lieu of paying workers’ compensation. Estes v. North Carolina State Univ., 102 N.C. App. 52, 401 S.E.2d 384, 1991 N.C. App. LEXIS 195 (1991).

North Carolina Industrial Commission erred in offsetting an employee’s workers’ compensation award by the amount of wages an employer already paid to him while he was working in an unsuitable part-time position because the Commission mission found that the work the employee was performing for the employer was unsuitable, but it did not find that the payments made to the employee for that work were tantamount to workers’ compensation, that the payments were a wage-replacement benefit equivalent to workers’ compensation, or that they were meant to compensate him for his disability, and the Commission could not simply total the amounts the employer paid to determine whether those amounts equaled or exceeded the workers’ compensation to which the employee was entitled; during the period in which the employee was working in the unsuitable part-time job and not receiving total disability compensation, he was required to use up vacation or sick leave, but such benefits could not be used to offset unpaid workers’ compensation benefits. Clayton v. Mini Data Forms, Inc., 199 N.C. App. 410, 681 S.E.2d 544, 2009 N.C. App. LEXIS 1485 (2009).

Applicability to Insurance Guaranty Association Act. —

Because G.S. 97-7 of the Workers’ Compensation Act was a plain and unmistakable waiver of sovereign immunity for the underlying workers’ compensation claims, and such waiver applied to the provisions of the North Carolina Insurance Guaranty Association Act, N.C. Gen. Stat. Ch. 58, Art. 48, G.S. 58-48-50(a1)(1) applied to a community college. N.C. Ins. Guar. Ass'n v. Bd. of Trs. of Guilford Tech. Cmty. College, 364 N.C. 102, 691 S.E.2d 694, 2010 N.C. LEXIS 345 (2010).

Extinguishment of County’s Subrogation Lien. —

Trial court did not abuse its discretion in extinguishing a county’s subrogation lien against a deputy sheriff regarding a settlement that he received following an injury in the course of his employment because, based upon the fact that the county government was subject to the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., and its provisions regarding payment and compensation under the Act, there was specific statutory authority authorizing the deputy sheriff to seek a determination under G.S. 97-10.2(j) of the county’s authority to file a lien against his settlement proceeds. Helsius v. Robertson, 174 N.C. App. 507, 621 S.E.2d 263, 2005 N.C. App. LEXIS 2469 (2005).

The death of highway patrolmen in a plane crash while attempting to locate and arrest a person accused of a crime of violence was held compensable under the act, since the patrolmen had authority to make the arrest and did not exceed their authority in using an airplane in their attempted discharge of their duties. Galloway v. Department of Motor Vehicles, 231 N.C. 447, 57 S.E.2d 799, 1950 N.C. LEXIS 492 (1950).

§ 97-8. Prior injuries and deaths unaffected.

The provisions of this Article shall not apply to injuries or deaths, nor to accidents which occurred prior to July 1, 1929.

History. 1929, c. 120, s. 9.

§ 97-9. Employer to secure payment of compensation.

Every employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee for personal injury or death by accident to the extent and in the manner herein specified.

History. 1929, c. 120, s. 10; 1973, c. 1291, s. 5.

Cross References.

As to exclusion of other rights and remedies against employer, see G.S. 97-10.1.

Legal Periodicals.

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For note, “Pleasant v. Johnson: The North Carolina Supreme Court Enters the Twilight Zone — Is a Co-employee Liable in Tort for Willful, Reckless, and Wanton Conduct?,” see 64 N.C.L. Rev. 688 (1986).

For note, “North Carolina’s Expansion of the Definition of ‘Intentional’ in Exceptions to the Exclusivity of Workers’ Compensation: Is Legislative Action ‘Substantially Certain’ to Follow? — Woodson v. Rowland,” see 27 Wake Forest L. Rev. 797 (1992).

For comment, “From Andrews to Woodson and Beyond: The Development of the Intentional Tort Exception to the Exclusive Remedy Provision—Rescuing North Carolina Workers from Treacherous Waters,” see 20 N.C. Cent. L.J. 164 (1992).

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For article, “The Substantial Certainty Exception to Workers’ Compensation,” see 17 Campbell L. Rev. 413 (1995).

For a survey of 1996 developments in the law regarding prisoner rights, see 75 N.C.L. Rev. 2428 (1997).

CASE NOTES

Editor’s Note. —

For additional cases relating to rights and remedies against employer, see the case notes under G.S. 97-10.1.

This section manifests the legislative intent that the liability of the employer is to be limited to the compensation payable by him on account of the injury or death of his employee. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768, 1953 N.C. LEXIS 703 (1953).

When certain specified conditions are complied with, this section limits the liability of an employer for personal injury or death by accident of his employees as provided in the Workers’ Compensation Act. Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393, 1965 N.C. LEXIS 1014 (1965).

Act Provides Sole Remedy Against Employer and Those Conducting His Business. —

Under the act, where an employee’s injury or death is compensable, the sole remedy against the employer and “those conducting his business” is that provided by its terms. Weaver v. Bennett, 259 N.C. 16, 129 S.E.2d 610, 1963 N.C. LEXIS 483 (1963).

Store owner and the store’s parent company were properly granted summary judgment in a wrongful death action by an executrix of a deceased store greeter, as the exclusivity provision of G.S. 97-10.1 under the Workers’ Compensation Act applied to them pursuant to G.S. 97-9; the exclusivity provision extended to employers and those conducting the employer’s business. Pender v. Lambert, 225 N.C. App. 390, 737 S.E.2d 778, 2013 N.C. App. LEXIS 122 (2013).

Act Provides Exclusive Remedy. —

Defendant principal contractor was plaintiff’s statutory employer and the workers’ compensation benefits available to plaintiff through defendant’s workers’ compensation carrier constituted plaintiff’s exclusive remedy against defendant for plaintiff’s injuries. Rich v. R.L. Casey, Inc., 118 N.C. App. 156, 454 S.E.2d 666, 1995 N.C. App. LEXIS 92 (1995).

Employers’ motion for summary judgment was granted because the administratrix’s wrongful death action was barred by the North Carolina’s Workers’ Compensation Act, G.S. 97-1 et seq., since: (1) the shooting occurred at the deceased’s place of employment, and (2) regardless of whether the deceased was the intended victim, the shooting arose out of the deceased’s employment because the gunman intended to shoot a co-worker. Champion v. PPG Indus., 2004 U.S. Dist. LEXIS 9034 (W.D.N.C. Apr. 2, 2004).

Where a former employee filed claims of negligent infliction of emotional distress against her former employers, alleging that she suffered from post-traumatic stress disorder as a result of verbal abuse and humiliation she experienced at work, claims based on conduct other than sexual harassment were barred by the Workers’ Compensation Act because the alleged emotional injuries arose from and were in the course of employment and the Act barred negligence actions against employers for injuries caused by conduct other than sexual harassment. Boggess v. Roper, 2006 U.S. Dist. LEXIS 63057 (W.D.N.C. Sept. 1, 2006).

Parent company was protected by the exclusivity provision of the North Carolina Workers’ Compensation Act with respect to an employee’s injuries where it managed the employer’s business, including the employer’s safety program, and its status as owner of the employer did not change the fact that it managed the employer within the meaning of the pertinent statutes. Hamby v. Profile Prods., L.L.C., 361 N.C. 630, 652 S.E.2d 231, 2007 N.C. LEXIS 1105 (2007).

Civil Action Allowed for Employer’s Misconduct Substantially Certain to Cause Injury or Death. —

When an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer as well as a claim for workers’ compensation as such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the Workers’ Compensation Act. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 1991 N.C. LEXIS 523 (1991).

Effect of Release Agreement on Employee’s Remedies. —

Once a plaintiff signs a release agreement to settle a workers’ compensation claim that plaintiff is not automatically precluded from recovering pursuant to Woodson v. Rowland, 329 N.C. 33, 407 S.E.2d 222 (1991), and does not automatically admit the injury was solely accidental to the exclusion of a claim against an employer for tortious conduct. Owens v. W.K. Deal Printing, Inc., 113 N.C. App. 324, 438 S.E.2d 440, 1994 N.C. App. LEXIS 25 (1994), rev'd, Owens v. W.K. Deal Printing, 339 N.C. 603, 453 S.E.2d 160, 1995 N.C. LEXIS 14 (1995).

Election Between Remedies Not Required. —

A claimant may, but is not required to, elect between a civil remedy and a remedy under the Workers’ Compensation Act but, in any event, is entitled to but one recovery. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 1991 N.C. LEXIS 523 (1991).

Woodson v. Rowland Applies Retroactively. —

The Supreme Court’s decision in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), which is annotated above, applies retroactively, even though the Woodson court was silent on whether its decision was to operate retroactively. Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 416 S.E.2d 193, 1992 N.C. App. LEXIS 446 (1992).

Evidence Insufficient for Exception to Apply. —

Where there was no evidence that defendant was aware, prior to employee’s death, of a high probability that his equipment would fail, plaintiff failed to forecast evidence sufficient to create a genuine issue of material fact regarding defendant’s liability under the Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), exception to the exclusivity provisions of the Worker’s Compensation Act. Mickles v. Duke Power Co., 342 N.C. 103, 463 S.E.2d 206, 1995 N.C. LEXIS 546 (1995).

Employer was not liable for intentional misconduct, where the cart that caused the employee’s injury had been used for many years previously without causing an injury, and there was no evidence that alleged defects in the cart violated state or federal workplace safety regulations or industry safety standards, or that the employer was aware of and refused to implement relevant safety measures. Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 513 S.E.2d 829, 1999 N.C. App. LEXIS 258 (1999), overruled in part, Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665, 2003 N.C. LEXIS 1263 (2003).

Employees could not state a claim against the employer under the exception to the exclusivity provisions of the North Carolina Workers’ Compensation Act because the employees could not show that the employer intentionally engaged in conduct that it knew was substantially certain to cause serious injury or death to the employees since the hazards due to toxic mold were not “obvious” to the employer, the employer did not violate any safety regulations, the allegations failed to show that the employer recognized the immediate hazards of its conduct and consciously elected to forgo critical safety precautions or that the employer disregarded all safety measures. Allen v. IBM, 308 F. Supp. 2d 638, 2004 U.S. Dist. LEXIS 3850 (M.D.N.C. 2004), aff'd, 128 Fed. Appx. 311, 2005 U.S. App. LEXIS 6686 (4th Cir. 2005).

Even if a forklift driver was not trained to sound a horn when entering or exiting defendant employer’s plant, there was no evidence injury or death was substantially certain to occur as the forklift had been operated in a similar manner for a number of years with no similar accident. Thus, the elements of Woodson v. Rowland were not present, and the wrongful death action filed by deceased worker’s representative under the North Carolina Wrongful Death Act, G.S. 28A-18-1 through G.S. 28A-18-8, was precluded by G.S. 97-9 and G.S. 97-10.1, of the North Carolina Workers’ Compensation Act. Southern v. Metromont Materials, L.L.C., 331 F. Supp. 2d 386, 2004 U.S. Dist. LEXIS 6958 (W.D.N.C. 2004).

Corporation’s appeal of the denial of its motion for summary judgment, which argued that the North Carolina Workers’ Compensation Act precluded an administratrix’s negligence claims against it, was dismissed because it could not be determined whether the corporation’s liability was inseparable from that of the owner of the asphalt plant where a decedent’s died; the administratrix did not allege that the corporation controlled and directed the actions of the owner or the limited liability company (LLC) that was the sole member-manager of the owner and did not make the same claims against the owner or the LLC as she did against the corporation but alleged that the corporation acted negligently out of its own interests, not in its management or conduct of the owner’s business, and as sole shareholder in the LLC, the corporation was shielded from liability for the acts of the LLC but not from liability for its own negligent acts or conduct under G.S. 55-6-22(b). Van Dyke v. CMI Terex Corp., 201 N.C. App. 437, 689 S.E.2d 459, 2009 N.C. App. LEXIS 2230 (2009).

Woodson v. Rowland Elements Existed. —

The allegations of misconduct, particularly the directing of the plaintiffs to work on a billboard after notice of its dangerous condition, were sufficient to support a reasonable inference that each of the four elements of a claim existed under Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Pastva v. Naegele Outdoor Adv., 121 N.C. App. 656, 468 S.E.2d 491, 1996 N.C. App. LEXIS 142 (1996).

Action Under Woodson v. Rowland. —

In order for a plaintiff to maintain an action based on Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), plaintiff must establish that employer knew its conduct was substantially certain to cause serious injury or death to the employee. Rose v. Isenhour Brick & Tile Co., 344 N.C. 153, 472 S.E.2d 774, 1996 N.C. LEXIS 418 (1996).

Where employee failed to forecast evidence demonstrating that employer knew its conduct in failing to provide safety training, safety manuals, and violating industry standards by having inexperienced workers in close proximity to cranes was substantially certain to result in serious injury or death, summary judgment was properly granted for employer. Tinch v. Video Indus. Servs., Inc., 129 N.C. App. 69, 497 S.E.2d 295, 1998 N.C. App. LEXIS 358 (1998).

Meaning of “Substantial Certainty” of the Consequences of Misconduct. —

When deciding whether an employer acted with “substantial certainty” of the consequences of its conduct, factors to consider may include: whether the risk existed in the workplace for a long time without causing substantial injury; whether the risk was created by a defective instrumentality with a high probability of causing the harm; whether there was evidence the employer, prior to the accident, attempted to remedy the risk that caused the harm; whether the employer’s conduct that created the risk violated state or federal work safety regulations; whether the employer created a risk by failing to adhere to an industry practice, even though there was no violation of a state or federal safety regulation; and whether the employer offered safety training in the context of the risk causing the harm. Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 513 S.E.2d 829, 1999 N.C. App. LEXIS 258 (1999), overruled in part, Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665, 2003 N.C. LEXIS 1263 (2003).

Employer, as a matter of law, did not know that workplace “risks” were substantially certain to cause death or serious injury to deceased employee in a wrongful death action brought by a deceased employee’s estate where the employer may have known of the risky procedures, but this knowledge alone did not demonstrate a genuine issue of material fact that the employer knew that these risks were substantially certain to cause death or serious injury and incur liability under the Woodson exception to the North Carolina Workers’ Compensation Act., G.S. 97-9 and G.S. 97-10.1. Specifically, the employer could not have known that there was a substantial certainty that the deceased would wear a loose coat, slip where he did, have his coat get caught in the machine in the exact place where it did, and be crushed before someone could turn off the machine. Richmond v. Indalex Inc., 308 F. Supp. 2d 648, 2004 U.S. Dist. LEXIS 3851 (M.D.N.C. 2004).

Although a violation of state and federal regulations. —

is an important factor in determining whether the employer’s conduct can be found to have been substantially certain to cause injury or death, such violation, without more, is insufficient evidence of the employer’s state of mind to make out a case of liability for intentional misconduct. Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 513 S.E.2d 829, 1999 N.C. App. LEXIS 258 (1999), overruled in part, Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665, 2003 N.C. LEXIS 1263 (2003).

Co-employee Civil Liability. —

The Workers’ Compensation Act does not bar an employee from suing a co-employee for injuries caused by willful, wanton, and reckless negligence. Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 416 S.E.2d 193, 1992 N.C. App. LEXIS 446 (1992).

Meaning of “Those Conducting His Business”. —

The phrase, “those conducting his business,” which appears in this section, should be given a liberal construction. One must be deemed to be conducting his employer’s business, within the meaning of this section, whenever he, himself, is acting within the course of his employment, as that term is used in the act. It is not necessary, in order to bring an employee within the protection of this statute, to show that his act was such as would have been imputed to the employer at common law. Altman v. Sanders, 267 N.C. 158, 148 S.E.2d 21, 1966 N.C. LEXIS 1002 (1966).

The phrase “those conducting his business” includes fellow employees. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

Superiors of an injured employee are within the immunity of this section when their orders, upon which alleged liability is predicated, are given in the conduct of the employer’s business, and such supervisory employees are improperly made additional parties defendant upon the motion of the original defendant in an action by the personal representative of a deceased employee against the third-person tortfeasor. Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106, 1950 N.C. LEXIS 512 (1950).

As Are Fellow Employees. —

By reading this section in conjunction with G.S. 97-10.1, fellow employees are excluded from common-law liability. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

A rationale supporting coemployee immunity is that immunity from common-law suit for ordinary negligence is part of that which an employee receives for forfeiting his own right to bring a negligence action. Furthermore, since negligence connotes unconscious inadvertence, allowing injured workers to sue coemployees would not reduce injuries caused by ordinary negligence. The same cannot be said in cases involving intentional torts. Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244, 1985 N.C. LEXIS 1495 (1985).

Employee Is Deprived of Certain Common-Law Rights. —

The Workers’ Compensation Act provides compensation for an employee who sustains an injury by accident arising out of and in the course of his employment without regard to whether his injury was caused by negligence attributable to the employer, but the act also deprives the employee of certain rights which he had at common law. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240, 1966 N.C. LEXIS 1045 (1966).

This section prevents an employee from suing a negligent fellow employee. Strickland v. King, 32 N.C. App. 222, 231 S.E.2d 193, 1977 N.C. App. LEXIS 1887, rev'd, 293 N.C. 731, 239 S.E.2d 243, 1977 N.C. LEXIS 1020 (1977).

This section relieves an employee from liability for negligence resulting in injury to a fellow employee when the employees and employer are subject to the act and the injury arises out of and in the course of the employment. Stanley v. Brown, 261 N.C. 243, 134 S.E.2d 321, 1964 N.C. LEXIS 444 (1964).

Where the employer maintains insurance coverage, as specified in this section, an employee who is subject to the provisions of the act and who sustains an injury arising out of and in the course of his or her own employment cannot maintain an action at common law against another employee whose negligence, while conducting the employer’s business, was the proximate cause of the injury. Altman v. Sanders, 267 N.C. 158, 148 S.E.2d 21, 1966 N.C. LEXIS 1002 (1966).

An officer or agent of a corporation who is acting within the scope of his authority for and on behalf of the corporation, and whose acts are such as to render the corporation liable therefor, is among those conducting the business of the corporation, within the purview of this section, and is entitled to the immunity it gives. Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6, 1952 N.C. LEXIS 346 (1951), overruled, Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244, 1985 N.C. LEXIS 1495 (1985), overruled, Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 1991 N.C. LEXIS 523 (1991) (overruled to extent it barred action for willful, wanton, and reckless negligence in) Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244, 1985 N.C. LEXIS 1495, 57 A.L.R.4th 873 (1985) (commented on in 30 N.C.L. Rev. 474 (1952)) .

The protection of this section against suit by an injured employee extends to officers of the corporate employer whose acts are such as to render the corporate employer liable therefor. Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536, 1966 N.C. LEXIS 1070 (1966).

Protection Does Not Extend to Independent Contractors. —

The protection of this section against suit by an injured employee does not extend to independent contractors performing work pursuant to their contracts with the employer of the injured person. Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536, 1966 N.C. LEXIS 1070 (1966).

Nor to Physician Treating Employees Sent to Him by Plant Manager. —

Where a physician is carrying on an independent practice of medicine or surgery, he is not “conducting the business” of an industrial corporation merely because the manager of the plant sends to him, for examination and treatment, those who, from time to time, sustain injuries in the plant. Under these circumstances, this section does not deprive the employee of his common-law right to sue a physician or surgeon who, in the course of such examination or treatment, is negligent and thereby aggravates the original injury. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

Lending Employee May Relieve Employer of Liability for His Negligence. —

An employer may lend or otherwise furnish his employee to another person so as to be relieved from liability for an injury caused by the negligence of the employee in performing work for the other person. It is equally true that an employer may, for a consideration or otherwise, direct his employee to go upon the premises of another and there perform work, to be designated by such other person, without severing the employment relation between the general employer and the employee. Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536, 1966 N.C. LEXIS 1070 (1966).

Test Is Right to Control Manner of Doing Work. —

The crucial test in determining whether a servant furnished by one person to another becomes the employee of the person to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also as to the manner of performing it. Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536, 1966 N.C. LEXIS 1070 (1966).

Original Employment Is Presumed to Continue. —

Where one is engaged in the business of renting out trucks, automobiles, cranes, or any other machine, and furnishes a driver or operator as part of the hiring, there is a factual presumption that the operator remains in the employ of his original master, and unless that presumption is overcome by evidence that the borrowing employer in fact assumes control of the employee’s manner of performing the work, the servant remains in the service of his original employer. Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536, 1966 N.C. LEXIS 1070 (1966).

Joint employment occurs when a single employee, under contracts with two employers, simultaneously performs the work of both under the control of both. In such a case, both employers are liable for workers’ compensation. Leggette v. J.D. McCotter, Inc., 265 N.C. 617, 144 S.E.2d 849, 1965 N.C. LEXIS 1067 (1965).

The operator of equipment may be held the employee of both the general employer and the special employer with regard to liability under the act when the general employer leases the equipment to a special employer who directs the work being performed and who has the power of terminating the employment at the work site but no power to terminate the general overall employment. Leggette v. J.D. McCotter, Inc., 265 N.C. 617, 144 S.E.2d 849, 1965 N.C. LEXIS 1067 (1965) (upholding the finding of the Industrial Commission that at the time of the injury the operator was in the dual employment of both the general and special employers, and that the award for compensation should be split between them and their insurance carriers) .

One may be the servant or agent of another and acting within the course of his employment so as to make such employer or principal liable, under the doctrine of respondeat superior, for injuries proximately caused by his negligence, and at the same time be also in the course of his employment by another employer within the meaning of the act. Altman v. Sanders, 267 N.C. 158, 148 S.E.2d 21, 1966 N.C. LEXIS 1002 (1966).

Intentional assault by an employer removes the employer from his common-law immunity; in such a case, the employee must choose between suing his employer at common law or accepting compensation. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

Where the employer is guilty of a felonious or willful assault on an employee he cannot relegate him to the compensation act for recovery. Daniels v. Swofford, 55 N.C. App. 555, 286 S.E.2d 582, 1982 N.C. App. LEXIS 2260 (1982).

A coemployee is liable for willful, wanton and reckless negligence. Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244, 1985 N.C. LEXIS 1495 (1985).

The Workers’ Compensation Act does not provide the exclusive remedy where an employee is injured in the course of his employment by the willful, wanton and reckless conduct of a coemployee. An employee may bring an action against the coemployee for injuries received as a result of such conduct. Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244, 1985 N.C. LEXIS 1495 (1985).

As a public school principal was plaintiff’s supervisor, they were co-employees; therefore, the principal’s motion to dismiss plaintiff’s suit claiming he injured her through his willful and wanton actions was properly denied, because under Pleasant v. Johnson, 325 S.E.2d 244 (1985), workers’ compensation exclusivity did not deprive the trial court of subject matter jurisdiction over plaintiff’s suit. Trivette v. Yount, 366 N.C. 303, 735 S.E.2d 306, 2012 N.C. LEXIS 1000 (2012).

Although a public school employee and principal were co-employees, allowing the former to sue the latter under exception to workers’ compensation exclusivity set forth in Pleasant v. Johnson, 325 S.E.2d 244 (1985), as the employee failed to present sufficient evidence that the principal acted wantonly and recklessly, he was entitled to summary judgment. Trivette v. Yount, 366 N.C. 303, 735 S.E.2d 306, 2012 N.C. LEXIS 1000 (2012).

And assaultive behavior removes a coemployee from his immunity to common-law actions. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

While the Workers’ Compensation Act precludes plaintiff from asserting a cause of action against corporate employer for alleged assault of a supervisory employee, the act does not preclude her from pursuing recovery from the assaultive employee. Daniels v. Swofford, 55 N.C. App. 555, 286 S.E.2d 582, 1982 N.C. App. LEXIS 2260 (1982).

Where the evidence supported only a finding of ordinary negligence on the part of coemployees, plaintiff was barred from bringing an action against them and against employer under the theory of respondeat superior and was limited to recovery under the Workers’ Compensation Act. Abernathy v. Consolidated Freightways Corp., 321 N.C. 236, 362 S.E.2d 559, 1987 N.C. LEXIS 2559 (1987).

Third Person Aggravating Injury May Be Sued. —

There is no basis in the act for making a distinction between the right to sue a third person who, by negligence, causes the original injury and the right to sue a third person who, by negligence, causes an aggravation of it. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

As to liability of insurance carrier as a third party, see Smith v. Liberty Mut. Ins. Co., 449 F. Supp. 928, 1978 U.S. Dist. LEXIS 18188 (M.D.N.C. 1978), aff'd, 598 F.2d 616 (4th Cir. 1979).

Fellow Employee Driving Automobile in Employer’s Business. —

Two employees, traveling in an automobile in the discharge of the employer’s business, had a collision with another vehicle. In an action by the employee passenger against the owner and driver of such other vehicle, the employee driver was improperly joined as an additional defendant on motion of the original defendant for the purpose of contribution as a joint tortfeasor, since the employee driver was immune from liability under the provisions of this section. Bass v. Ingold, 232 N.C. 295, 60 S.E.2d 114, 1950 N.C. LEXIS 513 (1950).

Where plaintiff was injured in the course and scope of his employment while riding in an automobile driven by defendant, a fellow employee of plaintiff, who at the time was carrying plaintiff to his home in the conduct of his employer’s business and pursuant to authority and direction given him by his employer, plaintiff could not hold defendant liable in an action at law for negligence, since defendant was a person conducting the business of his employer within the purview of the immunity provision of this section. Burgess v. Gibbs, 262 N.C. 462, 137 S.E.2d 806, 1964 N.C. LEXIS 657 (1964).

Vehicle of Fellow Employee Striking Plaintiff in Parking Lot. —

Where the employer furnished a parking lot for his employees and plaintiff employee, after parking her car and while walking to the plant to report for work, was struck by a vehicle operated by another employee who was then backing into a parking space preparatory to reporting for work, the accident arose in the course of the employment, precluding an action at common law by either employee against the other. Altman v. Sanders, 267 N.C. 158, 148 S.E.2d 21, 1966 N.C. LEXIS 1002 (1966).

Employee of Independent Contractor. —

Evidence was sufficient to be submitted to the jury and sustain its determination that the contractor was an independent contractor and that the crane operator was his employee and not an employee of the builder. Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536, 1966 N.C. LEXIS 1070 (1966).

Wife’s Immunity Not Extended to Husband. —

By reason of the fact that an employee was within the course of her employment at the time of the alleged injury to the plaintiff, this section threw about her a cloak of immunity from suit on account of such injury even if it was caused by her negligence in the operation of automobile. This section did not, however, extend this immunity to her husband, if it was established that she was driving the automobile as his agent and within the course of such employment. Altman v. Sanders, 267 N.C. 158, 148 S.E.2d 21, 1966 N.C. LEXIS 1002 (1966).

Where a judgment in favor of a defendant, the employee or agent of her husband, did not rest upon the ground that she was not negligent, but rested upon the ground that this section made her personally immune from suit on account of her negligence because, at the time of her negligent act or omission, she was in the course of her employment by a company, it was error to dismiss the action as against her husband since this statutory immunity had no connection with her employment by her husband to drive his automobile. He was acting, through her, in the driving of the automobile, if she was operating it with his consent and pursuant to the family purpose for which he maintained the automobile. It was as if he were personally present driving the vehicle in the same manner. Obviously, if he had brought his wife to her work, and had driven as she was alleged to have done, the act would not have made him immune to suit by the plaintiff, for he was not conducting the company’s business. He was equally subject to suit when, by the fiction of the law, he so drove by and through his wife as his agent. Though she, his agent or employee, was immune to suit by the plaintiff, he was not. Altman v. Sanders, 267 N.C. 158, 148 S.E.2d 21, 1966 N.C. LEXIS 1002 (1966).

Evidence held insufficient to prove employer engaged in conduct that was willful, wanton, or reckless where employee was injured from manually cleaning a machine which lacked a safety guard. Regan v. Amerimark Bldg. Prods., Inc., 127 N.C. App. 225, 489 S.E.2d 421, 1997 N.C. App. LEXIS 801 (1997), aff'd, 347 N.C. 665, 496 S.E.2d 378, 1998 N.C. LEXIS 108 (1998).

§ 97-10. [Repealed]

Repealed by Session Laws 1959, c. 1324.

Editor’s Note.

See now G.S. 97-10.1 through 97-10.3.

§ 97-10.1. Other rights and remedies against employer excluded.

If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.

History. 1929, c. 120, s. 11; 1933, c. 449, s. 1; 1943, c. 622; 1959, c. 1324; 1973, c. 1291, s. 6.

Legal Periodicals.

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For note, “Pleasant v. Johnson: The North Carolina Supreme Court Enters the Twilight Zone — Is a Co-employee Liable in Tort for Willful, Reckless, and Wanton Conduct?,” see 64 N.C.L. Rev. 688 (1986).

For note, “A New Exception to the Exclusivity Provision of the North Carolina Workers’ Compensation Act — Woodson v. Rowland,” see 14 Campbell L. Rev. 261 (1992).

For note, “North Carolina’s Expansion of the Definition of ‘Intentional’ in Exceptions to the Exclusivity of Workers’ Compensation: Is Legislative Action ‘Substantially Certain’ to Follow? — Woodson v. Rowland,” see 27 Wake Forest L. Rev. 797 (1992).

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For article, “The Substantial Certainty Exception to Workers’ Compensation,” see 17 Campbell L. Rev. 413 (1995).

For a survey of 1996 developments in the law regarding prisoner rights, see 75 N.C.L. Rev. 2428 (1997).

For a survey of 1996 developments in workers’ compensation law, see 75 N.C.L. Rev. 2505 (1997).

For comment, “A Proposal to Reform the North Carolina Workers’ Compensation Act to Address Mental-Mental Claims,” see 32 Wake Forest L. Rev. 193 (1997).

For survey, “Survey of Developments in North Carolina Law and the Fourth Circuit, 1999: Potential Violence to the Bottom Line — Expanding Employer Liability for Acts of Workplace Violence in North Carolina,” 78 N.C.L. Rev. 2053 (2000).

For article, “Why Aren’t You Working?: Medlin with Proof of Disability Under the North Carolina Workers’ Compensation Act,” see 38 Campbell L. Rev. 211 (2016).

CASE NOTES

Editor’s Note. —

Several of the cases annotated below were decided under former G.S. 97-10.

Editor’s Note. —

For additional cases relating to rights and remedies against employer and coemployee, see the case notes under G.S. 97-9.

This section is not arbitrary legislation unrelated to the valid objective of compensating injured employees or their dependents. Carpenter v. Hawley, 53 N.C. App. 715, 281 S.E.2d 783, 1981 N.C. App. LEXIS 2725 (1981).

As It Contemplates Mutual Concessions. —

The Workers’ Compensation Act contemplates mutual concessions by employee and employer; for that reason, its validity has been upheld, and its policy approved. Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554, 1966 N.C. LEXIS 1076 (1966).

Under the Workers’ Compensation Act, the master, in exchange for limited liability, was willing to pay on some claims in the future where in the past there had been no liability at all. Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554, 1966 N.C. LEXIS 1076 (1966).

This section is designed to carry out the purpose of the Workers’ Compensation Act, which is to provide limited benefits to an employee for an injury by accident arising out of and in the course of his employment, and for certain occupational diseases, regardless of negligence or other fault on the part of the employer, and on the other hand, to limit the liability of the employer so as to protect him against the possibility of a much larger judgment, such as was possible at common law when negligence by the employer was found. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

This section implements the purpose of the act, which is to provide certain limited benefits to an injured employee regardless of negligence on the part of the employer, and simultaneously to deprive the employee of certain rights he had at the common law. Brown v. Motor Inns of Carolina, Inc., 47 N.C. App. 115, 266 S.E.2d 848, 1980 N.C. App. LEXIS 2984 (1980).

Section Not Applicable to Injury Occurring Prior to June 20, 1959. —

This section and G.S. 97-10.2 do not apply to an injury which occurred prior to June 20, 1959, the effective date thereof. Swaney v. George Newton Constr. Co., 5 N.C. App. 520, 169 S.E.2d 90, 1969 N.C. App. LEXIS 1390 (1969).

Employee’s Rights and Remedies Hereunder Are Exclusive. —

Where the employer and the employee are subject to and have complied with the provisions of the act, the rights and remedies therein granted to the employee exclude all other rights and remedies in his favor against the employer. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966); Brown v. Motor Inns of Carolina, Inc., 47 N.C. App. 115, 266 S.E.2d 848, 1980 N.C. App. LEXIS 2984 (1980).

Where the allegations and evidence in an action for damages at common law show that the injury in suit was caused by an accident arising out of and in the course of plaintiff ’s employment, defendant’s motion of nonsuit will be granted, as plaintiff ’s remedy under this act is exclusive of all other remedies. McNeely v. Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509, 1934 N.C. LEXIS 249 (1934). See also Miller v. Roberts, 212 N.C. 126, 193 S.E. 286, 1937 N.C. LEXIS 252 (1937); Lee v. American Enka Corp., 212 N.C. 455, 193 S.E. 809, 1937 N.C. LEXIS 341 (1937); Tscheiller v. National Weaving Co., 214 N.C. 449, 199 S.E. 623, 1938 N.C. LEXIS 373 (1938); Champion v. Vance County Bd. of Health, 221 N.C. 96, 19 S.E.2d 239, 1942 N.C. LEXIS 399 (1942).

Where both the plaintiff and the defendant are subject to the provisions of the act they are bound thereby, and the rights and remedies therein granted are exclusive, and the contention that since the act does not provide for the award of punitive damages, plaintiff has not waived his right to trial by jury for the ascertainment thereof, is untenable. McCune v. Rhodes-Rhyne Mfg. Co., 217 N.C. 351, 8 S.E.2d 219, 1940 N.C. LEXIS 240 (1940).

Even where a complaint alleges willful and wanton negligence and prays for punitive damages, the remedies under the act are exclusive. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186, 1988 N.C. App. LEXIS 76 (1988).

This section applied to bar alternative actions for relief by a participant in the federally funded Comprehensive Employment and Training Act (CETA) program against the county, as employer, and a fellow employee. Sutton v. Ward, 92 N.C. App. 215, 374 S.E.2d 277, 1988 N.C. App. LEXIS 1018 (1988).

Defendant principal contractor was plaintiff’s statutory employer and the workers’ compensation benefits available to plaintiff through defendant’s workers’ compensation carrier constituted plaintiff’s exclusive remedy against defendant for plaintiff’s injuries. Rich v. R.L. Casey, Inc., 118 N.C. App. 156, 454 S.E.2d 666, 1995 N.C. App. LEXIS 92 (1995).

Where the plaintiff was permanently injured while working on a silage harvesting machine operated by the Department of Correction (now Division of Adult Correction of the Department of Public Safety), and he filed a claim with the Industrial Commission under the Tort Claims Act, his claim was properly dismissed on the grounds that workers’ compensation was plaintiff’s exclusive remedy. Richardson v. North Carolina Dep't of Correction, 118 N.C. App. 704, 457 S.E.2d 325, 1995 N.C. App. LEXIS 377 (1995), aff'd, 345 N.C. 128, 478 S.E.2d 501, 1996 N.C. LEXIS 654 (1996).

Where defendant failed to meet its summary judgment burden of showing that decedent was a joint employee of both defendant and the wrecking company, defendant failed to establish that plaintiff’s claim was barred by the affirmative defense of the exclusivity provisions of the Act. Anderson v. Demolition Dynamics, Inc., 136 N.C. App. 603, 525 S.E.2d 471, 2000 N.C. App. LEXIS 105 (2000).

In a workers’ compensation case where an employee, employer, and carrier agree in advance as to the disposition of any lien on a recovery against a third party, a carrier’s insistence on the agreed-upon lien amount may be viewed as an insistence on receiving the benefit of the bargain previously struck with the employee, and these bargains are committed to the discretion of the Industrial Commission, under G.S. 97-10.1 and G.S. 97-17. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711, 2002 N.C. App. LEXIS 1119 (2002).

Because the North Carolina Workers’ Compensation Act provided a student-employee’s exclusive remedy for the student’s alleged injury that arose out of and in the course and scope of employment with the student’s university employer, the Industrial Commission properly dismissed the student’s tort claim, with prejudice. Christopher v. N.C. State Univ., 190 N.C. App. 666, 661 S.E.2d 36, 2008 N.C. App. LEXIS 996 (2008).

An employee cannot elect to pursue an alternate avenue of recovery, but is required to proceed under the act with respect to compensable injuries. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186, 1988 N.C. App. LEXIS 76 (1988).

Where a prisoner who suffered accidental death arising out of and in the course of the employment to which he had been assigned, his dependents or next of kin were entitled to specific benefits under this Act; therefore, inmate’s mother could not maintain a wrongful death action against defendants under the Tort Claims Act. Blackmon v. North Carolina Dep't of Cors., 118 N.C. App. 666, 457 S.E.2d 306, 1995 N.C. App. LEXIS 376 (1995), aff'd, 343 N.C. 259, 470 S.E.2d 8, 1996 N.C. LEXIS 261 (1996).

Employee who waited almost 30 minutes to get a ride home from another employee and who was injured when the other employee caused a vehicle accident in the employer’s parking lot was covered by the North Carolina Workers’ Compensation Act and the trial court properly dismissed a lawsuit which the injured employee filed against the employee who gave the injured employee a ride. Ragland v. Harris, 152 N.C. App. 132, 566 S.E.2d 827, 2002 N.C. App. LEXIS 894 (2002).

Civil Action Allowed for Employer’s Misconduct Substantially Certain to Cause Injury or Death. —

When an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer as well as a claim for workers’ compensation as such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the Workers’ Compensation Act. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 1991 N.C. LEXIS 523 (1991).

Employer, as a matter of law, did not know that workplace “risks” were substantially certain to cause death or serious injury to deceased employee in a wrongful death action brought by a deceased employee’s estate where the employer may have known of the risky procedures, but this knowledge alone did not demonstrate a genuine issue of material fact that the employer knew that these risks were substantially certain to cause death or serious injury and incur liability under the Woodson exception to the North Carolina Workers’ Compensation Act., G.S. 97-9 and G.S. 97-10.1. Specifically, the employer could not have known that there was a substantial certainty that the deceased would wear a loose coat, slip where he did, have his coat get caught in the machine in the exact place where it did, and be crushed before someone could turn off the machine. Richmond v. Indalex Inc., 308 F. Supp. 2d 648, 2004 U.S. Dist. LEXIS 3851 (M.D.N.C. 2004).

“Substantial Certainty” Defined. —

A “substantial certainty” is more than a possibility or substantial probability of serious injury but is less than actual certainty. Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 513 S.E.2d 829, 1999 N.C. App. LEXIS 258 (1999), overruled in part, Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665, 2003 N.C. LEXIS 1263 (2003).

Evidence of Employer’s Intentional Misconduct. —

When deciding whether an employer acted with “substantial certainty” of the consequences of its conduct, factors to consider may include: whether the risk existed in the workplace for a long time without causing substantial injury; whether the risk was created by a defective instrumentality with a high probability of causing the harm; whether there was evidence the employer, prior to the accident, attempted to remedy the risk that caused the harm; whether the employer’s conduct that created the risk violated state or federal work safety regulations; whether the employer created a risk by failing to adhere to an industry practice, even though there was no violation of a state or federal safety regulation; and whether the employer offered safety training in the context of the risk causing the harm. Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 513 S.E.2d 829, 1999 N.C. App. LEXIS 258 (1999), overruled in part, Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665, 2003 N.C. LEXIS 1263 (2003).

Trial court erred in denying motions for summary judgment filed by an employer and an owner/officer (jointly, the employer) in a mother’s wrongful death action — the mother’s son (the employee) was ejected from the tractor he was driving when it rolled over — because, even assuming that the employer’s replacement of the tractor seat without a seatbelt was intentional misconduct, the mother did not demonstrate, pursuant to the workers’ compensation exclusivity statute, that the employer intentionally engaged in misconduct knowing that it was substantially certain to cause serious injury or death. Hidalgo v. Erosion Control Servs., 272 N.C. App. 468, 847 S.E.2d 53, 2020 N.C. App. LEXIS 535 (2020).

Election Between Remedies Not Required. —

A claimant may, but is not required to, elect between a civil remedy and a remedy under the Workers’ Compensation Act but, in any event, is entitled to but one recovery. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 1991 N.C. LEXIS 523 (1991).

Action Under Woodson v. Rowland. —

The plaintiff’s claim, that the defendant delayed in responding to requests to raise her computer monitor, knowing that the delay would cause serious injury, and that as a result plaintiff’s neck pain increased and her range of motion diminished, did not rise to the level of a claim under Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991) or death. Keith v. U.S. Airways, Inc., 994 F. Supp. 692, 1998 U.S. Dist. LEXIS 2031 (M.D.N.C. 1998).

Employee did not adequately state a claim under Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), against his employers for intentional misconduct substantially certain to cause serious injury because allegations that other employees had been seriously ill and had complained of a variety of symptoms, maladies and serious illnesses insufficiently alleged the employers’ knowledge of a substantial certainty of serious injury. Cameron v. Merisel, Inc., 163 N.C. App. 224, 593 S.E.2d 416, 2004 N.C. App. LEXIS 380, cert. denied, 358 N.C. 731, 602 S.E.2d 676, 2004 N.C. LEXIS 923 (2004).

Woodson v. Rowland Applies Retroactively. —

The Supreme Court’s decision in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), which is annotated above, applies retroactively, even though the Woodson court was silent on whether its decision was to operate retroactively. Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 416 S.E.2d 193, 1992 N.C. App. LEXIS 446 (1992).

Evidence Insufficient for Exception to Apply. —

Where there was no evidence that defendant was aware, prior to employee’s death, of a high probability that his equipment would fail, plaintiff failed to forecast evidence sufficient to create a genuine issue of material fact regarding defendant’s liability under the Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), exception to the exclusivity provisions of the Worker’s Compensation Act. Mickles v. Duke Power Co., 342 N.C. 103, 463 S.E.2d 206, 1995 N.C. LEXIS 546 (1995).

Employer was not liable for intentional misconduct, where the cart that caused the employee’s injury had been used for many years previously without causing an injury, and there was no evidence that alleged defects in the cart violated state or federal workplace safety regulations or industry safety standards, or that the employer was aware of and refused to implement relevant safety measures. Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 513 S.E.2d 829, 1999 N.C. App. LEXIS 258 (1999), overruled in part, Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665, 2003 N.C. LEXIS 1263 (2003).

Employees could not state a claim against the employer under the exception to the exclusivity provisions of the North Carolina Workers’ Compensation Act because the employees could not show that the employer intentionally engaged in conduct that it knew was substantially certain to cause serious injury or death to the employees since the hazards due to toxic mold were not “obvious” to the employer, the employer did not violate any safety regulations, the allegations failed to show that the employer recognized the immediate hazards of its conduct and consciously elected to forgo critical safety precautions or that the employer disregarded all safety measures. Allen v. IBM, 308 F. Supp. 2d 638, 2004 U.S. Dist. LEXIS 3850 (M.D.N.C. 2004), aff'd, 128 Fed. Appx. 311, 2005 U.S. App. LEXIS 6686 (4th Cir. 2005).

Even if a forklift driver was not trained to sound a horn when entering or exiting defendant employer’s plant, there was no evidence injury or death was substantially certain to occur as the forklift had been operated in a similar manner for a number of years with no similar accident. Thus, the elements of Woodson v. Rowland were not present, and the wrongful death action filed by deceased worker’s representative under the North Carolina Wrongful Death Act, G.S. 28A-18-1 through G.S. 28A-18-8, was precluded by G.S. 97-9 and G.S. 97-10.1, of the North Carolina Workers’ Compensation Act. Southern v. Metromont Materials, L.L.C., 331 F. Supp. 2d 386, 2004 U.S. Dist. LEXIS 6958 (W.D.N.C. 2004).

Administratrix’s complaint alleging the wrongful death of a decedent from leaking carbon monoxide failed to state a Woodson claim, and the employer was entitled to immunity under G.S. 97-10.1 because there was no evidence that the employer knew its conduct was substantially certain to cause serious injury or death or that the employer knew, before the decedent’s death, that a carbon monoxide leak was substantially certain to occur; even a knowing failure to provide adequate safety equipment in violation of North Carolina Department of Labor, Division of Occupational Safety and Health regulations did not give rise to a Woodson claim. The administratrix did not show that the employer willfully exposed the decedent or other employees to a risk of carbon monoxide poisoning, but only that the employer knew that the process at issue was a high risk operation which employed a toxic concentration of carbon monoxide and that there was a possibility of a leak causing employees to be exposed to carbon monoxide. Edwards v. GE Lighting Sys., 193 N.C. App. 578, 668 S.E.2d 114, 2008 N.C. App. LEXIS 1980 (2008).

Trial court did not err in granting a pharmaceuticals manufacturer’s motion to dismiss pursuant to N.C. R. Civ. P. 12(b)(6) a temporary employee’s action alleging gross negligence, negligence, and infliction of emotional distress because the employee failed to adequately plead a Woodson claim when his claim was one for negligence, which failed to allege a higher degree of negligence than willful, wanton, and reckless negligence; the facts involved defective equipment and human error that amounted to an accident rather than intentional misconduct, and absent a proper Woodson claim, the trial court had no subject matter jurisdiction to hear the employee’s claim because the Workers’ Compensation Act, G.S. 97-10.1, provided an exclusive remedy for injured workers. Blow v. DSM Pharms., Inc., 197 N.C. App. 586, 678 S.E.2d 245, 2009 N.C. App. LEXIS 756 (2009).

Trial court erred in determining an administratrix’s claim against a county was barred by the exclusivity provisions of the Workers’ Compensation Act, G.S. 97-10.1, because the decedent, an employee of a temporary staffing agency, was not a county employee under the “special employment” doctrine; the county’s contract with the staffing agency expressly stated temporary employees were not county employees. Gregory v. Pearson, 224 N.C. App. 580, 736 S.E.2d 577, 2012 N.C. App. LEXIS 1477 (2012), aff'd, 367 N.C. 315, 754 S.E.2d 416, 2014 N.C. LEXIS 168 (2014).

Store, its associate, and related others were properly granted summary judgment in a wrongful death action by an executrix of a deceased store greeter, as the exclusivity provision of G.S. 97-10.1 under the Workers’ Compensation Act applied, and the “intentional misconduct” exception was inapplicable. Pender v. Lambert, 225 N.C. App. 390, 737 S.E.2d 778, 2013 N.C. App. LEXIS 122 (2013).

Store associate was properly granted summary judgment in a wrongful death action by an executrix of a deceased store greeter, as the exclusivity provision of G.S. 97-10.1 under the Workers’ Compensation Act applied, and the exception for the store associate’s willful, wanton, or reckless behavior was inapplicable where the associate’s conduct was not within the behavior required for the exception.. Pender v. Lambert, 225 N.C. App. 390, 737 S.E.2d 778, 2013 N.C. App. LEXIS 122 (2013).

Although a violation of state and federal regulations is an important factor in determining whether the employer’s conduct can be found to have been substantially certain to cause injury or death, such violation, without more, is insufficient evidence of the employer’s state of mind to make out a case of liability for intentional misconduct. Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 513 S.E.2d 829, 1999 N.C. App. LEXIS 258 (1999), overruled in part, Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665, 2003 N.C. LEXIS 1263 (2003).

Co-employee Civil Liability. —

The Workers’ Compensation Act does not bar an employee from suing a co-employee for injuries caused by willful, wanton, or reckless negligence. Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 416 S.E.2d 193, 1992 N.C. App. LEXIS 446 (1992).

Supervisor was not entitled to dismissal of a deceased employee’s estate’s negligence claim because it was alleged that the supervisor knowingly told the decedent to perform a dangerous act, creating an inference that the supervisor was manifestly indifferent to the consequences of the supervisor’s directive. Estate of Vaughn v. Pike Elec., LLC, 230 N.C. App. 485, 751 S.E.2d 227, 2013 N.C. App. LEXIS 1214 (2013).

Employer was entitled to dismissal of a deceased employee’s estate’s negligence claim because the estate alleged no basis to think the employer knew, intended, or was substantially certain a supervisor’s acts telling the deceased employee to do a dangerous act would result in the employee’s death, so uncontroverted evidence of the employer’s intentional misconduct was not alleged. Estate of Vaughn v. Pike Elec., LLC, 230 N.C. App. 485, 751 S.E.2d 227, 2013 N.C. App. LEXIS 1214 (2013).

A volunteer fireman, who is injured by the negligence of a fellow volunteer fireman, at a time when both are acting in the course and scope of their duties, is barred from pursuing a negligence action against the fellow fireman. Hix v. Jenkins, 118 N.C. App. 103, 453 S.E.2d 551, 1995 N.C. App. LEXIS 75 (1995).

Prisoners. —

Workers’ compensation is the exclusive remedy for prisoners injured while working on prison jobs. Richardson v. North Carolina Dep't of Correction, 345 N.C. 128, 478 S.E.2d 501 (1996).

When an inmate is injured while working at his prison job, his exclusive remedy for any injury is a workers’ compensation claim, but he must wait until release for a determination of entitlement to such compensation. Vereen v. N.C. Dep't of Corr., 168 N.C. App. 588, 608 S.E.2d 412, 2005 N.C. App. LEXIS 333 (2005).

Assault by Fellow Employee. —

An intentional assault in the work place by a fellow employee or third party is an accident that occurs in the course of employment, but does not arise out of the employment unless a job-related motivation or some other causal relation between the job and the assault exists. Wake County Hosp. Sys. v. Safety Nat'l Cas. Corp., 127 N.C. App. 33, 487 S.E.2d 789, 1997 N.C. App. LEXIS 775 (1997).

Where the evidence showed that a hospital social worker was abducted from the employee parking lot, she was assaulted and killed on an adjacent street, she was carrying work materials, and the assailant was a co-employee, her death was compensable under the Workers’ Compensation Act. Wake County Hosp. Sys. v. Safety Nat'l Cas. Corp., 127 N.C. App. 33, 487 S.E.2d 789, 1997 N.C. App. LEXIS 775 (1997).

Robbery was a risk associated with night manager’s job because she was required to count money as the end of the day, and the court held that the night manager could not sue her employer for negligently hiring another employee who assaulted her because, under the circumstances, the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., provided an exclusive remedy for obtaining compensation. Caple v. Bullard Rests., Inc., 152 N.C. App. 421, 567 S.E.2d 828, 2002 N.C. App. LEXIS 919 (2002).

Where Employee’s Claim for Compensation Is Denied. —

Plaintiff and his employer were bound by the provisions of the act. Plaintiff ’s injury occurred while he was allowed by his employer to use certain machinery for his own personal ends. Compensation was denied since the accident did not arise out of and in the course of the employment. Thereafter plaintiff sued, alleging negligence on the part of the employer. But it was held that, conceding that the evidence established negligence of defendant employer, the act barred all other rights and remedies of employee except those provided in the act. Francis v. Carolina Wood Turning Co., 208 N.C. 517, 181 S.E. 628 (1935). See analysis and criticism of this case in 14 N.C.L. Rev. 199 (1936). In accord, see Tscheiller v. National Weaving Co., 214 N.C. 449, 199 S.E. 623, 1938 N.C. LEXIS 373 (1938).

In an action brought at common law, the complaint alleged that the Commission had held that the plaintiff ’s injury did not arise out of and in the course of his employment. The defendant demurred. It was held that the rights conferred under the act excluded the employee from bringing an action against his employer at common law. Pilley v. Greenville Cotton Mills, 201 N.C. 426, 160 S.E. 479, 1931 N.C. LEXIS 266 (1931).

The plaintiff was denied an award by the Industrial Commission on the ground that he was not injured “by accident arising out of and in the course of his employment.” He did not appeal but brought a new action against his employer in the superior court alleging that his injuries were due to the employer’s negligence. No recovery. Rights of an employee against his employer under this section are exclusive and no distinction is recognized by the act between injuries arising from accident and those due to the employer’s negligence. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 1930 N.C. LEXIS 459 (1930).

Special Employer Relationship. —

There was an issue of fact regarding whether a decedent, who was actually employed by a company other than the alleged special employer against whom suit was brought, amounted to a “special employee” subject to the exclusivity provision in G.S. 97-10.1. The employer and the special employer entered into a contract stating that employees assigned to the special employer were not employees of the special employer but were employees of the employer itself, and the special employer agreed contractually that the employer itself would control and direct the decedent’s work. Taft v. Brinley's Grading Servs., 225 N.C. App. 502, 738 S.E.2d 741, 2013 N.C. App. LEXIS 125 (2013).

Trial court erred in denying an employer’s motion for summary judgment because jurisdiction over an injured employee’s action belonged exclusively to the Industrial Commission inasmuch as he was a special employee where a general employer recruited him as a candidate for a mechanic position in the employer’s maintenance department, the employer clearly undertook the right to control the employee’s day-to-day work activities, leaving the administrative/clerical functions (payroll, etc.) to the general employer, the employer paid the employee an hourly wage, and the employee worked at the employer’s plant for over a year before he was injured using the employer’s machinery. Estate of Belk v. Boise Cascade Wood Prods., L.L.C., 263 N.C. App. 597, 824 S.E.2d 180, 2019 N.C. App. LEXIS 64 (2019).

This section applies only to proceedings against the employer, and so against his insurance carrier. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

And Is Inapplicable Where Employment Relation Does Not Exist. —

The act relates to the rights and liabilities of employee and employer by reason of injuries and disabilities arising out of and in the course of the employment relation. Where that relation does not exist, the act has no application. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966); Brown v. Motor Inns of Carolina, Inc., 47 N.C. App. 115, 266 S.E.2d 848, 1980 N.C. App. LEXIS 2984 (1980).

Employee’s premises liability claim, and his wife’s loss of consortium claim, against the owner of his workplace, due to toxic mold contamination, was improperly dismissed because the owner was not entitled to assert workers’ compensation exclusivity, even though it was a parent corporation of the employee’s employers, and it was alleged that the owner knew of the condition but did nothing to warn or protect the employee. Cameron v. Merisel, Inc., 163 N.C. App. 224, 593 S.E.2d 416, 2004 N.C. App. LEXIS 380, cert. denied, 358 N.C. 731, 602 S.E.2d 676, 2004 N.C. LEXIS 923 (2004).

It Deprives Employee of Certain Common-Law Rights. —

The act provides compensation for an employee who sustains an injury by accident arising out of and in the course of his employment without regard to whether his injury was caused by negligence attributable to the employer, but the act also deprives the employee of certain rights which he had at the common law. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240, 1966 N.C. LEXIS 1045 (1966).

But Not Rights Disconnected from Employment. —

The act does not take away any common-law right of the employee, even as against the employer, provided the right be one which is disconnected with the employment and pertains to the employee, not as an employee but as a member of the public. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

Thus Surrender of Right of Action Is Not Absolute. —

Expressions in this section and in G.S. 97-10.2 regarding the surrender of the right to maintain common-law or statutory actions against the employer are not absolute — not words of universal import, making no contact with time, place or circumstance. They must be construed within the framework of the act, and as qualified by its subject and purposes. Barber v. Minges, 223 N.C. 213, 25 S.E.2d 837, 1943 N.C. LEXIS 244 (1943).

And Does Not Extend to Claim Against Employer Disconnected With Employment. —

An employee was killed by an explosion on a motorboat on a Sunday fishing trip organized and conducted by the employer’s agent. The employee was not required to go, nor was he paid for the time spent, but his expenses were paid. His widow and administratrix brought an action for wrongful death against the employer alleging negligence of the agent. Defendant moved to dismiss on the ground that the Industrial Commission had sole jurisdiction of an employee’s claims against his employer under the exclusive remedy provision of this section. It was held, two justices dissenting, that the jurisdiction of the Commission does not extend to claims arising against an employer when “disconnected with the employment.” Barber v. Minges, 223 N.C. 213, 25 S.E.2d 837, 1943 N.C. LEXIS 244 (1943).

North Carolina Workers’ Compensation Act did not provide the exclusive remedy to a State employee who was sexually assaulted in a county courthouse where the county had employed a security firm to provide security in the courthouse. Wood v. Guilford County, 355 N.C. 161, 558 S.E.2d 490, 2002 N.C. LEXIS 16 (2002).

Action Against Employer for Intentional Conduct Is Not Barred. —

The Workers’ Compensation Act does not bar a common law action by an employee against his employer for the intentional conduct of the employer. Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, 1986 N.C. App. LEXIS 2098 (1986); Ridenhour v. Concord Screen Printers, Inc., 40 F. Supp. 2d 598 (M.D.N.C. 1999).

Actions for intentional infliction of mental and emotional distress are not barred by this section. Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, 1986 N.C. App. LEXIS 2098 (1986); Ridenhour v. Concord Screen Printers, Inc., 40 F. Supp. 2d 598 (M.D.N.C. 1999).

Intentional assault by an employer removes the employer from his common-law immunity and the employee must choose between suing his employer at common law or accepting compensation. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

Where the employer is guilty of a felonious or willful assault on an employee he cannot relegate him to the compensation act for recovery. Daniels v. Swofford, 55 N.C. App. 555, 286 S.E.2d 582, 1982 N.C. App. LEXIS 2260 (1982).

Fellow Employees Are Excluded from Common-Law Liability. —

By reading G.S. 97-9 in conjunction with this section, fellow employees are excluded from common-law liability. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

A rationale supporting coemployee immunity is that immunity from common-law suit for ordinary negligence is part of that which an employee receives for forfeiting his own right to bring a negligence action. Furthermore, since negligence connotes unconscious inadvertence, allowing injured workers to sue coemployees would not reduce injuries caused by ordinary negligence. The same cannot be said in cases involving intentional torts. Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244, 1985 N.C. LEXIS 1495 (1985).

But the Workers’ Compensation Act does not insulate a coemployee from his willful, wanton and reckless negligence. An injured worker in such situations may receive benefits under the act and also maintain a common-law action against the coemployee. Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244, 1985 N.C. LEXIS 1495 (1985).

Employee adequately stated a claim under Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), and a claim for punitive damages against a co-employee, and his wife adequately stated a loss of consortium claim, by alleging that the co-employee engaged in conduct that threatened the safety of others and was so reckless or manifestly indifferent to the consequences that a finding of willfulness and wantonness equivalent in spirit to actual intent was justified, when the co-employee, as director of security at the employee’s workplace, who was responsible for workplace maintenance, knowingly failed to reveal the existence of toxic mold. Cameron v. Merisel, Inc., 163 N.C. App. 224, 593 S.E.2d 416, 2004 N.C. App. LEXIS 380, cert. denied, 358 N.C. 731, 602 S.E.2d 676, 2004 N.C. LEXIS 923 (2004).

Sheriff’s deputy’s widow’s claims against a sheriff, another deputy, the sheriff’s office, and a surety, arising out of decedent’s death in a helicopter accident while eradicating marijuana plants, were barred by the exclusivity provisions of the workers’ compensation law, G.S. 97-10.1, and governmental immunity, except her Pleasant claim against the deputy in his individual capacity, and against the deputy in his official capacity and the surety to the extent of coverage on the surety bond under G.S. 58-76-5. Greene v. Barrick, 198 N.C. App. 647, 680 S.E.2d 727, 2009 N.C. App. LEXIS 1336 (2009).

As a public school principal was plaintiff’s supervisor, they were co-employees; therefore, the principal’s motion to dismiss plaintiff’s suit claiming he injured her through his willful and wanton actions was properly denied, because under Pleasant v. Johnson, 325 S.E.2d 244 (1985), workers’ compensation exclusivity did not deprive the trial court of subject matter jurisdiction over plaintiff’s suit. Trivette v. Yount, 366 N.C. 303, 735 S.E.2d 306, 2012 N.C. LEXIS 1000 (2012).

Willful, Wanton and Reckless Negligence. —

When an employee’s injury is covered by the Workers’ Compensation Act, the right to bring an independent negligence action against the employer is barred by the existence of the workers’ compensation remedy. Since the Act’s coverage extends to injuries resulting from an employer’s willful, wanton and reckless negligence, there was no issue regarding an election of remedies in this action. Stack v. Mecklenburg County, 86 N.C. App. 550, 359 S.E.2d 16, 1987 N.C. App. LEXIS 2746 (1987).

As an employer’s willful and wanton negligence in handling a former employee’s harassment complaint was an “accident” (an unlooked for and untoward event), and as her injury arose out of and was sustained in the course of her employment, her negligent infliction of emotional distress claim against the employer was barred by workers’ compensation exclusivity. Shaw v. Goodyear Tire & Rubber Co., 225 N.C. App. 90, 737 S.E.2d 168, 2013 N.C. App. LEXIS 54 (2013).

Where a former employee sued her employer for negligent infliction of emotional distress, the employer’s willful and wanton negligence in handling the employee’s harassment complaint was insufficient under Woodson v. Rowland, 407 S.E.2d 222 (1991), to establish an exception to workers’ compensation exclusivity. Shaw v. Goodyear Tire & Rubber Co., 225 N.C. App. 90, 737 S.E.2d 168, 2013 N.C. App. LEXIS 54 (2013).

Where the evidence supported only a finding of ordinary negligence on the part of coemployees, plaintiff was barred from bringing an action against them and against employer under the theory of respondeat superior and was limited to recovery under the Workers’ Compensation Act. Abernathy v. Consolidated Freightways Corp., 321 N.C. 236, 362 S.E.2d 559, 1987 N.C. LEXIS 2559 (1987).

Assaultive behavior removes a coemployee from his immunity to common-law actions. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

North Carolina’s Workers’ Compensation Act is not the exclusive remedy for an employee intentionally injured by a fellow employee. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

Assaultive behavior by a coemployee limits the employee’s immunity under this Chapter. Such misconduct is outside the realm of industrial accidents which workers’ compensation laws were designed to exclusively cover. Daniels v. Swofford, 55 N.C. App. 555, 286 S.E.2d 582, 1982 N.C. App. LEXIS 2260 (1982).

Mental and Emotional Distress. —

Where plaintiff alleged that she suffered “mental and emotional distress” as a result of intentional tortious acts by defendant, her complaint alleged a common law action against defendant’s employer for its intentional conduct, and plaintiff sought recovery for damages which were not compensable under the North Carolina Worker’s Compensation Act; therefore, plaintiff ’s claim is not barred by the provisions of the Act. Brown v. Burlington Indus., Inc., 93 N.C. App. 431, 378 S.E.2d 232, 1989 N.C. App. LEXIS 208 (1989).

Negligence and Emotional Distress from Sexual Harassment. —

Plaintiff ’s claim that employer negligently retained managerial employee, and that she suffered severe mental and emotional distress resulting from managerial employee’s sexual harassment, was not barred by the exclusive remedies provision of the North Carolina Workers’ Compensation Act. Harrison v. Edison Bros. Apparel Stores, Inc., 724 F. Supp. 1185, 1989 U.S. Dist. LEXIS 13704 (M.D.N.C. 1989), aff'd in part and rev'd in part, 924 F.2d 530, 1991 U.S. App. LEXIS 1069 (4th Cir. 1991).

Where a former employee filed claims of negligent infliction of emotional distress against her former employers, alleging that she suffered from post-traumatic stress disorder as a result of verbal abuse and humiliation she experienced at work, claims based on conduct other than sexual harassment were barred by the Workers’ Compensation Act because the alleged emotional injuries arose from and were in the course of employment and the Act barred negligence actions against employers for injuries caused by conduct other than sexual harassment. Boggess v. Roper, 2006 U.S. Dist. LEXIS 63057 (W.D.N.C. Sept. 1, 2006).

Sexual Harassment by Coemployee. —

Although the North Carolina Workers’ Compensation Act eliminated negligence as a basis of recovery against an employer, the act covers only those injuries which arise out of and in the course of employment. Emotional injury allegedly suffered by plaintiff, resulting from coemployee’s sexual harassment, was not a natural and probable consequence or incident of the employment so as to bar her claim for negligence against employer in retaining the coemployee in a supervisory position after having actual notice of his proclivity to engage in sexually offensive conduct. Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, 1986 N.C. App. LEXIS 2098 (1986).

Student Performing Respiratory Therapy at Hospital Gained Apprentice Status. —

While plaintiff may have been a student at technical institute, when he entered the hospital to perform respiratory therapy, his status changed to apprentice, making him subject to the Workers’ Compensation Act. Ryles v. Durham Co. Hosp. Corp., 107 N.C. App. 455, 420 S.E.2d 487, 1992 N.C. App. LEXIS 728 (1992).

Section Not Applicable to Action Brought by Independent Contractor. —

When it appears in a common-law action to recover for injuries that the Commission has held that the plaintiff was an independent contractor and not an employee, an action will lie against the defendant for negligence, as this section has no application to actions instituted by independent contractors. Odum v. National Oil Co., 213 N.C. 478, 196 S.E. 823, 1938 N.C. LEXIS 114 (1938). See also Barnhardt v. City of Concord, 213 N.C. 364, 196 S.E. 310, 1938 N.C. LEXIS 88 (1938).

Nor to Liability of Physician Treating Employee. —

This section has no relation to the liability of an attending physician or surgeon for negligence in the treatment of an injured employee. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

Or to Patron of Employer’s Business Such as Shareholder or Member. —

The immunity granted by this section does not extend to an independent contractor, or to the employees of such independent contractor, engaged in work upon the premises of the employer of the injured plaintiff. It would surely follow that immunity would not extend to a mere patron of the employer’s business, even though such patron be also a stockholder, or otherwise a member, of the corporation which owns the business and employs the injured plaintiff. McWilliams v. Parham, 269 N.C. 162, 152 S.E.2d 117, 1967 N.C. LEXIS 1038 (1967).

Allegations that defendant was enjoying the privileges of membership in playing on a golf course, even if such allegations were construed to mean that defendant was a member and stockholder of the club, did not show that defendant was an employer of a caddy of preceding players, and did not show that defendant was “conducting” the business of the club, and therefore such defendant was not entitled to allege the defense of immunity under the act in an action by the caddy to recover for injuries resulting when struck by a ball driven by defendant. McWilliams v. Parham, 269 N.C. 162, 152 S.E.2d 117, 1967 N.C. LEXIS 1038 (1967).

Liability based on negligence was eliminated by the Workers’ Compensation Act. Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554, 1966 N.C. LEXIS 1076 (1966).

Hence, Separate Tort Action Against Employer Is Barred. —

When plaintiff has been compensated by the payment of workers’ compensation benefits, she cannot maintain a separate action against her employer for additional compensation. Having already selected one avenue of recovery, plaintiff is precluded from maintaining a tort action. Freeman v. SCM Corp., 66 N.C. App. 341, 311 S.E.2d 75, 1984 N.C. App. LEXIS 2866, modified, 311 N.C. 294, 316 S.E.2d 81, 1984 N.C. LEXIS 1734 (1984).

The monetary benefit afforded to plaintiff by G.S. 97-13(c) entitled her to compensation and this section applied to bar plaintiff’s wrongful death action under the Tort Claims Act. Blackmon v. N.C. Dept. Of Correction, 343 N.C. 259, 470 S.E.2d 8, 1996 N.C. LEXIS 261 (1996).

Joint employer status does not provide an injured plaintiff-employee with two recoveries; rather, it merely provides two potential sources of recovery. Thus, where a temporary employee was injured at work and was compensated by temporary agency’s insurance carrier, this section prevented him from recovering in a civil action against the employer. Poe v. Atlas-Soundelier/American Trading & Prod. Corp., 132 N.C. App. 472, 512 S.E.2d 760, 1999 N.C. App. LEXIS 201, cert. denied, 350 N.C. 835, 538 S.E.2d 199, 1999 N.C. LEXIS 746 (1999).

Even for Gross Negligence. —

Even though plaintiff may have been injured by defendant’s gross negligence, rather than by accident, where she has been compensated by workers’ compensation benefits, she is still precluded from maintaining an action against defendant. Freeman v. SCM Corp., 66 N.C. App. 341, 311 S.E.2d 75, 1984 N.C. App. LEXIS 2866, modified, 311 N.C. 294, 316 S.E.2d 81, 1984 N.C. LEXIS 1734 (1984).

Action for Loss of Consortium Not Maintainable. —

This section is clear and unambiguous and requires the result that plaintiff cannot maintain an action for loss of consortium resulting from injuries to plaintiff ’s spouse when those injuries are compensable under the Workers’ Compensation Act. Sneed v. Carolina Power & Light Co., 61 N.C. App. 309, 300 S.E.2d 563, 1983 N.C. App. LEXIS 2654 (1983).

Statutes Authorizing Recovery for Negligent Death Rendered Ineffective. —

The philosophy of workers’ compensation is that when employer and employee accept the terms of the act their relations become contractual, and other statutes authorizing recovery for negligent death become ineffective. Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554, 1966 N.C. LEXIS 1076 (1966).

Wrongful Death Action Precluded. —

An award by the Industrial Commission to the widow of an employee excludes all other rights and remedies, and the administrator of the employee may not maintain an action against the employer for wrongful death, and the fact that the injury resulted from negligence in the violation by the employer of a criminal statute does not alter this result. Bright v. N.B. & C. Motor Lines, 212 N.C. 384, 193 S.E. 391, 1937 N.C. LEXIS 329 (1937).

Since the Workers’ Compensation Act by its terms repeals all inconsistent legislation, the rights and remedies thereby given are substituted for those theretofore provided by the Death Act. The result is that where an employee contracts to work under the act, the damages to be paid by the employer in case of death are limited by that act, and an action cannot be maintained in disregard of that act. Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554, 1966 N.C. LEXIS 1076 (1966).

Under the Workers’ Compensation Act a certain liability is imposed for death, and that liability is exclusive. No other responsibility is left which springs from the occurrence upon which liability rests — death — and the effect of the compensation as a satisfaction of all other claims is in no way limited or impaired by the circumstances or the identity of the persons to whom it is paid or because in a given case no one survives to take advantage of the statute. Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554, 1966 N.C. LEXIS 1076 (1966).

If an employee’s action would be barred by the Workers’ Compensation Act, then a wrongful death action brought by the employee’s representative is also barred. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186, 1988 N.C. App. LEXIS 76 (1988).

Where deceased was a prisoner who suffered “accidental death arising out of and in the course of the employment to which he had been assigned,” his dependents or next of kin were statutorily “entitled” to specific benefits under the exclusive remedy provisions of this section, and could not maintain a wrongful death action against defendants under the Tort Claims Act. Blackmon v. North Carolina Dep't of Cors., 118 N.C. App. 666, 457 S.E.2d 306, 1995 N.C. App. LEXIS 376 (1995), aff'd, 343 N.C. 259, 470 S.E.2d 8, 1996 N.C. LEXIS 261 (1996).

Employers’ motion for summary judgment was granted because the administratrix’s wrongful death action was barred by the North Carolina’s Workers’ Compensation Act, G.S. 97-1 et seq., since: (1) the shooting occurred at the deceased’s place of employment, and (2) regardless of whether the deceased was the intended victim, the shooting arose out of the deceased’s employment because the gunman intended to shoot a co-worker. Champion v. PPG Indus., 2004 U.S. Dist. LEXIS 9034 (W.D.N.C. Apr. 2, 2004).

Store owner and the store’s parent company were properly granted summary judgment in a wrongful death action by an executrix of a deceased store greeter, as the exclusivity provision of G.S. 97-10.1 under the Workers’ Compensation Act applied to them pursuant to G.S. 97-9; the exclusivity provision extended to employers and those conducting the employer’s business. Pender v. Lambert, 225 N.C. App. 390, 737 S.E.2d 778, 2013 N.C. App. LEXIS 122 (2013).

Wrongful Death Action Not Precluded. —

When, in a wrongful death case, a court dismissed a challenge to subject-matter jurisdiction brought months after entry of a default judgment against an employer, dismissing the challenge asserting workers’ compensation exclusivity deprived the court of jurisdiction, on equitable estoppel and laches grounds, the court erred because: (1) the court’s subject-matter jurisdiction could be contested at any time; (2) subject-matter jurisdiction was independent of the parties’ conduct, making equitable estoppel and laches inapplicable; (3) the court made no required findings and conclusions regarding jurisdiction after the employer legitimately challenged the court’s jurisdiction; and (4) the two-year workers’ compensation claim filing requirement did not necessarily bar any untimely claim as the employer’s fault caused the delay. Burgess v. Smith, 260 N.C. App. 504, 818 S.E.2d 164, 2018 N.C. App. LEXIS 753 (2018).

Right Under Death by Wrongful Act Statute of Another State — Not Affected. —

The acceptance of compensation under this act cannot affect the right to pursue a remedy against a third person under the wrongful death statute of another state, unless there is something in the law of the other state which so provides. Betts v. Southern Ry., 71 F.2d 787, 1934 U.S. App. LEXIS 3211 (4th Cir. 1934).

Same — When Assignment of Such Claim Is Governed by Law of This State. —

The assignment of the right of recovery against a third person under the wrongful death statute of one state as the result of acceptance by the beneficiary of compensation from the employer under the Workers’ Compensation Act of this State, in the absence of any provision to the contrary in the law of the state of the injury, is governed by the law of this State. Betts v. Southern Ry., 71 F.2d 787, 1934 U.S. App. LEXIS 3211 (4th Cir. 1934).

A worker for a company providing civilian mess services to the United States Army may bring an action against the federal government under the Federal Tort Claims Act, since the exclusivity provision of this section does not apply, the United States being neither a joint employer nor statutory employer of worker. Pinckney v. United States, 671 F. Supp. 405, 1987 U.S. Dist. LEXIS 9308 (E.D.N.C. 1987).

Allegations Sufficient to Withstand Motion to Dismiss. —

Allegations of employee who suffered serious injuries when his arm and body were caught in paint machine, for which emergency switches were inoperable, were held sufficient to withstand a motion to dismiss for failure to state a claim. Regan v. Amerimark Bldg. Prods., Inc., 118 N.C. App. 328, 454 S.E.2d 849, 1995 N.C. App. LEXIS 163 (1995), cert. denied, 342 N.C. 659, 467 S.E.2d 723, 1996 N.C. LEXIS 94 (1996).

Dismissal or Nonsuit Upheld. —

Plaintiff contracted tuberculosis in working with chemicals in defendant’s plant. In a common-law action it was alleged that the disease was caused by inherently dangerous working conditions. Both plaintiff and defendant had accepted the act. Judgment dismissing the action was held proper. Lee v. American Enka Corp., 212 N.C. 455, 193 S.E. 809, 1937 N.C. LEXIS 341 (1937). See also Jenkins v. American Enka Corp., 95 F.2d 755, 1938 U.S. App. LEXIS 4214 (4th Cir. 1938) (where plaintiff instituted an action at common law alleging that he had contracted a disease as a result of improper working conditions negligently permitted by defendant). Murphy v. American Enka Corp., 213 N.C. 218, 195 S.E. 536, 1938 N.C. LEXIS 51 (1938).

Where, in a suit by a student nurse to recover damages for injuries sustained while being transported by the hospital which employed her, the plaintiff judicially admitted that her employment was within the coverage of the Workers’ Compensation Act except as to number of employees regularly employed and the uncontradicted evidence showed that more than five employees were regularly employed, a nonsuit was properly granted. Powers v. Robeson County Mem. Hosp., 242 N.C. 290, 87 S.E.2d 510, 1955 N.C. LEXIS 502 (1955).

Summary Judgment Appropriate. —

In an action by employee against employer seeking compensatory and punitive damages for accident that occurred at work, the trial court did not err in granting defendant’s motion for summary judgment, because no genuine issue of material fact existed as to whether defendant engaged in intentional misconduct knowing this conduct was substantially certain to cause death or serious injury to plaintiff. Vaughan v. J.P. Taylor Co., 114 N.C. App. 651, 442 S.E.2d 538, 1994 N.C. App. LEXIS 436 (1994).

Although a public school employee and principal were co-employees, allowing the former to sue the latter under the exception to workers’ compensation exclusivity set forth in Pleasant v. Johnson, 325 S.E.2d 244 (1985), as the employee failed to present sufficient evidence that the principal acted wantonly and recklessly, he was entitled to summary judgment. Trivette v. Yount, 366 N.C. 303, 735 S.E.2d 306, 2012 N.C. LEXIS 1000 (2012).

Employer’s appeal of a denial of its motion for summary judgment in a wrongful death suit was properly before the appellate court; the summary judgment motion argued that the employer was immune from the suit, and, although the appeal was interlocutory, appellate review was necessary on the grounds that the North Carolina’s Workers’ Compensation Act granted employers who complied with the Act immunity from suit, which would have been lost if the case was permitted to go to trial. This immunity from suit affected a substantial right. Edwards v. GE Lighting Sys., 193 N.C. App. 578, 668 S.E.2d 114, 2008 N.C. App. LEXIS 1980 (2008).

All of plaintiff’s claims, except for his claim for intentional infliction of emotional distress, were subject to the exclusivity provision of this section, where the suit arose on account of a video tape prepared by defendants, purporting to demonstrate the functions of plaintiff’s job, which caused plaintiff’s doctor to change his opinion that plaintiff’s condition was job-related. Groves v. Travelers Ins. Co., 139 N.C. App. 795, 535 S.E.2d 105, 2000 N.C. App. LEXIS 1044 (2000), rev'd, 354 N.C. 206, 552 S.E.2d 141, 2001 N.C. LEXIS 940 (2001).

Appellate Jurisdiction. —

Appellate court had jurisdiction to hear an employer’s and a supervisor’s interlocutory appeal of the denial of the employer’s and supervisor’s G.S. 1A-1, N.C. R. Civ. P. 12(b)(1) and (6) motions to dismiss an employee’s estate’s negligence complaint, based on G.S. 97-10.1, because requiring the employer and supervisor to await final judgment would affect a substantial right. Estate of Vaughn v. Pike Elec., LLC, 230 N.C. App. 485, 751 S.E.2d 227, 2013 N.C. App. LEXIS 1214 (2013).

§ 97-10.2. Rights under Article not affected by liability of third party; rights and remedies against third parties.

  1. The right to compensation and other benefits under this Article for disability, disfigurement, or death shall not be affected by the fact that the injury or death was caused under circumstances creating a liability in some person other than the employer to pay damages therefor, such person hereinafter being referred to as the “third party.” The respective rights and interests of the employee-beneficiary under this Article, the employer, and the employer’s insurance carrier, if any, in respect of the common-law cause of action against such third party and the damages recovered shall be as set forth in this section.
  2. The employee, or his personal representative if he be dead, shall have the exclusive right to proceed to enforce the liability of the third party by appropriate proceedings if such proceedings are instituted not later than 12 months after the date of injury or death, whichever is later. During said 12-month period, and at any time thereafter if summons is issued against the third party during said 12-month period, the employee or his personal representative shall have the right to settle with the third party and to give a valid and complete release of all claims to the third party by reason of such injury or death, subject to the provisions of (h) below.
  3. If settlement is not made and summons is not issued within said 12-month period, and if employer shall have filed with the Industrial Commission a written admission of liability for the benefits provided by this Chapter, then either the employee or the employer shall have the right to proceed to enforce the liability of the third party by appropriate proceedings; either shall have the right to settle with the third party and to give a valid and complete release of all claims to the third party by reason of such injury or death, subject to the provisions of (h) below. Provided that 60 days before the expiration of the period fixed by the applicable statute of limitations if neither the employee nor the employer shall have settled with or instituted proceedings against the third party, all such rights shall revert to the employee or his personal representative.
  4. The person in whom the right to bring such proceeding or make settlement is vested shall, during the continuation thereof, also have the exclusive right to make settlement with the third party and the release of the person having the right shall fully acquit and discharge the third party except as provided by (h) below. A proceeding so instituted by the person having the right shall be brought in the name of the employee or his personal representative and the employer or the insurance carrier shall not be a necessary or proper party thereto. If the employee or his personal representative shall refuse to cooperate with the employer by being the party plaintiff, then the action shall be brought in the name of the employer and the employee or his personal representative shall be made a party plaintiff or party defendant by order of court.
  5. The amount of compensation and other benefits paid or payable on account of such injury or death shall be admissible in evidence in any proceeding against the third party. In the event that said amount of compensation and other benefits is introduced in such a proceeding the court shall instruct the jury that said amount will be deducted by the court from any amount of damages awarded to the plaintiff. If the third party defending such proceeding, by answer duly served on the employer, sufficiently alleges that actionable negligence of the employer joined and concurred with the negligence of the third party in producing the injury or death, then an issue shall be submitted to the jury in such case as to whether actionable negligence of employer joined and concurred with the negligence of the third party in producing the injury or death. The employer shall have the right to appear, to be represented, to introduce evidence, to cross-examine adverse witnesses, and to argue to the jury as to this issue as fully as though he were a party although not named or joined as a party to the proceeding. Such issue shall be the last of the issues submitted to the jury. If the verdict shall be that actionable negligence of the employer did join and concur with that of the third party in producing the injury or death, then the court shall reduce the damages awarded by the jury against the third party by the amount which the employer would otherwise be entitled to receive therefrom by way of subrogation hereunder and the entire amount recovered, after such reduction, shall belong to the employee or his personal representative free of any claim by the employer and the third party shall have no further right by way of contribution or otherwise against the employer, except any right which may exist by reason of an express contract of indemnity between the employer and the third party, which was entered into prior to the injury to the employee. In the event that the court becomes aware that there is an express contract of indemnity between the employer and the third party the court may in the interest of justice exclude the employer from the trial of the claim against the third party and may meet the issue of the actionable negligence of the employer to the jury in a separate hearing.
    1. If the employer has filed a written admission of liability for benefits under this Chapter with, or if an award final in nature in favor of the employee has been entered by the Industrial Commission, then any amount obtained by any person by settlement with, judgment against, or otherwise from the third party by reason of such injury or death shall be disbursed by order of the Industrial Commission for the following purposes and in the following order of priority: (f) (1) If the employer has filed a written admission of liability for benefits under this Chapter with, or if an award final in nature in favor of the employee has been entered by the Industrial Commission, then any amount obtained by any person by settlement with, judgment against, or otherwise from the third party by reason of such injury or death shall be disbursed by order of the Industrial Commission for the following purposes and in the following order of priority:
      1. First to the payment of actual court costs taxed by judgment and/or reasonable expenses incurred by the employee in the litigation of the third-party claim.
      2. Second to the payment of the fee of the attorney representing the person making settlement or obtaining judgment, and except for the fee on the subrogation interest of the employer such fee shall not be subject to the provisions of G.S. 97-90 but shall not exceed one third of the amount obtained or recovered of the third party.
      3. Third to the reimbursement of the employer for all benefits by way of compensation or medical compensation expense paid or to be paid by the employer under award of the Industrial Commission.
      4. Fourth to the payment of any amount remaining to the employee or his personal representative.
    2. The attorney fee paid under (f)(1) shall be paid by the employee and the employer in direct proportion to the amount each shall receive under (f)(1)c and (f)(1)d hereof and shall be deducted from such payments when distribution is made.
  6. The insurance carrier affording coverage to the employer under this Chapter shall be subrogated to all rights and liabilities of the employer hereunder but this shall not be construed as conferring any other or further rights upon such insurance carrier than those herein conferred upon the employer, anything in the policy of insurance to the contrary notwithstanding.
  7. In any proceeding against or settlement with the third party, every party to the claim for compensation shall have a lien to the extent of his interest under (f) hereof upon any payment made by the third party by reason of such injury or death, whether paid in settlement, in satisfaction of judgment, as consideration for covenant not to sue, or otherwise and such lien may be enforced against any person receiving such funds. Neither the employee or his personal representative nor the employer shall make any settlement with or accept any payment from the third party without the written consent of the other and no release to or agreement with the third party shall be valid or enforceable for any purpose unless both employer and employee or his personal representative join therein; provided, that this sentence shall not apply:
    1. If the employer is made whole for all benefits paid or to be paid by him under this Chapter less attorney’s fees as provided by (f)(1) and (2) hereof and the release to or agreement with the third party is executed by the employee; or
    2. If either party follows the provisions of subsection (j) of this section.
  8. Institution of proceedings against or settlement with the third party, or acceptance of benefits under this Chapter, shall not in any way or manner affect any other remedy which any party to the claim for compensation may have except as otherwise specifically provided in this Chapter, and the exercise of one remedy shall not in any way or manner be held to constitute an election of remedies so as to bar the other.
  9. Notwithstanding any other subsection in this section, in the event that a judgment is obtained by the employee in an action against a third party, or in the event that a settlement has been agreed upon by the employee and the third party, either party may apply to the resident superior court judge of the county in which the cause of action arose or where the injured employee resides, or to a presiding judge of either district, to determine the subrogation amount. After notice to the employer and the insurance carrier, after an opportunity to be heard by all interested parties, and with or without the consent of the employer, the judge shall determine, in his discretion, the amount, if any, of the employer’s lien, whether based on accrued or prospective workers’ compensation benefits, and the amount of cost of the third-party litigation to be shared between the employee and employer. The judge shall consider the anticipated amount of prospective compensation the employer or workers’ compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable, in determining the appropriate amount of the employer’s lien. If the matter is pending in the federal district court such determination may be made by a federal district court judge of that division.

History. 1929, c. 120, s. 11; 1933, c. 449, s. 1; 1943, c. 622; 1959, c. 1324; 1963, c. 450, s. 1; 1971, c. 171, s. 1; 1979, c. 865, s. 1; 1983, c. 645, ss. 1, 2; 1991, c. 408, s. 1; c. 703, s. 2; 1999-194, s. 1; 2004-199, s. 13(b).

Effect of Amendments.

Session Laws 2004-199, s. 13(b), effective August 17, 2004, substituted “arose or where the injured employee resides, or to a presiding judge of either district” for “arose, where the injured employee resides or the presiding judge before whom the cause of action is pending” in subsection (j).

Legal Periodicals.

For article, “Settlement with a Third Party,” see 8 N.C.L. Rev. 424 (1930).

For survey of 1976 case law on workers’ compensation, see 55 N.C.L. Rev. 1116 (1977).

For survey of 1977 workers’ compensation law, see 56 N.C.L. Rev. 1166 (1978).

For article, “Third-Party Action Over Against Workers’ Compensation Employer,” see 1982 Duke L.J. 483.

For note, “Pleasant v. Johnson: The North Carolina Supreme Court Enters the Twilight Zone — Is a Co-employee Liable in Tort for Willful, Reckless, and Wanton Conduct?,” see 64 N.C.L. Rev. 688 (1986).

For note, “A New Exception to the Exclusivity Provision of the North Carolina Workers’ Compensation Act — Woodson v. Rowland,” see 14 Campbell L. Rev. 261 (1992).

For a survey of 1996 developments in the law regarding prisoner rights, see 75 N.C.L. Rev. 2428 (1997).

CASE NOTES

Analysis

I.In General

Editor’s Note. —

Several of the cases cited below were decided under former G.S. 97-10.

Legislative History. —

For case reviewing the legislative history of this section, see Hogan v. Johnson Motor Lines, 38 N.C. App. 288, 248 S.E.2d 61, 1978 N.C. App. LEXIS 2169 (1978).

Legislative Intent. —

Subsection (j) allows plaintiff double recovery at expense of employer or carrier, in discretion of superior court judge. Since language is clear and unambiguous, the legislature intended this possible result. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330, 1990 N.C. App. LEXIS 1059 (1990) (citing) Pollard v. Smith, 90 N.C. App. 585, 369 S.E.2d 84, 1988 N.C. App. LEXIS 633 (1988), rev’d on other grounds, 324 N.C. 424, 378 S.E.2d 771 (1989).

Absent extenuating circumstances, the Worker’s Compensation Act in general and this section specifically were never intended to provide the employee with a windfall of a recovery from both the employer and the third-party tortfeasor. Radzisz v. Harley Davidson of Metrolina, Inc., 346 N.C. 84, 484 S.E.2d 566, 1997 N.C. LEXIS 212 (1997).

In granting a trial court the discretion to determine subrogation amounts in workers’ compensation cases under G.S. 97-10.2(j) to facilitate settlement of third party claims, the legislature did not intend to undermine the authority of the Industrial Commission to do the same for workers’ compensation claims. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711, 2002 N.C. App. LEXIS 1119 (2002).

Public Policy. —

Trial court did not err by concluding that pursuant to G.S. 97-10.2(e) a steamroller driver’s employer was not entitled to recover on its workers’ compensation lien from a judgment awarded to the driver following a collision. G.S. 97-10.2(e) evidenced a strong public policy of prohibiting a negligent employer from recouping any workers’ compensation benefits paid to an injured employee, and the General Assembly intended for G.S. 97-10.2(e) to apply even in cases where the issue of last clear chance had been submitted to the jury and the jury had answered this question in the affirmative. Outlaw v. Johnson, 190 N.C. App. 233, 660 S.E.2d 550, 2008 N.C. App. LEXIS 907 (2008).

Subsection (j) Held Constitutional. —

Subsection (j) of this section does not violate “Law of the Land” clause of N.C. Const., Art. I, § 19, and is not unconstitutionally vague. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330, 1990 N.C. App. LEXIS 1059 (1990).

Discretion given trial court by subsection (j) of this section does not violate United States or North Carolina Constitution. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330, 1990 N.C. App. LEXIS 1059 (1990).

This section is not unconstitutionally vague or violative of due process. In re Biddix, 138 N.C. App. 500, 530 S.E.2d 70, 2000 N.C. App. LEXIS 639 (2000).

Trial court did not abuse its discretion in extinguishing county’s subrogation lien against a deputy sheriff regarding a settlement that he received following an injury in the course of his employment because G.S. 97-10.2(j) did not violate the Exclusive Emoluments Clause of N.C. Const., Art. I, § 32. Helsius v. Robertson, 174 N.C. App. 507, 621 S.E.2d 263, 2005 N.C. App. LEXIS 2469 (2005).

Purpose of Section. —

Manifestly, the statute was designed primarily to secure prompt and reasonable compensation for an employee, and at the same time to permit an employer or his insurance carrier, who has made a settlement with the employee, to recover the amount so paid from a third party causing the injury to such employee. The statute was not designed as a city of refuge for a negligent third party. Brown v. Southern Ry., 204 N.C. 668, 169 S.E. 419, 1933 N.C. LEXIS 231 (1933).

Section Does Not Apply to Injuries Occurring Prior to June 20, 1959. —

This section and G.S. 97-10.1 do not apply to an injury which occurred prior to June 20, 1959, the effective date of those statutes. Swaney v. George Newton Constr. Co., 5 N.C. App. 520, 169 S.E.2d 90, 1969 N.C. App. LEXIS 1390 (1969).

Choice of Law. —

Pursuant to this section it is sound public policy of North Carolina to provide for a right of action on behalf of an injured employee against a third party tortfeasor (even a fellow subcontractor) and even though the injured employee applied for and received workers’ compensation benefits. Virginia law which violated this policy was not applied even though injury occurred in Virginia. Braxton v. Anco Elec., Inc., 100 N.C. App. 635, 397 S.E.2d 640, 1990 N.C. App. LEXIS 1137 (1990), aff'd, 330 N.C. 124, 409 S.E.2d 914, 1991 N.C. LEXIS 746 (1991).

Where plaintiff sought and received workers’ compensation benefits pursuant to the North Carolina Workers’ Compensation Act for an injury received in Virginia and caused by a third-party subcontractor, and, inter alia, North Carolina was the place of plaintiff ’s residence, the location of defendant’s business, and the place of the initial hiring, North Carolina had significant interests in applying its own law based on the employment relationship and its connection with North Carolina. Braxton v. Anco Elec., Inc., 100 N.C. App. 635, 397 S.E.2d 640, 1990 N.C. App. LEXIS 1137 (1990), aff'd, 330 N.C. 124, 409 S.E.2d 914, 1991 N.C. LEXIS 746 (1991).

Where all the parties were North Carolina citizens; the plaintiff’s contract of employment and the contracts giving rise to the workers’ compensation coverage were signed in North Carolina; and the plaintiff was receiving benefits under our workers’ compensation statute, North Carolina’s interests in implementing the protections afforded by its statute were paramount. An employee’s temporary presence in Virginia so as to carry out his employment contract did not strip him of the rights he otherwise enjoyed under the North Carolina workers’ compensation statute with regard to the breadth of North Carolina’s exclusive remedy bar on common law actions in tort. Braxton v. Anco Elec., Inc., 330 N.C. 124, 409 S.E.2d 914, 1991 N.C. LEXIS 746 (1991).

Plaintiff’s request to reduce or eliminate defendants’ workers’ compensation lien on funds plaintiff received from South Carolina underinsured motorist (UIM) coverage was properly denied because plaintiff sought reduction or elimination of the subrogation lien pursuant to G.S. 97-10.2(j), which was remedial in nature and remedial rights were determined by the law of the forum; although South Carolina law, S.C. Code Ann. § 38-77-160, would not have allowed a lien on such funds, North Carolina law applied, and North Carolina did not have a statute which prevented subrogation of UIM funds. Anglin v. Dunbar Armored, Inc., 226 N.C. App. 203, 742 S.E.2d 205, 2013 N.C. App. LEXIS 338 (2013).

Virginia Law Compared. —

North Carolina Workers’ Compensation Act provides for a right of action on behalf of an injured employee against a third party even though the injured party applied for and received workers’ compensation benefits. In contrast, Virginia law prohibits a similar right of action. Braxton v. Anco Elec., Inc., 100 N.C. App. 635, 397 S.E.2d 640, 1990 N.C. App. LEXIS 1137 (1990), aff'd, 330 N.C. 124, 409 S.E.2d 914, 1991 N.C. LEXIS 746 (1991).

This section applies only to persons who are strangers to the employment and negligently cause an injury. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

And Is Inapplicable to Negligent Employee. —

This section, which provides for actions against “some person other than the employer,” has been held inapplicable to the negligent employee. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748, 1981 N.C. App. LEXIS 3006 (1981).

The enactment of subsection (e) of this section evidences a strong public policy in North Carolina of prohibiting a negligent employer from recouping any workers’ compensation benefits paid to an injured employee. Geiger v. Guilford College Community Volunteer Firemen's Ass'n, 668 F. Supp. 492, 1987 U.S. Dist. LEXIS 7721 (M.D.N.C. 1987).

Subsection (e) represents a codification of the holding in Brown v. Southern Ry., 204 N.C. 668, 169 S.E. 419 (1933). Geiger v. Guilford College Community Volunteer Firemen's Ass'n, 668 F. Supp. 492, 1987 U.S. Dist. LEXIS 7721 (M.D.N.C. 1987).

Subsection (e) delineates the rights between parties who are jointly liable for a tort: the employer under workers’ compensation law and the third party under traditional tort law. Geiger v. Guilford College Community Volunteer Firemen's Ass'n, 668 F. Supp. 492, 1987 U.S. Dist. LEXIS 7721 (M.D.N.C. 1987).

The provisions of subsection (e) govern in all actions by a plaintiff employee against a third party as a matter of North Carolina law, even where plaintiff has recovered workers’ compensation under the workers’ compensation laws of another state. Geiger v. Guilford College Community Volunteer Firemen's Ass'n, 668 F. Supp. 492, 1987 U.S. Dist. LEXIS 7721 (M.D.N.C. 1987).

The doctrine of governmental immunity is inapplicable where a defendant alleges a municipality’s negligence under subsection (e). Jackson v. Howell's Motor Freight, Inc., 126 N.C. App. 476, 485 S.E.2d 895, 1997 N.C. App. LEXIS 528 (1997).

Employee of Subcontractor May Maintain Action Against Main Contractor. —

An employee of a subcontractor is not precluded by the Workers’ Compensation Act from maintaining an action at common law against the main contractor for injuries resulting from alleged negligence on the part of the main contractor, since the action is not against plaintiff ’s employer but against a third person. Cathey v. Southeastern Constr. Co., 218 N.C. 525, 11 S.E.2d 571 (1940); Tipton v. Barge, 243 F.2d 531 (4th Cir. 1957). See also Sayles v. Loftis, 217 N.C. 674, 9 S.E.2d 393 (1940). which held a principal contractor liable at common law as a third person for negligent injuries to employees of a subcontractor. And see G.S. 97-19, which enlarges the compensation responsibility of a principal contractor to the employees of subcontractors .

Employee Who Received Funds from Third Party Can Pursue Workers’ Compensation Claim. —

Court of appeals erred in reversing the Industrial Commission because its reliance on a prior case was misplaced since the provisions relating to claims against third-party tortfeasors were amended, and the prior decision was decided under the previous statute; the employee did not waive his right to compensation, and once the subrogation lien amount was determined by agreement or a superior court, the employer was entitled to reimbursement of its lien from the benefits due the employee. Easter-Rozzelle v. City of Charlotte, 370 N.C. 286, 807 S.E.2d 122, 2017 N.C. LEXIS 946 (2017).

Barring a plaintiff who has received funds from a third party from pursuing a workers’ compensation claim contravenes the express language of subsection (i). Easter-Rozzelle v. City of Charlotte, 370 N.C. 286, 807 S.E.2d 122, 2017 N.C. LEXIS 946 (2017).

Employer’s lien interest in third-party proceeds is mandatory in nature, and thus, there is no windfall of a recovery to a plaintiff when the defendant is entitled to recover the amount of its lien by means of a credit against the plaintiff’s ongoing workers’ compensation benefits; subsection (j) contains no temporal requirement, and either party may apply to the superior court judge to determine the amount of the defendant’s lien. Easter-Rozzelle v. City of Charlotte, 370 N.C. 286, 807 S.E.2d 122, 2017 N.C. LEXIS 946 (2017).

No Conflict Between Subsection (f)(1)c and Former G.S. 28-173. —

There is no conflict in the language in G.S. 28-173 (see now G.S. 28A-18-2), which prohibits use of the wrongful death recovery to pay a debt of the decedent, and the language in subsection (f)(1)c of this section, which directs that a portion of the recovery be applied to the reimbursement of the employer for benefits paid under award of the Industrial Commission. Byers v. North Carolina State Hwy. Comm’n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff’d, 275 N.C. 229, 166 S.E.2d 649 (1969).

Subsection (j) permitted superior court to adjust amount of a subrogation lien if the agreement between the parties was finalized so that only performance of the agreement was necessary to bind the parties; a trial court erred in holding that it lacked jurisdiction to reduce liens held by an employer and an insurer against a workers’ compensation award. Childress v. Fluor Daniel, Inc., 172 N.C. App. 166, 615 S.E.2d 868, 2005 N.C. App. LEXIS 1577 (2005).

Trial court did not lack subject matter jurisdiction to rule on an employee’s motion for determination of an employer’s lien on settlement funds pursuant to the Workers’ Compensation Act, G.S. 97-10.2(j), because the settlement agreements reached between the employee and third parties were sufficient to give the trial court jurisdiction under G.S. 97-10.2(j); the settlement agreements had already been performed, and thus the settlement agreements were not subject to any conditions precedent and had already bound the parties. Kingston v. Lyon Constr., Inc., 207 N.C. App. 703, 701 S.E.2d 348, 2010 N.C. App. LEXIS 2013 (2010).

The Workers’ Compensation Act does not create two causes of action, one for the employee’s estate and the other for the employer and insurance carrier. The right to bring action for damages for wrongful death is conferred by former G.S. 28-173 (see now G.S. 28A-18-2). The act merely governs the respective rights of the employee’s estate, the employer and the insurance carrier to maintain an action for damages against third parties. Groce v. Rapidair, Inc., 305 F. Supp. 1238, 1969 U.S. Dist. LEXIS 10126 (W.D.N.C. 1969).

Verdict to Be for Full Amount of Damages. —

This section clearly contemplates that the action against the third party is to be tried on its merits as an action in tort, and that any verdict of the jury adverse to the third party is to declare the full amount of damages suffered by the employee on account of his injury, notwithstanding any award of payment of compensation to him under the provisions of the Workers’ Compensation Act. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953).

Trial court did not err in limiting interest allowed plaintiff to the interest on the amount of the jury award as reduced pursuant to this section. Absher v. Vannoy-Lankford Plumbing Co., 78 N.C. App. 620, 337 S.E.2d 877, 1985 N.C. App. LEXIS 4319 (1985).

Employee Not Entitled to Interest on Amounts Reimbursable to Health Insurer. —

Language “final award or unpaid portion thereof” in G.S. 97-86.2 does not include amounts of medical compensation for which the employee was indemnified by his health insurer and which were reimbursable to the health insurer because the legislative purpose was not to create a penalty to the employer nor a windfall for the employee; denial of an employee’s claim for interest on amounts reimbursable to his health insurance carrier was proper. Sprinkle v. Lilly Indus., 193 N.C. App. 694, 668 S.E.2d 378, 2008 N.C. App. LEXIS 2024 (2008).

Amount of Judgment. —

Giving the statute its plain meaning requires the court to read the term “judgment” to mean just that, and to reject the argument that the court should look only at the insurance “proceeds” that a party is to receive, as opposed to the entire judgment, in determining the applicability of this section. Hieb v. Lowery, 121 N.C. App. 33, 464 S.E.2d 308, 1995 N.C. App. LEXIS 961 (1995), aff'd, 344 N.C. 403, 474 S.E.2d 323, 1996 N.C. LEXIS 488 (1996).

Appeal from Reduced Award. —

Plaintiff was not a “party aggrieved” by judgment entered in superior court reducing her ultimate recovery to the difference between jury award and workers’ compensation award pursuant to this section, so as to permit her appeal from such recovery. Absher v. Vannoy-Lankford Plumbing Co., 78 N.C. App. 620, 337 S.E.2d 877, 1985 N.C. App. LEXIS 4319 (1985).

Reduction of defendants’ lien was reversed because the findings in the order were insufficient to determine whether the court properly exercised its discretion or if it acted under a misapprehension of law when it reduced the amount of defendants’ lien. Alston v. Fed. Express Corp., 200 N.C. App. 420, 684 S.E.2d 705, 2009 N.C. App. LEXIS 1645 (2009).

Evidence of out-of-state worker’s compensation payments is admissible in actions against third parties. Frugard v. Pritchard, 338 N.C. 508, 450 S.E.2d 744, 1994 N.C. LEXIS 712 (1994).

Supreme Court of Nevada held that proof of California workers’ compensation payments could be admitted into evidence in a personal injury action in Nevada, because it served the primary purpose of Nev. Rev. Stat. § 616C.215(10) to avoid confusing the jury about the payment of workers’ compensation benefits and their relation to the damages awarded. The Supreme Court of Nevada cited G.S. 97-10.2(e) and followed the uniform rule in North Carolina whereby evidence of out-of-state workers’ compensation payments is admissible in actions against third parties. Tri-County Equip. & Leasing, LLC v. Klinke, 128 Nev. 352, 286 P.3d 593, 128 Nev. Adv. Rep. 33, 2012 Nev. LEXIS 72 (Nev. 2012).

Interaction with Tort Claims Act. —

Where the plaintiff was permanently injured while working on a silage harvesting machine operated by the Department of Correction (now Division of Adult Correction of the Department of Public Safety), and he filed a claim with the Industrial Commission under the Tort Claims Act, his claim was properly dismissed on the grounds that workers’ compensation was plaintiff’s exclusive remedy. Richardson v. North Carolina Dep't of Correction, 118 N.C. App. 704, 457 S.E.2d 325, 1995 N.C. App. LEXIS 377 (1995), aff'd, 345 N.C. 128, 478 S.E.2d 501, 1996 N.C. LEXIS 654 (1996).

Employers May Not Recover Benefits Paid. —

The employer was not entitled to a lien on the settlement proceeds in order to recoup the payments which it made to the employee although it was free from culpability with respect to the accident in which employee was injured. In re Biddix, 138 N.C. App. 500, 530 S.E.2d 70, 2000 N.C. App. LEXIS 639 (2000).

Attorney’s malpractice in failing to timely file a third-party tort action was not an injury under G.S. 97-2(6) for purposes of an employer’s right of subrogation and the employer, therefore, had no subrogation rights under G.S. 97-10.2(h) with respect to the proceeds of the employee’s legal malpractice claim. Grant Constr. Co. v. McRae, 146 N.C. App. 370, 553 S.E.2d 89, 2001 N.C. App. LEXIS 947 (2001).

The superior court’s determination that the lien be reduced in its entirety was factually supported and a proper, constitutional exercise of its discretion. The court made findings with respect to the extent of the employee’s injuries—her ongoing pain and suffering, her medical expenses as paid by the employer, her compensation for temporary disability, as well as the amount of the settlement and the fact that the third party tortfeasor had no additional assets from which she could recover—and concluded that the amount of the settlement inadequately compensated plaintiff for her injuries. In re Biddix, 138 N.C. App. 500, 530 S.E.2d 70, 2000 N.C. App. LEXIS 639 (2000).

It was not an abuse of discretion for a trial court to reduce an employer’s lien against an employee’s settlement with a third-party tortfeasor to zero because (1) the court did not have to first determine that the settlement was insufficient to compensate the employer for workers’ compensation benefits the employer paid before the court could exercise the court’s discretion to determine the amount of the employer’s lien, and (2) the evidence allowed the court to find that the settlement and the workers’ compensation benefits did not fully compensate the employee for the employee’s pain, suffering, and other losses. Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96, 678 S.E.2d 757, 2009 N.C. App. LEXIS 1068 (2009).

Trial court did not abuse its discretion in reducing an employer’s lien on settlement funds to zero because the findings of fact evidenced the trial court’s thorough consideration of the necessary statutory factors contained in the Workers’ Compensation Act, G.S. 97-10.2(j), and amply supported its conclusion that the employer’s lien on an employee’s settlements had to be reduced to zero; possibility of future settlements did not impair the trial court’s consideration of the net recovery from the present settlements or impair its ability to balance the equities in making its determination. Kingston v. Lyon Constr., Inc., 207 N.C. App. 703, 701 S.E.2d 348, 2010 N.C. App. LEXIS 2013 (2010).

Trial court had jurisdiction to determine amount of a workers’ compensation lien and to distribute the third party recovery pursuant to this section, where the insurer was a “third party” in that plaintiff’s injury was “caused under circumstances creating a liability in some person . . . to pay damages therefor,” and where a settlement, albeit contested by the employer, existed between plaintiff and the third party, the insurer. Levasseur v. Lowery, 139 N.C. App. 235, 533 S.E.2d 511, 2000 N.C. App. LEXIS 888 (2000), aff'd, 353 N.C. 358, 543 S.E.2d 476, 2001 N.C. LEXIS 272 (2001).

Employers Limited to Recovery of Benefits Paid. —

The full provisions of this section reveal a statutory scheme whereby employers are limited to recovery of benefits they have paid to an employee. M.B. Haynes Corp. v. Strand Electro Controls, Inc., 127 N.C. App. 177, 487 S.E.2d 819, 1997 N.C. App. LEXIS 768 (1997).

II.Respective Liability of Third Party, Employer and Carrier

Section Governs Rights to Sue Third Persons. —

This section governs the respective rights of the employee, the employer, and the employer’s insurance carrier to maintain actions for damages against third parties; that is, persons other than the employer and those conducting his business. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

Third Party Responsible for Total Pecuniary Loss. —

The third party whose negligence caused the death may be held responsible for the total pecuniary loss to the estate. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

Action against Third Party Does Not Abate upon Making of Award Under the Act. —

Where an award is made under the act after an action at law has been begun by the employee’s representative against the third party, such an action does not abate. Phifer v. Berry, 202 N.C. 388, 163 S.E. 119, 1932 N.C. LEXIS 516 (1932).

No Cause of Action to Recover Increased Insurance Costs. —

An employer whose workers’ compensation insurance premiums have risen as the result of an employee’s injury by a third party may not maintain a cause of action against the third party to recover its increased insurance costs. M.B. Haynes Corp. v. Strand Electro Controls, Inc., 127 N.C. App. 177, 487 S.E.2d 819, 1997 N.C. App. LEXIS 768 (1997).

Subsection (j) of this section must be read in pari materia with the rest of this section, and the legislature intended that the procedure for settling a case, as described in other parts of this section, be followed when settling a matter pursuant to subsection (j). Pollard v. Smith, 324 N.C. 424, 378 S.E.2d 771, 1989 N.C. LEXIS 243 (1989).

As the employer is not a joint tortfeasor, and thus an acceptance of an award against said employer for compensation would not discharge a third person whose negligence had contributed to the injury or death of the employee. Betts v. Southern Ry., 71 F.2d 787, 1934 U.S. App. LEXIS 3211 (4th Cir. 1934).

Where deceased is killed as a result of the concurring negligence of his employer and a third party, the employer is not a joint tortfeasor who may be made a party defendant at the instance of the negligent third party. Brown v. Southern Ry., 202 N.C. 256, 162 S.E. 613, 1932 N.C. LEXIS 478 (1932); Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106, 1950 N.C. LEXIS 512 (1950).

Nor May Third Person Hold Employer for Contribution or Indemnity. —

Third party, who was sued for damages for negligently inflicting a compensable injury upon an employee, could not hold the employer liable for contribution under the statute embodied in former G.S. 1-240 (see now G.S. 1B-1) or for indemnity under the doctrine of primary and secondary liability, even when the injury was the result of the joint or concurrent negligence of the employer and the third person. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953); Johnson v. United States, 133 F. Supp. 613, 1955 U.S. Dist. LEXIS 2927 (D.N.C. 1955).

Since it relieves the employer of liability to his injured employee as a tortfeasor, the Workers’ Compensation Act abrogates both the statutory right of a negligent third party to claim contribution from a negligent employer in equal fault, and the common-law right of a passively negligent third party to demand indemnity from an actively negligent employer. And this construction of the act is not invalidated by the mere circumstance that such construction may occasion hardship or injustice to a passively negligent third party. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768, 1953 N.C. LEXIS 703 (1953).

Unless There Is Express Contract of Indemnity Between Third Person and Employer. —

If there is an express contract of indemnity between third party and employer providing against loss to third party arising from the negligence of the employer, the third party if sued for damages by the employee may bring in the employer for contribution or indemnity. Johnson v. United States, 133 F. Supp. 613, 1955 U.S. Dist. LEXIS 2927 (D.N.C. 1955).

The Workers’ Compensation Act provides that a third party shall have no right (other than to assert the joint or concurring negligence of the employer) “by way of contribution or otherwise against the employer, except any right which may exist by reason of an express contract of indemnity between the employer and the third party, which was entered into prior to the injury to the employee.” Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393, 1965 N.C. LEXIS 1014 (1965).

This section recognizes the right of third parties to provide by contract with employers for indemnity against liability to employees for the consequences of their negligence and to enforce the contracts. Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393, 1965 N.C. LEXIS 1014 (1965).

Rights and Liabilities of Third Person Not Affected. —

The insurance carrier who has paid compensation to an injured employee for which the employer was liable under this Chapter may maintain an action against a third person upon allegations that the negligence of such third person caused the injury, but the rights and liabilities of such third person are in nowise affected by the Chapter. Hinson v. Davis, 220 N.C. 380, 17 S.E.2d 348, 1941 N.C. LEXIS 542 (1941).

But This Act Does Reduce Tort Liability of Passively Negligent Third Person. —

There is no substance in the proposition that the North Carolina Workers’ Compensation Act confers no right whatever upon the passively negligent third party. It reduces his liability in tort for the injury to the employee by the amount of the workers’ compensation received by the employee from the actively negligent employer or his insurance carrier. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768, 1953 N.C. LEXIS 703 (1953).

As to the liability of insurance carrier of employer as third party, see Smith v. Liberty Mut. Ins. Co., 449 F. Supp. 928, 1978 U.S. Dist. LEXIS 18188 (M.D.N.C. 1978), aff'd, 598 F.2d 616 (4th Cir. 1979).

Industrial Commission Has Exclusive Original Jurisdiction to Determine Right to Subrogation. —

The Declaratory Judgment Act may not be used to determine whether or not the employer’s insurance carrier is entitled to the right of subrogation against the funds received from the third-party tortfeasor, under the provisions of this section, since the Industrial Commission has the exclusive original jurisdiction to determine the question. Cox v. Pitt County Transp. Co., 259 N.C. 38, 129 S.E.2d 589, 1963 N.C. LEXIS 479 (1963).

This statutory provision does not provide for a direct action against the negligent employer nor does it allow for the recovery of direct damages from the employer. Jackson v. Howell's Motor Freight, Inc., 126 N.C. App. 476, 485 S.E.2d 895, 1997 N.C. App. LEXIS 528 (1997).

The doctrine of governmental immunity is inapplicable where a defendant alleges a municipality’s negligence under subsection (e). Jackson v. Howell's Motor Freight, Inc., 126 N.C. App. 476, 485 S.E.2d 895, 1997 N.C. App. LEXIS 528 (1997).

Evidence of out-of-state workers’ compensation payments is admissible in actions against third parties. Frugard v. Pritchard, 338 N.C. 508, 450 S.E.2d 744, 1994 N.C. LEXIS 712 (1994).

Effect of Contributory Negligence of Injured Employee. —

The contributory negligence of the injured employee cannot be made the basis of an independent plea in bar of the right of the employer to recover over against the original and primary wrongdoer. Poindexter v. Johnson Motor Lines, 235 N.C. 286, 69 S.E.2d 495, 1952 N.C. LEXIS 630 (1952).

Any alleged negligence of such employee who has received, or whose estate has received, compensation from the employer under the act, must be pleaded, if at all, as a bar to the whole action, without reference to any rights of the employer to share in the recovery. Poindexter v. Johnson Motor Lines, 235 N.C. 286, 69 S.E.2d 495, 1952 N.C. LEXIS 630 (1952).

Contributory negligence of the injured employee constitutes a complete defense to an action against a third-person tortfeasor, and may be pleaded and proved by such third person irrespective of whether the action is instituted by the employer, the insurance carrier, or the employee. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953).

Effect of Compromise and Settlement by Widow with Employer in Her Capacity as Administratrix. —

The widow of a deceased employee, in her capacity as administratrix, executed a compromise and settlement with the employer on a common-law claim for wrongful death under the mistaken belief that the Workers’ Compensation Act was not applicable. It was held that the compromise and settlement barred the widow in her capacity as a dependent from recovery under the act. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957).

But the compromise and settlement did not bar claim under the act of the deceased’s child under 18 years of age without guardian, since the administratrix had no authority to act for the dependent child except in respect of claims or causes of action vested in the administratrix as such. However, the child’s recovery under the act should be diminished to the extent of the benefits ultimately received by the child from the compromise and settlement. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957).

Allegations Failing to Show Contract by Employer and Carrier Not to Sue. —

An action was instituted by the administrator of a deceased employee against a third-party tortfeasor. Compensation had been paid for the employee’s death under the Workers’ Compensation Act. Defendant alleged in its answer that in the collision causing the death of plaintiff ’s intestate, other persons were killed or injured, that the other actions growing out of the collision were compromised, and that in the settlement defendant made a substantial contribution upon the assurance of the attorneys for the employer and insurance carrier that they would recommend that this action not be instituted. It was held that the allegations failed to show a contract by the employer or the insurance carrier not to sue, or that the attorneys did not make the promised recommendation in good faith; and the allegations were properly stricken upon motion in the administrator’s action. Penny v. Stone, 228 N.C. 295, 45 S.E.2d 362, 1947 N.C. LEXIS 319 (1947).

Employer is not relieved of liability by insurer’s insolvency after recovery against third person. Roberts v. City Ice & Coal Co., 210 N.C. 17, 185 S.E. 438, 1936 N.C. LEXIS 3 (1936).

Effect of Contributory Negligence of Employer. —

When the employee or his estate has been satisfied, and the employer seeks to recover the amount paid by him from a third party, such third party may raise as a defense that the employer’s negligence caused the employee’s death. Leonard v. Johns-Manville Sales Corp., 309 N.C. 91, 305 S.E.2d 528, 1983 N.C. LEXIS 1315 (1983).

If the defense of contributory negligence of the employer was not recognized, an employer could by his own negligence participate in the killing or injuring of the worker, pay for it, and then wash his hands of his own wrong, merely because he brought a suit against a third party who also contributed to the injury or death. Leonard v. Johns-Manville Sales Corp., 309 N.C. 91, 305 S.E.2d 528, 1983 N.C. LEXIS 1315 (1983).

Employer’s Negligence as Defense in Claim Against Subcontractor. —

In a case brought by an employee’s estate against a subcontractor seeking to recover for a work-related accident, the subcontractor was allowed under G.S. 97-10.2 to raise the employer’s negligence as a defense despite the fact that, in the settlement of the workers’ compensation claim, the employer had waived its right to subrogation. Estate of Harvey v. Kore-Kut, Inc., 180 N.C. App. 195, 636 S.E.2d 210, 2006 N.C. App. LEXIS 2241 (2006).

The liability of an automobile insurer, who was also the workers’ compensation carrier, for underinsured motorist benefits had to be reduced by the amount of workers’ compensation benefits after reduction of the amount received from the tort-feasor’s liability insurer. Manning v. Fletcher, 102 N.C. App. 392, 402 S.E.2d 648, 1991 N.C. App. LEXIS 434 (1991), aff'd, 331 N.C. 114, 413 S.E.2d 798, 1992 N.C. LEXIS 154 (1992).

The mandatory nature of workers’ compensation insurance carrier’s lien on a recovery from the third-party tort-feasor is not altered by the discretionary authority of the trial judge to apportion the recovery between the employee and the insurance carrier, if that recovery is inadequate to satisfy the insurance carrier’s lien. Manning v. Fletcher, 102 N.C. App. 392, 402 S.E.2d 648, 1991 N.C. App. LEXIS 434 (1991), aff'd, 331 N.C. 114, 413 S.E.2d 798, 1992 N.C. LEXIS 154 (1992).

When an employee obtained a judgment against an alleged tortfeasor for injuries for which the employee was paid workers’ compensation benefits, denying, based on res judicata, the tortfeasor’s motion to determine the amount of an employer’s lien erred because the statute, giving a trial judge discretion to find the lien amount, created a res judicata exception, as there was no identity between the employee’s personal injury action and the tortfeasor’s subsequent suit to find the lien amount, since the personal injury suit involved a civil claim for money damages, while the motion to find the lien amount was purely statutory and narrow in scope, simply requiring the court’s judicial act considering statutory factors and making a judicial value judgment supported by findings of fact and conclusions of law. Murray v. Moody, 252 N.C. App. 141, 797 S.E.2d 365, 2017 N.C. App. LEXIS 142 (2017).

When an employee obtained a judgment against an alleged tortfeasor for injuries for which the employee was paid workers’ compensation benefits, the superior court judge rule, ordinarily barring one trial court judge from altering another trial court judge’s order in the same action, did not preclude considering a motion to determine the amount of an employer’s subrogation lien, due to the prior judgment, because the statute giving a trial court judge discretion to find the lien amount created a specific statutory exception to that rule. Murray v. Moody, 252 N.C. App. 141, 797 S.E.2d 365, 2017 N.C. App. LEXIS 142 (2017).

The workers’ compensation carrier for plaintiffs had a subrogation lien on the uninsured motorist policy proceeds paid to plaintiff employee who was injured in an automobile accident occurring while within the scope of employment. Bailey v. Nationwide Mut. Ins. Co., 112 N.C. App. 47, 434 S.E.2d 625, 1993 N.C. App. LEXIS 1023 (1993), overruled, McMillian v. North Carolina Farm Bureau Mut. Ins. Co., 347 N.C. 560, 495 S.E.2d 352, 1998 N.C. LEXIS 3 (1998).

Findings Adequate on Third Party Litigation. —

Trial court’s order gave sufficient indication that the mandatory statutory factor regarding the cost of the third party litigation to be shared between the employee and employer was considered where it considered the amount the employee and his attorney had received, and would receive in the future, as a result of the third party litigation, took into account the court costs that had been paid, and noted that the employer intended to exclude the employee’s attorney’s fees from the amount of the workers’ compensation subrogation lien. Dion v. Batten, 248 N.C. App. 476, 790 S.E.2d 844, 2016 N.C. App. LEXIS 817 (2016).

III.Parties and Procedure

This section provides a negligent defendant with recourse against an also negligent employer by allowing defendant to: (1) allege that the employer’s negligence concurred in producing plaintiff’s injury and, (2) seek a reduction in damages as provided in the statute. Jackson v. Howell's Motor Freight, Inc., 126 N.C. App. 476, 485 S.E.2d 895, 1997 N.C. App. LEXIS 528 (1997).

Choice of Law. —

Trial court did not abuse its discretion in applying North Carolina law and reducing the amount of a workers’ compensation insurance carrier’s subrogation lien pursuant to G.S. 97-10.2(j) because, although the employer and the employee were Tennessean, the accident took place in North Carolina, and remedial rights were determined by the law of the forum. Cook v. Lowe's Home Ctrs., Inc., 209 N.C. App. 364, 704 S.E.2d 567, 2011 N.C. App. LEXIS 68 (2011).

Standing. —

Town and a state agency had standing to bring a subrogation complaint against a Chapter 13 debtor to recover workers’ compensation benefits paid to an individual injured in a pre-petition automobile accident with the debtor under G.S. 97-10.2(c) because the individual did not bring a timely claim against the debtor after the accident. In re Guzman, 2011 Bankr. LEXIS 4642 (Bankr. E.D.N.C. May 31, 2011).

UIM insurer had third-party standing under G.S. 97-10.2(j) to move for determination of the subrogation amount since the insured had properly filed for workers’ compensation benefits and received approval for the disbursement of third party funds. Dion v. Batten, 248 N.C. App. 476, 790 S.E.2d 844, 2016 N.C. App. LEXIS 817 (2016).

Trial court did not err in concluding that an insurance carrier did not have standing to bring an action to recover workers’ compensation benefits paid to an employee and dismissing the action; based upon the plain language of the statute and the legislative history, nothing shows the General Assembly intended to provide the insurance carrier with the right to bring a direct action against a third party. Key Risk Ins. Co. v. Peck, 252 N.C. App. 127, 797 S.E.2d 354, 2017 N.C. App. LEXIS 140 (2017).

Based upon the plain language of the statute, an insurance carrier does not have the right to bring an action against a third party in its own name, if the employee refuses to cooperate; the language of the statute explicitly states “the employer shall have the right to proceed to enforce the liability of the third party,” and the insurance carrier is only mentioned once in the sections outlining the procedure for bringing an action against a third party. Key Risk Ins. Co. v. Peck, 252 N.C. App. 127, 797 S.E.2d 354, 2017 N.C. App. LEXIS 140 (2017).

Action Prosecuted in Behalf of Any Person Entitled to Share in Recovery. —

A necessary implication of the statutory requirement respecting the disbursement of the recovery is that the action against the third party is prosecuted in behalf of any person entitled to claim a share in the recovery, regardless of whether he is a party to the action. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953).

Ownership of Policy Irrelevant. —

Under this section the distinction between an underinsured motorist policy purchased by the employee and one covering the employee but purchased by his spouse while a resident of the same household is unimportant. Creed v. R.G. Swaim & Son, 123 N.C. App. 124, 472 S.E.2d 213, 1996 N.C. App. LEXIS 570 (1996).

Subject Matter Jurisdiction Proper. —

Trial court had subject matter jurisdiction to rule on the motion for determination of the subrogation amount where the insured had obtained a judgment against another driver, thereby triggering the authority to determine the amount under G.S. 97-10.2(j). Dion v. Batten, 248 N.C. App. 476, 790 S.E.2d 844, 2016 N.C. App. LEXIS 817 (2016).

Jurisdiction Over Subrogation Claim. —

In a workers’ compensation appeal, the North Carolina Industrial Commission did not err in denying a motion by a successor employer and a successor insurer to withdraw or to stay the effect of an award to the employee because a final award had not yet been entered in the matter due to the appeal, and thus, the Commission did not have jurisdiction over a subrogation claim pursuant to G.S. 97-10.2(f)(1). Childress v. Fluor Daniel. Inc., 162 N.C. App. 524, 590 S.E.2d 893, 2004 N.C. App. LEXIS 185 (2004).

Motion To Introduce Newly Discovered Evidence Properly Denied. —

Trial court did not abuse its discretion in denying an employer’s motion to introduce newly discovered evidence pursuant to under G.S. 1A-1-60(b)(2) because the motion could not have been proper under Rule 60(b) since the employer filed the motion to introduce newly discovered evidence after the hearing on an employee’s motion to determine its workers’ compensation lien under the Workers’ Compensation Act, G.S. 97-10.2(j), but before any written order had been issued on his motion, and a hearing alone, without a written order, was not a final judgment or order; the employer did not seek relief from a final judgment or order, but rather attempted to put new evidence before the trial court for its consideration in rendering its final judgment or order, but Rule 60(b) did not contemplate that kind of relief. Kingston v. Lyon Constr., Inc., 207 N.C. App. 703, 701 S.E.2d 348, 2010 N.C. App. LEXIS 2013 (2010).

Motion to Substitute Properly Denied. —

Insurance carrier failed to show the trial court abused its discretion in denying its motion to substitute a party because the action was brought solely in the insurance carrier’s name and not the employer’s name, and no indication in the record showed the employee refused to cooperate. Key Risk Ins. Co. v. Peck, 252 N.C. App. 127, 797 S.E.2d 354, 2017 N.C. App. LEXIS 140 (2017).

Insurance carrier failed to show the trial court abused its discretion in denying its motion to substitute a party because the statute set out the procedures regarding who could bring a claim against a third party and when those claims could be instituted under the Workers’ Compensation Act, but the insurance carrier did not follow those statutory requirements to properly bring or assert the claim against a driver. Key Risk Ins. Co. v. Peck, 252 N.C. App. 127, 797 S.E.2d 354, 2017 N.C. App. LEXIS 140 (2017).

Liability of Employer. —

Business that employed the injured party working as an on-site supervisor for the business at the facility owner’s facility could not be found concurrently liable under G.S. 97-10.2(e) for any liability stemming from injuries that the injured party sustained when an unsecured door resting against a wall at the facility owner’s facility fell on the injured party. Any liability on its part was based on conjecture and, thus, the trial court did not even have to instruct jury on the issue of concurrent liability. Shelton v. Steelcase, Inc., 197 N.C. App. 404, 677 S.E.2d 485, 2009 N.C. App. LEXIS 750 (2009).

Joinder of Employer or Carrier in Action Against Third Person. —

Whether the employer or insurance carrier who has paid compensation may proceed in the action which has been instituted against a third person by an injured employee or his personal representative, or must institute a new and independent action, is a question of procedure, and under the law of this State it is proper to proceed in the action which has been instituted. Betts v. Southern Ry., 71 F.2d 787, 1934 U.S. App. LEXIS 3211 (4th Cir. 1934).

Employer’s Third Party Negligence Claim Time-Barred. —

In the employer and employee’s third party negligence claim against the general contractor and subcontractor, where the requirements of G.S. 97-10.2(c) were not met, as the employee and employer did not settle with the general contractor or subcontractor within 12 months of the employee’s injuries, and the employer did not file a written admission of liability with the industrial commission, under G.S. 97-10.2(b), the employee had the sole right to proceed after the employer did not file suit within 12 months of the injuries. Blair Concrete Servs. v. Van-Allen Steel Co., 152 N.C. App. 215, 566 S.E.2d 766, 2002 N.C. App. LEXIS 869 (2002).

As to appealability of order joining employer and insurance carrier, see Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953).

Defendant Not Entitled to Joinder of Employer and Insurance Carrier. —

In an action instituted by the employee against the third person tortfeasor, defendant was not entitled to the joinder of the employer and the insurance carrier. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953).

Employer Cannot Be Made Party Defendant. —

The remedy under the act is exclusive, and an employer is relieved of all further liability for injury to or death of an employee, and where the administrator of a deceased employee brings an action against third persons for the employee’s wrongful death, the motion of the defendants that the deceased’s employer be made a party as a joint tortfeasor with them should be denied. Brown v. Southern Ry., 202 N.C. 256, 162 S.E. 613, 1932 N.C. LEXIS 478 (1932).

Court May Not Join Unnecessary Additional Parties. —

Where the plaintiff is the party authorized by this section to maintain the action against the tortfeasor, he is entitled to prosecute same to final judgment, and the court may not interfere with this privilege by the joinder of wholly unnecessary additional parties. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953).

Employee is to have the exclusive privilege to prosecute his action to a final conclusion without the presence of either the employer or the insurance carrier unless extraordinary circumstances require their joinder. Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393, 1965 N.C. LEXIS 1014 (1965).

An action by an employee against a third party shall not be encumbered by including as parties, plaintiff or defendant, the employer or insurance carrier, nor by bringing in irrelevant causes of action. Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393, 1965 N.C. LEXIS 1014 (1965).

Employer’s Right of Subrogation Not Forfeited by Failure to Participate in Trial and Appeal of Wrongful Death Action. —

Employer, by its failure to participate in the trial and appeal of a wrongful death action brought by the administratrix of the estate of the deceased employee, did not forfeit its subrogation right to be reimbursed out of the recovery from the third party whose negligence caused the death, since, the suit having been brought within one year from the employee’s death, his personal representative had exclusive control of the proceedings against the negligent third party. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

As to employee filing counterclaim in action by third person, see Rowe v. Rowe-Coward Co., 208 N.C. 484, 181 S.E. 254, 1935 N.C. LEXIS 57 (1935).

Action by Insurance Carrier Instituted After Action by Employee. —

Where it appeared that an injured employee’s action against third-person tortfeasor was instituted prior to the institution of an action by the compensation insurance carrier against the tortfeasor, defendant’s plea in abatement in the employee’s action on the ground of the pendency of a prior action could not be sustained. Thompson v. Virginia & C.S.R.R., 216 N.C. 554, 6 S.E.2d 38, 1939 N.C. LEXIS 46 (1939) (commented on in 18 N.C.L. Rev. 375 (1940)) .

Recovery by Employee’s Administrator Bars Action by Employer or Carrier. —

Where the employee’s administrator has recovered and collected a judgment at law against third persons for the employee’s death, the employer and carrier cannot, in their own name, sue the defendants under the subrogation provisions of this section. Suits for wrongful death must be brought in the name of the personal representative, and the employee’s administrator having collected, there remains no cause to which the employer or carrier can be subrogated. Whitehead & Anderson, Inc. v. Branch, 220 N.C. 507, 17 S.E.2d 637, 1941 N.C. LEXIS 575 (1941).

Action Not Governed by Code of Civil Procedure. —

An action in behalf of an injured employee against a third-person tortfeasor is governed by this section and not by the Code of Civil Procedure. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953).

Insofar as the provisions of this section are in conflict with or supersede any of the rules of civil procedure, an action against a third party by an employee or employer to recover for injury to employee caused by the alleged negligence of the third party is governed by the provisions of the act and not by the Code of Civil Procedure. Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393, 1965 N.C. LEXIS 1014 (1965).

As to action for wrongful death against third person, see Betts v. Southern Ry., 71 F.2d 787, 1934 U.S. App. LEXIS 3211 (4th Cir. 1934); Mack v. Marshall Field & Co., 217 N.C. 55, 6 S.E.2d 889, 1940 N.C. LEXIS 174 (1940); Sayles v. Loftis, 217 N.C. 674, 9 S.E.2d 393, 1940 N.C. LEXIS 320 (1940); Taylor v. Hunt, 245 N.C. 212, 95 S.E.2d 589, 1956 N.C. LEXIS 568 (1956).

For cases holding that evidence of compensation payments was inadmissible in action by employee against third party, decided prior to the 1983 amendment to this section, see Penny v. Stone, 228 N.C. 295, 45 S.E.2d 362, 1947 N.C. LEXIS 319 (1947); Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953); Redding v. Braddy, 258 N.C. 154, 128 S.E.2d 147, 1962 N.C. LEXIS 652 (1962); Spivey v. Babcock & Wilcox Co., 264 N.C. 387, 141 S.E.2d 808, 1965 N.C. LEXIS 1198 (1965); Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536, 1966 N.C. LEXIS 1070 (1966).

Right of Employer and Carrier to Trial by Jury — Preserved by Subsection (e). —

Subsection (e) of this section preserves the employer/carrier’s right to trial by jury, providing that it has been demanded by a party in the pleadings and not waived by all the parties. Williams v. International Paper Co., 89 N.C. App. 256, 365 S.E.2d 724, 1988 N.C. App. LEXIS 271 (1988), aff'd in part, modified, 324 N.C. 567, 380 S.E.2d 510, 1989 N.C. LEXIS 332 (1989).

Same — Effect of Settlement of Claim Against Third Parties. —

In enacting subsection (j) of this section, the legislature did not contemplate and intend to deprive the employer/carrier of its right to trial by jury by virtue of the settlement of the plaintiff ’s claim against third party defendants. Williams v. International Paper Co., 89 N.C. App. 256, 365 S.E.2d 724, 1988 N.C. App. LEXIS 271 (1988), aff'd in part, modified, 324 N.C. 567, 380 S.E.2d 510, 1989 N.C. LEXIS 332 (1989).

Under G.S. 1A-1, Rule 38(d), absent a showing that employer/carrier consented to elimination of requested jury trial on the issue of employer negligence, it could not be deemed waived. Although the two original parties to the action had reached a settlement, there still remained the issue of employer negligence to be determined. Williams v. International Paper Co., 89 N.C. App. 256, 365 S.E.2d 724, 1988 N.C. App. LEXIS 271 (1988), aff'd in part, modified, 324 N.C. 567, 380 S.E.2d 510, 1989 N.C. LEXIS 332 (1989).

Subsection (j) must be read in pari materia with the rest of this section; other parts of the section provide a procedure for settling a case and the legislature did not intend this procedure to be ignored when settling a case pursuant to subsection (j). Pollard v. Smith, 324 N.C. 424, 378 S.E.2d 771, 1989 N.C. LEXIS 243 (1989).

Settlement reached by employee and third parties without the written consent of employer was void since employer did not give its written consent to the settlement between employee and the third parties; subsection (j) of this section does not supersede subsection (h) of this section and subsection (j) should be read in pari materia with the other provisions of the statute. Williams ex rel. Heidgerd v. International Paper Co., 324 N.C. 567, 380 S.E.2d 510, 1989 N.C. LEXIS 332 (1989).

A trial court’s reduction of a workers’ compensation subrogation lien was erroneous because the trial court based its jurisdiction upon a contingent settlement agreement containing an unfulfilled condition precedent; G.S. 97-10.2(j) only permits a superior court to adjust the amount of a subrogation lien if the agreement between the parties has been finalized so that only performance of the agreement is necessary to bind the parties. Ales v. T. A. Loving Co., 163 N.C. App. 350, 593 S.E.2d 453, 2004 N.C. App. LEXIS 369 (2004).

Trial court erred in concluding that employer did not have a lien on UIM benefits recovered by plaintiff from insurer; plaintiff’s private settlement with the insurer, which allowed the insurance carrier to reduce the arbitration award by the amount of the employer’s workers’ compensation lien, did not extinguish his employer’s workers’ compensation lien, and the trial court was obligated to make findings and conclusions in support of its reasoned disbursement choice to provide meaningful review on appeal. Levasseur v. Lowery, 139 N.C. App. 235, 533 S.E.2d 511, 2000 N.C. App. LEXIS 888 (2000), aff'd, 353 N.C. 358, 543 S.E.2d 476, 2001 N.C. LEXIS 272 (2001).

Workers’ Compensation Paid Was Lien Against Recovery of Uninsured Motorist Benefits. —

County vehicle insurance policy provision that workers’ compensation paid to an injured employee would be directly set off from the policy’s coverage limit was not valid because it was in direct conflict with G.S. 97-10.2. Under G.S. 97-10.2, the amount of workers’ compensation paid to the employee was a lien against her recovery under the policy, and the determination of the amount of that lien was left to the sound discretion of the trial court judge. Nolan v. Cooke, 198 N.C. App. 667, 679 S.E.2d 892, 2009 N.C. App. LEXIS 1358 (2009).

The workers’ compensation benefits received by plaintiff under Virginia’s Workers’ Compensation Act should have been allowed into evidence pursuant to subsection (e) in plaintiff’s third party personal injury action. Frugard v. Pritchard, 112 N.C. App. 84, 434 S.E.2d 620, 1993 N.C. App. LEXIS 1018 (1993), rev'd, 338 N.C. 508, 450 S.E.2d 744, 1994 N.C. LEXIS 712 (1994).

Employer Entitled to Jury Trial. —

In a tort action brought by an injured employee against third parties who alleged that the employer was jointly and concurrently liable for the employee’s injuries, the employer was entitled to a jury trial on the issue of employer negligence under subsection (e) of this section; there had been no showing that the employer consented to a waiver or withdrawal of the initial demand by third parties and employee for a jury trial since the settlement between the employee and third parties, to which the employer was not a party, neither extinguished the employer’s right to trial by jury nor did it settle the issue of the employer’s negligence. Williams ex rel. Heidgerd v. International Paper Co., 324 N.C. 567, 380 S.E.2d 510, 1989 N.C. LEXIS 332 (1989).

Defendants Waived Entitlement to Lien. —

Where by the explicit terms of an agreement between plaintiff and third party tortfeasor — to the making of which defendants stipulated their consent — lifetime monthly payments from third party to plaintiff were plainly proceeds of the structured settlement reached in that third party action, and federal district court, after reviewing the settlement agreement and hearing extensive argument from all parties, including counsel for defendants’ employer and insurer, found that defendants had agreed to waive any lien which they had as to the proceeds from this settlement and recovery, the facts fully supported the commission’s determination that defendants, by virtue of their waiver, were not entitled to a lien in the lifetime monthly payments due plaintiff from the third party action. Turner v. CECO Corp., 98 N.C. App. 366, 390 S.E.2d 685, 1990 N.C. App. LEXIS 411 (1990).

Retroactive Application. —

The trial court’s application of the amended version of this section deprived employer and insurer of vested rights under lien and, thus, was unconstitutionally retroactive. Fogleman v. D & J Equip. Rental, Inc., 111 N.C. App. 228, 431 S.E.2d 849, 1993 N.C. App. LEXIS 706 (1993).

Trial court’s order eliminating an insurance carrier’s workers’ compensation lien in the proceeds from the decedent’s wife’s negligence action against a railway company was vacated where the wife and railway company had settled the negligence claim contingent on the elimination of the lien and, as a result, the settlement was not final under the appellate court’s prior judicial precedent. Wilkerson v. Norfolk S. Ry., 167 N.C. App. 607, 606 S.E.2d 187, 2004 N.C. App. LEXIS 2321 (2004).

IV.Disbursement of Proceeds

Constitutionality. —

G.S. 97-10.2(f)(1)(b) was constitutional as applied in a case, because the cap on attorneys’ fees by the North Carolina Industrial Commission at one-third of the gross recovery in a third-party case was rationally related to a legitimate government interest in compensating the injured worker. Tinsley v. City of Charlotte, 228 N.C. App. 744, 747 S.E.2d 145, 2013 N.C. App. LEXIS 820 (2013).

Constitutionality of Subdivision (f)(2). —

The provision in subdivision (f)(2) of this section, which directs that the attorney fee incurred by the party who effects recovery against a third- party tortfeasor be apportioned between and paid by the employee and employer in proportion to the amount which each receives from the recovery, is constitutional. It does not unjustifiably impair the freedom of the employer and its carrier to negotiate a contract on their own for representation by attorneys of their choice in the prosecution and settlement of their subrogation rights against a third-party tortfeasor. Hogan v. Johnson Motor Lines, 38 N.C. App. 288, 248 S.E.2d 61, 1978 N.C. App. LEXIS 2169 (1978).

Legislative Intent. —

It is clear from the provisions of subsection (j) that it was and is the intent of the legislature that non-negligent employers are to be reimbursed for those amounts they pay to employees who are injured by the negligence of third parties, and that employees are not intended to receive double recoveries. Johnson v. Southern Indus. Constructors, Inc., 347 N.C. 530, 495 S.E.2d 356, 1998 N.C. LEXIS 11 (1998).

Evidence of Liability Insurance. —

In suit regarding automobile accident, evidence of defendant’s liability insurance coverage should not have been introduced just because evidence of plaintiff’s recovery in workers’ compensation was introduced pursuant to subsection (e). Anderson v. Hollifield, 123 N.C. App. 426, 473 S.E.2d 399, 1996 N.C. App. LEXIS 692 (1996), rev'd, 345 N.C. 480, 480 S.E.2d 661, 1997 N.C. LEXIS 1 (1997).

Coverage by Same Entity Not Required. —

In order to have amounts payable under underinsured motorist coverage reduced by amounts paid under workers’ compensation coverage, G.S. 20-279.21(e) does not require that the same entity provide both coverages. Brantley v. Starling, 336 N.C. 567, 444 S.E.2d 170, 1994 N.C. LEXIS 288 (1994).

Jurisdiction over Distribution with Court or Commission. —

Under this section, the distribution of proceeds received from a tortfeasor between an injured employee and an employer entitled to reimbursement can be decided in some instances by either the Industrial Commission or the trial court. Buckner v. City of Asheville, 113 N.C. App. 354, 438 S.E.2d 467, 1994 N.C. App. LEXIS 32 (1994).

The Industrial Commission, not the superior court, had exclusive jurisdiction over distribution of the proceeds recovered from third party tortfeasor where third party judgment exceeded the subrogation claim of the worker’s compensation insurance carrier even if the actual proceeds of the judgment were insufficient to compensate the subrogation claim. Hieb v. Howell's Child Care Ctr., Inc., 123 N.C. App. 61, 472 S.E.2d 208, 1996 N.C. App. LEXIS 571 (1996).

Although the Industrial Commission, not the superior court, had exclusive jurisdiction to disburse third party proceeds, the Commission did not have the authority to stay a superior court order, even if the order was in error. Hieb v. Howell's Child Care Ctr., Inc., 123 N.C. App. 61, 472 S.E.2d 208, 1996 N.C. App. LEXIS 571 (1996).

Where there had been no settlement, nor had a judgment been obtained, which was insufficient to compensate the subrogation claim of workers’ compensation insurance carrier, the trial court lacked authority to direct disbursement of judgment proceeds under this section and the case would be remanded to the Industrial Commission. Hieb v. Lowery, 134 N.C. App. 1, 516 S.E.2d 621, 1999 N.C. App. LEXIS 659, modified, 134 N.C. App. 21, 1999 N.C. App. LEXIS 907 (1999).

Subdivision (f)(1)(c) Construed in Pari Materia with G.S. 97-25. —

Subdivision (f)(1)(c) and G.S. 97-25 relate to the same subject matter and must be construed in pari materia. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917, 1990 N.C. App. LEXIS 1223 (1990).

The distribution of any recovery is a matter for the Industrial Commission under subsection (f) of this section. Spivey v. Babcock & Wilcox Co., 264 N.C. 387, 141 S.E.2d 808, 1965 N.C. LEXIS 1198 (1965); Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

Limitation on Commission; Authority. —

The authority of the Industrial Commission to distribute the proceeds of the employer-employee settlement with the tortfeasor is governed by subsection (f) which does not have the authority to make a distribution pursuant to subsection (j). Buckner v. City of Asheville, 113 N.C. App. 354, 438 S.E.2d 467, 1994 N.C. App. LEXIS 32 (1994).

Findings of Fact Required to Be Made by Commission. —

The commission must make findings of fact regarding the benefits provided for the treatment of an injured employee for which an employer is entitled to reimbursement. Buckner v. City of Asheville, 113 N.C. App. 354, 438 S.E.2d 467, 1994 N.C. App. LEXIS 32 (1994).

Subsection (f) provides adequate protection against double recovery by the injured employee on account of aggravation of his original injury through the physician’s negligence. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

Reimbursement Under Subdivision (f)(1)(c). —

The party claiming a right to reimbursement under subsection (f)(1)(c), i.e., the employer or its insurance carrier, must show, pursuant to G.S. 97-25, (1) that the treatment provided was in the form of medical treatment, surgical treatment, hospital treatment, nursing services, medicines, sick travel, rehabilitation services, or other treatment including medical and surgical supplies, and (2) that the treatment provided was reasonably required for at least one of three purposes, namely, to effect a cure, give relief, or lessen the period of the plaintiff ’s disability. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917, 1990 N.C. App. LEXIS 1223 (1990).

Proceeds of any settlement or judgment must be disbursed according to the provisions of the act. Cox v. Pitt County Transp. Co., 259 N.C. 38, 129 S.E.2d 589, 1963 N.C. LEXIS 479 (1963); Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff'd, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

Since the passage of the Workers’ Compensation Act, the Supreme Court has held that recovery from a responsible third party must be distributed by the Industrial Commission according to the order of priority set out in the act. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

Recovery by Employer of His Underinsured Motorist Benefits. —

The employer’s underinsured motorist benefits received in an action against the tortfeasor are subject to a subrogation claim by an employer who has paid workers’ compensation benefits to its employee. Buckner v. City of Asheville, 113 N.C. App. 354, 438 S.E.2d 467, 1994 N.C. App. LEXIS 32 (1994).

Recovery by Personal Representative. —

The net recovery from the responsible third party (except that which must be returned to the subrogee for its outlay) goes to the personal representative under subsection (f)(1)d. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

For case where petitioners, who were not the administrators, lacked standing to appeal Industrial Commission’s order of distribution, see Montgomery v. Bryant Supply Co., 91 N.C. App. 734, 373 S.E.2d 299, 1988 N.C. App. LEXIS 912 (1988).

Employer’s Lien Against Settlement. —

Subsection (j) permits a party to have a superior court judge determine the subrogation amount that an employer is entitled to in the event that a settlement has been agreed upon by the employee and the third party and the judge shall determine the amount, if any, of the employer’s lien. United States Fid. & Guar. Co. v. Johnson, 128 N.C. App. 520, 495 S.E.2d 388, 1998 N.C. App. LEXIS 107 (1998).

Trial court did not abuse its discretion in extinguishing county’s subrogation lien against deputy sheriff regarding a settlement that he received following an injury in the course of his employment because the county government was subject to the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., regarding payment and compensation under the Act, and there was specific statutory authority authorizing the deputy sheriff to seek a determination under G.S. 97-10.2(j) of the county’s authority to file a lien against his settlement proceeds. Helsius v. Robertson, 174 N.C. App. 507, 621 S.E.2d 263, 2005 N.C. App. LEXIS 2469 (2005).

In a workers’ compensation case, because the settlement between the claimant’s uninsured motorist insurance carrier and herself did not comply with G.S. 97-10.2 in that the employer never gave written consent to the settlement, the full commission of the North Carolina Industrial Commission erred in concluding that the employer’s only remedy was to apply to a trial court for a credit for amounts paid from the uninsured motorist carrier to the claimant. Instead, the employer was entitled to a lien on all corresponding uninsured motorist benefits received by the claimant, less the portion expended for the cost of replacing the claimant’s left breast implant, which was determined not to have been a compensable injury. Richardson v. Maxim Healthcare/Allegis Group, 2007 N.C. App. LEXIS 2112 (N.C. Ct. App. Oct. 2, 2007).

As to whether a trial court abused its discretion by finding, in the alternative, that if respondents did have a lien against the settlement proceeds under G.S. 97-10.2(h), such lien should be struck pursuant to G.S. 97-10.2(j), a remand was necessary because there was no indication in the record to show that the trial court considered several mandated statutory factors. Parker v. C.C. Mangum Co., 188 N.C. App. 518, 655 S.E.2d 869, 2008 N.C. App. LEXIS 218 (2008).

Right for decedent’s estate to bring an action against the third-party tortfeasors, was conferred by G.S. 28A-18-2; however, the relative rights between decedent’s estate and respondent employer and its insurer were governed by G.S. 97-10.2. Parker v. C.C. Mangum Co., 188 N.C. App. 518, 655 S.E.2d 869, 2008 N.C. App. LEXIS 218 (2008).

Unless and until an employee who was injured in a hit-and-run automobile accident applied to a superior court for a determination of the subrogation amount on a settlement the employee received from an uninsured motorist carrier, the employer and the employer’s insurer were entitled to a lien on all corresponding uninsured motorist benefits received by the employee, less the portion expended for the cost of replacing an implant for the employee for which the carrier paid. Richardson v. Maxim Healthcare/ Allegis Group, 188 N.C. App. 337, 657 S.E.2d 34, 2008 N.C. App. LEXIS 213, aff'd in part and rev'd in part, 362 N.C. 657, 669 S.E.2d 582, 2008 N.C. LEXIS 973 (2008).

Amounts Paid as Compensation Constitute a Lien on Wrongful Death Action Recovery. —

Under the provisions of this section, the amounts paid by an employer and the employer’s insurance carrier as compensation or other benefits to a decedent under the Workers’ Compensation Act for disability, disfigurement, or death caused under circumstances creating a liability in some person other than the employer to pay damages therefor constitute a lien on the amount recovered in a wrongful death action; and this is a lawful claim against the estate. Long v. Coble, 11 N.C. App. 624, 182 S.E.2d 234, 1971 N.C. App. LEXIS 1600, cert. denied, 279 N.C. 395, 183 S.E.2d 246, 1971 N.C. LEXIS 822 (1971).

In order to adjust the amount of a lien upon a recovery against a third party agreed to in a workers’ compensation claim settlement approved by the Industrial Commission, the parties must apply to the commission under G.S. 97-17; a party may not use G.S. 97-10.2(j) to avoid a duly executed and commission-approved settlement agreement, and a trial court has no jurisdiction to adjust a lien amount agreed upon in such an agreement. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711, 2002 N.C. App. LEXIS 1119 (2002).

General language of G.S. 97-10.2(j) is clear and unambiguous, granting a trial judge authority to use its discretion in adjusting a workers’ compensation lien amount, even if the result is a double recovery for the plaintiff. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711, 2002 N.C. App. LEXIS 1119 (2002).

Lien on Underinsured Motorist Benefits. —

Industrial Commission properly concluded that workers’ compensation carrier had a lien on the proceeds of plaintiff’s underinsured motorist benefits. Creed v. R.G. Swaim & Son, 123 N.C. App. 124, 472 S.E.2d 213, 1996 N.C. App. LEXIS 570 (1996).

Amounts Obtained “by Settlement with, Judgment,” etc. —

Cash payment and value of remainder interest in real estate conveyed to widow for the death of her husband-employee by shooting constitute amounts obtained by her “by settlement with, judgment against, or otherwise” from the third party tortfeasor by reason of her husband’s death so as to subject such amounts to the disbursement authority of the Industrial Commission under subsection (f). Nivens v. Firestone Tire & Rubber Co., 24 N.C. App. 473, 211 S.E.2d 505, 1975 N.C. App. LEXIS 2407 (1975).

Authority to Order Employer to Pay Attorney’s Fees. —

This section does not confer any authority upon the district court to order an employer to pay attorney’s fees. This action is within the exclusive province of the Industrial Commission. Westmoreland v. Safe Bus, Inc., 20 N.C. App. 632, 202 S.E.2d 605, 1974 N.C. App. LEXIS 2509 (1974).

Cap on Attorney’s Fees in Third-Party Action. —

North Carolina Industrial Commission, pursuant to G.S. 97-10.2(f)(1) and G.S. 97-90(c), did not exceed its subject matter jurisdiction by capping attorneys’ fees from a third-party case at one-third of the gross recovery. Tinsley v. City of Charlotte, 228 N.C. App. 744, 747 S.E.2d 145, 2013 N.C. App. LEXIS 820 (2013).

Illegal Agreement Between Employee’s Dependents and Employer for Distribution of Recovery. —

In an action by the administrator of a deceased employee against the third-party tortfeasor, allegations in defendant’s answer of an illegal agreement between the dependents and the employer for the distribution of the fund are properly stricken on motion, since the administrator is an official of the court under duty to make disbursement of any recovery in conformity with statute, and could not be bound by the terms of the agreement alleged. Penny v. Stone, 228 N.C. 295, 45 S.E.2d 362, 1947 N.C. LEXIS 319 (1947).

Attorney’s Fees Improperly Disbursed. —

Trial court properly ruled that any determination with respect to the payment of counsel fees in a workers’ compensation lien case must be made by the Industrial Commission and that court’s disbursement of attorney’s fees had therefore not been proper. Hieb v. Lowery, 134 N.C. App. 1, 516 S.E.2d 621, 1999 N.C. App. LEXIS 659, modified, 134 N.C. App. 21, 1999 N.C. App. LEXIS 907 (1999).

Employer’s insurance company can be subrogated for the amount of workers’ compensation paid by it to the employee. Manning v. Fletcher, 91 N.C. App. 393, 371 S.E.2d 770, 1988 N.C. App. LEXIS 874 (1988), rev'd, 324 N.C. 513, 379 S.E.2d 854, 1989 N.C. LEXIS 297 (1989).

Amount and Distribution of Recovery in Action by Insurance Carrier. —

When an action is maintained by the insurance carrier against the third-person tortfeasor causing the injury, the tortfeasor is liable for the amount ascertained by the jury as sufficient to compensate the employee for the injuries sustained, which the statute prescribes shall be first applied to the actual court costs, then to the payment of attorneys’ fees, then to the reimbursement of the insurance carrier for money paid by it under the award, and any amount remaining to the injured employee, and an instruction on the issue of damages that defendant would be liable for such sum as would reimburse the insurance carrier and would fairly compensate the injured employee is error. Rogers v. Southeastern Constr. Co., 214 N.C. 269, 199 S.E. 41, 1938 N.C. LEXIS 318 (1938).

This statute clearly provides for a different standard for disbursement when the case is before the superior court than that for cases before the Industrial Commission. When the General Assembly added subsection (j), it made no reference to subsection (f). Pollard v. Smith, 90 N.C. App. 585, 369 S.E.2d 84, 1988 N.C. App. LEXIS 633 (1988), rev'd, 324 N.C. 424, 378 S.E.2d 771, 1989 N.C. LEXIS 243 (1989).

Trial Court to Enter Judgment Safeguarding Rights of Persons Entitled to Share in Recovery. —

In the event of a verdict for the plaintiff in the action against third party, the trial court, sitting without a jury, is to determine the amount of compensation paid or payable to the injured employee under the act on the basis either of a stipulation of the interested persons or of evidence submitted to it, and after so doing is to enter a judgment safeguarding the rights of any person entitled to share in the recovery, regardless of whether or not such person is a party to the action. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953).

Authority of Court to Reduce Lien Amount Where Settlement Approved by Industrial Commission. —

G.S. 97-10.2(j) did not give a trial court the authority to reduce the amount of an employer’s and insurer’s lien against an employee’s recovery against a third party where the employee had agreed to the amount of that lien in a settlement approved by the Industrial Commission. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711, 2002 N.C. App. LEXIS 1119 (2002).

Distribution of Wrongful Death Settlement Following Disapproval of Compensation Agreement. —

Where the Industrial Commission disapproved an agreement for compensation for death only because the employee’s widow was a minor and the death benefits had been miscalculated, but the employer’s admission of liability was not disapproved, the Commission had jurisdiction to issue an order for the distribution of a wrongful death settlement made before the Commission finally approved the compensation agreement. Williams v. Insurance Repair Specialists of N.C. Inc., 32 N.C. App. 235, 232 S.E.2d 5, 1977 N.C. App. LEXIS 1905 (1977).

Distribution of Wrongful Death Settlement Despite Liability Carrier’s Possible Loss. —

Where an employee’s death arose out of and in the course of his employment, the employer filed with the Industrial Commission a written admission of liability, the compensation insurance carrier notified the third-party tortfeasor’s liability insurance carrier that a compensation settlement was in process and that it would expect its lien upon any settlement of a wrongful death claim by the liability carrier, the liability carrier settled the wrongful death claim for $55,000.00 and paid that amount to the deceased employee’s administrator, and the Industrial Commission later approved a workers’ compensation settlement awarding $28,500.00 to the widow, the Industrial Commission thereafter had authority under this section to issue an order of distribution of the $55,000.00 wrongful death settlement, including a requirement that the liability carrier pay $28,500.00 to the compensation carrier in settlement of its subrogation interest, notwithstanding that the widow may have spent her entire distributive share of the wrongful death settlement and all of the workers’ compensation benefits paid to her and the liability carrier might be unable to recoup any of the amount previously paid from the widow or the decedent’s administrator. Williams v. Insurance Repair Specialists of N.C. Inc., 32 N.C. App. 235, 232 S.E.2d 5, 1977 N.C. App. LEXIS 1905 (1977).

Distribution of Sum Collected by Plaintiff from Third Party. —

Where defendant employer had not previously made any payments to plaintiff, the Commission should have directed it to pay plaintiff the compensation he was entitled to under G.S. 97-61.5. Then, following the distribution scheme set out in subdivision (f)(1), the sum collected by plaintiff from the third-party recovery should have been used first to pay court costs; secondly, to pay plaintiff ’s attorneys’ fee; thirdly, to reimburse defendant for the compensation it paid to plaintiff, less defendant’s proportionate share of plaintiff ’s attorneys’ fees incurred in achieving the third-party recovery; and finally, the remainder of the third-party recovery should have been disbursed to the employee. Davis v. Weyerhaeuser Co., 96 N.C. App. 584, 386 S.E.2d 740, 1989 N.C. App. LEXIS 1119 (1989).

Payment of Prejudgment Interest to Employee Not Double Recovery. —

An award to the employee of the entire amount of prejudgment interest on his jury verdict against a third party, less the amount paid to the employer and insurer to satisfy their subrogation lien, did not constitute a double recovery. Bartell v. Sawyer, 132 N.C. App. 484, 512 S.E.2d 93, 1999 N.C. App. LEXIS 194 (1999).

Calculation of Prejudgment Interest. —

Prejudgment interest on a workers’ compensation claimant’s recovery in a third-party action is to be calculated based on the amount of money claimant is entitled to receive once an employer’s subrogation lien for workers’ compensation benefits has been satisfied. Bartell v. Sawyer, 132 N.C. App. 484, 512 S.E.2d 93, 1999 N.C. App. LEXIS 194 (1999).

Employer and Insurer Not Entitled to Share of Prejudgment Interest. —

The employer and insurer were entitled to recover out of the proceeds of the employee’s third party action the amount of all benefits paid to the employee, but not to any of the prejudgment interest awarded. Bartell v. Sawyer, 132 N.C. App. 484, 512 S.E.2d 93, 1999 N.C. App. LEXIS 194 (1999).

Reimbursement. —

This section mandates that the payor of benefits be reimbursed with duplicative amounts received by plaintiff employee from a civil suit. Radzisz v. Harley Davidson of Metrolina, Inc., 123 N.C. App. 602, 473 S.E.2d 655, 1996 N.C. App. LEXIS 807 (1996), aff'd, 346 N.C. 84, 484 S.E.2d 566, 1997 N.C. LEXIS 212 (1997).

Reimbursement of Employer and Insurer from Recovery in Action by Employee’s Personal Representative. —

Where the suit was instituted by the personal representative of the deceased, and the employer and its insurance carrier have taken no action except to file an affidavit of interest, this in itself would not have prevented them from being reimbursed from the recovery. Essick v. City of Lexington, 233 N.C. 600, 65 S.E.2d 220, 1951 N.C. LEXIS 370 (1951), overruled, Floyd v. Nash, 268 N.C. 547, 151 S.E.2d 1, 1966 N.C. LEXIS 1252 (1966).

Amount and Reasonableness of Attorneys’ Fees. —

Under paragraph (f)(1)b of this section, the attorneys’ fee taken from the employee’s share may not exceed one-third of the amount recovered, but it is not otherwise subject to the reasonableness requirement of G.S. 97-90(c); the attorneys’ fee on the subrogation interest of the employer (or its carrier) is subject to the reasonableness requirement of G.S. 97-90(c) and may not exceed one-third of the amount recovered from the third party. Hardy v. Brantley Constr. Co., 87 N.C. App. 562, 361 S.E.2d 748, 1987 N.C. App. LEXIS 3277 (1987), rev'd in part, 322 N.C. 106, 366 S.E.2d 485, 1988 N.C. LEXIS 121 (1988).

Subrogation of Lien Interest. —

The Industrial Commission erred in concluding that defendant employer and insurance company were not entitled to a subrogation interest or lien interest against the proceeds received by plaintiff employee in settlement of a civil action. Radzisz v. Harley Davidson of Metrolina, Inc., 123 N.C. App. 602, 473 S.E.2d 655, 1996 N.C. App. LEXIS 807 (1996), aff'd, 346 N.C. 84, 484 S.E.2d 566, 1997 N.C. LEXIS 212 (1997).

Trial court erred in concluding that respondents did not have a lien against the wrongful death benefits recovered by decedent’s estate because, although the General Assembly expressly subrogated the rights of an employer’s insurance carrier to that of an employer, there was no language in G.S. 97-10.2 subrograting the rights of an employer to that of the beneficiaries of the workers’ compensation award. Parker v. C.C. Mangum Co., 188 N.C. App. 518, 655 S.E.2d 869, 2008 N.C. App. LEXIS 218 (2008).

Trial court did not abuse the court’s discretion in determining the amount of the workers’ compensation subrogation lien since the insurers contractually obligated themselves to provide the employee with UIM coverage in satisfaction of the judgment obtained against the driver, an arbitration panel decided the employee was entitled to $285,000.00 in compensation for injuries he sustained, and the trial court then excluded court costs, attorney’s fees, and interest from the amount of the judgment. Dion v. Batten, 248 N.C. App. 476, 790 S.E.2d 844, 2016 N.C. App. LEXIS 817 (2016).

When Amount Greater than Amount Obtained from Third Party. —

Court of Appeals of North Carolina holds that when the amount of workers’ compensation benefits paid by the employer and their servicing agent to an employee is greater than all amounts obtained by the employee from a third party tortfeasor, the amount of the workers’ compensation lien is equal to the amount of the judgment, and shall be disbursed pursuant to G.S. 97-10.2. Dion v. Batten, 248 N.C. App. 476, 790 S.E.2d 844, 2016 N.C. App. LEXIS 817 (2016).

Subrogation of Carrier to Employer’s Right to Payment upon Employee Reimbursement. —

This section provides for the subrogation of the workers’ compensation insurance carrier to the employer’s right, upon reimbursement of the employee, to any payment, including uninsured/underinsured motorist insurance proceeds, made to the employee by or on behalf of a third party as a result of the employee’s injury. Ohio Cas. Group v. Owens, 99 N.C. App. 131, 392 S.E.2d 647, 1990 N.C. App. LEXIS 486 (1990), overruled, McMillian v. North Carolina Farm Bureau Mut. Ins. Co., 347 N.C. 560, 495 S.E.2d 352, 1998 N.C. LEXIS 3 (1998).

Subsection (j) is independent from the other subsections in this section, and the Superior Court has discretionary authority to determine the lien amount. Wiggins v. Bushranger Fence Co., 126 N.C. App. 74, 483 S.E.2d 450, 1997 N.C. App. LEXIS 316 (1997).

No Condition Precedent for Subrogation Rights. —

The provisions of this statute cannot logically be construed as requiring establishment of a condition precedent in the nature of a written admission or a final award before a payor of workers’ compensation benefits obtains subrogation rights. Radzisz v. Harley Davidson of Metrolina, Inc., 123 N.C. App. 602, 473 S.E.2d 655, 1996 N.C. App. LEXIS 807 (1996), aff'd, 346 N.C. 84, 484 S.E.2d 566, 1997 N.C. LEXIS 212 (1997).

Trial Court Did Not Have to Follow Distribution Priority in Subsection (f). —

In distributing settlement under subsection (j) of this section, trial court did not have to follow the distribution priority set forth in subsection (f) of this section. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330, 1990 N.C. App. LEXIS 1059 (1990).

Trial Court Must Make Findings of Fact and Conclusions of Law. —

The trial court, in considering request for disbursement under subsection (j) of this section, must enter order with findings of fact and conclusions of law sufficient to provide for meaningful appellate review. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330, 1990 N.C. App. LEXIS 1059 (1990).

Equal Division of Proceeds Proper Exercise of Trial Court’s Discretion. —

Trial court did not abuse its discretion in determining that it was fair, equitable and just for injured party and insurance carrier to share equally settlement proceeds which fell far short of being sufficient to reimburse injured party for his pain, suffering and other losses; or to reimburse insurance carrier for its payment of injured party’s extensive medical bills. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330, 1990 N.C. App. LEXIS 1059 (1990).

Commission Approval Not Necessary for Rehabilitation Services Charges. —

Insurance carrier did not need the Commission’s approval for charges connected with rehabilitation services in order to obtain reimbursement for those expenses under this section because G.S. 97-90(a) does not require approval of the Commission for rehabilitation services. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917, 1990 N.C. App. LEXIS 1223 (1990).

Authority of Trial Court to Reduce Workers’ Compensation Lien on Proceeds of Settlement. —

G.S. 97-10.2(j) allowed a trial court to reduce the amount of a lien which a company that paid workers’ compensation benefits to an injured employee asserted against the proceeds of a settlement the employee received from a third party, and given the nature of the employee’s injuries, the trial court did not abuse its discretion by reducing the amount of the insurance company’s lien from $168,000 to $55,667 and ordering the insurance company to pay part of the employee’s litigation costs. Sherman v. Home Depot U.S.A., Inc., 160 N.C. App. 404, 588 S.E.2d 478, 2003 N.C. App. LEXIS 1787 (2003).

Trial Court’s Discretion. —

Trial court did not abuse its discretion in reducing a workers’ compensation lien on the proceeds of a widow’s wrongful death settlement after taking into account the testimony, the evidence presented, the court file, and the parties’ arguments; the amendment to G.S. 97-10.2(j) was applicable, making the amount of the subrogation lien a matter for the trial court’s discretion without a finding that the judgment obtained by the injured employee against the third party was insufficient to satisfy the carrier’s subrogation interest. Wood v. Weldon, 160 N.C. App. 697, 586 S.E.2d 801, 2003 N.C. App. LEXIS 1912 (2003).

There is no mathematical formula or set list of factors for the trial court to consider in making its determination of a subrogation amount under G.S. 97-10.2(j); the statute plainly affords the trial court discretion to determine the appropriate amount of defendant’s lien, which requires that the trial court make a reasoned choice, a judicial value judgment, which is factually supported. Wood v. Weldon, 160 N.C. App. 697, 586 S.E.2d 801, 2003 N.C. App. LEXIS 1912 (2003).

§ 97-10.3. Minors illegally employed.

In any case where an employer and employee are subject to the provisions of this Chapter, any injury to a minor while employed contrary to the laws of this State shall be compensable under this Chapter as if said minor were an adult, subject to the other provisions of this Chapter.

History. 1929, c. 120, s. 11; 1933, c. 449, s. 1; 1943, c. 622; 1959, c. 1324.

CASE NOTES

Injury to Minor Employed Contrary to Law. —

Where the evidence disclosed that infant plaintiff was one of the minimum number of employees required under the act in a business owned by two of defendants and conducted by the third defendant as general manager, and that he was injured in the performance of the duties of his employment, nonsuit was proper, since the evidence disclosed that the cause was within the exclusive jurisdiction of the Industrial Commission, notwithstanding the infant plaintiff might have been hired contrary to law. McNair v. Ward, 240 N.C. 330, 82 S.E.2d 85, 1954 N.C. LEXIS 425 (1954), (Decided under former G.S. 97-10).

§ 97-11. Employer not relieved of statutory duty.

Nothing in this Article shall be construed to relieve any employer or employee from penalty for failure or neglect to perform any statutory duty.

History. 1929, c. 120, s. 12.

CASE NOTES

Liability Of Subcontractor And Principal. —

Subcontractor and the subcontractor’s principal were subject to penalties for not procuring workers’ compensation insurance because (1) nothing in N.C. Gen. Stat. ch. 97 relieved any employer from penalty for not performing a statutory duty, and (2) in interstate and intrastate trucking, G.S. 97-19.1 applied whether or not an employer employed three or more people. Atiapo v. Goree Logistics, Inc., 240 N.C. App. 1, 770 S.E.2d 684, 2015 N.C. App. LEXIS 219 (2015), cert. denied, 577 U.S. 1142, 136 S. Ct. 1198, 194 L. Ed. 2d 182, 2016 U.S. LEXIS 1479 (2016).

§ 97-12. Use of intoxicant or controlled substance; willful neglect; willful disobedience of statutory duty, safety regulation or rule.

No compensation shall be payable if the injury or death to the employee was proximately caused by:

  1. His intoxication, provided the intoxicant was not supplied by the employer or his agent in a supervisory capacity to the employee; or
  2. His being under the influence of any controlled substance listed in the North Carolina Controlled Substances Act, G.S. 90-86, et seq., where such controlled substance was not by prescription by a practitioner; or
  3. His willful intention to injure or kill himself or another.

When the injury or death is caused by the willful failure of the employer to comply with any statutory requirement or any lawful order of the Commission, compensation shall be increased ten percent (10%). When the injury or death is caused by the willful failure of the employee to use a safety appliance or perform a statutory duty or by the willful breach of any rule or regulation adopted by the employer and approved by the Commission and brought to the knowledge of the employee prior to the injury compensation shall be reduced ten percent (10%). The burden of proof shall be upon him who claims an exemption or forfeiture under this section.

“Intoxication” and “under the influence” shall mean that the employee shall have consumed a sufficient quantity of intoxicating beverage or controlled substance to cause the employee to lose the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.

A result consistent with “intoxication” or being “under the influence” from a blood or other medical test conducted in a manner generally acceptable to the scientific community and consistent with applicable State and federal law, if any, shall create a rebuttable presumption of impairment from the use of alcohol or a controlled substance.

History. 1929, c. 120, s. 13; 1975, c. 740; 2005-448, s. 2.

Effect of Amendments.

Session Laws 2005-448, s. 2, effective October 1, 2005, added the last two paragraphs.

Legal Periodicals.

As to effect of breach by statute upon willful misconduct, see 8 N.C.L. Rev. 326 (1930).

For note on the range of compensable consequences of a work-related injury, see 49 N.C.L. Rev. 583 (1971).

For survey of 1976 case law on workers’ compensation, see 55 N.C.L. Rev. 1116 (1977).

For survey of 1977 workers’ compensation law, see 56 N.C.L. Rev. 1166 (1978).

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

CASE NOTES

Analysis

I.In General

Editor’s Note. —

For case notes on willful injuries, see also the case notes under G.S. 97-2.

Legislative Intent. —

This section is an integral part of the Workers’ Compensation Act and evidences the legislature’s intention to relieve an employer of the obligation to pay compensation to an employee when the accident giving rise to the employee’s injuries is proximately caused by his intoxication. The oft-quoted rule that the act should be liberally construed does not license either commission or the courts to disregard the manifest intention of the legislature in enacting this section. Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E.2d 638, 1984 N.C. App. LEXIS 3917 (1984).

Presumption from Use of Controlled Substances. —

Once an employer proves employee’s use of a non-prescribed controlled substance, it is presumed that the employee was impaired; once the employer presents competent evidence that the impairment was a proximate cause of the accident, the burden shifts to the employee to rebut the presumption of impairment or to show that the impairment was not a contributing proximate cause of the accident. Willey v. Williamson Produce, 149 N.C. App. 74, 562 S.E.2d 1, 2002 N.C. App. LEXIS 139 (2002), rev'd, 357 N.C. 41, 577 S.E.2d 622, 2003 N.C. LEXIS 309 (2003).

Additional Award Does Not Constitute Punitive Damages. —

Ten percent additional award does not constitute punitive and exemplary damages, even though the effect of the 10 percent increase might appear to penalize an insurer, since G.S. 97-12 does not explicitly mention punitive damages, but in fact says that compensation shall be increased 10 percent; although there was no North Carolina caselaw on point, the trial court followed caselaw under a similar statute, Ky. Rev. Stat. Ann. § 342.165(1). Vogler v. Branch Erections Co., 181 N.C. App. 457, 640 S.E.2d 419, 2007 N.C. App. LEXIS 365, aff'd, 362 N.C. 77, 653 S.E.2d 142, 2007 N.C. LEXIS 1223 (2007).

Act Eliminates Fault of Worker as Basis for Denying Recovery. —

Compensation acts were intended to eliminate the fault of the worker as a basis for denying recovery. Hartley v. North Carolina Prison Dep't, 258 N.C. 287, 128 S.E.2d 598, 1962 N.C. LEXIS 693 (1962).

OSHA Regulations Applicable. —

By virtue of G.S. 95-131(a), the requirements of 29 C.F.R. § 1910.22(b)(1) are a statutory requirement that brings an employee’s injury and an employer’s subsequent citation within the scope of G.S. 97-12. Brown v. Kroger Co., 169 N.C. App. 312, 610 S.E.2d 447, 2005 N.C. App. LEXIS 611 (2005).

Employee’s Negligence Does Not Bar Him from Compensation. —

An act of negligence by an employee while he was in the performance of his duty of waiting for his foreman did not bar the employee’s right to compensation for the accident resulting from the negligence. Stubblefield v. Watson Elec. Constr. Co., 277 N.C. 444, 177 S.E.2d 882, 1970 N.C. LEXIS 630 (1970).

Not even gross negligence is a defense to a compensation claim. Hartley v. North Carolina Prison Dep't, 258 N.C. 287, 128 S.E.2d 598, 1962 N.C. LEXIS 693 (1962).

Only intoxication or injury intentionally inflicted will defeat a claim. Hartley v. North Carolina Prison Dep't, 258 N.C. 287, 128 S.E.2d 598, 1962 N.C. LEXIS 693 (1962).

The negligence of the employee does not disbar him from compensation, except only in cases where the injury is occasioned by his intoxication or willful intention to injure himself or another. Archie v. Greene Bros. Lumber Co., 222 N.C. 477, 23 S.E.2d 834, 1943 N.C. LEXIS 354 (1943).

Forfeiture for Intoxication Only If Cause of the Injury. —

This statute does not provide for forfeiture of benefits if an employee was intoxicated at the time of the injury, but only if the injury or death “was occasioned by the intoxication.” Lassiter v. Town of Chapel Hill, 15 N.C. App. 98, 189 S.E.2d 769, 1972 N.C. App. LEXIS 1831 (1972); Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 232 S.E.2d 449, 1977 N.C. LEXIS 1054 (1977).

The employer has the burden of proof on the affirmative defense of intoxication. However, the employer is not required to come forward with evidence disproving all possible causes other than intoxication. Nor is he required to prove that intoxication was the sole proximate cause of the employee’s injuries. Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E.2d 638, 1984 N.C. App. LEXIS 3917 (1984).

In asserting the defense of intoxication set out in this section, the employer is required to prove only that the employee’s intoxication was more probably than not a cause in fact of the accident resulting in injury to the employee. Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E.2d 638, 1984 N.C. App. LEXIS 3917 (1984).

This section places the burden of defense based upon intoxication on the defendants, to prove intoxication and to prove that death was proximately caused thereby. Smith v. Central Transp. & Liberty Mut. Ins. Co., 51 N.C. App. 316, 276 S.E.2d 751, 1981 N.C. App. LEXIS 2260 (1981).

The employer has the burden of proving intoxication as an affirmative defense. He must prove not only that the employee was intoxicated at the time of the accident causing the injury or death, but also that the accident was proximately caused by the employee’s intoxication. Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E.2d 111, 1986 N.C. App. LEXIS 2092 (1986).

The employer need not disprove all other possible causes of the accident and injury, nor need he prove that intoxication was the sole proximate cause of the accident; he is only required to prove that the employee’s intoxication was more probably than not a proximate cause of the accident and resulting injury. Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E.2d 111, 1986 N.C. App. LEXIS 2092 (1986).

Intoxication, willful intention and being under the influence of a controlled substance are affirmative defenses which place the burden of proof on the employer in a claim for workers’ compensation. Harvey v. Raleigh Police Dep't, 85 N.C. App. 540, 355 S.E.2d 147, 1987 N.C. App. LEXIS 2599 (1987).

Evidence of Intoxication. —

The Industrial Commission had the power to determine whether physician was qualified to testify as an expert in stating his opinion as to deceased employee’s intoxication at 2:50 p.m., based on a blood alcohol test administered at 5:00 p.m. Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E.2d 111, 1986 N.C. App. LEXIS 2092 (1986).

North Carolina Industrial Commission’s finding of fact under G.S. 97-12 that the worker’s fall was caused by his intoxication was supported by competent evidence of record where there was witness testimony that he smelled of alcohol and had a blood alcohol level of 0.22 percent at the time he fell off the roof. Gratz v. Hill, 189 N.C. App. 489, 658 S.E.2d 523, 2008 N.C. App. LEXIS 607 (2008).

Evidence of Impairment. —

Urine toxicology test that indicated the presence of cannabinoids but that did not provide a level or concentration of cannabinoid did not address an employee’s impairment and could not be used to show that the employee was impaired at the time of a workplace accident so as to bar recovery of workers’ compensation under G.S. 97-12(2). Moore v. Sullbark Builders, Inc., 198 N.C. App. 621, 680 S.E.2d 732, 2009 N.C. App. LEXIS 1337 (2009).

Finding of Intoxication by Commissioner Not Required. —

This statute does not require the Commissioner to find whether the employee was intoxicated or not as a matter of law. Lassiter v. Town of Chapel Hill, 15 N.C. App. 98, 189 S.E.2d 769, 1972 N.C. App. LEXIS 1831 (1972); Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 232 S.E.2d 449, 1977 N.C. LEXIS 1054 (1977).

Subdivision (3) presents an affirmative defense to a claim under the Workers’ Compensation Act. It requires a finding that the claimant had the willful intention to injure or kill himself or another and that this intention was the proximate cause of the claimant’s injuries. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458, 1982 N.C. LEXIS 1555 (1982).

Burden Under Subdivision (3). —

Since subdivision (3) of this section is an affirmative defense, the burden of proof is on the employer to show that compensation should be denied notwithstanding the fact that the injury arose out of and in the course of the employment. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458, 1982 N.C. LEXIS 1555 (1982).

Cause of Fact Standard Applicable to Subdivision (3). —

Using a cause in fact standard, the claimant’s injuries must be the result of a natural and continuous sequence of events, unbroken by a new independent cause, stemming from the claimant’s willful intention to injure himself or another. It is also necessary that some injury be foreseeable from the claimant’s actions, although the extent or nature of the injury suffered need not have been foreseen. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458, 1982 N.C. LEXIS 1555 (1982).

Under subdivision (3) of this section, for the claimant’s injuries to be proximately caused by her actions, the willful intention of the claimant must be more than a cause of her injuries. However, it need not be the sole cause. Rather, a cause in fact standard is required. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458, 1982 N.C. LEXIS 1555 (1982).

Injuries Must Be Proximately Caused by Claimant’s Willful Intent. —

Once willful intention has been established, in order to deny recovery it is necessary to find that the claimant’s injuries were “proximately caused by” an act resulting from such intent. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458, 1982 N.C. LEXIS 1555 (1982).

But This Need Not Be the “Sole” Proximate Cause. —

This section was designed to be an exception to the general rule that the employee would receive compensation for an injury arising out of and in the course of employment. To utilize a “sole” proximate cause standard would virtually vitiate the statute and defeat the express will of the General Assembly. Whenever an employee intends to injure another, that employee will usually not be injured unless the intended victim retaliates. The actions of the intended victim could always be considered a cause of the claimant’s injuries, and therefore the willful intention of the claimant would rarely if ever be the sole cause. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458, 1982 N.C. LEXIS 1555 (1982).

The sole proximate cause standard is inapplicable to this section. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458, 1982 N.C. LEXIS 1555 (1982).

Need Not Show Intent to Inflict “Serious” Injury. —

Neither acts by the claimant, nor mere words spoken by the claimant and unaccompanied by any overt act, will be sufficient to bar compensation, unless the willful intent to injure is apparent from the context and nature of the physical or verbal assault. However, no intent to inflict “serious” injury must be shown before the statutory bar to recovery will apply. The bar to recovery, set forth in subdivision (3) of this section, applies when a general willful intent to inflict some injury is established by the evidence. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458, 1982 N.C. LEXIS 1555 (1982).

Crucial Question Is Willful Intent. —

The crucial question is whether the claimant had a willful intention to injure the other employee. The fact that the other employee may have produced the knife and therefore escalated the fight is immaterial. The claimant may not have intended to kill or even seriously injure the other employee, but subdivision (3) of this section does not require that any such intent be shown before recovery will be denied. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458, 1982 N.C. LEXIS 1555 (1982).

Suicide Induced by Injury. —

In those cases where the injuries suffered by the deceased result in his becoming devoid of normal judgment and dominated by a disturbance of mind directly caused by his injury and its consequences, his suicide cannot be considered “willful” within the meaning and intent of the act. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970).

Suicide cannot be intentionally self-inflicted if, in spite of the act being one of conscious volition, the employee, because of mental condition resulting from the injury, is unable to control the impulse to kill himself. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970).

If the sole motivation controlling the will of the employee when he knowingly decides to kill himself is the pain and despair caused by the injury, and if his will itself is deranged and disordered by these consequences of the injury, then it seems wrong to say that this exercise of will is “independent,” or that it breaks the chain of causation. Rather, it seems to be in the direct line of causation. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970); Thompson v. Lenoir Transf. Co., 48 N.C. App. 47, 268 S.E.2d 534, 1980 N.C. App. LEXIS 3204 (1980).

While suicide may be an independent intervening cause in some cases, it is certainly not so in those cases where the incontrovertible evidence shows that, without the injury, there would have been no suicide. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970).

An employee who becomes mentally deranged and deprived of normal judgment as a result of a compensable accident and commits suicide in consequence does not act willfully within the meaning of this section. Elmore v. Broughton Hosp., 76 N.C. App. 582, 334 S.E.2d 231, 1985 N.C. App. LEXIS 4471 (1985).

An employee’s suicide caused by an occupational disease is compensable under the Workers’ Compensation Act. This is so because G.S. 97-52 makes it clear that the death of an employee resulting from an occupational disease shall be treated as the happening of an injury by accident. Harvey v. Raleigh Police Dep't, 85 N.C. App. 540, 355 S.E.2d 147, 1987 N.C. App. LEXIS 2599 (1987).

When suicide is the “end result” of an injury sustained in a compensable accident, it is an intervening act but not an intervening cause. An intervening cause is one occurring entirely independent of a prior cause. When a first cause produces a second cause that produces a result, the first cause is a cause of that result. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970).

Compensation for Suicide. —

Using the statute to deny compensation for suicides arising out of the employment is anomalous, because to do so produces a narrower basis for recovery under the remedial workers’ compensation acts than would have been possible under common-law tort doctrine. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970).

A ruling prohibiting compensation to the dependents of an employee who intentionally killed himself is not compatible with the objective of the Workers’ Compensation Act, which is to provide for the injured worker, or his dependents in the event of his death, at the cost of the industry which he was serving. To this end, the rule is that benefits under the act should not be denied by a technical, narrow, and strict construction. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970).

Failure to Use Safety Appliances or Observe Rules. —

This section does not deny compensation when it appears that an injury was caused by the willful failure of an employee to use a safety appliance, or by the willful breach of a rule or regulation adopted by the employer and approved by the Industrial Commission, but only subjects the injured employee to the penalty of a reduction in the compensation to be awarded. Archie v. Greene Bros. Lumber Co., 222 N.C. 477, 23 S.E.2d 834, 1943 N.C. LEXIS 354 (1943).

An intentional violation of an approved safety rule of which the employee had prior notice will not defeat, but will only reduce the amount of an award. Hartley v. North Carolina Prison Dep't, 258 N.C. 287, 128 S.E.2d 598, 1962 N.C. LEXIS 693 (1962).

Negligence Standard Improperly Applied. —

Industrial Commission’s denial of benefits was vacated because the Commission’s findings characterizing the speed and manner in which an employee operated a forklift did not address if the employee operated the forklift in furtherance of, or incidental to, the employee’s job duties and the employer’s interest and appeared to impute negligence to the employee, showing the Commission reached the decision under a misapprehension of law. Weaver v. Dedmon, 253 N.C. App. 622, 801 S.E.2d 131, 2017 N.C. App. LEXIS 392 (2017).

Legal Standard of Causation Correctly Applied. —

Competent evidence supported commission’s findings that although plaintiff was under the influence of alcohol at the time of the accident, other factors caused the accident; therefore, intoxication was not a proximate cause of accident, and commission correctly applied the legal standard of causation required under subdivision (1) of this section. Suggs v. Snow Hill Milling Co., 100 N.C. App. 527, 397 S.E.2d 240, 1990 N.C. App. LEXIS 1071 (1990).

Proximate Cause Is Question for Finder of Fact. —

The determination of the proximate cause of the claimant’s injuries is a question for the finder of fact. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458, 1982 N.C. LEXIS 1555 (1982).

Insurer Obligated to Pay An Additional Award Did Not Constitute Punitive Damages. —

North Carolina Insurance Guaranty Association (NCIGA) was obligated to pay a 10 percent additional award as the additional award did not constitute punitive and exemplary damages, even though the effect of the 10 percent increase might appear to penalize NCIGA, since G.S. 97-12 did not explicitly mention punitive damages, but in fact said that compensation would be increased 10 percent; further, the language of an insurance policy did not preclude NCIGA’s liability for the increase. Vogler v. Branch Erections Co., 181 N.C. App. 457, 640 S.E.2d 419, 2007 N.C. App. LEXIS 365, aff'd, 362 N.C. 77, 653 S.E.2d 142, 2007 N.C. LEXIS 1223 (2007).

II.Illustrative Cases

“Psychological Autopsy” Properly Admitted. —

“Psychological autopsy” on decedent, involving interviewing family members and reviewing records to determine the probable cause of death or the decedent’s state of mind at the time of his death, was competent and properly admitted for the purpose of determining the mental state of the deceased at the time of his suicide in a workers’ compensation proceeding wherein plaintiff alleged that decedent’s suicide was caused by a dysthymic disorder (depression) caused by his employment as a police officer. Harvey v. Raleigh Police Dep't, 85 N.C. App. 540, 355 S.E.2d 147, 1987 N.C. App. LEXIS 2599 (1987).

Where it was shown that police chief ’s death resulted from a bullet wound, such showing raised a prima facie case only of death by accident, placing upon the employer the burden of going forward with evidence to show that the employee killed himself within the exemption or forfeiture under this section. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, 1939 N.C. LEXIS 364 (1939) (in which police chief was found dead in town building, his gun by his side; compensation was denied by the Commission, reversed and remanded by the Supreme Court, three justices dissenting; a subsequent award of compensation was affirmed in) McGill v. Town of Lumberton, 218 N.C. 586, 11 S.E.2d 873, 1940 N.C. LEXIS 54 (1940) (two justices concurring only because of the former decision; one dissent) .

Where a department store manager was found dead in his store early in the morning, a pistol by his side, with no other evidence of how he met his death, the court held that while there might be a presumption of injury by accident, the award of compensation was defeated because there was no presumption or evidence to support a conclusion that the injury arose out of the employment. The causal connection between the injury and the employment was not apparent as was the case in McGill v. Lumberton. Bolling v. Belk-White Co., 228 N.C. 749, 46 S.E.2d 838, 1948 N.C. LEXIS 300 (1948).

Employer’s Failure to Meet Burden. —

Given the presence of competent evidence on both sides of the issue of whether intoxication was a proximate cause of death, the employer did not carry its burden on this issue. Strickland v. Carolina Classics Catfish, Inc., 119 N.C. App. 97, 458 S.E.2d 10, 1995 N.C. App. LEXIS 409 (1995).

All of the competent evidence supported the Commission’s finding that defendants did not meet their burden of showing that plaintiff’s use of controlled substances was a proximate cause of his injury. Bursey v. Kewaunee Scientific Equip. Corp., 119 N.C. App. 522, 459 S.E.2d 40, 1995 N.C. App. LEXIS 532 (1995).

Injury Held Result of Intoxication. —

When considered together, the evidence with respect to the manner in which deceased employee was driving, the presence of an odor of alcohol about his person, his statement that he had been drinking, and the level of alcohol found in his blood supported the Commission’s finding of fact that he was intoxicated at the time of the accident, and that his intoxication was a proximate cause of the accident and his resulting injuries and death, as did evidence negating brake failure as a cause of the accident. Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E.2d 111, 1986 N.C. App. LEXIS 2092 (1986).

There was competent evidence in the record to support a finding that the deceased was intoxicated where decedent’s blood alcohol level of .202, would have rendered her borderline between simple impairment and extreme excitement and confusion. Sidney ex rel. Sidney v. Raleigh Paving & Patching, Inc., 109 N.C. App. 254, 426 S.E.2d 424, 1993 N.C. App. LEXIS 240 (1993).

Injury Held Not Result of Intoxication. —

In Brooks v. Carolina Rim & Wheel Co., 213 N.C. 518, 196 S.E. 835, 1938 N.C. LEXIS 124 (1938) (it was held that the evidence was sufficient to support the finding of the Industrial Commission that the accident causing injury was not the result of the employee’s intoxication, although defendants introduced evidence in conflict therewith. Gant v. Crouch, 243 N.C. 604, 91 S.E.2d 705, 1956 N.C. LEXIS 595 (1956).

Despite fact that employee’s blood alcohol level was 387 milligrams per liter (.387) when measured following his accident, the Industrial Commission found that the employee’s intoxication was not the proximate cause of his injury sustained when employee’s hand got stuck in a lumber conveyor. Gaddy v. Anson Wood Prods., 92 N.C. App. 483, 374 S.E.2d 477, 1988 N.C. App. LEXIS 1073 (1988).

Where the Commission’s finding plaintiff was injured because he was attempting to help a fellow employee was substantially supported by the evidence and sufficient to explain the cause of plaintiff ’s injury, that plaintiff may have erred in judgment did not mandate the conclusion that the error was the result of his intoxication. Gaddy v. Anson Wood Prods., 92 N.C. App. 483, 374 S.E.2d 477, 1988 N.C. App. LEXIS 1073 (1988).

Commission’s finding that claimant’s intoxication was not a proximate cause of accident was supported by evidence, even though claimant’s blood alcohol level was .11 to .13 in terms of breathalyzer test at time of accident, where evidence showed that claimant had pre-existing mental and visual handicap and that equipment provided by employer malfunctioned, and his supervisor testified that he did not smell alcohol on claimant’s breath and felt perfectly safe in having claimant operate equipment. Suggs v. Snow Hill Milling Co., 100 N.C. App. 527, 397 S.E.2d 240, 1990 N.C. App. LEXIS 1071 (1990).

Injury Held Not Result of Alcohol Withdrawal Seizure. —

Where doctor stated that it would not be normal to have an alcohol withdrawal seizure after more than three days and that an alcohol withdrawal seizure probably would not happen five days after consuming alcohol and plaintiff’s blood alcohol level was 0.000 at the time of the incident, the Industrial Commission did not err in finding that plaintiff’s injury was not approximately caused by an alcohol withdrawal seizure. Tharp v. Southern Gables, Inc., 125 N.C. App. 364, 481 S.E.2d 339, 1997 N.C. App. LEXIS 95 (1997).

Where there was insufficient evidence to establish that the blood alcohol test was scientifically reliable or correctly administered, it could not be used to deny plaintiff’s claim pursuant to the intoxication defense in subdivision (1). Johnson v. Charles Keck Logging, 121 N.C. App. 598, 468 S.E.2d 420, 1996 N.C. App. LEXIS 115 (1996).

Impairment by Cocaine. —

As the employer produced substantial competent evidence to show that its employee was impaired by cocaine before his fatal truck crash, the Commission’s award of workers’ compensation death benefits to the employee’s dependant would be reversed. Willey v. Williamson Produce, 149 N.C. App. 74, 562 S.E.2d 1, 2002 N.C. App. LEXIS 139 (2002), rev'd, 357 N.C. 41, 577 S.E.2d 622, 2003 N.C. LEXIS 309 (2003).

Substance Abuse as Intervening Cause of Disabling Psychosis. —

Finding of the Commission that although plaintiff ’s on the job hand injury, for which he was compensated, was a contributing factor in his subsequent disabling psychosis, his willful substance abuse was an intervening cause which prohibited an award of benefits was supported by the evidence and would not be disturbed. Wagoner v. Douglas Battery Mfg. Co., 89 N.C. App. 67, 365 S.E.2d 298, 1988 N.C. App. LEXIS 226 (1988).

Death Occasioned by Violation of Safety Statute and Intoxication. —

Findings, supported by evidence, that in overtaking a truck preceding him on the highway, employee’s car left skid marks for 75 feet straight in a line forward and then skid marks sideways across the center of the highway to his left, and that his car was struck by a car approaching from the opposite direction, together with evidence that his blood contained .20 percent of alcohol, were held sufficient to show that the accident resulted from the employee’s violation of a safety statute and to support the finding of the Industrial Commission that the employee’s death was occasioned by his intoxication, and judgment denying compensation was affirmed. Osborne v. Colonial Ice Co., 249 N.C. 387, 106 S.E.2d 573, 1959 N.C. LEXIS 360 (1959).

Employer’s Willful Failure to Comply With Safety Standards. —

When an injury or death is caused by the willful failure of an employer to comply with any statutory requirement or any lawful order of the North Carolina Industrial Commission, compensation shall be increased 10 percent. An act is considered willful when there exists a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, a duty assumed by contract or imposed by law. Jenkins v. Easco Aluminum, 165 N.C. App. 86, 598 S.E.2d 252, 2004 N.C. App. LEXIS 1158 (2004).

Suicide Induced by Insanity. —

Evidence was sufficient to support a finding that by reason of insanity a suicide was the result of an uncontrollable impulse, or in a delirium of frenzy without conscious volition to cause death. Painter v. Mead Corp., 258 N.C. 741, 129 S.E.2d 482, 1963 N.C. LEXIS 470 (1963).

Rejoining Course of Employment. —

Where employee traveled to New York, slept in a motel and ate at restaurants at the direction of his employer, and at the time of the accident resulting in his death, he was returning to his motel from the place where he had eaten dinner, even if his remaining at the restaurant to drink alcohol and watch a ball game constituted a personal endeavor, intoxication was not a cause of his death, and sufficient evidence existed to support the Industrial Commission’s finding that he had rejoined his course of employment at the time of the accident. Cauble v. Soft-Play, Inc., 124 N.C. App. 526, 477 S.E.2d 678, 1996 N.C. App. LEXIS 1153 (1996).

Unsafe Press Brake Machine. —

The Commission did not make sufficient findings of fact to support its conclusion that plaintiff employee was not entitled to a 10% increase in compensation for defendant’s alleged violation of statutory safety requirements; additionally, it inexplicably failed to make any findings based on the testimony of plaintiff’s coworker regarding the facts that (1) the press brake machine operated by plaintiff was not “guarded,” as defined by the North Carolina OSHA manual, and (2) the machine did not prevent entry of the hands and fingers into the point of operation. Jenkins v. Easco Aluminum Corp., 142 N.C. App. 71, 541 S.E.2d 510, 2001 N.C. App. LEXIS 38 (2001).

Reversal by the North Carolina Industrial Commission of a previous award was upheld on appeal where sufficient evidence existed entitling an injured employee to temporary disability payments and prosthetic fingers at the employer’s expense. Increase in the employee’s compensation award of 10 percent was upheld where the employer had violated OSHA standards by failing to have a guard on a brake press machine and the employee established that the failure to have the guard was the proximate cause of her injury. Jenkins v. Easco Aluminum, 165 N.C. App. 86, 598 S.E.2d 252, 2004 N.C. App. LEXIS 1158 (2004).

Employee who injured himself when a crane he was improperly operating toppled over was not barred from workers’ compensation award because there was no evidence that his injuries were the result of a willful intention to injure himself, or a willful breach of a safety rule or procedure adopted by his employer. Harris v. Thompson Contrs., Inc., 148 N.C. App. 472, 558 S.E.2d 894, 2002 N.C. App. LEXIS 26 (2002), aff'd, 356 N.C. 664, 576 S.E.2d 323, 2003 N.C. LEXIS 40 (2003).

Employer Liability Based on OSHA Regulation. —

Full Commission of the North Carolina Industrial Commission did not err by awarding an injured employee a 10 percent increase in compensation, after the employee tripped and fell over an extension cord in a hallway at work, because the presence of the extension cord in the hallway violated a federal regulation that was adopted by the State of North Carolina pursuant to G.S. 95-131(a) of the North Carolina Occupational Safety and Health Act, G.S. 95-126 et seq., and the employer was put on sufficient notice regarding the duties, consequences, and application of the North Carolina Workers’ Compensation Act, G.S. 91-1 et seq., and its relevant safety standards. Brown v. Kroger Co., 169 N.C. App. 312, 610 S.E.2d 447, 2005 N.C. App. LEXIS 611 (2005).

Insurance Guaranty Association Obligated to Pay Additional Award. —

Employee’s workers’ compensation claim, including a 10 percent increase in compensation awarded pursuant to G.S. 97-12, was a “covered claim” as defined by G.S. 58-48-20 since, inter alia, the employer’s policy with its insurer provided that the insurer would pay promptly when due the benefits required of the insured by the workers’ compensation law, and the policy stated that the terms of the insurance policy that conflicted with the workers’ compensation law were changed by to conform to that law. Vogler v. Branch Erections Co., 181 N.C. App. 457, 640 S.E.2d 419, 2007 N.C. App. LEXIS 365, aff'd, 362 N.C. 77, 653 S.E.2d 142, 2007 N.C. LEXIS 1223 (2007).

§ 97-12.1. Willful misrepresentation in applying for employment.

No compensation shall be allowed under this Article for injury by accident or occupational disease if the employer proves that (i) at the time of hire or in the course of entering into employment, (ii) at the time of receiving notice of the removal of conditions from a conditional offer of employment, or (iii) during the course of a post-offer medical examination:

  1. The employee knowingly and willfully made a false representation as to the employee’s physical condition;
  2. The employer relied upon one or more false representations by the employee, and the reliance was a substantial factor in the employer’s decision to hire the employee; and
  3. There was a causal connection between false representation by the employee and the injury or occupational disease.

History. 2011-287, s. 3.

Editor’s Note.

Session Laws 2011-287, s. 23, made this section effective June 24, 2011, and applicable to claims arising on or after that date.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

CASE NOTES

Misrepresentation of Prior Condition. —

The North Carolina Industrial Commission did not err by denying the employee’s claim for worker’s compensation based on G.S. 97-12.1 because the evidence supported its conclusion that a causal connection existed between the employee’s false representation and her back injury; the employee testified that she was exceeding her work restrictions for a prior work-related injury for a previous employer when she injured her back working for her current employer and a physician testified that the employee was at an increased risk of injury if she exceeded her work restrictions. Purcell v. Friday Staffing, 235 N.C. App. 342, 761 S.E.2d 694, 2014 N.C. App. LEXIS 817 (2014).

§ 97-13. Exceptions from provisions of Article. [Effective until January 1, 2023]

  1. Employees of Certain Railroads. —  This Article shall not apply to railroads or railroad employees nor in any way repeal, amend, alter or affect Article 8 of Chapter 60 or any section thereof relating to the liability of railroads for injuries to employees, nor upon the trial of any action in tort for injuries not coming under the provisions of this Article, shall any provision herein be placed in evidence or be permitted to be argued to the jury. Provided, however, that the foregoing exemption to railroads and railroad employees shall not apply to employees of a State-owned railroad company, as defined in G.S. 124-11, or to electric street railroads or employees thereof; and this Article shall apply to electric street railroads and employees thereof and to this extent the provisions of Article 8 of Chapter 60 are hereby amended.
  2. Casual Employment, Domestic Servants, Farm Laborers, Federal Government, Employer of Less than Three Employees. —  This Article shall not apply to casual employees, farm laborers when fewer than 10 full-time nonseasonal farm laborers are regularly employed by the same employer, federal government employees in North Carolina, and domestic servants, nor to employees of such persons, nor to any person, firm or private corporation that has regularly in service less than three employees in the same business within this State, except that any employer without regard to number of employees, including an employer of domestic servants, farm laborers, or one who previously had exempted himself, who has purchased workers’ compensation insurance to cover his compensation liability shall be conclusively presumed during life of the policy to have accepted the provisions of this Article from the effective date of said policy and his employees shall be so bound unless waived as provided in this Article; provided however, that this Article shall apply to all employers of one or more employees who are employed in activities which involve the use or presence of radiation.
  3. Prisoners. —  This Article shall not apply to prisoners being worked by the State or any subdivision thereof, except to the following extent: Whenever any prisoner assigned to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety shall suffer accidental injury or accidental death arising out of and in the course of the employment to which he had been assigned, if there be death or if the results of such injury continue until after the date of the lawful discharge of such prisoner to such an extent as to amount to a disability as defined in this Article, then such discharged prisoner or the dependents or next of kin of such discharged prisoner may have the benefit of this Article by applying to the Industrial Commission as any other employee; provided, such application is made within 12 months from the date of the discharge; and provided further that the maximum compensation to any prisoner or to the dependents or next of kin of any deceased prisoner shall not exceed thirty dollars ($30.00) per week and the period of compensation shall relate to the date of his discharge rather than the date of the accident. If any person who has been awarded compensation under the provisions of this subsection shall be recommitted to prison upon conviction of an offense committed subsequent to the award, such compensation shall immediately cease. Any awards made under the terms of this subsection shall be paid by the Department of Public Safety from the funds available for the operation of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety. The provisions of G.S. 97-10.1 and 97-10.2 shall apply to prisoners and discharged prisoners entitled to compensation under this subsection and to the State in the same manner as said section applies to employees and employers.
  4. Certain Inmates. —  Notwithstanding the thirty dollars ($30.00) per week limit in subsection (c) of this section, the average weekly wage of inmates employed pursuant to the Prison Industry Enhancement Program shall be calculated pursuant to G.S. 97-2(5).
  5. Sellers of Agricultural Products. —  This Article shall not apply to persons, firms or corporations engaged in selling agricultural products for the producers thereof on commission or for other compensation, paid by the producers, provided the product is prepared for sale by the producer.

History. 1929, c. 120, s. 14; 1933, c. 401; 1935, c. 150; 1941, c. 295; 1943, c. 543; 1945, c. 766; 1957, c. 349, s. 10; c. 809; 1967, c. 996, s. 13; 1971, c. 284, s. 2; c. 1176; 1975, c. 718, s. 3; 1979, c. 247, s. 1; c. 714, s. 2; 1981, c. 378, s. 1; 1983 (Reg. Sess., 1984), c. 1042, s. 2; 1987, c. 729, s. 3; 2000-146, s. 11; 2011-145, s. 19.1(h); 2012-83, s. 34; 2017-186, s. 2(tttt); 2017-212, s. 5.1.

Local Modification.

Mecklenburg: 1933, c. 401.

Cross References.

For definitions under this article, see G.S. 97-2.

Editor’s Note.

Article 8 of Chapter 60, referred to in subsection (a) of this section, was repealed by Session Laws 1963, c. 1165.

Effect of Amendments.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, in subsection (c), substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in the first and next-to-last sentences, and substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Corrections” in the next-to-last sentence.

Session Laws 2012-83, s. 34, effective June 26, 2012, in subsection (c), deleted “State” preceding “Division of Adult Correction of the Department of Public Safety” near the beginning of the first sentence, and deleted “State Division of Adult Correction of the” preceding “Department of Public Safety” in the third sentence.

Session Laws 2017-186, s. 2(tttt), effective December 1, 2017, inserted “and Juvenile Justice” throughout subsection (c).

Session Laws 2017-212, s. 5.1, effective October 5, 2017, added subsection (c1).

Legal Periodicals.

For 1984 survey, “Employee Exclusion Clauses in Automobile Liability Insurance Policies,” see 63 N.C.L. Rev. 1228 (1985).

For a survey of 1996 developments in the law regarding prisoner rights, see 75 N.C.L. Rev. 2428 (1997).

CASE NOTES

Analysis

I.In General

Editor’s Note. —

See also the case notes under G.S. 97-2.

Purchase of Insurance Subjects Employer and Employees to Act. —

By purchasing a workers’ compensation insurance policy, the employer and his employees become subject to the act and continue to be “so bound unless waived as provided in this Article.” Crawford v. Pressley, 6 N.C. App. 641, 171 S.E.2d 197, 1969 N.C. App. LEXIS 1253 (1969).

Failure of Third-Party Insurance Agent to Renew Policy Does Not Constitute Waiver. —

By purchasing a workers’ compensation insurance policy, the employer and his employees become subject to the act and continue to be “so bound unless waived as provided in this Article.” The failure of a third party, such as the insurance agent, to fulfill his agreement to see that other insurance was obtained upon the cancellation of the insurance policy does not constitute a waiver “as provided in this Article.” Crawford v. Pressley, 6 N.C. App. 641, 171 S.E.2d 197, 1969 N.C. App. LEXIS 1253 (1969). But see Wiggins v. Rufus Tart Trucking Co., 63 N.C. App. 542, 305 S.E.2d 749, 1983 N.C. App. LEXIS 3135 (1983).

A self-insured employer is presumptively subjected to the provisions of the Act only for the life of the policy. Once the policy ends, this presumption ends. Wiggins v. Rufus Tart Trucking Co., 63 N.C. App. 542, 305 S.E.2d 749, 1983 N.C. App. LEXIS 3135 (1983).

For case as to former provisions of subsection (b) of this section that proof that the employer obtained insurance and filed claim should be prima facie evidence that the employer and employee had elected to be bound by the act, see Gassaway v. Gassaway & Owens, Inc., 220 N.C. 694, 18 S.E.2d 120, 1942 N.C. LEXIS 532 (1942).

II.Casual Employees

Employment in Employer’s Regular Course of Business Not Casual. —

Two employees were hired by a fertilizer dealer “whenever a carload of fertilizer arrived, to unload and deliver the fertilizer.” This was held not to be “casual” employment, but “work pertaining to the regular course of defendant’s business.” Hunter v. Peirson, 229 N.C. 356, 49 S.E.2d 653, 1948 N.C. LEXIS 488 (1948).

Employment continuously for five or six weeks in construction of facilities for handling material in defendant’s plant could not be held to be either casual or not in the course of defendant’s business. Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730, 1946 N.C. LEXIS 390 (1946).

Plaintiff who had been employed full-time for three months prior to accident, and who also worked on Saturdays by choice and with the agreement of his employer, was not merely a casual employee. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, 1986 N.C. App. LEXIS 2325 (1986).

Civilian Summoned by Forest Warden to Help Extinguish Fire. —

A civilian who had been summoned by a forest warden to assist in extinguishing a fire was held to be not a casual employee. Moore v. State, 200 N.C. 300, 156 S.E. 806, 1931 N.C. LEXIS 305 (1931).

III.Farm Laborers

Nearness to Planting, Cultivation, etc. —

Whether an employee is a farm laborer depends, in a large degree, upon the nearness of his occupation to the planting, cultivation, and harvesting of crops. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

Emphasis upon Nature of Employee’s Tasks. —

In considering the question of whether an employee is a farm laborer, a majority of the jurisdictions have placed emphasis upon the nature of the employee’s work rather than upon the nature of the employer’s business. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

Although the character of the “employment” of an employee must be determined from the “whole character” of his employment and not upon the particular work he is performing at the time of his injury, nevertheless the coverage of an employee under the act is dependent upon the character of the work he is hired to perform and not upon the nature and scope of his employer’s business. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

Employee of State Engaged in Farm Labor Is Covered by Act. —

An employee of the State engaged in farm labor was covered by the act, as the exemption was intended for the protection of farmers as an occupational class and G.S. 97-2(2) includes all State “officers and employees” except those elected or appointed by the Governor or General Assembly. Barbour v. State Hosp., 213 N.C. 515, 196 S.E. 812, 1938 N.C. LEXIS 123 (1938).

Plaintiff, who was employed to process oats, soybeans and barley through the gin process, and to do other work incidental to the ginning operation, was not a farm laborer under subsection (b) of this section, and the fact that plaintiff was operating a tractor in a field in which crops were eventually to be planted when he was injured, during a one-time excursion out of the ginning process and into an activity more akin to farming or agricultural labor, did not interrupt his compensation coverage. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, 1986 N.C. App. LEXIS 2325 (1986).

Laborer in Large-Scale Commercial Production, etc., of Chicken Eggs. —

The duties of employee, consisting of cleaning, grading, packaging and delivering eggs, keeping records of sales and collecting the eggs delivered, were sufficiently removed from the normal process of agriculture to prevent her exclusion from coverage under the Workers’ Compensation Act as a “farm laborer.” Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

Insurance carrier was estopped from denying the plaintiff ’s status as an employee when he was injured, even though the plaintiff was a working partner in a farming operation, where the carrier had treated the plaintiff as an employee before the injury, and had accepted the benefits of that status. Garrett v. Garrett & Garrett Farms, 39 N.C. App. 210, 249 S.E.2d 808, 1978 N.C. App. LEXIS 2359 (1978), cert. denied, 296 N.C. 736, 254 S.E.2d 178, 1979 N.C. LEXIS 1276 (1979).

IV.Domestic Servants

Dual Employment. —

Plaintiff was employed for a single wage to do janitorial, window cleaning, and delivery work at defendant’s paint store and also to do janitor and garden work at defendant’s home. He was paid at the store. His injuries arose from an accident connected with lawn mowing at the employer’s home. An award by the Commission was affirmed in the superior court but reversed on the insurance carrier’s appeal. The personal work done for the employer was not within the coverage of the act. Burnett v. Palmer-Lipe Paint Co., 216 N.C. 204, 4 S.E.2d 507, 1939 N.C. LEXIS 123 (1939).

V.Number of Employees

Editor’s Note. —

The cases cited below were decided prior to the 1987 amendment to subsection (b) of this section, which changed the regular employment requirement to three employees.

Whether or not the minimum number of persons are regularly employed in one business is a jurisdictional matter that cannot be waived. Dependents of Thompson v. Johnson Funeral Home, 205 N.C. 801, 172 S.E. 500, 1934 N.C. LEXIS 78 (1934) (where the jurisdiction of the Industrial Commission was first challenged in an appeal from the Commission to the superior court. See same case on rehearing, 208 N.C. 178, 179 S.E. 801 (1935), noted critically in 14 N.C.L. Rev. 76 (1936).) .

The requirement that five (now three) or more employees be regularly employed in the same business or establishment is jurisdictional. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, 1986 N.C. App. LEXIS 2117, aff'd, 318 N.C. 410, 348 S.E.2d 595, 1986 N.C. LEXIS 2662 (1986).

The plaintiff has the burden of proving that the employer regularly employed five (now three) or more employees. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, 1986 N.C. App. LEXIS 2117, aff'd, 318 N.C. 410, 348 S.E.2d 595, 1986 N.C. LEXIS 2662 (1986).

Employment of the Minimum Number of Persons or More Must Affirmatively Appear. —

It must appear affirmatively by evidence or by admission of record that a defendant sought to be held liable under this Chapter had in his employ five (now three) or more employees in order to sustain the jurisdiction of the Commission. Chadwick v. North Carolina Dep't of Conservation & Dev., 219 N.C. 766, 14 S.E.2d 842, 1941 N.C. LEXIS 145 (1941). See also Hanks v. Southern Pub. Util. Co., 204 N.C. 155, 167 S.E. 560, 1933 N.C. LEXIS 347 (1933).

To sustain the jurisdiction of the Commission, it must affirmatively appear that the employer which it undertakes to bind by its award had as many as five (now three) men in his or its employment. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962).

Evidence showing that a defendant had in his employ five (now three) or more employees must affirmatively appear in the record to sustain the jurisdiction of the Industrial Commission over the claim. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3, 1982 N.C. App. LEXIS 3067 (1982).

Number of workers on job site on date of injury, standing alone, is not determinative of the issue. If the defendant had four (now three) or more “regularly employed” employees, the fact that he fell below the minimum requirement on the actual date of injury would not preclude coverage. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3, 1982 N.C. App. LEXIS 3067 (1982).

Where Number of Employees Varies. —

Defendant employed three employees regularly. Two additional employees had been hired for at least a part of each week for two preceding months. It was held that the jurisdictional requirement of five (now three) regular employees was met. Hunter v. Peirson, 229 N.C. 356, 49 S.E.2d 653, 1948 N.C. LEXIS 488 (1948).

Where Employer Conducts Several Distinct Businesses. —

Where the employer conducts several distinct businesses and in each employs less than the requisite number required to bring himself within the act, he is not subject to the act. This is true even though the businesses are under the same roof. Aycock v. Cooper, 202 N.C. 500, 163 S.E. 569, 1932 N.C. LEXIS 144 (1932).

Reviewing Court Must Make Independent Determination. —

Whether the employer had the number of employees required to subject him to the Workers’ Compensation Act is a question of jurisdictional fact, and the reviewing court is required to review and consider the evidence and make an independent determination. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3, 1982 N.C. App. LEXIS 3067 (1982).

Reversal of Commission’s Award Where Number of Employees Not Affirmatively Shown. —

When it is not made to affirmatively appear that the defendant sought to be held liable under this Chapter had in his employ five (now three) or more employees, the Commission’s award of compensation against him must be reversed. Chadwick v. North Carolina Dep't of Conservation & Dev., 219 N.C. 766, 14 S.E.2d 842, 1941 N.C. LEXIS 145 (1941).

Where the findings of facts of the Industrial Commission that the deceased was an employee of the defendant and that the defendant employed more than five (now three) workers are not supported by any evidence in the hearing before it, upon appeal to the superior court the award should be set aside and vacated. Poole v. Sigmon, 202 N.C. 172, 162 S.E. 198, 1932 N.C. LEXIS 455 (1932).

Remand to Determine Number of Employees. —

It is not error for the superior court to remand a proceeding in order that the facts with respect to the number of employees in the employ of the defendant at the time the employee was injured might be ascertained by the Industrial Commission. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962).

Demurrer Properly Overruled. —

A demurrer to an action for death of an employee, on the ground that the action was cognizable only by the Industrial Commission, was properly overruled when it did not appear on the face of the complaint that the defendant employed more than five (now three) men in this State. Hanks v. Southern Pub. Util. Co., 204 N.C. 155, 167 S.E. 560, 1933 N.C. LEXIS 347 (1933). See Southerland v. Harrell, 204 N.C. 675, 169 S.E. 423, 1933 N.C. LEXIS 233 (1933); Allen v. American Cotton Mills, Inc., 206 N.C. 704, 175 S.E. 98, 1934 N.C. LEXIS 284 (1934).

Where a corporate employer with less than the minimum number of employees procures a policy of compensation insurance, such employer is presumed to have accepted the provisions of the act, and such policy covers its executive officers notwithstanding the premium on the policy is based on the compensation of a single nonexecutive employee and the parties intended to cover him only, unless notice of nonacceptance by the executive officers is duly filed with the Industrial Commission. Laughridge v. South Mt. Pulpwood Co., 266 N.C. 769, 147 S.E.2d 213, 1966 N.C. LEXIS 1443 (1966).

Ordinarily, an employer with less than five employees is exempt from the act. However, when such employer at his election voluntarily purchases workers’ compensation insurance, he accepts all provisions of the act. In such case, the policy he purchases both creates and protects his compensation liability; and thereafter such employer and his employees are bound by the provisions of the act unless, prior to any accident resulting in injury or death, notice to the contrary is given. Crawford v. Pressley, 6 N.C. App. 641, 171 S.E.2d 197, 1969 N.C. App. LEXIS 1253 (1969).

VI.Prisoners

Suspension of Workers’ Compensation Benefits During Incarceration. —

Imprisonment of a person already receiving worker’s compensation disability payments cuts off the employer’s duty to make payments during the period of confinement. Parker v. Union Camp Corp., 107 N.C. App. 505, 422 S.E.2d 585 (1992).

Action for Wrongful Death. —

Where decedent was a prisoner who suffered an accidental death arising out of and in the course of his assigned employment, plaintiff was entitled to workers’ compensation benefits under subsection (c). Blackmon v. N.C. Dept. Of Correction, 343 N.C. 259, 470 S.E.2d 8, 1996 N.C. LEXIS 261 (1996).

Action for Wrongful Death Under Tort Claims Act. —

Subsection (c) of this section was held not to be a bar in an action for wrongful death of a prisoner brought under the Tort Claims Act. Ivey v. North Carolina Prison Dep't, 252 N.C. 615, 114 S.E.2d 812, 1960 N.C. LEXIS 439 (1960).

The second 1957 amendment to this section, which made former G.S. 97-10 applicable to certain prisoners, did not deny to prisoners on assigned tasks rights conferred by the Tort Claims Act. Ivey v. North Carolina Prison Dep’t, 252 N.C. 615, 114 S.E.2d 812 (1960). See also note to G.S. 143-291 .

Where a prisoner who suffered accidental death arising out of and in the course of the employment to which he had been assigned, his dependents or next of kin were entitled to specific benefits under the Act; therefore, inmate’s mother could not maintain a wrongful death action against defendants under the Tort Claims Act. Blackmon v. North Carolina Dep't of Cors., 118 N.C. App. 666, 457 S.E.2d 306, 1995 N.C. App. LEXIS 376 (1995), aff'd, 343 N.C. 259, 470 S.E.2d 8, 1996 N.C. LEXIS 261 (1996).

Where the plaintiff was permanently injured while working on a silage harvesting machine operated by the Department of Correction (now Division of Adult Correction of the Department of Public Safety), and he filed a claim with the Industrial Commission under the Tort Claims Act, his claim was properly dismissed on the grounds that workers’ compensation was plaintiff’s exclusive remedy. Richardson v. North Carolina Dep't of Correction, 118 N.C. App. 704, 457 S.E.2d 325, 1995 N.C. App. LEXIS 377 (1995), aff'd, 345 N.C. 128, 478 S.E.2d 501, 1996 N.C. LEXIS 654 (1996).

Where deceased was a prisoner who suffered “accidental death arising out of and in the course of the employment to which he had been assigned,” his dependents or next of kin were statutorily “entitled” to specific benefits under the exclusive remedy provisions of G.S. 97-10.1, and could not maintain a wrongful death action against defendants under the Tort Claims Act. Blackmon v. North Carolina Dep't of Cors., 118 N.C. App. 666, 457 S.E.2d 306, 1995 N.C. App. LEXIS 376 (1995), aff'd, 343 N.C. 259, 470 S.E.2d 8, 1996 N.C. LEXIS 261 (1996).

Working prisoners are excluded from suing in tort for work-related injuries. Richardson v. North Carolina Dep't of Correction, 345 N.C. 128, 478 S.E.2d 501 (1996).

Workers’ Compensation Act Sole Remedy. —

A prisoner’s exclusive remedy for “accidental injury . . . arising out of and in the course of the employment to which he had been assigned,” whether he is incarcerated or released, as with other employees, arises under the provisions of the Workers’ Compensation Act and is the plaintiff’s sole remedy. Richardson v. North Carolina Dep't of Correction, 118 N.C. App. 704, 457 S.E.2d 325, 1995 N.C. App. LEXIS 377 (1995), aff'd, 345 N.C. 128, 478 S.E.2d 501, 1996 N.C. LEXIS 654 (1996).

The monetary benefit afforded to plaintiff by subsection (c) entitled her to compensation and G.S. 97-10.1 applied to bar plaintiff’s wrongful death action under the Tort Claims Act. Blackmon v. N.C. Dept. Of Correction, 343 N.C. 259, 470 S.E.2d 8, 1996 N.C. LEXIS 261 (1996).

Workers’ compensation is the exclusive remedy for prisoners injured while working on prison jobs. Richardson v. North Carolina Dep't of Correction, 345 N.C. 128, 478 S.E.2d 501 (1996).

When an inmate is injured while working at his prison job, his exclusive remedy for any injury is a workers’ compensation claim, but he must wait until release for a determination of entitlement to such compensation. Vereen v. N.C. Dep't of Corr., 168 N.C. App. 588, 608 S.E.2d 412, 2005 N.C. App. LEXIS 333 (2005).

Work Release Injury. —

Workers’ compensation claim by prison inmate who was injured while working for a private employer on work release was not barred by statute. Harris v. Thompson Contrs., Inc., 148 N.C. App. 472, 558 S.E.2d 894, 2002 N.C. App. LEXIS 26 (2002), aff'd, 356 N.C. 664, 576 S.E.2d 323, 2003 N.C. LEXIS 40 (2003).

Burial Expenses. —

It was assumed, for the purpose of the case, that this section permits the establishment of a claim for the burial expenses of a prisoner whose death occurred while a prisoner. Lawson v. North Carolina State Hwy. & Pub. Works Comm'n, 248 N.C. 276, 103 S.E.2d 366, 1958 N.C. LEXIS 487 (1958).

The payment of burial expenses was not payment of “compensation” under the Workers’ Compensation Act so as to make the remedy of the personal representative of such a prisoner under subsection (c) of this section exclusive by virtue of former G.S. 97-10. Ivey v. North Carolina Prison Dep't, 252 N.C. 615, 114 S.E.2d 812, 1960 N.C. LEXIS 439 (1960).

§ 97-13. Exceptions from provisions of Article. [Effective January 1, 2023]

  1. Employees of Certain Railroads. —  This Article shall not apply to railroads or railroad employees nor in any way repeal, amend, alter or affect Article 8 of Chapter 60 or any section thereof relating to the liability of railroads for injuries to employees, nor upon the trial of any action in tort for injuries not coming under the provisions of this Article, shall any provision herein be placed in evidence or be permitted to be argued to the jury. Provided, however, that the foregoing exemption to railroads and railroad employees shall not apply to employees of a State-owned railroad company, as defined in G.S. 124-11, or to electric street railroads or employees thereof; and this Article shall apply to electric street railroads and employees thereof and to this extent the provisions of Article 8 of Chapter 60 are hereby amended.
  2. Casual Employment, Domestic Servants, Farm Laborers, Federal Government, Employer of Less than Three Employees. —  This Article shall not apply to casual employees, farm laborers when fewer than 10 full-time nonseasonal farm laborers are regularly employed by the same employer, federal government employees in North Carolina, and domestic servants, nor to employees of such persons, nor to any person, firm or private corporation that has regularly in service less than three employees in the same business within this State, except that any employer without regard to number of employees, including an employer of domestic servants, farm laborers, or one who previously had exempted himself, who has purchased workers’ compensation insurance to cover his compensation liability shall be conclusively presumed during life of the policy to have accepted the provisions of this Article from the effective date of said policy and his employees shall be so bound unless waived as provided in this Article; provided however, that this Article shall apply to all employers of one or more employees who are employed in activities which involve the use or presence of radiation.
  3. Prisoners. —  This Article shall not apply to prisoners being worked by the State or any subdivision thereof, except to the following extent: Whenever any prisoner assigned to the Division of Prisons of the Department of Adult Correction shall suffer accidental injury or accidental death arising out of and in the course of the employment to which he had been assigned, if there be death or if the results of such injury continue until after the date of the lawful discharge of such prisoner to such an extent as to amount to a disability as defined in this Article, then such discharged prisoner or the dependents or next of kin of such discharged prisoner may have the benefit of this Article by applying to the Industrial Commission as any other employee; provided, such application is made within 12 months from the date of the discharge; and provided further that the maximum compensation to any prisoner or to the dependents or next of kin of any deceased prisoner shall not exceed thirty dollars ($30.00) per week and the period of compensation shall relate to the date of his discharge rather than the date of the accident. If any person who has been awarded compensation under the provisions of this subsection shall be recommitted to prison upon conviction of an offense committed subsequent to the award, such compensation shall immediately cease. Any awards made under the terms of this subsection shall be paid by the Department of Adult Correction from the funds available for the operation of the Division of Prisons of the Department of Adult Correction. The provisions of G.S. 97-10.1 and 97-10.2 shall apply to prisoners and discharged prisoners entitled to compensation under this subsection and to the State in the same manner as said section applies to employees and employers.
  4. Certain Inmates. —  Notwithstanding the thirty dollars ($30.00) per week limit in subsection (c) of this section, the average weekly wage of inmates employed pursuant to the Prison Industry Enhancement Program shall be calculated pursuant to G.S. 97-2(5).
  5. Sellers of Agricultural Products. —  This Article shall not apply to persons, firms or corporations engaged in selling agricultural products for the producers thereof on commission or for other compensation, paid by the producers, provided the product is prepared for sale by the producer.

History. 1929, c. 120, s. 14; 1933, c. 401; 1935, c. 150; 1941, c. 295; 1943, c. 543; 1945, c. 766; 1957, c. 349, s. 10; c. 809; 1967, c. 996, s. 13; 1971, c. 284, s. 2; c. 1176; 1975, c. 718, s. 3; 1979, c. 247, s. 1; c. 714, s. 2; 1981, c. 378, s. 1; 1983 (Reg. Sess., 1984), c. 1042, s. 2; 1987, c. 729, s. 3; 2000-146, s. 11; 2011-145, s. 19.1(h); 2012-83, s. 34; 2017-186, s. 2(tttt); 2017-212, s. 5.1; 2021-180, ss. 19C.9(n), (p).

Local Modification.

Mecklenburg: 1933, c. 401.

Cross References.

For definitions under this article, see G.S. 97-2.

Editor’s Note.

Article 8 of Chapter 60, referred to in subsection (a) of this section, was repealed by Session Laws 1963, c. 1165.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(n), (p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, in subsection (c), substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in the first and next-to-last sentences, and substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Corrections” in the next-to-last sentence.

Session Laws 2012-83, s. 34, effective June 26, 2012, in subsection (c), deleted “State” preceding “Division of Adult Correction of the Department of Public Safety” near the beginning of the first sentence, and deleted “State Division of Adult Correction of the” preceding “Department of Public Safety” in the third sentence.

Session Laws 2017-186, s. 2(tttt), effective December 1, 2017, inserted “and Juvenile Justice” throughout subsection (c).

Session Laws 2017-212, s. 5.1, effective October 5, 2017, added subsection (c1).

Session Laws 2021-180, s. 19C.9(n), (p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” and “Department of Adult Correction” for “Department of Public Safety” throughout subsection (c). For effective date and applicability, see editor’s note.

Legal Periodicals.

For 1984 survey, “Employee Exclusion Clauses in Automobile Liability Insurance Policies,” see 63 N.C.L. Rev. 1228 (1985).

For a survey of 1996 developments in the law regarding prisoner rights, see 75 N.C.L. Rev. 2428 (1997).

CASE NOTES

Analysis

I.In General

Editor’s Note. —

See also the case notes under G.S. 97-2.

Purchase of Insurance Subjects Employer and Employees to Act. —

By purchasing a workers’ compensation insurance policy, the employer and his employees become subject to the act and continue to be “so bound unless waived as provided in this Article.” Crawford v. Pressley, 6 N.C. App. 641, 171 S.E.2d 197, 1969 N.C. App. LEXIS 1253 (1969).

Failure of Third-Party Insurance Agent to Renew Policy Does Not Constitute Waiver. —

By purchasing a workers’ compensation insurance policy, the employer and his employees become subject to the act and continue to be “so bound unless waived as provided in this Article.” The failure of a third party, such as the insurance agent, to fulfill his agreement to see that other insurance was obtained upon the cancellation of the insurance policy does not constitute a waiver “as provided in this Article.” Crawford v. Pressley, 6 N.C. App. 641, 171 S.E.2d 197, 1969 N.C. App. LEXIS 1253 (1969). But see Wiggins v. Rufus Tart Trucking Co., 63 N.C. App. 542, 305 S.E.2d 749, 1983 N.C. App. LEXIS 3135 (1983).

A self-insured employer is presumptively subjected to the provisions of the Act only for the life of the policy. Once the policy ends, this presumption ends. Wiggins v. Rufus Tart Trucking Co., 63 N.C. App. 542, 305 S.E.2d 749, 1983 N.C. App. LEXIS 3135 (1983).

For case as to former provisions of subsection (b) of this section that proof that the employer obtained insurance and filed claim should be prima facie evidence that the employer and employee had elected to be bound by the act, see Gassaway v. Gassaway & Owens, Inc., 220 N.C. 694, 18 S.E.2d 120, 1942 N.C. LEXIS 532 (1942).

II.Casual Employees

Employment in Employer’s Regular Course of Business Not Casual. —

Two employees were hired by a fertilizer dealer “whenever a carload of fertilizer arrived, to unload and deliver the fertilizer.” This was held not to be “casual” employment, but “work pertaining to the regular course of defendant’s business.” Hunter v. Peirson, 229 N.C. 356, 49 S.E.2d 653, 1948 N.C. LEXIS 488 (1948).

Employment continuously for five or six weeks in construction of facilities for handling material in defendant’s plant could not be held to be either casual or not in the course of defendant’s business. Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730, 1946 N.C. LEXIS 390 (1946).

Plaintiff who had been employed full-time for three months prior to accident, and who also worked on Saturdays by choice and with the agreement of his employer, was not merely a casual employee. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, 1986 N.C. App. LEXIS 2325 (1986).

Civilian Summoned by Forest Warden to Help Extinguish Fire. —

A civilian who had been summoned by a forest warden to assist in extinguishing a fire was held to be not a casual employee. Moore v. State, 200 N.C. 300, 156 S.E. 806, 1931 N.C. LEXIS 305 (1931).

III.Farm Laborers

Nearness to Planting, Cultivation, etc. —

Whether an employee is a farm laborer depends, in a large degree, upon the nearness of his occupation to the planting, cultivation, and harvesting of crops. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

Emphasis upon Nature of Employee’s Tasks. —

In considering the question of whether an employee is a farm laborer, a majority of the jurisdictions have placed emphasis upon the nature of the employee’s work rather than upon the nature of the employer’s business. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

Although the character of the “employment” of an employee must be determined from the “whole character” of his employment and not upon the particular work he is performing at the time of his injury, nevertheless the coverage of an employee under the act is dependent upon the character of the work he is hired to perform and not upon the nature and scope of his employer’s business. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

Employee of State Engaged in Farm Labor Is Covered by Act. —

An employee of the State engaged in farm labor was covered by the act, as the exemption was intended for the protection of farmers as an occupational class and G.S. 97-2(2) includes all State “officers and employees” except those elected or appointed by the Governor or General Assembly. Barbour v. State Hosp., 213 N.C. 515, 196 S.E. 812, 1938 N.C. LEXIS 123 (1938).

Plaintiff, who was employed to process oats, soybeans and barley through the gin process, and to do other work incidental to the ginning operation, was not a farm laborer under subsection (b) of this section, and the fact that plaintiff was operating a tractor in a field in which crops were eventually to be planted when he was injured, during a one-time excursion out of the ginning process and into an activity more akin to farming or agricultural labor, did not interrupt his compensation coverage. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, 1986 N.C. App. LEXIS 2325 (1986).

Laborer in Large-Scale Commercial Production, etc., of Chicken Eggs. —

The duties of employee, consisting of cleaning, grading, packaging and delivering eggs, keeping records of sales and collecting the eggs delivered, were sufficiently removed from the normal process of agriculture to prevent her exclusion from coverage under the Workers’ Compensation Act as a “farm laborer.” Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471, 1974 N.C. LEXIS 1188 (1974).

Insurance carrier was estopped from denying the plaintiff ’s status as an employee when he was injured, even though the plaintiff was a working partner in a farming operation, where the carrier had treated the plaintiff as an employee before the injury, and had accepted the benefits of that status. Garrett v. Garrett & Garrett Farms, 39 N.C. App. 210, 249 S.E.2d 808, 1978 N.C. App. LEXIS 2359 (1978), cert. denied, 296 N.C. 736, 254 S.E.2d 178, 1979 N.C. LEXIS 1276 (1979).

IV.Domestic Servants

Dual Employment. —

Plaintiff was employed for a single wage to do janitorial, window cleaning, and delivery work at defendant’s paint store and also to do janitor and garden work at defendant’s home. He was paid at the store. His injuries arose from an accident connected with lawn mowing at the employer’s home. An award by the Commission was affirmed in the superior court but reversed on the insurance carrier’s appeal. The personal work done for the employer was not within the coverage of the act. Burnett v. Palmer-Lipe Paint Co., 216 N.C. 204, 4 S.E.2d 507, 1939 N.C. LEXIS 123 (1939).

V.Number of Employees

Editor’s Note. —

The cases cited below were decided prior to the 1987 amendment to subsection (b) of this section, which changed the regular employment requirement to three employees.

Whether or not the minimum number of persons are regularly employed in one business is a jurisdictional matter that cannot be waived. Dependents of Thompson v. Johnson Funeral Home, 205 N.C. 801, 172 S.E. 500, 1934 N.C. LEXIS 78 (1934) (where the jurisdiction of the Industrial Commission was first challenged in an appeal from the Commission to the superior court. See same case on rehearing, 208 N.C. 178, 179 S.E. 801 (1935), noted critically in 14 N.C.L. Rev. 76 (1936).) .

The requirement that five (now three) or more employees be regularly employed in the same business or establishment is jurisdictional. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, 1986 N.C. App. LEXIS 2117, aff'd, 318 N.C. 410, 348 S.E.2d 595, 1986 N.C. LEXIS 2662 (1986).

The plaintiff has the burden of proving that the employer regularly employed five (now three) or more employees. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, 1986 N.C. App. LEXIS 2117, aff'd, 318 N.C. 410, 348 S.E.2d 595, 1986 N.C. LEXIS 2662 (1986).

Employment of the Minimum Number of Persons or More Must Affirmatively Appear. —

It must appear affirmatively by evidence or by admission of record that a defendant sought to be held liable under this Chapter had in his employ five (now three) or more employees in order to sustain the jurisdiction of the Commission. Chadwick v. North Carolina Dep't of Conservation & Dev., 219 N.C. 766, 14 S.E.2d 842, 1941 N.C. LEXIS 145 (1941). See also Hanks v. Southern Pub. Util. Co., 204 N.C. 155, 167 S.E. 560, 1933 N.C. LEXIS 347 (1933).

To sustain the jurisdiction of the Commission, it must affirmatively appear that the employer which it undertakes to bind by its award had as many as five (now three) men in his or its employment. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962).

Evidence showing that a defendant had in his employ five (now three) or more employees must affirmatively appear in the record to sustain the jurisdiction of the Industrial Commission over the claim. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3, 1982 N.C. App. LEXIS 3067 (1982).

Number of workers on job site on date of injury, standing alone, is not determinative of the issue. If the defendant had four (now three) or more “regularly employed” employees, the fact that he fell below the minimum requirement on the actual date of injury would not preclude coverage. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3, 1982 N.C. App. LEXIS 3067 (1982).

Where Number of Employees Varies. —

Defendant employed three employees regularly. Two additional employees had been hired for at least a part of each week for two preceding months. It was held that the jurisdictional requirement of five (now three) regular employees was met. Hunter v. Peirson, 229 N.C. 356, 49 S.E.2d 653, 1948 N.C. LEXIS 488 (1948).

Where Employer Conducts Several Distinct Businesses. —

Where the employer conducts several distinct businesses and in each employs less than the requisite number required to bring himself within the act, he is not subject to the act. This is true even though the businesses are under the same roof. Aycock v. Cooper, 202 N.C. 500, 163 S.E. 569, 1932 N.C. LEXIS 144 (1932).

Reviewing Court Must Make Independent Determination. —

Whether the employer had the number of employees required to subject him to the Workers’ Compensation Act is a question of jurisdictional fact, and the reviewing court is required to review and consider the evidence and make an independent determination. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3, 1982 N.C. App. LEXIS 3067 (1982).

Reversal of Commission’s Award Where Number of Employees Not Affirmatively Shown. —

When it is not made to affirmatively appear that the defendant sought to be held liable under this Chapter had in his employ five (now three) or more employees, the Commission’s award of compensation against him must be reversed. Chadwick v. North Carolina Dep't of Conservation & Dev., 219 N.C. 766, 14 S.E.2d 842, 1941 N.C. LEXIS 145 (1941).

Where the findings of facts of the Industrial Commission that the deceased was an employee of the defendant and that the defendant employed more than five (now three) workers are not supported by any evidence in the hearing before it, upon appeal to the superior court the award should be set aside and vacated. Poole v. Sigmon, 202 N.C. 172, 162 S.E. 198, 1932 N.C. LEXIS 455 (1932).

Remand to Determine Number of Employees. —

It is not error for the superior court to remand a proceeding in order that the facts with respect to the number of employees in the employ of the defendant at the time the employee was injured might be ascertained by the Industrial Commission. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962).

Demurrer Properly Overruled. —

A demurrer to an action for death of an employee, on the ground that the action was cognizable only by the Industrial Commission, was properly overruled when it did not appear on the face of the complaint that the defendant employed more than five (now three) men in this State. Hanks v. Southern Pub. Util. Co., 204 N.C. 155, 167 S.E. 560, 1933 N.C. LEXIS 347 (1933). See Southerland v. Harrell, 204 N.C. 675, 169 S.E. 423, 1933 N.C. LEXIS 233 (1933); Allen v. American Cotton Mills, Inc., 206 N.C. 704, 175 S.E. 98, 1934 N.C. LEXIS 284 (1934).

Where a corporate employer with less than the minimum number of employees procures a policy of compensation insurance, such employer is presumed to have accepted the provisions of the act, and such policy covers its executive officers notwithstanding the premium on the policy is based on the compensation of a single nonexecutive employee and the parties intended to cover him only, unless notice of nonacceptance by the executive officers is duly filed with the Industrial Commission. Laughridge v. South Mt. Pulpwood Co., 266 N.C. 769, 147 S.E.2d 213, 1966 N.C. LEXIS 1443 (1966).

Ordinarily, an employer with less than five employees is exempt from the act. However, when such employer at his election voluntarily purchases workers’ compensation insurance, he accepts all provisions of the act. In such case, the policy he purchases both creates and protects his compensation liability; and thereafter such employer and his employees are bound by the provisions of the act unless, prior to any accident resulting in injury or death, notice to the contrary is given. Crawford v. Pressley, 6 N.C. App. 641, 171 S.E.2d 197, 1969 N.C. App. LEXIS 1253 (1969).

VI.Prisoners

Suspension of Workers’ Compensation Benefits During Incarceration. —

Imprisonment of a person already receiving worker’s compensation disability payments cuts off the employer’s duty to make payments during the period of confinement. Parker v. Union Camp Corp., 107 N.C. App. 505, 422 S.E.2d 585 (1992).

Action for Wrongful Death. —

Where decedent was a prisoner who suffered an accidental death arising out of and in the course of his assigned employment, plaintiff was entitled to workers’ compensation benefits under subsection (c). Blackmon v. N.C. Dept. Of Correction, 343 N.C. 259, 470 S.E.2d 8, 1996 N.C. LEXIS 261 (1996).

Action for Wrongful Death Under Tort Claims Act. —

Subsection (c) of this section was held not to be a bar in an action for wrongful death of a prisoner brought under the Tort Claims Act. Ivey v. North Carolina Prison Dep't, 252 N.C. 615, 114 S.E.2d 812, 1960 N.C. LEXIS 439 (1960).

The second 1957 amendment to this section, which made former G.S. 97-10 applicable to certain prisoners, did not deny to prisoners on assigned tasks rights conferred by the Tort Claims Act. Ivey v. North Carolina Prison Dep’t, 252 N.C. 615, 114 S.E.2d 812 (1960). See also note to G.S. 143-291 .

Where a prisoner who suffered accidental death arising out of and in the course of the employment to which he had been assigned, his dependents or next of kin were entitled to specific benefits under the Act; therefore, inmate’s mother could not maintain a wrongful death action against defendants under the Tort Claims Act. Blackmon v. North Carolina Dep't of Cors., 118 N.C. App. 666, 457 S.E.2d 306, 1995 N.C. App. LEXIS 376 (1995), aff'd, 343 N.C. 259, 470 S.E.2d 8, 1996 N.C. LEXIS 261 (1996).

Where the plaintiff was permanently injured while working on a silage harvesting machine operated by the Department of Correction (now Division of Adult Correction of the Department of Public Safety), and he filed a claim with the Industrial Commission under the Tort Claims Act, his claim was properly dismissed on the grounds that workers’ compensation was plaintiff’s exclusive remedy. Richardson v. North Carolina Dep't of Correction, 118 N.C. App. 704, 457 S.E.2d 325, 1995 N.C. App. LEXIS 377 (1995), aff'd, 345 N.C. 128, 478 S.E.2d 501, 1996 N.C. LEXIS 654 (1996).

Where deceased was a prisoner who suffered “accidental death arising out of and in the course of the employment to which he had been assigned,” his dependents or next of kin were statutorily “entitled” to specific benefits under the exclusive remedy provisions of G.S. 97-10.1, and could not maintain a wrongful death action against defendants under the Tort Claims Act. Blackmon v. North Carolina Dep't of Cors., 118 N.C. App. 666, 457 S.E.2d 306, 1995 N.C. App. LEXIS 376 (1995), aff'd, 343 N.C. 259, 470 S.E.2d 8, 1996 N.C. LEXIS 261 (1996).

Working prisoners are excluded from suing in tort for work-related injuries. Richardson v. North Carolina Dep't of Correction, 345 N.C. 128, 478 S.E.2d 501 (1996).

Workers’ Compensation Act Sole Remedy. —

A prisoner’s exclusive remedy for “accidental injury . . . arising out of and in the course of the employment to which he had been assigned,” whether he is incarcerated or released, as with other employees, arises under the provisions of the Workers’ Compensation Act and is the plaintiff’s sole remedy. Richardson v. North Carolina Dep't of Correction, 118 N.C. App. 704, 457 S.E.2d 325, 1995 N.C. App. LEXIS 377 (1995), aff'd, 345 N.C. 128, 478 S.E.2d 501, 1996 N.C. LEXIS 654 (1996).

The monetary benefit afforded to plaintiff by subsection (c) entitled her to compensation and G.S. 97-10.1 applied to bar plaintiff’s wrongful death action under the Tort Claims Act. Blackmon v. N.C. Dept. Of Correction, 343 N.C. 259, 470 S.E.2d 8, 1996 N.C. LEXIS 261 (1996).

Workers’ compensation is the exclusive remedy for prisoners injured while working on prison jobs. Richardson v. North Carolina Dep't of Correction, 345 N.C. 128, 478 S.E.2d 501 (1996).

When an inmate is injured while working at his prison job, his exclusive remedy for any injury is a workers’ compensation claim, but he must wait until release for a determination of entitlement to such compensation. Vereen v. N.C. Dep't of Corr., 168 N.C. App. 588, 608 S.E.2d 412, 2005 N.C. App. LEXIS 333 (2005).

Work Release Injury. —

Workers’ compensation claim by prison inmate who was injured while working for a private employer on work release was not barred by statute. Harris v. Thompson Contrs., Inc., 148 N.C. App. 472, 558 S.E.2d 894, 2002 N.C. App. LEXIS 26 (2002), aff'd, 356 N.C. 664, 576 S.E.2d 323, 2003 N.C. LEXIS 40 (2003).

Burial Expenses. —

It was assumed, for the purpose of the case, that this section permits the establishment of a claim for the burial expenses of a prisoner whose death occurred while a prisoner. Lawson v. North Carolina State Hwy. & Pub. Works Comm'n, 248 N.C. 276, 103 S.E.2d 366, 1958 N.C. LEXIS 487 (1958).

The payment of burial expenses was not payment of “compensation” under the Workers’ Compensation Act so as to make the remedy of the personal representative of such a prisoner under subsection (c) of this section exclusive by virtue of former G.S. 97-10. Ivey v. North Carolina Prison Dep't, 252 N.C. 615, 114 S.E.2d 812, 1960 N.C. LEXIS 439 (1960).

§§ 97-14 through 97-16. [Repealed]

Repealed by Session Laws 1973, c. 1291, ss. 7-9.

§ 97-17. Settlements allowed in accordance with Article.

  1. This article does not prevent settlements made by and between the employee and employer so long as the amount of compensation and the time and manner of payment are in accordance with the provisions of this Article. A copy of a settlement agreement shall be filed by the employer with and approved by the Commission. No party to any agreement for compensation approved by the Commission shall deny the truth of the matters contained in the settlement agreement, unless the party is able to show to the satisfaction of the Commission that there has been error due to fraud, misrepresentation, undue influence or mutual mistake, in which event the Commission may set aside the agreement. Except as provided in this subsection, the decision of the Commission to approve a settlement agreement is final and is not subject to review or collateral attack.
  2. The Commission shall not approve a settlement agreement under this section, unless all of the following conditions are satisfied:
    1. The settlement agreement is deemed by the Commission to be fair and just, and that the interests of all of the parties and of any person, including a health benefit plan that paid medical expenses of the employee have been considered.
    2. The settlement agreement contains a list of all of the known medical expenses of the employee related to the injury to the date of the settlement agreement, including medical expenses that the employer or carrier disputes, and a list of medical expenses, if any, that will be paid by the employer under the settlement agreement.
    3. The settlement agreement contains a finding that the positions of all of the parties to the agreement are reasonable as to the payment of medical expenses.
  3. In determining whether the positions of all of the parties to the agreement are reasonable as to the payment of medical expenses under subdivision (3) of subsection (b) of this section, the Commission shall consider all of the following:
    1. Whether the employer admitted or reasonably denied the employee’s claim for compensation.
    2. The amount of all of the known medical expenses of the employee related to the injury to the date of the settlement agreement, including medical expenses that the employer or carrier disputes.
    3. The need for finality in the litigation.
  4. Nothing in this section shall be construed to limit the application of G.S. 44-49 and G.S. 44-50 to funds in compensation for settlement under this section.
  5. Nothing in this section prevents the parties from reaching a separate contemporaneous agreement resolving issues not covered by this Article.

It is not necessary, however, to satisfy the condition in subdivision (2) of this subsection when in the settlement agreement the employer agrees to pay all medical expenses of the employee related to the injury to the date of the settlement agreement.

History. 1929, c. 120, s. 18; 1963, c. 436; 2001-216, s. 2; 2001-487, s. 102(b); 2005-448, s. 3; 2011-287, s. 4.

Editor’s Note.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 4 which added subsection (e), was applicable to claims pending on or after June 24, 2011.

Effect of Amendments.

Session Laws 2005-448, s. 3, effective September 29, 2005, and applicable to claims pending and filed on or after that date, added the second paragraph in subsection (b).

Session Laws 2011-287, s. 4, effective June 24, 2011, and applicable to claims pending on or after that date, added subsection (e).

Legal Periodicals.

For survey of 1976 case law on workers’ compensation, see 55 N.C.L. Rev. 1116 (1977).

For survey, “Vernon v. Stephen L. Mabe Builders: The Requirements of Fairness in Settlement Agreements Under the North Carolina Workers’ Compensation Act,” see 73 N.C.L. Rev. 2529 (1995).

For article, “Primary Issues in Compensation Litigation,” see 17 Campbell L. Rev. 443 (1995).

For note, “The Fairness Requirement for a Workers’ Compensation Agreement — The Effect of Vernon v. Steven L. Mabe Builders,” see 17 Campbell L. Rev. 521 (1995).

CASE NOTES

The law, by this section, undertakes to protect the rights of the employee in contracting with respect to his injuries. Caudill v. Chatham Mfg. Co., 258 N.C. 99, 128 S.E.2d 128, 1962 N.C. LEXIS 646 (1962).

Section Contemplates Only Settlement in Respect of Amount of Compensation. —

The only “settlement” contemplated by this section is a settlement in respect of the amount of compensation to which claimants are entitled under the act. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957).

And Does Not Apply to Compromise and Settlement of Common-Law Claim. —

Compromise and settlement of the common-law claim of the administratrix of a deceased employee for the wrongful death of the employee, executed under the mistaken belief that the Workers’ Compensation Act was not applicable, would not be disturbed on the ground that the Industrial Commission did not approve such settlement as required by this section. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957).

Settlement for out-of-the-state injury may be beyond the jurisdiction of the Commission to approve and enforce. See Reaves v. Earle-Chesterfield Mill Co., 216 N.C. 462, 5 S.E.2d 305, 1939 N.C. LEXIS 16 (1939).

Agreements as to Distribution of Proceeds. —

An agreement, approved by the commission and otherwise valid, between the parties to a workers’ compensation claim as to the distribution between them of proceeds recovered from a third party action is binding. Turner v. CECO Corp., 98 N.C. App. 366, 390 S.E.2d 685, 1990 N.C. App. LEXIS 411 (1990).

In order to adjust the amount of a lien upon a recovery against a third party agreed to in a workers’ compensation claim settlement approved by the Industrial Commission, the parties must apply to the commission under G.S. 97-17; a party may not use G.S. 97-10.2(j) to avoid a duly executed and commission-approved settlement agreement, and a trial court has no jurisdiction to adjust a lien amount agreed upon in such an agreement. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711, 2002 N.C. App. LEXIS 1119 (2002).

In a workers’ compensation case where an employee, employer, and carrier agree in advance as to the disposition of any lien on a recovery against a third party, a carrier’s insistence on the agreed-upon lien amount may be viewed as an insistence on receiving the benefit of the bargain previously struck with the employee, and these bargains are committed to the discretion of the Industrial Commission, under G.S. 97-10.1 and G.S. 97-17. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711, 2002 N.C. App. LEXIS 1119 (2002).

An approved compensation agreement is binding on the parties unless and until set aside by the Industrial Commission. Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

When Approved by the Commission. —

An agreement between the employer and workers’ compensation carrier and the employee for the payment of compensation benefits, when approved by the Industrial Commission, is binding on the parties thereto. Buchanan v. Mitchell County, 38 N.C. App. 596, 248 S.E.2d 399, 1978 N.C. App. LEXIS 2249 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 35, 1979 N.C. LEXIS 1207 (1979).

An agreement for the payment of compensation, when approved by the Commission, is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal. Brookover v. Borden, Inc., 100 N.C. App. 754, 398 S.E.2d 604, 1990 N.C. App. LEXIS 1227 (1990).

Agreement between worker and employer to pay worker compensation, which is approved by the Industrial Commission, becomes an award of the Commission. Martin v. Piedmont Asphalt & Paving Co., 113 N.C. App. 121, 437 S.E.2d 696, 1993 N.C. App. LEXIS 1309 (1993), vacated, 337 N.C. 785, 448 S.E.2d 380, 1994 N.C. LEXIS 575 (1994).

Under G.S. 97-17, parties to a workers’ compensation claim may submit a settlement agreement to the Industrial Commission for approval, and, if approved by the commission, the agreement is considered binding on the parties involved, and can only be set aside by the Industrial Commission upon a showing of fraud, misrepresentation, undue influence, or mutual mistake; the statute provides that unless a party can make such a showing no party to any agreement for compensation approved by the commission shall deny the truth of the matters contained in the settlement agreement. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711, 2002 N.C. App. LEXIS 1119 (2002).

Where a settlement agreement speaks specifically to the matter of an employer and carrier’s lien, and the plaintiff-employee agrees to the lien provision, G.S. 97-17 indicates that the employee is bound by the agreement and only the Industrial Commission has jurisdiction to set it aside. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711, 2002 N.C. App. LEXIS 1119 (2002).

North Carolina Industrial Commission properly determined that a claim filed in 2009 for death benefits under G.S. 97-38 by the surviving children of a deceased employee was untimely because the Commission’s approval of a November 1999 settlement agreement between the employee and employer constituted a final determination of disability for purposes of the two-year limitations period in G.S. 97-38. Coffey v. Weyerhaeuser Co., 218 N.C. App. 297, 720 S.E.2d 879, 2012 N.C. App. LEXIS 57 (2012).

But Is Not Binding If Not Approved. —

Agreement for compensation which is signed by the parties but is not approved by the Commission pursuant to this section is not binding. Baldwin v. Piedmont Woodyards, Inc., 58 N.C. App. 602, 293 S.E.2d 814, 1982 N.C. App. LEXIS 2787 (1982).

Filing of Agreement by Employee with Commission. —

Although an employee filed a compromise settlement agreement that an employer and its insurance carrier refused to sign with the Industrial Commission, despite the fact that such agreement was to have been filed by the employer pursuant to G.S. 97-17, such conduct did not render the settlement agreement unenforceable; there was no statutory language indicating that such filing by an employee deprived the Commission of its authority to approve the settlement agreement. Chaisson v. Simpson, 195 N.C. App. 463, 673 S.E.2d 149, 2009 N.C. App. LEXIS 216 (2009).

A compromise settlement agreement was void where the plaintiff’s insurer, a real party in interest, did not consent and the Industrial Commission had subject matter jurisdiction over its claim. Hansen v. Crystal Ford-Mercury, Inc., 138 N.C. App. 369, 531 S.E.2d 867, 2000 N.C. App. LEXIS 628 (2000).

In approving a settlement agreement the Industrial Commission acts in a judicial capacity and the settlement as approved becomes an award enforceable, if necessary, by a court decree. Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

The Industrial Commission’s approval of a settlement agreement is as conclusive as if made upon a determination of facts in an adversary proceeding. Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

An agreement for the payment of compensation, when approved by the Industrial Commission, is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal. Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

Effects of Agreement on Burden of Proof. —

The Commission erred in concluding that as a matter of law because defendants had the burden of proof to present evidence sufficient to rebut a presumption of continued total disability raised by the Form 21 agreement, and defendants had not met that burden, plaintiff was entitled to a continuing presumption of total disability; plaintiff’s later Form 26 agreement with its specific duration superseded the earlier Form 21 agreement, which covered her total disability for an indefinite period, and consequently, she had the burden of rebutting the existing presumption of partial disability through the presentation of evidence supporting total disability. Dancy v. Abbott Labs., 139 N.C. App. 553, 534 S.E.2d 601, 2000 N.C. App. LEXIS 982 (2000), aff'd, 353 N.C. 446, 545 S.E.2d 211, 2001 N.C. LEXIS 431 (2001).

The presumption is that the Industrial Commission approves compromises only after a full investigation and a determination that the settlement is fair and just. Caudill v. Chatham Mfg. Co., 258 N.C. 99, 128 S.E.2d 128, 1962 N.C. LEXIS 646 (1962); Hartsell v. Pickett Cotton Mills, Inc., 4 N.C. App. 67, 165 S.E.2d 792, 1969 N.C. App. LEXIS 1439 (1969).

Agreement Nullifying Workers’ Compensation Act Not Permitted. —

The Industrial Commission has the inherent power, upon application made in due time, to relieve a party from a judicial determination of his rights when the decision is a product of mistake, fraud, or excusable neglect, but this power to prevent injustice by fraud, mistake, or excusable neglect does not extend so far as to permit a nullification of the Workers’ Compensation Act by an agreement between a party entitled to receive and a party obligated to pay compensation that they will disregard its provisions. Stanley v. Brown, 261 N.C. 243, 134 S.E.2d 321, 1964 N.C. LEXIS 444 (1964).

Commission May Not Set Aside Duly Executed Agreement. —

Absent a showing of fraud, misrepresentation, mutual mistake, or undue influence, the Industrial Commission may not set aside a settlement agreement duly executed by the parties, properly submitted to the Industrial Commission for approval, and approved by the Chairman of the Commission in accordance with this section and G.S. 97-82. The fact that defense counsel had attempted to revoke its consent to the agreement after it was submitted to the Commission was immaterial. Glenn v. McDonald's, 109 N.C. App. 45, 425 S.E.2d 727, 1993 N.C. App. LEXIS 200 (1993).

Defendant could not establish the existence of any of the factors listed in this section that would require the Commission to set aside a previously approved I.C. Form 26. Salaam v. North Carolina DOT, 122 N.C. App. 83, 468 S.E.2d 536, 1996 N.C. App. LEXIS 203 (1996).

North Carolina Industrial Commission erred in reforming a settlement agreement executed by an employer and an employee because it lacked the authority to change the employee’s average weekly wage; the alleged error in computing the employee’s average weekly wages on the parties’ agreement constituted an error of law, not of fact, because the Commission’s review, as well as the propriety of the method that had produced the error, required reference to, and construction of, statutory provisions. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54, 2014 N.C. App. LEXIS 299 (2014).

Agreement Unenforceable. —

Commission’s refusal to support an agreement settling a workers’ compensation claim was proper because the inclusion of a provision stating that the employee was to resign and execute an employment release with her share of the mediation cost being consideration violated Workers’ Comp. R. N.C. Indus. Comm’n 502(2)(e), 2010 Ann. R. N.C. 1030; even if the resignation and release provision was severable, the agreement still did not comply with Rule 502(2)(e), as the agreement did not contain language that no rights other than those arising under the provisions of the Workers’ Compensation Act were compromised or released. Kee v. Caromont Health, Inc., 209 N.C. App. 193, 706 S.E.2d 781, 2011 N.C. App. LEXIS 100 (2011).

Agreement May Be Set Aside On Certain Grounds. —

An agreement between the employer and workers’ compensation carrier and the employee may be set aside when there has been error due to fraud, misrepresentation, undue influence or mutual mistake. Buchanan v. Mitchell County, 38 N.C. App. 596, 248 S.E.2d 399, 1978 N.C. App. LEXIS 2249 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 35, 1979 N.C. LEXIS 1207 (1979).

The question whether the Industrial Commission has jurisdiction to rescind and set aside settlements and compromise settlements, approved by them, on the ground of mutual mistake of fact, was touched on, but not decided, in Caudill v. Chatham Mfg. Co., 258 N.C. 99, 128 S.E.2d 128, 1962 N.C. LEXIS 646 (1962).

Where an employee has received benefits from an agreement for compensation executed by himself, his employer, and the insurance carrier, which agreement was duly approved by the Industrial Commission, he may attack and have such agreement set aside only for fraud, misrepresentation, undue influence, or mutual mistake, and he may not attack it on the ground that the jurisdictional facts therein alleged in regard to the relationship of employer and employee and that the accident arose out of and in the course of the employment were untrue. Tabron v. Gold Leaf Farms, Inc., 269 N.C. 393, 152 S.E.2d 533, 1967 N.C. LEXIS 1080 (1967).

This statutory provision clearly grants the Industrial Commission the authority to rehear and set aside prior orders approving settlements on any one of the stated grounds, i.e., fraud, misrepresentation, undue influence or mutual mistake. Graham v. City of Hendersonville, 42 N.C. App. 456, 255 S.E.2d 795, 1979 N.C. App. LEXIS 2781, cert. denied, 298 N.C. 568, 261 S.E.2d 121, 1979 N.C. LEXIS 1633 (1979).

Where an employee accepts benefits from an agreement for compensation executed by himself, his employer, and the insurance carrier, which agreement was duly approved by the commission, the employee may attack and have such agreement set aside only for fraud, misrepresentation, undue influence, or mutual mistake. Brookover v. Borden, Inc., 100 N.C. App. 754, 398 S.E.2d 604, 1990 N.C. App. LEXIS 1227 (1990).

Mutual mistake justifies voiding a settlement since such settlements are guided by contract principles, but the mistake must be material; the Industrial Commission properly set aside a settlement agreement where it found, by competent evidence, that: (1) the parties entered into the agreement on the mutual mistake of a doctor’s faulty diagnosis that the employee had reached his maximum medical improvement, and (2) the parties materially relied on that faulty diagnosis when they entered the contract; the Commission could enter a new award after vacating the settlement. Roberts v. Century Contrs., Inc., 162 N.C. App. 688, 592 S.E.2d 215, 2004 N.C. App. LEXIS 268 (2004).

Setting Aside Award Without Setting Aside Agreement. —

An agreement for the payment of compensation is binding on the parties when approved by the Industrial Commission, and therefore where such agreement has been signed and approved by the Commission and an award has been entered thereon, and the Commission has entered an order setting aside the award alone without disturbing the Commission’s approval or the agreement of the parties, for fraud, mistake, or misunderstanding, such agreement precludes action at common law. Neal v. Clary, 259 N.C. 163, 130 S.E.2d 39, 1963 N.C. LEXIS 505 (1963).

Settlement Agreement Was Not Set Aside on Mutual Mistake Ground. —

A worker’s compensation settlement agreement was not set aside on the ground that there was mutual mistake of fact even though the Industrial Commission’s Advisory Medical Committee reported that the claimant did not have a compensable disease after the settlement was entered into. Mullinax v. Fieldcrest Cannon, Inc., 100 N.C. App. 248, 395 S.E.2d 160, 1990 N.C. App. LEXIS 927 (1990).

The Industrial Commission properly determined that plaintiff, who suffered a back injury and sought to set aside settlement agreement for payment of workers’ compensation, was not entitled to have the agreement set aside pursuant to this section on the basis of mutual mistake. Vernon v. Steven L. Mabe Bldrs., 110 N.C. App. 552, 430 S.E.2d 676, 1993 N.C. App. LEXIS 562 (1993), rev'd in part, 336 N.C. 425, 444 S.E.2d 191, 1994 N.C. LEXIS 308 (1994).

The doctrines of mutual mistake, misrepresentation, and fraud did not operate to entitle the employer to relief from a compensation award, where the award was not based on an agreement of the parties but on the defendant’s unilateral initiation of payment of compensation and its subsequent failure to contest the claim under G.S. 97-18. Higgins v. Michael Powell Bldrs., 132 N.C. App. 720, 515 S.E.2d 17, 1999 N.C. App. LEXIS 346 (1999).

Modification of Award by Commission Not Subject to Collateral Attack. —

The action by the Industrial Commission in modifying an award pursuant to this section is a quasi-judicial act which cannot be collaterally attacked in an independent action. In the absence of a direct appeal, the modified order of the Industrial Commission is conclusively presumed to be correct and cannot be collaterally attacked. Travelers Ins. Co. v. Rushing, 36 N.C. App. 226, 243 S.E.2d 420, 1978 N.C. App. LEXIS 2453 (1978).

Where the mistake relied on to set aside a release related only to the consequences of a known injury, and uncertainties in this regard were the subject matter of the compromise settlement, the mistake was not such as to warrant a court of equity in setting aside a release executed pursuant to a settlement approved by the Industrial Commission under this section. Caudill v. Chatham Mfg. Co., 258 N.C. 99, 128 S.E.2d 128, 1962 N.C. LEXIS 646 (1962).

Application of Equitable Estoppel. —

North Carolina Industrial Commission did not err by failing to consider equitable estoppel as a means of preventing an employer from requesting that the Commission reduce the amount of compensation which the employer was providing to a claimant. The claimant presented no evidence that any agreement existed between the claimant and the employer concerning the rate of compensation, much less that an agreement existed that had been approved by the Commission. Thompson v. STS Holdings, Inc., 213 N.C. App. 26, 711 S.E.2d 827, 2011 N.C. App. LEXIS 1230 (2011).

Timeliness of Payment. —

Where a 2001 amendment to G.S. 97-17(a) shortened the time for payment of a settlement agreement to 24 days, and a payment by an employer and its insurance carrier was made 36 days after court approval of the agreement, the employee was entitled to a late payment penalty under G.S. 97-18(g). Carroll v. Living Ctrs. Southeast, Inc., 157 N.C. App. 116, 577 S.E.2d 925, 2003 N.C. App. LEXIS 379, writ denied, 357 N.C. 249, 582 S.E.2d 29, 2003 N.C. LEXIS 737 (2003).

Employer’s Mistaken Representation Agreement Was a “Proper One.” —

Where documents, stipulations and findings indisputably showed that the parties and Commission acted upon defendant employer’s mistaken representation that the original compensation agreement was a “proper one,” and since the mistake benefited its initiator to the detriment of the misinformed, acquiescent plaintiff, fundamental equitable principles required that the mistake not be perpetuated. Cockrell v. Evans Lumber Co., 103 N.C. App. 359, 407 S.E.2d 248, 1991 N.C. App. LEXIS 762 (1991).

The Commission’s conclusion that there was no evidence to show causation was not a basis for denying plaintiff ’s award in a case of admitted liability. Lucas v. Thomas Built Buses, Inc., 88 N.C. App. 587, 364 S.E.2d 147, 1988 N.C. App. LEXIS 50 (1988).

Releases by employers to obtain relief from the obligations created under the Workers’ Compensation Act do not bar a retaliatory discharge claim under former G.S. 97-6.1. Tellado v. Ti-Caro Corp., 119 N.C. App. 529, 459 S.E.2d 27, 1995 N.C. App. LEXIS 529 (1995).

Payment of Costs and Attorneys’ Fees. —

The Industrial Commission erred in ordering that defendant’s costs and attorney’s fees be paid by plaintiff’s counsel. Evans v. Young-Hinkle Corp., 123 N.C. App. 693, 474 S.E.2d 152, 1996 N.C. App. LEXIS 863 (1996).

The determination of the plaintiff’s ‘average weekly wages’ requires application of G.S. 97-2(5) and case law and thus raises an issue of law; thus, any mistake made by either of the parties is not a basis for setting the agreement aside. Swain v. C & N Evans Trucking Co., 126 N.C. App. 332, 484 S.E.2d 845, 1997 N.C. App. LEXIS 355 (1997).

Employee waited an unreasonable amount of time to seek verification of the calculation of her average weekly wage, as a matter of law, because it was over three and one half years after the benefits had been tendered and accepted and the Form 21 agreement had been approved; a party to a Form 21 agreement which contains a verification provision but no provision regarding the time by which verification must be sought cannot assert a right to seek verification once a “reasonable time” has passed. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54, 2014 N.C. App. LEXIS 299 (2014).

Action Not Barred. —

Where plaintiffs alleged injuries beyond the mere loss of workers’ compensation benefits, including emotional distress and punitive damages now provided for by this section, this section was not an effective remedy for the additional injuries; thus, the exclusive remedy doctrine did not apply to bar plaintiff’s civil action. Johnson v. First Union Corp., 128 N.C. App. 450, 496 S.E.2d 1, 1998 N.C. App. LEXIS 104 (1998).

Jurisdiction of Commission after Settlement. —

Because the Industrial Commission, pursuant to this article, has sole jurisdiction over the plaintiff worker’s allegations, after settlement, that defendants committed fraud, bad faith, unfair and deceptive trade practices, intentional infliction of emotional distress and civil conspiracy during the handling of his workers’ compensation claim, the trial court properly dismissed the post-settlement claim pursuant to G.S. 1A-1-12(b). Deem v. Treadaway & Sons Painting & Wallcovering, Inc., 142 N.C. App. 472, 543 S.E.2d 209, 2001 N.C. App. LEXIS 141 (2001).

North Carolina Industrial Commission had jurisdiction over a workers’ compensation matter, even though the parties had entered into a settlement agreement at a mediation conference for what was believed to be a liability claim at law and the claimant could have filed an action at law, as once the Forms 18 and 33 were filed by the claimant, the Commission had exclusive jurisdiction over the workers’ compensation claim and all related matters; the Commission had not approved the settlement agreement. Allred v. Exceptional Landscapes, Inc., 227 N.C. App. 229, 743 S.E.2d 48, 2013 N.C. App. LEXIS 531 (2013).

Settlement Agreement Was Fair and Just and in Best Interest of Parties. —

Based on the evidence available to the parties at the time of settlement negotiations, including the medical evidence related to an employee’s knee injury, the Industrial Commission correctly concluded that the parties’ decision to settle the employee’s claim for a set sum was fair and just in the circumstances, as well as in the best interest of the parties pursuant to Workers’ Comp. R. N.C. Indus. Comm’n 502(1), 2009 Ann. R. N.C. 996 and G.S. 97-17(b)(1); the settlement was based on the knowledge by both parties that the future medical condition of the employee was an issue. Chaisson v. Simpson, 195 N.C. App. 463, 673 S.E.2d 149, 2009 N.C. App. LEXIS 216 (2009).

Settlement Agreement Was Not Fair and Just. —

Settlement agreement did not comply with this section because it was not fair and just as it did not provide for the claimant’s medical expenses, did not provide adequate indemnity compensation given claimant’s physical and vocational limitations at the time of the settlement, did not mention payment of unpaid medical bills and did not include all of the terms required by 4 N.C. Admin. Code 10A.0502. Allred v. Exceptional Landscapes, Inc., 227 N.C. App. 229, 743 S.E.2d 48, 2013 N.C. App. LEXIS 531 (2013).

No Determination of Whether Agreement Was Fair and Just. —

North Carolina Industrial Commission erred by failing to undertake a full investigation to determine if the settlement agreement was fair and just, as required by G.S. 97-17 and G.S. 97-82; determination that there was insufficient evidence to justify setting aside the settlement agreements was not supported by competent evidence. Smythe v. Waffle House, 170 N.C. App. 361, 612 S.E.2d 345, 2005 N.C. App. LEXIS 999 (2005).

Where an employee suffered a back injury and entered into a compromise settlement agreement with an insurance carrier, the North Carolina Industrial Commission erred by not setting aside the agreement because, inter alia, the Commission failed to undertake a full investigation to determine if the agreement was fair and just since the employee may have been entitled to total disability benefits instead of a scheduled injury or partial disability benefits. Kyle v. Holston Group, 188 N.C. App. 686, 656 S.E.2d 667, 2008 N.C. App. LEXIS 282 (2008).

Reconsideration of Whether Settlement Agreement Was Fair and Just. —

Case was remanded to the North Carolina Industrial Commission for reconsideration of whether a mediation agreement was fair and just, pursuant to 4 N.C. Admin. Code 10A.502(1) and G.S. 97-17, based on the evidence available at the time of the mediation because the Commission improperly considered the medical record and the injured employee’s child support obligation. Malloy v. Davis Mech., Inc., 217 N.C. App. 549, 720 S.E.2d 739, 2011 N.C. App. LEXIS 2597 (2011).

Findings of Fact and Conclusions of Law on Remand. —

North Carolina Industrial Commission did not err by vacating an order approving a settlement agreement on remand and then awarding full disability benefits effective to the date of the approval of the settlement agreement, without making findings of fact or conclusions of law to support the award, as the commission’s conclusions of law were merely a formalization of the appellate court’s conclusions of law so that independent fact-finding and conclusions of law were inappropriate. Smythe v. Waffle House, 182 N.C. App. 754, 643 S.E.2d 407, 2007 N.C. App. LEXIS 807 (2007).

Workers’ Compensation Medicare Set-Aside Account Not a Countable Resource for Purposes of Determining Eligibility for Medicaid. —

Funds in petitioner’s Workers’ Compensation Medicare Set-Aside Account (WCMSA) were not a countable resource for purposes of determining petitioner’s eligibility for Medicaid, and the trial court erred in concluding otherwise. A settlement agreement that was incorporated into the Industrial Commission’s order barred petitioner from using the WCMSA funds for her support or maintenance. Williford v. N.C. HHS, 250 N.C. App. 491, 792 S.E.2d 843, 2016 N.C. App. LEXIS 1163 (2016).

§ 97-18. Prompt payment of compensation required; installments; payment without prejudice; notice to Commission; penalties.

  1. Compensation under this Article shall be paid periodically, promptly and directly to the person entitled thereto unless otherwise specifically provided.
  2. When the employer or insurer admits the employee’s right to compensation, the first installment of compensation payable by the employer shall become due on the fourteenth day after the employer has written or actual notice of the injury or death, on which date all compensation then due shall be paid. Compensation thereafter shall be paid in installments weekly except where the Commission determines that payment in installments should be made monthly or at some other period. Upon paying the first installment of compensation and upon suspending, reinstating, changing, or modifying such compensation for any cause, the insurer shall immediately notify the Commission, on a form prescribed by the Commission, that compensation has begun, or has been suspended, reinstated, changed, or modified. A copy of each notice shall be provided to the employee. The first notice of payment to the Commission shall contain the date and nature of the injury, the average weekly wages of the employee, the weekly compensation rate, the date the disability resulting from the injury began, and the date compensation commenced.
  3. If the employer or insurer denies the employee’s right to compensation, the employer or insurer shall notify the Commission, on or before the fourteenth day after it has written or actual notice of the injury or death, or within such reasonable additional time as the Commission may allow, and advise the employee in writing of its refusal to pay compensation on a form prescribed by the Commission. This notification shall (i) include the name of the employee, the name of the employer, the date of the alleged injury or death, the insurer on the risk, if any, and a detailed statement of the grounds upon which the right to compensation is denied, and (ii) advise the employee of the employee’s right to request a hearing pursuant to G.S. 97-83. If the employer or insurer, in good faith, is without sufficient information to admit the employee’s right to compensation, the employer or insurer may deny the employee’s right to compensation.
  4. In any claim for compensation in which the employer or insurer is uncertain on reasonable grounds whether the claim is compensable or whether it has liability for the claim under this Article, the employer or insurer may initiate compensation payments without prejudice and without admitting liability. The initial payment shall be accompanied by a form prescribed by and filed with the Commission, stating that the payments are being made without prejudice. Payments made pursuant to this subsection may continue until the employer or insurer contests or accepts liability for the claim or 90 days from the date the employer has written or actual notice of the injury or death, whichever occurs first, unless an extension is granted pursuant to this section. Prior to the expiration of the 90-day period, the employer or insurer may upon reasonable grounds apply to the Commission for an extension of not more than 30 days. The initiation of payment does not affect the right of the employer or insurer to continue to investigate or deny the compensability of the claim or its liability therefor during this period. If at any time during the 90-day period or extension thereof, the employer or insurer contests the compensability of the claim or its liability therefor, it may suspend payment of compensation and shall promptly notify the Commission and the employee on a form prescribed by the Commission. The employer or insurer must provide on the prescribed form a detailed statement of its grounds for denying compensability of the claim or its liability therefor. If the employer or insurer does not contest the compensability of the claim or its liability therefor within 90 days from the date it first has written or actual notice of the injury or death, or within such additional period as may be granted by the Commission, it waives the right to contest the compensability of and its liability for the claim under this Article. However, the employer or insurer may contest the compensability of or its liability for the claim after the 90-day period or extension thereof when it can show that material evidence was discovered after that period that could not have been reasonably discovered earlier, in which event the employer or insurer may terminate or suspend compensation subject to the provisions of G.S. 97-18.1.
  5. The first installment of compensation payable under the terms of an award by the Commission, or under the terms of a judgment of the court upon an appeal from such an award, shall become due 10 days from the day following expiration of the time for appeal from the award or judgment or the day after notice waiving the right of appeal by all parties has been received by the Commission, whichever is sooner. Thereafter compensation shall be paid in installments weekly, except where the Commission determines that payment in installments shall be made monthly or in some other manner.
  6. The employer’s or insurer’s grounds for contesting the employee’s claim or its liability therefor as specified in the notice suspending compensation under subsection (d) of this section are the only bases for the employer’s or insurer’s defense on the issue of compensability in a subsequent proceeding, unless the defense is based on newly discovered material evidence that could not reasonably have been discovered prior to the notice suspending compensation.
  7. If any installment of compensation is not paid within 14 days after it becomes due, there shall be added to such unpaid installment an amount equal to ten per centum (10%) thereof, which shall be paid at the same time as, but in addition to, such installment, unless such nonpayment is excused by the Commission after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.
  8. Within 16 days after final payment of compensation has been made, the employer or insurer shall send to the Commission and the employee a notice, in accordance with a form prescribed by the Commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid. If the employer or insurer fails to so notify the Commission or the employee within such time, the Commission shall assess against such employer or insurer a civil penalty in the amount of twenty-five dollars ($25.00). The clear proceeds of civil penalties assessed pursuant to this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.
  9. If any bill for services rendered under G.S. 97-25 by any provider of health care is not paid within 60 days after it has been approved by the Commission and returned to the responsible party, or within 60 days after it was properly submitted, in accordance with the provisions of this Article, to an insurer or managed care organization responsible for direct reimbursement pursuant to G.S. 97-26(g), there shall be added to such unpaid bill an amount equal to ten per centum (10%) thereof, which shall be paid at the same time as, but in addition to, such medical bill, unless such late payment is excused by the Commission.
  10. The employer or insurer shall promptly investigate each injury reported or known to the employer and at the earliest practicable time shall admit or deny the employee’s right to compensation or commence payment of compensation as provided in subsections (b), (c), or (d) of this section. When an employee files a claim for compensation with the Commission, the Commission may order reasonable sanctions against an employer or insurer which does not, within 30 days following notice from the Commission of the filing of a claim, or within such reasonable additional time as the Commission may allow, do one of the following:
    1. Notify the Commission and the employee in writing that it is admitting the employee’s right to compensation and, if applicable, satisfy the requirements for payment of compensation under subsection (b) of this section.
    2. Notify the Commission and the employee that it denies the employee’s right to compensation consistent with subsection (c) of this section.
    3. Initiate payments without prejudice and without liability and satisfy the requirements of subsection (d) of this section.
  11. In addition to any other methods for reinstatement of compensation available under the Act, whenever the employer or insurer has admitted the employee’s right to compensation, or liability has been established, the employee may move for reinstatement of compensation on a form prescribed by the Commission. The form prescribed by the Commission shall contain the reasons for the proposed reinstatement of compensation, be supported by available documentation, and inform the employer of the employer’s right to contest the reinstatement of compensation by filing an objection in writing with the Commission within 14 days of the date the employee’s notice is filed with the Commission or within such additional reasonable time as the Commission may allow. If the employer or insurer contests the employee’s request for reinstatement, the Commission shall conduct an informal hearing by telephone with the parties or their counsel. If either party objects to conducting the hearing by telephone, the Commission may conduct the hearing in person in Raleigh or at another location selected by the Commission. The parties shall be afforded an opportunity to state their position and to submit documentary evidence at the informal hearing. The employee may waive the right to an informal hearing and proceed to the formal hearing. The Commission’s decision in the informal hearing is not binding in the subsequent hearings. If the application for Reinstatement of Payment of Disability Compensation is approved or not contested, then compensation shall be reinstated immediately and continue until further order of the Commission. The employer or employee may request a formal hearing pursuant to G.S. 97-83 on the Commission’s decision approving or denying the employee’s application for reinstatement. A formal hearing under G.S. 97-83 ordered or requested pursuant to this subsection shall be a hearing de novo on the employee’s application for reinstatement of compensation and may be scheduled by the Commission on a preemptive basis. This subsection shall not apply to a request for a review of an award on the grounds of a change in condition pursuant to G.S. 97-47.

For purposes of this subsection, reasonable sanctions shall not prohibit the employer or insurer from contesting the compensability of or its liability for the claim.

History. 1929, c. 120, s. 181/2; 1967, c. 1229, s. 2; 1979, c. 249, ss. 1, 2; c. 599; 1993 (Reg. Sess., 1994), c. 679, s. 3.1; 1998-215, s. 114; 2005-448, s. 4; 2006-264, s. 91.7; 2011-287, s. 5; 2013-294, s. 3.

Editor’s Note.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 5, which added subsection (k), was applicable to claims pending on or after June 24, 2011.

Session Laws 2017-124, s. 1(b), provides: “In enacting subsection (a) of this section, it is the intent of the General Assembly to clarify, in response to Wilkes v. City of Greenville, that an injury not identified in an award arising out of G.S. 97-18(b) or G.S. 97-18(d) is not presumed to be causally related to the compensable injury to reflect the intent of the General Assembly when it enacted S.L. 2011-287. Session Laws 2017-124 also amended G.S. 97-82, and was passed in response to the decision in Wilkes v. City of Greenville .

Effect of Amendments.

Session Laws 2005-448, s. 4, effective October 1, 2005, inserted “or insurer” following “employer” in subsection (b); in subsection (c), inserted “or insurer” following “employer” twice, and inserted “or within such reasonable additional time as the Commission may allow” in the first sentence; inserted “deny the claim in good faith or” near the beginning of subsection (d); inserted “or insurer” following “employer” three times in subsection (h); and added subsection (j).

Session Laws 2006-264, s. 91.7, effective August 27, 2006, added the last sentence of subsection (c) and deleted “deny the claim in good faith or” following “the employer or insurer may” in the first sentence of subsection (d).

Session Laws 2011-287, s. 5, effective June 24, 2011, and applicable to claims pending on or after that date, added subsection (k).

Session Laws 2013-294, s. 3, effective July 18, 2013, in subsection (k), deleted the former second sentence, which read “If the employer or insurer contests the employee’s request for reinstatement, the matter shall be scheduled on a preemptive basis,” and added the present second through ninth sentences.

Legal Periodicals.

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For survey, “Vernon v. Stephen L. Mabe Builders: The Requirements of Fairness in Settlement Agreements Under the North Carolina Workers’ Compensation Act,” see 73 N.C.L. Rev. 2529 (1995).

For a survey of 1996 developments in the law regarding prisoner rights, see 75 N.C.L. Rev. 2428 (1997).

CASE NOTES

Applicability. —

In a workers’ compensation case, an employer’s discovery violation provided a legal basis for attorneys’ fees; however, a remand was necessary because the North Carolina Industrial Commission improperly relied upon two grounds in imposing the award. A payment without prejudice provision and its corresponding 90-day response requirement did not apply to a medical benefits-only claim, pursuant to the instructions in a government-issued form, and the claimant did not assert a notice defense. Campbell v. Garda USA, Inc., 247 N.C. App. 249, 785 S.E.2d 443, 2016 N.C. App. LEXIS 499 (2016).

Payment. —

Medical issues can be complex and the extent of an employee’s injuries may be difficult to determine at the time of the accident; however, the legislature has wisely given employers who are uncertain about the compensability of an employee’s injuries the methods to investigate such injuries without admitting any liability under the Workers’ Compensation Act while still providing prompt payments to injured employees.

Payment of Settlement Award. —

To calculate the date a compromise settlement award becomes due under the Workers’ Compensation Act, a party must: (1) allow the 15 day appeal time of G.S. 97-85; (2) then add ten days pursuant to subsection (e) of this section; and (3) finally, add 14 days as required under subsection (g) of this section; thus, a paying party liable under a compromise settlement has 39 days from the date the compromise settlement is approved to tender payment, with liability for non-payment attaching on the fortieth day. Felmet v. Duke Power Co., 131 N.C. App. 87, 504 S.E.2d 815, 1998 N.C. App. LEXIS 1232 (1998).

Notification Requirement. —

North Carolina Industrial Commission’s finding that a husband’s employer and its insurance carrier accepted compensability of a widow’s claim was not supported by the record because the employer and carrier were required to notify the Commission of their acceptance of the compensability of the widow’s claim by filing the form mandated by the Industrial Commission, and the filing of a Form 33 requesting a hearing was not enough; 4 N.C. Admin. Code 10A.0409(2)(c) must be read in conjunction with the North Carolina Workers’ Compensation Act. Heflin v. G.R. Hammonds Roofing, Inc., 201 N.C. App. 365, 689 S.E.2d 388, 2009 N.C. App. LEXIS 2192 (2009).

Notice of Final Payment to Employee Not Required by Section. —

This section does not require that the employer provide a copy of notice of final payment, Form 28B, to the employee, and no such requirement is found in any of the other provisions of this Chapter. Willis v. J.M. Davis Indus., Inc., 280 N.C. 709, 186 S.E.2d 913, 1972 N.C. LEXIS 1296 (1972).

Employee Has No Remedy for Employer’s Failure to File a Form 28B under This Section. —

The plain language of this section provides a remedy only to the Commission, not to the plaintiff employee, for the defendant employer’s failure to comply with its express provisions. Hunter v. Perquimans County Bd. of Educ., 139 N.C. App. 352, 533 S.E.2d 562, 2000 N.C. App. LEXIS 902, cert. denied, 352 N.C. 674, 545 S.E.2d 424, 2000 N.C. LEXIS 805 (2000).

But Commission Rule XI (5) Requires Notice of Final Payment. —

Rule XI (5) provides that employers will send a copy of Form 28B to the claimant within 16 days after his last payment of compensation. Willis v. J.M. Davis Indus., Inc., 280 N.C. 709, 186 S.E.2d 913, 1972 N.C. LEXIS 1296 (1972).

Commission Rule XI (5) Conformed to This Section. —

Industrial Commission Rule XI (5), adopted pursuant to the authority granted in G.S. 97-80, conformed to subsection (f) of this section insofar as the time of sending Form 28B is concerned. Willis v. J.M. Davis Indus., Inc., 280 N.C. 709, 186 S.E.2d 913, 1972 N.C. LEXIS 1296 (1972).

Award of the Commission. —

The employer’s execution of Industrial Commission Form 60 constitutes an award of the Commission and thus entitles the employee to seek the imposition of a judgment, which in turn entitles him to seek execution for past due installments and future installments as they become due. Calhoun v. Wayne Dennis Heating & Air Conditioning, 129 N.C. App. 794, 501 S.E.2d 346, 1998 N.C. App. LEXIS 772 (1998).

As an employer and its insurance carrier did not deny an employee’s compensable injury claim for a back injury within the time specified under G.S. 97-18(d), and there was competent evidence to show that the injury was caused by a workplace accident, there was support for the Industrial Commission’s award of benefits to the employee. Erickson v. Siegler, 195 N.C. App. 513, 672 S.E.2d 772, 2009 N.C. App. LEXIS 213 (2009).

Modification of Award Prior to Filing of Closing Receipt. —

A closing receipt, also called I.C. Form 28B, must be filed with the Commission. Until it is filed with and approved by the Commission, the Commission may continue to receive evidence and modify or add to a preliminary compensation award. Hill v. Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1, 1986 N.C. App. LEXIS 2021 (1986), aff'd in part, vacated in part, 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Determination of Final Payment. —

For purposes of G.S. 97-47, the statutory one-year period for filing a claim for a change of condition begins at the time final payment is accepted, not when I.C. Form 28B is filed. Nonetheless, the Commission must be given the opportunity to determine whether a payment labeled “final” is or should be, in fact, the final payment. After this determination is made, the Commission accepts and approves a copy of Form 28B. Hill v. Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1, 1986 N.C. App. LEXIS 2021 (1986), aff'd in part, vacated in part, 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Settlement proceeds are not “wages” as a matter of law. Allmon v. Alcatel, Inc., 124 N.C. App. 341, 477 S.E.2d 90, 1996 N.C. App. LEXIS 1060 (1996).

The settlement of a claim for federal civil rights violations is not, nor was it intended to be, a substitute for workers’ compensation benefits; the settlement agreement clearly reserved all rights to remedies available to plaintiff under the Workers’ Compensation Act. Allmon v. Alcatel, Inc., 124 N.C. App. 341, 477 S.E.2d 90, 1996 N.C. App. LEXIS 1060 (1996).

Penalties. —

Competent evidence supported the Industrial Commission’s decision to assess a 10% penalty for late payments, where the employer wrongfully terminated its employee’s workers’ compensation payments without Commission approval. Tucker v. Workable Co., 129 N.C. App. 695, 501 S.E.2d 360, 1998 N.C. App. LEXIS 779 (1998).

Injured employee was entitled to 10% penalty the North Carolina Industrial Commission assessed against his employer’s insurance carrier for late payment of undisputed medical expenses. Stevenson v. Noel Williams Masonry, Inc., 148 N.C. App. 90, 557 S.E.2d 554, 2001 N.C. App. LEXIS 1268 (2001).

Where a 2001 amendment to G.S. 97-17(a) shortened the time for payment of a settlement agreement to 24 days, and a payment by an employer and its insurance carrier was made 36 days after court approval of the agreement, the employee was entitled to a late payment penalty under G.S. 97-18(g). Carroll v. Living Ctrs. Southeast, Inc., 157 N.C. App. 116, 577 S.E.2d 925, 2003 N.C. App. LEXIS 379, writ denied, 357 N.C. 249, 582 S.E.2d 29, 2003 N.C. LEXIS 737 (2003).

North Carolina Industrial Commission erred in finding that an employee was not entitled to payment by an employer of a ten percent penalty for late payment of compensation under the Workers’ Compensation Act, G.S. 97-18(g), because when the employee returned to part-time work, the employer terminated the total disability benefit payments without notifying the Commission, and the employer did not pay all of the workers’ compensation benefits that were due, but unilaterally decided to pay partial disability benefits, together with wages, rather than the total disability benefits to which the Commission found the employee was entitled; in determining whether a penalty is authorized under G.S. 97-18(g), the focus is on whether workers’ compensation payments that were due under the law were actually paid. Clayton v. Mini Data Forms, Inc., 199 N.C. App. 410, 681 S.E.2d 544, 2009 N.C. App. LEXIS 1485 (2009).

North Carolina Industrial Commission erred in awarding plaintiff a 10 percent late payment penalty, pursuant to G.S. 97-18(g), for defendants alleged late payment of temporary total disability benefits because defendants timely appealed the decision by a deputy commissioner to the full Commission, pursuant to G.S. 97-85, the full Commission issued an opinion and award on April 27, 2010, and defendants timely paid the award to plaintiff on June 2, 2010, which was within 10 days after the 30 days permitted to appeal the Commission’s decision to the appellate court, in accordance with G.S. 97-18(e) and G.S. 97-86. Norman v. Food Lion, LLC, 213 N.C. App. 587, 713 S.E.2d 507, 2011 N.C. App. LEXIS 1480 (2011).

North Carolina Industrial Commission did not err in failing to prove a 10 percent late penalty because the employer’s payment was not untimely; the time for appeal expired fifteen days after the mandate issued, the time to file for a petition for discretionary review ended and the employer avoided the penalty by making payment fourteen days after payment became due. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180, 2015 N.C. App. LEXIS 50 (2015).

Employer was subject to a penalty of ten percent on temporary total disability compensation benefits not paid to an employee following the end of her trial return to work because the employer did not give notice to the employee or the Industrial Commission to contest the employee’s right to compensation; the employer simply refused to reinstate the employee’s disability compensation benefits following notice of her unsuccessful trial return to work. Bell v. Goodyear Tire & Rubber Co., 252 N.C. App. 268, 798 S.E.2d 143, 2017 N.C. App. LEXIS 176 (2017).

Calculation of time period for making payment. —

Plaintiff was not entitled to a 10-percent late payment penalty pursuant to G.S. 97-18, because defendants tendered settlement payments owed to plaintiff by placing the payments in the mail to plaintiff within the 24-day time period provided by the statute. Morrison v. Public Serv. Co. of N.C. Inc., 182 N.C. App. 707, 643 S.E.2d 58, 2007 N.C. App. LEXIS 783 (2007).

Payment Not Due During Appeal. —

Defendants were not required to pay benefits to the family members while the fianc/Ae’s appeal was pending, as under this section, the first installment of compensation payable under the terms of an award by the North Carolina Industrial Commission did not become due until 10 days from the day following expiration of the time for appeal or the day after notice waiving the right of appeal by all parties has been received by the Commission. West v. Hoyle's Tire & Axle, LLC, 2021 N.C. App. LEXIS 153 (Apr. 20, 2021).

Presumption Additional Medical Treatment Related to Compensable Condition. —

Court of appeals properly vacated the North Carolina Industrial Commission’s finding that an employee failed to establish that his anxiety and depression were a result of his work-related accident because the employee was entitled to a presumption that additional medical treatment was related to his compensable conditions; the Commission did not apply any presumption, and instead placed the initial burden on the employee to prove causation for any medical compensation he sought. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

Stubborn and Unfounded Litigiousness. —

Workers’ compensation claimant was entitled to attorney fees under G.S. 97-88.1 for the time spent responding to an employer’s Forms 61 and 63, but not for the time spent responding to the claims that her subsequent surgeries were due to pre-existing conditions, as when the employer filed a Form 63 under G.S. 97-18(d), it was still gathering information and had no evidence contradicting the claimant’s application. Bradley v. Mission St. Joseph's Health Sys., 180 N.C. App. 592, 638 S.E.2d 254, 2006 N.C. App. LEXIS 2501 (2006).

Standard for Relief on the Ground of Newly Discovered Evidence. —

The standard for providing relief on the ground of newly discovered evidence requires that the evidence be new, i.e., available only after the initial hearing, and that the party seeking relief show that, when the award was entered, evidence material to the case existed that he did not learn about, through due diligence, until later. Higgins v. Michael Powell Bldrs., 132 N.C. App. 720, 515 S.E.2d 17, 1999 N.C. App. LEXIS 346 (1999).

Findings on Issue of Newly Discovered Evidence Required. —

Where employer who was paying benefits to employee for an occupational disease based on exposure to harmful materials sought to contest its liability after the 90 day period for contesting benefits under G.S. 97-18(d) had expired, based on the fact that after leaving its employ the employee had worked for another employer where he was exposed to the same harmful materials, the Commission had the obligation to make findings as to whether the employee’s subsequent exposure was newly discovered evidence allowing the employer to contest the payment of benefits after 90 days, under G.S. 97-18(d). Shockley v. Cairn Studios, Ltd., 149 N.C. App. 961, 563 S.E.2d 207, 2002 N.C. App. LEXIS 363 (2002).

When Doctrines of Mutual Mistake, Misrepresentation, and Fraud Not Applicable. —

The doctrines of mutual mistake, misrepresentation, and fraud did not operate to entitle the employer to relief from a compensation award, where the award was not based on an agreement of the parties but on the defendant’s unilateral initiation of payment of compensation and its subsequent failure to contest the claim under this section. Higgins v. Michael Powell Bldrs., 132 N.C. App. 720, 515 S.E.2d 17, 1999 N.C. App. LEXIS 346 (1999).

Plaintiff Must Follow Proper Procedure to Preserve Issues in This Section on Appeal. —

Plaintiff’s attempt to argue that the Commission erred both in concluding that the defendant insurer’s policy did not cover plaintiff’s North Carolina injuries, and in failing to assess a 10% late payment penalty against defendant pursuant to this section failed because he did not file a cross-appeal and because neither of his cross-assignments of error, if sustained, would provide an alternative basis for upholding the Commission’s order and award, as outlined in N.C.R. App. P., Rule 10(d). Harrison v. Tobacco Transp., Inc., 139 N.C. App. 561, 533 S.E.2d 871, 2000 N.C. App. LEXIS 996 (2000).

Waiver of Right to Contest Compensability of Injuries. —

Defendants waived their right to contest the compensability of claimant’s injuries, and thus, the award of compensation became final; even though the defendants knew that claimant might have been a subcontractor on the day of the accident, they did not investigate the claimant’s status within the prescribed time. Higgins v. Michael Powell Bldrs., 132 N.C. App. 720, 515 S.E.2d 17, 1999 N.C. App. LEXIS 346 (1999).

Timeliness of Payment. —

The Industrial Commission properly denied the plaintiff’s petition for an order requiring the defendant to pay a 10% penalty under this section where defendant’s payment was received on the fortieth day after the defendant received the order from the Commission approving the settlement agreement and where the thirty-ninth day was a Sunday. Morris v. L.G. Dewitt Trucking, Inc., 143 N.C. App. 339, 545 S.E.2d 474, 2001 N.C. App. LEXIS 271 (2001).

Sanctions Were Proper. —

The Commission did not act arbitrarily or abuse its discretion in imposing sanctions of $2,500 on defendant employer who unilaterally terminated the benefits of plaintiff employee, who was robbed at gunpoint and shot during his shift as a night auditor, where nothing in the record supported defendant’s speculation that the assault might have been personally motivated and where the employer filed a Form 63 (paying compensation “without prejudice and without admitting liability”), instead of Form 21 (admitting compensability), and thus avoided the necessity of filing Form 24 and having to seek permission of the Commission to stop weekly compensation payments; if an employer or insurer initially believes that a claim may not be compensable and utilizes the Form 63 procedure, and then discovers after investigation that the claim is clearly compensable, the better practice is to promptly file either Form 21 or Form 60. Shah v. Howard Johnson, 140 N.C. App. 58, 535 S.E.2d 577, 2000 N.C. App. LEXIS 1089 (2000).

Where the Full Commission concluded that an employer’s refusal to comply with its order to reinstate temporary partial disability compensation to the employee and the employer’s denial of psychological treatment were made without any reasonable basis, Commission’s conclusion that the employer’s refusals were based on unfounded litigiousness was based on sufficient evidence such that its decision to award reasonable attorney’s fees was appropriate. Haley v. ABB, Inc., 174 N.C. App. 469, 621 S.E.2d 180, 2005 N.C. App. LEXIS 2496 (2005).

Industrial Commission properly granted indemnity payments to plaintiff, because G.S. 97-42 gave the Commission discretion to deny a credit to defendants for an overpayment of benefits, and the sanction imposed under G.S. 97-18 was reasonable based on defendants’ failure to comply with the statute, as defendants admitted and accepted plaintiff’s right to compensation and failed to notify the Commission. Bennett v. Sheraton Grand, 186 N.C. App. 250, 650 S.E.2d 660, 2007 N.C. App. LEXIS 2083 (2007).

Sanctions were not proper where nonpayment was excused because defendant could not comply with the Industrial Commission’s order that payments be made only to a general guardian. Valles de Portillo v. D.H. Griffin Wrecking Co., 134 N.C. App. 714, 518 S.E.2d 555, 1999 N.C. App. LEXIS 904 (1999).

Industrial Commission erred in awarding a late payment penalty pursuant to G.S. 97-18(j) to an employee who suffered a compensable work injury, as the New York State Insurance Fund, which covered the employer, responded to the notice of the claim in a timely manner. Smith v. Denross Contr., United States, Inc., 224 N.C. App. 480, 737 S.E.2d 392, 2012 N.C. App. LEXIS 1435 (2012).

Insurance carrier’s motion for sanctions was denied because the North Carolina Industrial Commission correctly ruled that the carrier and an employer were bound by their admission of compensability. Spivey v. Wright's Roofing, 225 N.C. App. 106, 737 S.E.2d 745, 2013 N.C. App. LEXIS 58 (2013).

Form 60 does not carry with it the same presumption of continuing disability as Form 21; the burden of proving disability, therefore, remains with the employee. Sims v. Charmes, 142 N.C. App. 154, 542 S.E.2d 277, 2001 N.C. App. LEXIS 46 (2001).

Failure to Use Form 60. —

Where employer’s letter, which it claimed was a sufficient substitute for Form 60, was untimely and did not contain the information required by Form 60, and defendants never rescinded their Form 61 denying the employee’s claim, the employer failed to admit liability prior to the hearing and thus could not direct the employee’s medical treatment. Bailey v. Western Staff Servs., 151 N.C. App. 356, 566 S.E.2d 509, 2002 N.C. App. LEXIS 747 (2002).

Form 60 Could Not Be Set Aside. —

North Carolina Industrial Commission properly determined that defendants were not entitled to have the Industrial Commission Form 60 in which they admitted liability to plaintiff set aside because defendants were not completely unrelated to plaintiff’s employment; defendants were the parties with whom plaintiff’s employer had previously contracted for the purpose of obtaining workers’ compensation coverage applicable to plaintiff and with whom plaintiff should have been covered at the time of his injury. Spivey v. Wright's Roofing, 225 N.C. App. 106, 737 S.E.2d 745, 2013 N.C. App. LEXIS 58 (2013).

North Carolina Industrial Commission properly determined that defendants were not entitled to have the Industrial Commission Form 60 in which they admitted liability to plaintiff set aside because the doctrine of mutual mistake was not applicable to a workers’ compensation award made pursuant to a Form 60; an employer or carrier is not entitled to relief from a Form 60 based solely upon the fact that the party making the filing failed to adequately investigate all relevant issues before conceding compensability or liability. Spivey v. Wright's Roofing, 225 N.C. App. 106, 737 S.E.2d 745, 2013 N.C. App. LEXIS 58 (2013).

Failure to Address Estoppel Issues. —

North Carolina Industrial Commission was required to make findings as to specific facts upon which the right to compensation depended, including the issue of estoppel; where the commission failed to address an employee’s claim that the employer’s failure to contest his claim estopped its later denial of the claim, the case was remanded for further proceedings. Lewis v. Beachview Exxon Serv., 174 N.C. App. 179, 619 S.E.2d 881, 2005 N.C. App. LEXIS 2248 (2005), rev'd in part, 360 N.C. 469, 629 S.E.2d 152, 2006 N.C. LEXIS 42 (2006) (rev’d as to question of estoppel).

Termination of Benefits Paid Without Prejudice Improper. —

Application to terminate temporary total disability benefits paid without prejudice was improperly granted because an employer and its insurer were unable to establish that an employee’s refusal to return to a heavy duty job after a severe neck injury was unjustified. Guerrero v. Brodie Contrs., Inc., 158 N.C. App. 678, 582 S.E.2d 346, 2003 N.C. App. LEXIS 1226 (2003).

Termination of Benefits Proper. —

Employer’s decision to deny a claim for workers’ compensation benefits after initially paying was permitted under G.S. 97-18; the reasons given, such as credibility and causation, were sufficient to apprise the employee of the employer’s arguments. Singletary v. N.C. Baptist Hosp., 174 N.C. App. 147, 619 S.E.2d 888, 2005 N.C. App. LEXIS 2303 (2005).

Appeal. —

“Appeal by application” such as a petition for discretionary review would be considered an appeal pursuant to subsection (e); because G.S. 7A-31 provides for discretionary review from the Industrial Commission and states that this review is an “appeal,” “appeal” under G.S. 97-18(e) includes the period during which a party may seek discretionary review by the supreme court of an opinion from the court of appeals. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180, 2015 N.C. App. LEXIS 50 (2015).

§ 97-18.1. Termination or suspension of compensation benefits.

  1. Payments of compensation pursuant to an award of the Commission shall continue until the terms of the award have been fully satisfied.
  2. An employer may terminate payment of compensation for total disability being paid pursuant to G.S. 97-29 when the employee has returned to work for the same or a different employer, subject to the provisions of G.S. 97-32.1, or when the employer contests a claim pursuant to G.S. 97-18(d) within the time allowed thereunder. The employer shall promptly notify the Commission and the employee, on a form prescribed by the Commission, of the termination of compensation and the availability of trial return to work and additional compensation due the employee for any partial disability.
  3. An employer seeking to terminate or suspend compensation being paid pursuant to G.S. 97-29 for a reason other than those specified in subsection (b) of this section shall notify the employee and the employee’s attorney of record in writing of its intent to do so on a form prescribed by the Commission. A copy of the notice shall be filed with the Commission. This form shall contain the reasons for the proposed termination or suspension of compensation, be supported by available documentation, and inform the employee of the employee’s right to contest the termination or suspension by filing an objection in writing with the Commission within 14 days of the date the employer’s notice is filed with the Commission or within such additional reasonable time as the Commission may allow.
  4. If the employee fails to object to the employer’s notice of proposed termination or suspension within the time provided, the Commission may enter an appropriate order terminating or suspending the compensation if it finds that there is a sufficient basis under this Article for this action. If the employee files a timely objection to the employer’s notice, the Commission shall conduct an informal hearing by telephone with the parties or their counsel. If either party objects to conducting the hearing by telephone, the Commission may conduct the hearing in person in Raleigh or at another location selected by the Commission. The parties shall be afforded an opportunity to state their position and to submit documentary evidence at the informal hearing. The employer may waive the right to an informal hearing and proceed to the formal hearing. The informal hearing, whether by telephone or in person, shall be conducted only on the issue of termination or suspension of compensation and shall be conducted within 25 days of the receipt by the Commission of the employer’s notice to the employee unless this time is extended by the Commission for good cause. The Commission shall issue a decision on the employer’s application for termination of compensation within five days after completion of the informal hearing. The decision shall (i) approve the application, (ii) disapprove the application, or (iii) state that the Commission is unable to reach a decision on the application in an informal hearing, in which event the Commission shall schedule a formal hearing pursuant to G.S. 97-83 on the employer’s application for termination of compensation. Compensation may be terminated or suspended by the employer following an informal hearing only if its application is approved. If the Commission was unable to reach a decision in the informal hearing, the employee’s compensation shall continue pending a decision by the Commission in the formal hearing. The Commission’s decision in the informal hearing is not binding in subsequent hearings.The employer or the employee may request a formal hearing pursuant to G.S. 97-83 on the Commission’s decision approving or denying the employer’s application for termination of compensation. A formal hearing under G.S. 97-83 ordered or requested pursuant to this section shall be a hearing de novo on the employer’s application for termination or suspension of compensation and may be scheduled by the Commission on a preemptive basis.
  5. At an informal hearing on the issue of termination or suspension of compensation, and at any subsequent hearing, the Commission may address related issues regarding the selection of medical providers or treatment under G.S. 97-25, subject to exhaustion of the dispute resolution procedures of a managed care organization pursuant to G.S. 97-25.2.

History. 1993 (Reg. Sess., 1994), c. 679, ss. 3.6, 10.9.

CASE NOTES

Formal Hearing. —

Under this section, the employee may request a formal hearing de novo if benefits are suspended following an informal hearing by telephone. Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 502 S.E.2d 58, 1998 N.C. App. LEXIS 836 (1998).

The employer should file a Form 24 when the employer is uncertain whether the employee has returned to work; a Form 28T is to be used by the employer only when such employer is certain that the employee has returned to work and has conclusive evidence to establish the employment. Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 526 S.E.2d 671, 2000 N.C. App. LEXIS 257 (2000).

Return to Work Assertion Does Not Necessarily Raise Wage Earning Capacity Issue. —

Where defendants did not assert any other reason for termination of plaintiff’s benefits besides “return to work” on the Form 28T, the record revealed that the plaintiff denied that she ever attempted a “trial return to work” and that she, therefore, was not required to file a Form 28U, and it was undisputed that defendants did not file a Form 24 seeking to terminate plaintiff’s compensation on grounds other than plaintiff’s “return to work”, the only issue before the Full Commission was whether or not plaintiff had returned to work, warranting termination of benefits pursuant to this section; thus it did not consider the issue of whether or not plaintiff had wage earning capacity and neither would the Court of Appeals. Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 526 S.E.2d 671, 2000 N.C. App. LEXIS 257 (2000).

Because the appropriate procedure was not followed by the employer, the employer was not permitted to suspend workers compensation payments to the employee until it either followed the requirements of G.S. 97-18.1(c) and Workers’ Comp. R. N.C. Indus. Comm’n 404(2), 2009 Ann. R. N.C. 761-62 or until one of the requirements for termination under G.S. 97-18.1(b) were met. The portions of the North Carolina Industrial Commission’s opinion and award which denied the employee compensation payments and late payment penalties for the time period in dispute were reversed and remanded for a determination of the amount owed to the employee by the employer. Fonville v. GMC, 200 N.C. App. 267, 683 S.E.2d 445, 2009 N.C. App. LEXIS 1609 (2009).

Failure to Give Notice to Contest Employee’s Right to Compensation. —

Employer was subject to a penalty of ten percent on temporary total disability compensation benefits not paid to an employee following the end of her trial return to work because the employer did not give notice to the employee or the Industrial Commission to contest the employee’s right to compensation; the employer simply refused to reinstate the employee’s disability compensation benefits following notice of her unsuccessful trial return to work. Bell v. Goodyear Tire & Rubber Co., 252 N.C. App. 268, 798 S.E.2d 143, 2017 N.C. App. LEXIS 176 (2017).

Plaintiff employee’s benefits should not have been terminated under this section, pursuant to defendants’ Form 28T request, where competent evidence supported the finding that while plaintiff engaged in intermittent mowing activities and appeared once before a Board of Adjustment on behalf of her mother, she had not returned to either full or part-time employment. Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 526 S.E.2d 671, 2000 N.C. App. LEXIS 257 (2000).

When Employer Authorized to Cease Payments to Employee. —

Having received a Form 28U from the injured employee, the employer could cease making payments only on the basis of G.S. 97-18.1, 97-83, and 97-84. Roberts v. Dixie News, Inc., 189 N.C. App. 495, 658 S.E.2d 684, 2008 N.C. App. LEXIS 654 (2008).

§ 97-19. Liability of principal contractors; certificate that subcontractor has complied with law; right to recover compensation of those who would have been liable; order of liability.

Any principal contractor, intermediate contractor, or subcontractor who shall sublet any contract for the performance of any work without obtaining from such subcontractor or obtaining from the Industrial Commission a certificate, issued by a workers’ compensation insurance carrier, or a certificate of compliance issued by the Department of Insurance to a self-insured subcontractor, stating that such subcontractor has complied with G.S. 97-93 for a specified term, shall be liable, irrespective of whether such subcontractor has regularly in service fewer than three employees in the same business within this State, to the same extent as such subcontractor would be if he were subject to the provisions of this Article for the payment of compensation and other benefits under this Article on account of the injury or death of any employee of such subcontractor due to an accident arising out of and in the course of the performance of the work covered by such subcontract. If the principal contractor, intermediate contractor or subcontractor shall obtain such certificate at any time before subletting such contract to the subcontractor, he shall not thereafter be held liable to any employee of such subcontractor for compensation or other benefits under this Article and within the term specified by the certificate.

Notwithstanding the provisions of this section, any principal contractor, intermediate contractor, or subcontractor who shall sublet any contract for the performance of work shall not be held liable to any employee of such subcontractor if either (i) the subcontractor has a workers’ compensation insurance policy in compliance with G.S. 97-93 in effect on the date of injury regardless of whether the principal contractor, intermediate contractor, or subcontractor failed to timely obtain a certificate from the subcontractor; or (ii) the policy expired or was cancelled prior to the date of injury provided the principal contractor, intermediate contractor, or subcontractor obtained a certificate at any time before subletting such contract to the subcontractor and was unaware of the expiration or cancellation.

Any principal contractor, intermediate contractor, or subcontractor paying compensation or other benefits under this Article, under the foregoing provisions of this section, may recover the amount so paid from any person, persons, or corporation who independently of such provision, would have been liable for the payment thereof.

Every claim filed with the Industrial Commission under this section shall be instituted against all parties liable for payment, and said Commission, in its award, shall fix the order in which said parties shall be exhausted, beginning with the immediate employer.

The principal or owner may insure any or all of his contractors and their employees in a blanket policy, and when so insured such contractor’s employees will be entitled to compensation benefits regardless of whether the relationship of employer and employee exists between the principal and the contractor.

History. 1929, c. 120, s. 19; 1941, c. 358, s. 1; 1945, c. 766; 1973, c. 1291, s. 10; 1979, c. 247, s. 2; 1987, c. 729, s. 4; 1989, c. 637; 1991, c. 703, s. 7; 1993 (Reg. Sess., 1994), c. 679, s. 10.6; 1995, c. 517, s. 36; 1995 (Reg. Sess., 1996), c. 555, s. 1; 2013-413, s. 13(c).

Cross References.

For definitions under this article, see G.S. 97-2.

Effect of Amendments.

Session Laws 2013-413, s. 13(c), effective August 23, 2013, in the first paragraph, substituted “obtaining” for “requiring,” and “for a specified term” for “hereof,” in the first sentence, and in the second sentence, substituted “any time before subletting such contract to the subcontractor” for “the time of subletting such contract to subcontractor” and added “and within the term specified by the certificate” at the end; and added the present second paragraph. For applicability, see editor’s note.

Legal Periodicals.

For note as to rights of employees of subcontractors against owners and principal contractors, see 35 N.C.L. Rev. 569 (1957).

CASE NOTES

Editor’s Note. —

Many of the annotations under this section were decided prior to the 1987 amendment, which increased the scope of liability under this section.

Purpose of Section. —

The manifest purpose of this section, enacted as an amendment to the original act, is to protect employees of irresponsible and uninsured subcontractors by imposing ultimate liability on principal contractors, intermediate contractors, or subcontractors, who, presumably being financially responsible, have it within their power, in choosing subcontractors, to pass upon their financial responsibility and insist upon appropriate compensation protection for their workers. It is also the obvious aim of the statute to forestall evasion of the act by those who might be tempted to subdivide their regular operations with the workers, thus relegating them for compensation protection to small subcontractors, who fail to carry, or if small enough may not even be required to carry, compensation insurance. Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488, 1952 N.C. LEXIS 611 (1952).

This section was enacted by the Legislature to deliberately bring specific categories of conceded nonemployees within the coverage of the Act for the purpose of protecting such workers from financially irresponsible sub-contractors who do not carry workmen’s compensation insurance, and to prevent principal contractors, intermediate contractors, and sub-contractors from relieving themselves of liability under the Act by doing through sub-contractors what they would otherwise do through the agency of direct employees. Cook v. Norvell-Mackorell Real Estate Co., 99 N.C. App. 307, 392 S.E.2d 758, 1990 N.C. App. LEXIS 500 (1990).

The 1987 amendment clearly extended the class of persons protected by this provision to include not only employees of the subcontractor but also the subcontractor himself. Southerland v. B.V. Hedrick Gravel & Sand Co., 345 N.C. 739, 483 S.E.2d 150, 1997 N.C. LEXIS 180 (1997).

Prior to the 1987 amendment, this section was interpreted to protect the employees of a subcontractor, not the subcontractor himself. Boone v. Vinson, 127 N.C. App. 604, 492 S.E.2d 356, 1997 N.C. App. LEXIS 1124 (1997).

This Section Modifies G.S. 97-2(1). —

As a general proposition, the only private employments covered by the act are those “in which five (now three) or more employees are regularly employed in the same business or establishment.” See G.S. 97-2(1). But this general rule is subject to the exception created by this section, which was manifestly enacted to protect the employees of financially irresponsible subcontractors who do not carry compensation insurance, and to prevent principal contractors, intermediate contractors, and subcontractors from relieving themselves of liability under the act by doing through subcontractors what they would otherwise do through the agency of direct employees. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949).

Exclusive Remedy. —

Defendant principal contractor was plaintiff’s statutory employer and the workers’ compensation benefits available to plaintiff through defendant’s workers’ compensation carrier constituted plaintiff’s exclusive remedy against defendant for plaintiff’s injuries. Rich v. R.L. Casey, Inc., 118 N.C. App. 156, 454 S.E.2d 666, 1995 N.C. App. LEXIS 92 (1995).

This section protects the employees of a subcontractor, not the subcontractor himself. Doud v. K & G Janitorial Servs., 69 N.C. App. 205, 316 S.E.2d 664, 1984 N.C. App. LEXIS 3406 (1984).

When a principal contractor sublets part of the contract to an independent contractor, that independent contractor’s employees are protected by this section if the independent contractor is uninsured. Zocco v. United States, Dep't of Army, 791 F. Supp. 595, 1992 U.S. Dist. LEXIS 6264 (E.D.N.C. 1992).

General contractor was a workers’ compensation claimant’s statutory employer under G.S. 97-19, even though it was found that the claimant’s employer, a subcontractor. had workers’ compensation insurance, as the general contractor did not get a certificate of insurance for the project from the subcontractor; holding the general contractor liable was not against the legislative intent of the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq. Gonzalez v. Worrell, 221 N.C. App. 351, 728 S.E.2d 13, 2012 N.C. App. LEXIS 763 (2012), aff'd, 366 N.C. 501, 739 S.E.2d 552, 2013 N.C. LEXIS 338 (2013).

But subcontractor is not entitled to immunity from civil suit merely because principal contractor secured workers’ compensation insurance coverage for subcontractor’s employees. Zocco v. United States, Dep't of Army, 791 F. Supp. 595, 1992 U.S. Dist. LEXIS 6264 (E.D.N.C. 1992).

Jurisdiction Over Claim by Subcontractor Present. —

This section (as in effect between August 5, 1987 and June 10, 1996) extends workers’ compensation benefits to subcontractors under the same conditions as it extends coverage to employees of subcontractors, thereby giving the Industrial Commission jurisdiction over a claim by plaintiff, a subcontractor, which arose on December 12, 1990. Southerland v. B.V. Hedrick Gravel & Sand Co., 345 N.C. 739, 483 S.E.2d 150, 1997 N.C. LEXIS 180 (1997).

General Contractor Liable for Subcontractor’s Injuries. —

Where, prior to the time of subcontracting the performance of roofing work, the general contractor did not require from the subcontractor, plaintiff, a certificate of insurance, and general contractor did not obtain from the Industrial Commission a certificate stating that plaintiff had complied with G.S. 97-93, the general contractor was liable for plaintiff’s injuries pursuant to this section as it existed at the time of plaintiff’s accident. Southerland v. B.V. Hedrick Gravel & Sand Co., 345 N.C. 739, 483 S.E.2d 150, 1997 N.C. LEXIS 180 (1997).

General Contractor’s Liability for Injuries Sustained by Sub-subcontractor’s Employee. —

General contractor that hired a subcontractor to frame houses was required to pay workers’ compensation benefits to an injured employee who worked for a second subcontractor that was hired by the first subcontractor because it did not require the first subcontractor to provide proof that it carried workers’ compensation insurance to protect workers who worked at the jobsite where the employee was injured, and neither subcontractor carried workers’ compensation insurance that protected the injured employee. Robertson v. Hagood Homes, Inc., 160 N.C. App. 137, 584 S.E.2d 871, 2003 N.C. App. LEXIS 1735 (2003).

Section Is Exception to “Employment” and “Employee” Definitions of G.S. 97-2. —

This section, the so-called “statutory employer” or “contractor under” statute, is an exception to the general definitions of “employment” and “employee” set forth at G.S. 97-2. Cook v. Norvell-Mackorell Real Estate Co., 99 N.C. App. 307, 392 S.E.2d 758, 1990 N.C. App. LEXIS 500 (1990).

Scope of Section. —

This section is inapplicable to those business relationships between employers and independent contractors. Pinckney v. United States, 671 F. Supp. 405, 1987 U.S. Dist. LEXIS 9308 (E.D.N.C. 1987).

This section is not applicable to an independent contractor as distinguished from a subcontractor of the class designated by the statute. And all the more is it so that the statute does not apply to an independent employer who produces or gets out raw materials of his own, like logs, and sells them in the open market to a processor-purchaser who has no control whatsoever over the operations of the independent employer. Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488, 1952 N.C. LEXIS 611 (1952).

This section imposes liability, under certain specified circumstances, on the principal contractor or employer for injuries and death to employees of his independent contractor or of his subcontractor, but the provisions of this section do not extend to his independent contractor personally or to his subcontractor personally when he is an independent contractor. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645, 1965 N.C. LEXIS 1279 (1965).

This section is inapplicable to those business relationships between employers and independent contractors. Pinckney v. United States, 671 F. Supp. 405, 1987 U.S. Dist. LEXIS 9308 (E.D.N.C. 1987).

General contractor qualified as the G.S. 97-19 statutory employer of the employees who sought workers’ compensation benefits after they were injured on a residential development project, despite the fact that they actually worked for the subcontractor. The general contractor had contracted work to the subcontractor and the subcontractor did not have workers’ compensation insurance. Putman v. Alexander, 194 N.C. App. 578, 670 S.E.2d 610, 2009 N.C. App. LEXIS 2 (2009).

Subcontractor was not a statutory employer because when the claimant’s injury was sustained the claimant was working as an independent contractor at a construction jobsite, rather than as an employee of the subcontractor at the jobsite. Bentley v. Jonathan Piner Constr., 254 N.C. App. 362, 802 S.E.2d 161, 2017 N.C. App. LEXIS 561 (2017).

Employer Liable for Injury to Independent Contractor. —

Where the employer had no certificate that its independent contractor had workers’ compensation insurance and the contractor had not waived workers’ compensation coverage in writing for the year in which he was injured, the employer was liable for workers’ compensation benefits. Davis v. Taylor-Wilkes Helicopter Serv., 145 N.C. App. 1, 549 S.E.2d 580, 2001 N.C. App. LEXIS 562 (2001).

This section may apply as between two independent contractors, one of whom is a subcontractor to the other; but it does not apply as between a principal, i.e., an owner, and an independent contractor. Cook v. Norvell-Mackorell Real Estate Co., 99 N.C. App. 307, 392 S.E.2d 758, 1990 N.C. App. LEXIS 500 (1990).

Amended Version of Section Did Not Control. —

Since plaintiff ’s injury occurred on November 25, 1985, and the amended version of G.S. 97-19 became effective upon ratification on August 5, 1987, the amendment was not controlling. Ramey v. Sherwin-Williams Co., 92 N.C. App. 341, 374 S.E.2d 472, 1988 N.C. App. LEXIS 1037 (1988).

Number of Persons Regularly Employed by Contractor Is Immaterial. —

Where a contractor sublets a part of the contract to a subcontractor without requiring from the subcontractor a certificate that he had procured compensation insurance or had satisfied the Industrial Commission of his financial responsibility as a self-insurer under G.S. 97-93, such contractor is properly held secondarily liable for compensation to an employee of the subcontractor, even though the contractor regularly employs less than five (now three) employees. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949). See G.S. 97-2 .

Order of Liability. —

The liability of the employer under the award is primary. He, by contract, may secure liability insurance for his protection, but his obligation to the injured employee is unimpaired. Roberts v. City Ice & Coal Co., 210 N.C. 17, 185 S.E. 438, 1936 N.C. LEXIS 3 (1936).

Principal Held Not Liable for Failure of Independent Contractor to Insure. —

A mill company contracted with one G to paint the mill. The company was to furnish all materials; G was to furnish brushes and skilled labor. G testified that he, and not the mill company, had complete control of the painters employed on the job. It was held that G was not an employee, but an independent contractor within the meaning of the act, and the mill company was not liable for G’s failure to insure. McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658, 1951 N.C. LEXIS 333 (1951).

Employee Not Covered Where General Contractor Was Also Owner. —

The Industrial Commission erred when it found that the injured employee was covered under this section where his employer was not a subcontractor, but an independent contractor because the general contractor was also the owner of the property. Purser v. Heatherlin Props., 137 N.C. App. 332, 527 S.E.2d 689, 2000 N.C. App. LEXIS 319 (2000).

Main Contractor Held Agent of Insurer in Effecting Compensation Insurance for Independent Contractor. See Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488, 1952 N.C. LEXIS 611 (1952).

Lumber Company. —

A lumber company which purchased timber on the basis of a stipulated price per thousand feet when processed into lumber by it, and which was given the privilege of going upon the land and cutting and logging the timber to its site, could not be held a contractor of the owners of the timber in the performance of the logging operations, and therefore a person employed by it to conduct logging operations could not be a subcontractor within the meaning of this section; and thus the section had no application in determining the liability for injury to one of the workers employed in the logging operations. Evans v. Tabor City Lumber Co., 232 N.C. 111, 59 S.E.2d 612, 1950 N.C. LEXIS 430 (1950).

On an almost identical set of facts, claimant brought an action against lumber company, on the ground that his superior was not an independent contractor or a subcontractor, but was actually an employee of the lumber company. On the evidence there presented, the court held that an award of compensation based on the employee-employer relation should be affirmed. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425, 1950 N.C. LEXIS 410 (1950).

Petroleum Wholesaler. —

Petroleum wholesaler that leased a gas station to a workers’ compensation claimant’s employer was a statutory employer under G.S. 97-19; in the agreements between the wholesaler and the employer, and the wholesaler and an oil company, lay a contract for the employer to perform work the wholesaler was required to do, selling gas to the public. Masood v. Erwin Oil Co., 181 N.C. App. 424, 639 S.E.2d 118, 2007 N.C. App. LEXIS 152, aff'd, 361 N.C. 579, 650 S.E.2d 595, 2007 N.C. LEXIS 1004 (2007).

Assistant Driver Employed by Owner-Lessor of Truck under Trip-Lease Agreement. —

Where the owner of a truck drove same on a trip in interstate commerce for an interstate carrier under a trip-lease agreement providing that the carrier’s I.C.C. license plates would be used and that the carrier would retain control and direction over the truck, an assistant driver employed by the owner-lessor was an employee of the carrier within the coverage of the Workers’ Compensation Act. Further, if the owner-lessor were considered an independent contractor, but had less than five (now four) employees and no compensation insurance coverage, the carrier would still be liable under this section. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957).

Section Cannot Apply Absent Contract for Performance of Work. —

This section, by its own terms, cannot apply unless there is first a contract for the performance of work which is then for the performance of work which is then sublet. Cook v. Norvell-Mackorell Real Estate Co., 99 N.C. App. 307, 392 S.E.2d 758, 1990 N.C. App. LEXIS 500 (1990).

Jurisdictional Facts Which Commission Finds Are Not Binding on Court of Appeals. —

The jurisdictional facts found by the Commission, though supported by competent evidence, are not binding on the Court of Appeals. Instead, it is required to review the evidence of record and make independent findings of jurisdictional facts established by the greater weight of the evidence with regard to plaintiff ’s employment status. Cook v. Norvell-Mackorell Real Estate Co., 99 N.C. App. 307, 392 S.E.2d 758, 1990 N.C. App. LEXIS 500 (1990).

In order to extend workers’ compensation insurance contract between general contractor and its insurance carrier to cover plaintiff subcontractor, action or behavior that demonstrated a desire to extend coverage on behalf of both the general contractor and the insurance carrier had to be shown. Carroll v. Daniels & Daniels Constr. Co., 327 N.C. 616, 398 S.E.2d 325, 1990 N.C. LEXIS 987 (1990) (decided under prior version of G.S. 97-19.).

Rental Management Business Was Not Statutory Employer of Plaintiff Roofer. —

Rental management business, which was neither contractually obligated to replace shingles on the roofs of apartment buildings it managed nor permitted to exercise its independent judgment in engaging roofing company to perform this work, was not an independent contractor with the owners with respect to the work performed to repair the roofs, but merely an agent for the owners. Thus rental management business could not be plaintiff roofer’s statutory employer within the meaning of this section, notwithstanding rental management business’s failure to ascertain roofing company’s compliance with the provisions of G.S. 97-93. Cook v. Norvell-Mackorell Real Estate Co., 99 N.C. App. 307, 392 S.E.2d 758, 1990 N.C. App. LEXIS 500 (1990).

Industrial Commission properly found that defendant homebuilding company did not sublet any contract for the performance of work to framers and that defendant was not a “principal contractor” with regard to subdivision under construction but the “owner”; since homebuilding company had not undertaken to do anything for anyone else and thus could not be an “original contractor,” this section was inapplicable as to compensation claim filed by employee of framers. Mayhew v. Howell, 102 N.C. App. 269, 401 S.E.2d 831, 1991 N.C. App. LEXIS 310, aff'd, 330 N.C. 113, 408 S.E.2d 853, 1991 N.C. LEXIS 651 (1991).

Evidence Insufficient to Support Estoppel of Carrier. —

Where Deputy Commissioner found that there was a past course of dealing between the insurance carrier and insured company to cover “people” under workers’ compensation insurance, the reviewing court could not conclude that the carrier acquiesced to coverage of “subcontractors” themselves, without additional findings of fact. Carroll v. Daniels & Daniels Constr. Co., 327 N.C. 616, 398 S.E.2d 325, 1990 N.C. LEXIS 987 (1990) (decided under prior version of G.S. 97-19.).

If an insurance carrier accepts workers’ compensation insurance premiums for an individual, it cannot deny liability for coverage; however, where there was evidence that company (insured) deducted the premium from plaintiff’s (subcontractor’s) pay, but no evidence that the carrier accepted payments, and no evidence regarding the carrier’s acceptance of premiums for other subcontractors in the past, the Court of Appeals incorrectly stated that “[s]ince carrier routinely accepted premiums from employer for the coverage of subcontractors, it can be assumed that carrier would have followed that practice in this case. The carrier cannot now be allowed to object to the practice in which it had acquiesced.” The Court of Appeals erred by making its own findings of fact regarding past dealings between company and carrier. Carroll v. Daniels & Daniels Constr. Co., 327 N.C. 616, 398 S.E.2d 325, 1990 N.C. LEXIS 987 (1990) (decided under prior version of G.S. 97-19).

Failure to Consider Doctrine of Estoppel. —

The Industrial Commission erred in failing to consider whether defendants, employer and insurance carrier, were estopped from denying insurance liability for the injured employee, who was not eligible under this section because his employer was not a subcontractor, where the plaintiff did not have his own insurance coverage and relied on his employer’s promise of insurance before beginning work and where the insurance company did not expressly provide coverage to the plaintiff because it did not know about the plaintiff until after he was injured, and it never actually received the withheld premiums from the general contractor. Purser v. Heatherlin Props., 137 N.C. App. 332, 527 S.E.2d 689, 2000 N.C. App. LEXIS 319 (2000).

Principal Contractor Not Employee. —

Principal contractor was not a statutory employer under this section, and therefore, was not liable for the payment of workers’ compensation benefits. Patterson v. Markham & Assocs., 123 N.C. App. 448, 474 S.E.2d 400, 1996 N.C. App. LEXIS 859 (1996).

Carrier Not Liable for Injuries of Independent Contractor’s Employee. —

Where freight hauling company retained the right of control over the hiring, training and compensation of its employees, and a contract expressly defined it as an independent contractor, the Industrial Commission incorrectly exercised jurisdiction under this section to enter an award against the defendant/carrier that leased the company’s trucks. Williams v. ARL, Inc., 133 N.C. App. 625, 516 S.E.2d 187, 1999 N.C. App. LEXIS 602 (1999).

Requirement to Procure Insurance. —

Although the employer argued that the employee’s claim was barred by G.S. 97-19 on the grounds that, as an independent contractor, he was required to procure his own insurance, that aspect of the employer’s argument assumed that the employee had a status that was found that he did not, in fact, occupy. In addition, the employee’s decision to procure insurance did not operate to estop him from asserting that he should be treated as an employee given that he procured the insurance in light of employer’s decision to treat him as an independent contractor rather than an employee. Capps v. Southeastern Cable, 214 N.C. App. 225, 715 S.E.2d 227, 2011 N.C. App. LEXIS 1630 (2011).

Subcontractor and the subcontractor’s principal were subject to penalties for not procuring workers’ compensation insurance because (1) nothing in N.C. Gen. Stat. ch. 97 relieved any employer from penalty for not performing a statutory duty, and (2) in interstate and intrastate trucking, G.S. 97-19.1 applied whether or not an employer employed three or more people. Atiapo v. Goree Logistics, Inc., 240 N.C. App. 1, 770 S.E.2d 684, 2015 N.C. App. LEXIS 219 (2015), cert. denied, 577 U.S. 1142, 136 S. Ct. 1198, 194 L. Ed. 2d 182, 2016 U.S. LEXIS 1479 (2016).

Coverage for Non-Covered Subcontractors. —

As an insured business failed to provide proof of workers’ compensation coverage for its subcontractors, the insurer for the insured’s workers’ compensation policies was obligated to provide coverage for them under G.S. 97-19; based on the subcontractors’ work in transporting steel materials to job sites in heavy-duty pickup trucks and then putting together garages and carports, the subcontractors were properly classified pursuant to G.S. 58-36-100(k) and (o) as “labor only” workers rather than as “mobile equipment with operators” workers. N.C. Farm Bureau Mut. Ins. Co. v. T-N-T Carports, Inc., 185 N.C. App. 686, 649 S.E.2d 420, 2007 N.C. App. LEXIS 1942 (2007).

General Contractor Held Not Liable for Benefits. —

North Carolina Industrial Commission did not err by failing to hold a general contractor liable for an employee’s workers’ compensation benefits because the contractor was not liable for the employee’s workers’ compensation benefits in the absence of a determination that no coverage was available through the employee’s immediate employer. Spivey v. Wright's Roofing, 225 N.C. App. 106, 737 S.E.2d 745, 2013 N.C. App. LEXIS 58 (2013).

§ 97-19.1. Truck, tractor, or truck tractor trailer driver’s status as employee or independent contractor.

  1. An individual in the interstate or intrastate carrier industry who operates a truck, tractor, or truck tractor trailer licensed by a governmental motor vehicle regulatory agency may be an employee or an independent contractor under this Article dependent upon the application of the common law test for determining employment status.Any principal contractor, intermediate contractor, or subcontractor, irrespective of whether such contractor regularly employs three or more employees, who contracts with an individual in the interstate or intrastate carrier industry who operates a truck, tractor, or truck tractor trailer licensed by the United States Department of Transportation and who has not secured the payment of compensation in the manner provided for employers set forth in G.S. 97-93 for himself personally and for his employees and subcontractors, if any, shall be liable as an employer under this Article for the payment of compensation and other benefits on account of the injury or death of the independent contractor and his employees or subcontractors due to an accident arising out of and in the course of the performance of the work covered by such contract.
  2. Notwithstanding subsection (a) of this section, a principal contractor, intermediate contractor, or subcontractor shall not be liable as an employer under this Article for the payment of compensation on account of the injury or death of the independent contractor if the principal contractor, intermediate contractor, or subcontractor (i) contracts with an independent contractor who is an individual licensed by the United States Department of Transportation and (ii) the independent contractor personally is operating the vehicle solely pursuant to that license.
  3. The principal contractor, intermediate contractor, or subcontractor may insure any and all of his independent contractors and their employees or subcontractors in a blanket policy, and when insured, the independent contractors, subcontractors, and employees will be entitled to compensation benefits under the blanket policy.A principal contractor, intermediate contractor, or subcontractor may include in the governing contract with an independent contractor in the interstate or intrastate carrier industry who operates a truck, tractor, or truck tractor trailer licensed by a governmental motor vehicle regulatory agency an agreement for the independent contractor to reimburse the cost of covering that independent contractor under the principal contractor’s, intermediate contractor’s, or subcontractor’s coverage of his business.

History. 2003-235, s. 1; 2006-26, s. 1; 2006-259, s. 19.

Effect of Amendments.

Session Laws 2006-26, s. 1, effective June 26, 2006, added the subsection designations and added present subsection (b).

Session Laws 2006-259, s. 19, effective August 23, 2006, substituted “the United States Department of Transportation” for “a governmental motor vehicle regulatory agency” in the second paragraph of subsection (a); and in subsection (b), substituted “contractor who is an individual licensed by the United States Department of Transportation” for “contractor that is licensed by a governmental motor vehicle regulatory agency” in clause (i) and inserted “personally” and “solely” in clause (ii).

CASE NOTES

Applicability to Freight Broker. —

Freight broker was liable under G.S. 97-19.1 because the broker acted as a contractor, supporting a finding that the broker employed a subcontractor, which subcontractor had no workers’ compensation insurance. Atiapo v. Goree Logistics, Inc., 240 N.C. App. 1, 770 S.E.2d 684, 2015 N.C. App. LEXIS 219 (2015), cert. denied, 577 U.S. 1142, 136 S. Ct. 1198, 194 L. Ed. 2d 182, 2016 U.S. LEXIS 1479 (2016).

49 U.S.C.S. § 14501(c)(1) did not exempt a freight broker from G.S. 97-19.1, because (1) the statute did not regulate prices, routes, or services, (2) 49 U.S.C.S. § 14501(c)(2)(A) excepted a state’s insurance requirements from preemption, (3) the broker acted as a motor carrier, and (4) the broker did not act as a broker when doing business with a subcontractor which did not have workers’ compensation insurance. Atiapo v. Goree Logistics, Inc., 240 N.C. App. 1, 770 S.E.2d 684, 2015 N.C. App. LEXIS 219 (2015), cert. denied, 577 U.S. 1142, 136 S. Ct. 1198, 194 L. Ed. 2d 182, 2016 U.S. LEXIS 1479 (2016).

Penalties. —

Subcontractor and the subcontractor’s principal were subject to penalties for not procuring workers’ compensation insurance because (1) nothing in N.C. Gen. Stat. ch. 97 relieved any employer from penalty for not performing a statutory duty, and (2) in interstate and intrastate trucking, G.S. 97-19.1 applied whether or not an employer employed three or more people. Atiapo v. Goree Logistics, Inc., 240 N.C. App. 1, 770 S.E.2d 684, 2015 N.C. App. LEXIS 219 (2015), cert. denied, 577 U.S. 1142, 136 S. Ct. 1198, 194 L. Ed. 2d 182, 2016 U.S. LEXIS 1479 (2016).

OPINIONS OF ATTORNEY GENERAL

No Violation of Federal Law. The current requirements expressed in G.S. 97-19.1 do not appear to violate 49 U.S.C. § 12405(c). See opinion of Attorney General to Hon. Drew P. Saunders, House of Representatives, North Carolina General Assembly, (11/7/06).

Application to truckers. G.S. § 97-19.1, which provides that a motor carrier may be liable for workers’ compensation benefits, does not violate 49 U.S.C. § 14501(c), which limits state and local government regulation of motor carriers. See opinion of Attorney General to Honorable Drew P. Saunders, House of Representatives, 2007 N.C. Op. Att'y Gen. 1 (07/02/07).

§ 97-20. Priority of compensation claims against assets of employer.

All rights of compensation granted by this Article shall have the same preference or priority for the whole thereof against the assets of the employer as is allowed by law for any unpaid wages for labor.

History. 1929, c. 120, s. 20.

§ 97-21. Claims unassignable and exempt from taxes and debts; agreement of employee to contribute to premium or waive right to compensation void; unlawful deduction by employer.

No 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.

No agreement by an employee to pay any portion of premium paid by his employer to a carrier or to contribute to a benefit fund or department maintained by such employer for the purpose of providing compensation or medical services and supplies as required by this Article shall be valid, and any employer who makes a deduction for such purpose from the pay of any employee entitled to the benefits of this Article shall be guilty of a Class 3 misdemeanor and upon conviction thereof shall be punished only by a fine of not more than five hundred dollars ($500.00). No agreement by an employee to waive his right to compensation under this Chapter shall be valid.

History. 1929, c. 120, s. 21; 1993, c. 539, s. 677; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For discussion of this section, see 8 N.C.L. Rev. 477 (1930); 15 N.C.L. Rev. 286 (1937).

For article analyzing North Carolina’s exemptions law, see 18 Wake Forest L. Rev. 1025 (1982).

CASE NOTES

Obligation to support one’s children is not a “debt” in the legal sense of the word; thus, a defendant can be required to pay child support out of his workers’ compensation benefits. State v. Miller, 77 N.C. App. 436, 335 S.E.2d 187, 1985 N.C. App. LEXIS 4069 (1985).

Exemption Lost on Transfer to Another Fund. See Merchants Bank v. Weaver, 213 N.C. 767, 197 S.E. 551, 1938 N.C. LEXIS 191 (1938).

Exemption Lost When Debtor Used Proceeds to Purchase Property. —

Debtor was not entitled to claim an exemption in real property and a mobile home purchased with her workers’ compensation award because the workers’ compensation exemption was limited to just the compensation and claims for compensation and did not extend to property acquired with the proceeds of a workers’ compensation award. In re Usery, 2020 Bankr. LEXIS 2765 (Bankr. W.D.N.C. Oct. 5, 2020).

Imposition of Constructive Trust in Fraud Case Upheld. —

The language of this section declaring that workers’ compensation benefits are “exempt from all claims of creditors” did not preclude the trial court from imposing the equitable remedy of a constructive trust in favor of an employer who had been defrauded by employee’s unfair and deceptive acts. Sara Lee Corp. v. Carter, 351 N.C. 27, 519 S.E.2d 308, 1999 N.C. LEXIS 999 (1999).

Assertion of Lien Barred Against Workers’ Compensation Benefits. —

G.S. 97-21 barred the assignee’s assertion of a lien on the claimant’s workers’ compensation benefits because the agreement between the parties was a loan and, thus, the assignee was a creditor who could not attach a lien to such benefits; in finding the transaction to be a loan it was the nature of the transaction, not the name assigned to the transaction, that was relevant. Cross v. Capital Transaction Group, Inc., 191 N.C. App. 115, 661 S.E.2d 778, 2008 N.C. App. LEXIS 1150 (2008).

§ 97-22. Notice of accident to employer.

Every injured employee or his representative shall immediately on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employer a written notice of the accident, and the employee shall not be entitled to physician’s fees nor to any compensation which may have accrued under the terms of this Article prior to the giving of such notice, unless it can be shown that the employer, his agent or representative, had knowledge of the accident, or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity, or the fraud or deceit of some third person; but no compensation shall be payable unless such written notice is given within 30 days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby.

History. 1929, c. 120, s. 22.

Cross References.

As to minor dependent without guardian, see G.S. 97-50.

CASE NOTES

Necessity for Giving Notice. —

An employee is not entitled to recover unless he can show that he has complied with the provisions of the statute in respect to the giving of notice, or has shown reasonable excuse to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby. Singleton v. Durham Laundry Co., 213 N.C. 32, 195 S.E. 34, 1938 N.C. LEXIS 6 (1938).

It was undisputed that the employee failed to provide written notice until she filed her workers’ compensation claim nearly four months after her accident. Therefore, the Industrial Commission erred in awarding benefits to the employee without concluding that the employer was not prejudiced by the delay and supporting such a conclusion with appropriate findings of fact. Gregory v. W.A. Brown & Sons, 363 N.C. 750, 688 S.E.2d 431, 2010 N.C. LEXIS 35 (2010).

The purpose of the notice-of-injury requirement is two-fold. It allows the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury, and it facilitates the earliest possible investigation of the circumstances surrounding the injury. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Exceptions to Required Written Notice. —

This section clearly requires written notice by an injured employee to his employer within 30 days after the occurrence of the accident or death unless the commission is satisfied of two things: (1) there was reasonable excuse for not giving the written notice, and (2) the employer was not prejudiced thereby. Pierce v. Autoclave Block Corp., 27 N.C. App. 276, 218 S.E.2d 510, 1975 N.C. App. LEXIS 1818 (1975).

North Carolina Industrial Commission did not err in excusing an employee from the written notice requirement of G.S. 97-22 where the employer had actual notice of the employee’s injury because an incident report was filed and the employee saw the employer’s appointed physician twice within the 30 days following the injury; also, there was no showing of prejudice resulting from any delay in written notification. Lakey v. United States Airways, 155 N.C. App. 169, 573 S.E.2d 703, 2002 N.C. App. LEXIS 1596 (2002).

Effect of Personal Knowledge of Employer. —

The failure of plaintiff faculty member to file a written claim within the time set forth in this section did not bar his claim to compensation where several members of the faculty had personal knowledge of plaintiff ’s injury the second it happened, and there was evidence that the dean of the school also knew of plaintiff ’s injury. Chilton v. Bowman Gray School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347, 1980 N.C. App. LEXIS 2575 (1980).

Where the employer had actual knowledge of the claimant’s injury on the day it occurred, and both the employer and the claimant had assumed the claimant was an independent contractor and not entitled to workers’ compensation benefits, the claimant’s failure to give the employer written notice within 30 days of his injury was not fatal to his claim, since he filed it within 2 years. Davis v. Taylor-Wilkes Helicopter Serv., 145 N.C. App. 1, 549 S.E.2d 580, 2001 N.C. App. LEXIS 562 (2001).

Because the employer had actual knowledge of a nursing assistant’s accident, after receiving such information from the employee’s father the day of the accident and no prejudice was shown by the employer, the employee’s failure to give notice within 30 days was excused. Chavis v. TLC Home Health Care, 172 N.C. App. 366, 616 S.E.2d 403, 2005 N.C. App. LEXIS 1770 (2005).

Nurse who injured her arm during her shift at a hospital did not have to provide written notice under G.S. 97-22 because the nurse’s shift supervisor accompanied the nurse to the hospital’s emergency room; therefore, the hospital had actual notice of the nurse’s injury by accident, which obviated the need for the nurse to provide written notice, and the North Carolina Industrial Commission was thus not required to make findings regarding prejudice to the hospital and its insurance carrier. Legette v. Scotland Mem'l Hosp., 181 N.C. App. 437, 640 S.E.2d 744, 2007 N.C. App. LEXIS 361 (2007).

Timeliness of Notice. —

Claimant, a firefighter, timely gave notice of the claimant’s post-traumatic stress disorder (PTSD) diagnosis because, despite any self-reporting by the claimant of PTSD symptoms or PTSD, the claimant gave the notice in a timely manner after the claimant was informed by competent medical authority of the nature and work-related cause of the trauma-related PTSD. Furthermore, the PTSD for which the claimant sought compensation was distinct in cause, more severe in nature, and remote in time from any PTSD the claimant may have suffered earlier. Rimmer v. Town of Chapel Hill, 869 S.E.2d 746, 2022- NCCOA-57, 2022 N.C. App. LEXIS 78 (Ct. App. 2022).

Commission Must Make Findings On Issue of Whether Failure to Give Timely Notice Excused. —

Full Commission of the North Carolina Industrial Commission erred in failing to properly address whether a claimant timely reported her claim for workers’ compensation benefits, pursuant to G.S. 97-22, and whether the case was barred for her failure to do so, despite her employer being notified of the motor vehicle accident the claimant was involved in within minutes of the accident. It was undisputed that the claimant did not provide written notice of the accident until she filed her workers’ compensation claim, over one year after her accident, however, the full commission never addressed the issue of whether the claimant met her burden of establishing a reasonable excuse for not giving written notice within 30 days of the accident that caused her injury. Richardson v. Maxim Healthcare/Allegis Group, 2007 N.C. App. LEXIS 2112 (N.C. Ct. App. Oct. 2, 2007).

Power of Commission to Find Failure to Give Notice. —

The fact that no reference was made to a failure to give written notice of an alleged accident to the employer in compliance with this section by the hearing Commissioner does not preclude such finding by the full Commission. Garmon v. Tridair Indus., Inc., 14 N.C. App. 574, 188 S.E.2d 523, 1972 N.C. App. LEXIS 2179 (1972).

Determination of Prejudice. —

The burden is on the defendant to show that it was prejudiced, and in determining whether prejudice occurred, the Commission must consider the evidence in light of the dual purpose behind this section. Westbrooks v. Bowes, 130 N.C. App. 517, 503 S.E.2d 409, 1998 N.C. App. LEXIS 1004 (1998).

Whether prejudice exists requires an evaluation of the evidence in relationship to the purpose of the statutory notice requirement. The purpose is dual: First, to enable the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury; and second, to facilitate the earliest possible investigation of the facts surrounding the injury. Jones v. Lowe's Cos., 103 N.C. App. 73, 404 S.E.2d 165, 1991 N.C. App. LEXIS 575 (1991).

Finding That Employer Was Not Prejudiced by Lack of Notice. —

A finding by the Commission that the employer has not been prejudiced by the failure of the plaintiff to give notice of the injury within 30 days after the accident suffices to sustain the award from and after such notice, but not for benefits which may have accrued prior thereto. Eller v. Lawrence Leather Co., 222 N.C. 604, 24 S.E.2d 244, 1943 N.C. LEXIS 383 (1943); Cross v. Fieldcrest Mills, Inc., 19 N.C. App. 29, 198 S.E.2d 110, 1973 N.C. App. LEXIS 1557 (1973).

The Industrial Commission erred in concluding that this section did not bar a widow’s claims for death benefits without addressing whether the employer was prejudiced by the plaintiff’s failure to give notice. Westbrooks v. Bowes, 130 N.C. App. 517, 503 S.E.2d 409, 1998 N.C. App. LEXIS 1004 (1998).

Finding in a workers’ compensation action that the employer was not prejudiced by the employee’s failure to give written notice of her work injury within 30 days was proper under G.S. 97-22 because the employer failed to demonstrate any prejudice in any way and failed to provide evidence that the injuries were made worse by any treatment delay. Gregory v. W.A. Brown & Sons, 212 N.C. App. 287, 713 S.E.2d 68, 2011 N.C. App. LEXIS 1061 (2011).

Prejudice May Bar Claim Despite Reasonable Excuse. —

Once a claimant has given a reasonable excuse for having failed to give timely notice, the Commission must determine if the employer was prejudiced by the delayed written notice. If prejudice is shown, the claim is barred even though the claimant had a reasonable excuse for not giving notice of the accident within 30 days. On this issue the burden is on the employer to show prejudice. Jones v. Lowe's Cos., 103 N.C. App. 73, 404 S.E.2d 165, 1991 N.C. App. LEXIS 575 (1991).

A claimant’s action is barred, despite a reasonable excuse for failing to comply with this section, if prejudice resulted to the defendant. Westbrooks v. Bowes, 130 N.C. App. 517, 503 S.E.2d 409, 1998 N.C. App. LEXIS 1004 (1998).

Commission’s Findings Conclusive If Supported by Sufficient Evidence. —

Where the evidence is sufficient to support the commission’s findings that reasonable excuse for not giving the required written notice was shown, and that the employer was not prejudiced by the failure to give written notice, the findings are conclusive on appeal. Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254, 1977 N.C. App. LEXIS 2185 (1977).

Whether a plaintiff was injured by accident and had a reasonable excuse for not giving the employer timely notice were factual issues that depended entirely upon her credibility. Since the Commission found, as its prerogative as fact finder permitted, that plaintiff’s testimony was not credible, that determination was binding upon the Court of Appeals. Elliot v. A.O. Smith Corp., 103 N.C. App. 523, 405 S.E.2d 799, 1991 N.C. App. LEXIS 791 (1991).

Sufficiency of the Industrial Commission’s Findings of Fact. —

Decision by the full North Carolina Industrial Commission was remanded for further findings of fact on the issues of whether an employee’s claim was barred by his failure to timely notify the employer in writing of his injury under G.S. 97-22, and whether the employee sustained a compensable injury arising out of his employment, because the Commission failed to make adequate findings of fact for the appellate court to review the issues. Watts v. Borg Warner Auto., Inc., 171 N.C. App. 1, 613 S.E.2d 715, 2005 N.C. App. LEXIS 1159, aff'd, 360 N.C. 169, 622 S.E.2d 492, 2005 N.C. LEXIS 1322 (2005).

Appeal of Notice Issue. —

An employer who fails to raise the issue of notice at the hearing before the compensation board may not raise it on appeal. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

To allow an employer to raise the issue of notice for the first time on appeal would deprive the claimants of the benefits of that determination and could easily lead to a denial of compensation in a case where the facts would justify a finding of no prejudice. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Because the North Carolina Industrial Commission’s finding that an employee gave an employer notice of a car accident were unchallenged by the employer, they were binding on review. Easter-Rozzelle v. City of Charlotte, 370 N.C. 286, 807 S.E.2d 122, 2017 N.C. LEXIS 946 (2017).

Notice Held Insufficient. —

Claimant, after his injury, sent two or three messages to the superintendent, requesting him to come to see him, and the superintendent promised to do so but never did. Also, claimant’s sister testified that she told the superintendent, nearly four months after the injury, that claimant had been hurt in the mill. It was held that this did not constitute sufficient notice of injury, nor did it constitute a basis for estoppel against the defendant to plead the provisions of this section. Jacobs v. Safie Mfg. Co., 229 N.C. 660, 50 S.E.2d 738, 1948 N.C. LEXIS 380 (1948).

The plaintiff was reasonably excused from not giving written notice due to his limited education, confusion resulting from the initial hospitalization for a possible heart attack, his lack of understanding of the causal relationship between the incident of hitting the truck door latch and the resulting injuries, and his reliance on his wife and his doctor to notify defendant of the work-related injury; additionally, the defendant/employer presented no evidence that it was prejudiced in any way by the plaintiff waiting to file his workers’ compensation claim. Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 532 S.E.2d 207, 2000 N.C. App. LEXIS 786 (2000).

Failure to Give Written Notice Excused. —

There was competent evidence to support the commission’s determination that the claimant was reasonably excused from not giving written notice and that the employer was not prejudiced thereby where the evidence indicated that on the date of the injury by accident, about 10 minutes after it occurred, and during plaintiff ’s hospitalization, the plant manager visited plaintiff, who related the details of the occurrence to him. Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254, 1977 N.C. App. LEXIS 2185 (1977).

Where the claimant offered testimony that he did not realize until December 23, 1988, the day his leg became numb and would no longer support his body, the nature and seriousness of his injury, and where the undisputed evidence revealed that, up until that time, the claimant continued to work at his regular job for employer, though he did have some pain which worsened over time, the evidence does not support the finding of the Commission that the claimant “did not have a reasonable excuse for failing to timely give said notice.” To the contrary, any reasonable view of this evidence requires a finding that the claimant notified employer of the accident as soon as he was or should have been aware of the “nature, seriousness, and probable compensable character of his injury.” Jones v. Lowe's Cos., 103 N.C. App. 73, 404 S.E.2d 165, 1991 N.C. App. LEXIS 575 (1991).

North Carolina Industrial Commission properly found under G.S. 97-22 that an employer was not prejudiced by the delay in receipt of written notice of plaintiff’s work-related accident, as it received actual notice on the day of the accident, and plaintiff had a reasonable excuse for the delay because he did not know that his injury was compensable under the North Carolina Workers’ Compensation Act. Yingling v. Bank of Am., 225 N.C. App. 820, 741 S.E.2d 395, 2013 N.C. App. LEXIS 224 (2013).

Claim Not Dismissed Where Insurer Had Actual Notice. —

Where the defendant insurer had actual notice of the plaintiff employee’s injury within 30 days, the defendant could not have been prejudiced by plaintiff ’s failure to give written notice; thus, there was no error in the Industrial Commission’s not finding the plaintiff failed to give timely written notice or in its not dismissing plaintiff ’s claim for not giving timely written notice. Sanderson v. Northeast Constr. Co., 77 N.C. App. 117, 334 S.E.2d 392, 1985 N.C. App. LEXIS 4051 (1985).

Fact That Employer Continued to Pay Employee’s Salary After Injury. —

Where plaintiff suffered a disabling injury which he failed to report, the fact that defendant continued to pay his salary for a while did not constitute an estoppel in the absence of proof that defendant knew of the injury at the time the payments were made. Lilly v. Belk Bros., 210 N.C. 735, 188 S.E. 319, 1936 N.C. LEXIS 215 (1936).

Where employee does not reasonably know of nature, seriousness, or probable compensable character of his injury and delays notification only until he reasonably knows, he has established “reasonable excuse” as that term is used in this section. Lawton v. County of Durham, 85 N.C. App. 589, 355 S.E.2d 158, 1987 N.C. App. LEXIS 2604 (1987).

A finding by the Commission that plaintiff was not capable of coherent, normal thought at the time of his examination by physicians fell short of a finding that he was prevented from giving written notice of his injury by reason of physical or mental incapacity so as to entitle him to the benefits which might have accrued prior to the giving of such notice. Eller v. Lawrence Leather Co., 222 N.C. 604, 24 S.E.2d 244, 1943 N.C. LEXIS 383 (1943).

As to the application of this section in occupational disease cases under G.S. 97-58(b), see Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Where, although plaintiff ’s original awareness of hearing loss was precipitated by a single event, medical testimony indicated that the resulting disability was caused by repeated exposure to heightened levels of noise prior to 1974, the claim did not need to meet the requirements of this section which is for injury by accident claims; plaintiff ’s claim was one for compensation for occupational disease and plaintiff had met the necessary filing requirements set forth in G.S. 97-58. Sellers v. Lithium Corp., 94 N.C. App. 575, 380 S.E.2d 526, 1989 N.C. App. LEXIS 548 (1989).

With reference to occupational diseases, time within which an employee must give notice or file claim begins to run when the employee is first informed by competent medical authority of the nature and work-related cause of the disease. McKee v. Crescent Spinning Co., 54 N.C. App. 558, 284 S.E.2d 175, 1981 N.C. App. LEXIS 2924 (1981).

Employee’s notice to the employer of the employee’s injury by a car accident, made by telephone immediately after the employee’s injury, satisfied the purpose of G.S. 97-22, and triggered the employer’s duties to notify the Commission within five days, to notify the employee within 14 days of its decision to admit or deny the injury, and to quickly investigate. Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 669 S.E.2d 582, 2008 N.C. LEXIS 973 (2008).

Pleadings. —

Unless the notice of accident required by this section and G.S. 97-23 is so considered, the act makes no mention of pleadings. Clark v. Gastonia Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354, 1964 N.C. LEXIS 448 (1964).

§ 97-23. What notice is to contain; defects no bar; notice personally or by registered letter or certified mail.

The notice provided in the foregoing section [G.S. 97-22] shall state in ordinary language the name and address of the employee, the time, place, nature, and cause of the accident, and of the resulting injury or death; and shall be signed by the employee or by a person on his behalf, or, in the event of his death, by any one or more of his dependents, or by a person in their behalf.

No defect or inaccuracy in the notice shall be a bar to compensation unless the employer shall prove that his interest was prejudiced thereby, and then only to such extent as the prejudice.

Said notice shall be given personally to the employer or any of his agents upon whom a summons in civil action may be served under the laws of the State, or may be sent by registered letter or certified mail addressed to the employer at his last known residence or place of business.

History. 1929, c. 120, s. 23; 1959, c. 863, s. 1.

CASE NOTES

Pleadings. —

Unless the notice of accident required by this section and G.S. 97-22 is so considered, the act makes no mention of pleadings. Clark v. Gastonia Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354, 1964 N.C. LEXIS 448 (1964).

Failure to Provide Notice. —

It was undisputed that the employee failed to provide written notice until she filed her workers’ compensation claim nearly four months after her accident. Therefore, the Industrial Commission erred in awarding benefits to the employee without concluding that the employer was not prejudiced by the delay and supporting such a conclusion with appropriate findings of fact. Gregory v. W.A. Brown & Sons, 363 N.C. 750, 688 S.E.2d 431, 2010 N.C. LEXIS 35 (2010).

§ 97-24. Right to compensation barred after two years; destruction of records.

  1. The right to compensation under this Article shall be forever barred unless (i) a claim or memorandum of agreement as provided in G.S. 97-82 is filed with the Commission or the employee is paid compensation as provided under this Article within two years after the accident or (ii) a claim or memorandum of agreement as provided in G.S. 97-82 is filed with the Commission within two years after the last payment of medical compensation when no other compensation has been paid and when the employer’s liability has not otherwise been established under this Article. The provisions of this subsection shall not limit the time otherwise allowed for the filing of a claim for compensation for occupational disease in G.S. 97-58, but in no event shall the time for filing a claim for compensation for occupational disease be less than the times provided herein for filing a claim for an injury by accident.
  2. If any claim for compensation is hereafter made upon the theory that such claim or the injury upon which said claim is based is within the jurisdiction of the Industrial Commission under the provisions of this Article, and if the Commission, or the appellate courts on appeal, shall adjudge that such claim is not within the Article, the claimant, or if he dies, his personal representative, shall have one year after the rendition of a final judgment in the case within which to commence an action at law.
  3. When all claims and reports required by this Article have been filed, and the cases and records of which they are a part have been closed by proper reports, receipts, awards or orders, these records, may after five years in the discretion of the Commission, with and by the authorization and approval of the Department of Natural and Cultural Resources, be destroyed by burning or otherwise.

History. 1929, c. 120, s. 24; 1933, c. 449, s. 2; 1945, c. 766; 1955, c. 1026, s. 12; 1973, c. 476, s. 48; c. 1060, s. 1; 1991, c. 703, s. 8; 1993 (Reg. Sess., 1994), c. 679, s. 3.4; 2015-241, s. 14.30(s).

Cross References.

As to corresponding limitations in cases of occupational diseases, see G.S. 97-58.

As to certain State law-enforcement officers, see G.S. 143-166.16.

Effect of Amendments.

Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted “Department of Natural and Cultural Resources” for “Department of Cultural Resources” in subsection (c).

Legal Periodicals.

For note on the range of compensable consequences of a work-related injury, see 49 N.C.L. Rev. 583 (1971).

For article, “Statutes of Limitations in the Conflict of Laws,” see 52 N.C.L. Rev. 489 (1974).

For note on occupational disease under workers’ compensation statute, see 16 Wake Forest L. Rev. 288 (1980).

For a survey of 1996 developments in the law regarding prisoner rights, see 75 N.C.L. Rev. 2428 (1997).

CASE NOTES

G.S. 97-6.1 Compared. —

G.S. 97-6.1 is a wrongful discharge statute while this section deals solely with worker’s compensation. Whitt v. Roxboro Dyeing Co., 91 N.C. App. 636, 372 S.E.2d 731, 1988 N.C. App. LEXIS 891 (1988).

G.S. 97-58 Compared. —

An accident claim must be filed within two years of the accident, not within two years after the claimant becomes aware of his disorder, as is the case under G.S. 97-58. Perdue v. Daniel Int'l, Inc., 59 N.C. App. 517, 296 S.E.2d 845, 1982 N.C. App. LEXIS 3143 (1982).

Limited Jurisdiction of the Industrial Commission. —

The Industrial Commission has a special or limited jurisdiction created by statute, and is confined to its terms. Viewed as a court, it is one of limited jurisdiction, and it is a universal rule of law that parties cannot, by consent, give a court, as such, jurisdiction over subject matter of which it would otherwise not have jurisdiction. Jurisdiction in this sense cannot be obtained by consent of the parties, waiver, or estoppel. Barham v. Kayser-Roth Hosiery Co., 15 N.C. App. 519, 190 S.E.2d 306 (1972). In accord with the main volume. See Belfield v. Weyerhaeuser Co., 77 N.C. App. 332, 335 S.E.2d 44, 1985 N.C. App. LEXIS 4074 (1985).

Other Compensation. —

In a case in which defendants admitted that they paid plaintiff’s out-of-state medical expenses, plaintiff had been paid no other compensation for purposes of this section, since the out-of-state benefits did not qualify as “other compensation.” Clark v. Summit Contrs. Group, Inc., 238 N.C. App. 232, 767 S.E.2d 896, 2014 N.C. App. LEXIS 1393 (2014).

G.S. 97-24(a)(ii) does not include a requirement either that an employer keep a claimant informed of the legal status of disability or medical compensation payments or, alternatively, that a plaintiff investigate this matter. Hall v. United States Xpress, Inc., 256 N.C. App. 635, 808 S.E.2d 595, 2017 N.C. App. LEXIS 1016 (2017).

Timely Filing is Jurisdictional. —

Dismissal of a claim is proper where there is an absence of evidence that the Industrial Commission acquired jurisdiction by the timely filing of a claim or by the submission of a voluntary settlement agreement to the Commission. Ordinarily, consent by the parties, waiver or estoppel are insufficient to overcome a jurisdictional bar. Reinhardt v. Women's Pavilion, Inc., 102 N.C. App. 83, 401 S.E.2d 138, 1991 N.C. App. LEXIS 196 (1991).

The timely filing of a claim for compensation is a condition precedent to the right to receive compensation and failure to file timely is a jurisdictional bar for the Industrial Commission. Reinhardt v. Women's Pavilion, Inc., 102 N.C. App. 83, 401 S.E.2d 138, 1991 N.C. App. LEXIS 196 (1991).

The requirement of filing a claim within two years of the accident is not a statute of limitation, but a condition precedent to the right to compensation. Reinhardt v. Women's Pavilion, Inc., 102 N.C. App. 83, 401 S.E.2d 138, 1991 N.C. App. LEXIS 196 (1991).

The requirement that a claim be filed within a certain time is a condition precedent to the right to compensation, and not a statute of limitation. For this reason, where a claim for compensation under the provisions of the Workers’ Compensation Act has not been filed with the Industrial Commission within the statutory period after the date of the accident which resulted in the injury for which compensation is claimed, or where the Industrial Commission has not acquired jurisdiction of such claim within the statutory period, the right to compensation is barred. Winslow v. Carolina Conference Ass'n, 211 N.C. 571, 191 S.E. 403, 1937 N.C. LEXIS 154 (1937). See also Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109, 1948 N.C. LEXIS 254 (1948).

The requirement that a claim be filed in accord with the provisions of this section constitutes a condition precedent to the right to compensation and not a statute of limitations. Montgomery v. Horneytown Fire Dep’t, 265 N.C. 553, 144 S.E.2d 586 (1965); Barham v. Kayser-Roth Hosiery Co., 15 N.C. App. 519, 190 S.E.2d 306 (1972); Perdue v. Daniel Int’l, Inc., 59 N.C. App. 517, 296 S.E.2d 845 (1982), cert. denied, 307 N.C. 577, 299 S.E.2d 647 (1983). In accord with second paragraph in the main volume. See Belfield v. Weyerhaeuser Co., 77 N.C. App. 332, 335 S.E.2d 44, 1985 N.C. App. LEXIS 4074 (1985).

Two-year limitation in G.S. 97-24 was a condition precedent to a workers’ compensation claimant’s right to compensation that could be waived by an employer’s conduct; the employer waived the G.S. 97-24 limitation as the workers’ compensation claimant filled out forms with the employer’s human resources officer, who lost them, to the claimant’s detriment. Gore v. Myrtle/Mueller, 362 N.C. 27, 653 S.E.2d 400, 2007 N.C. LEXIS 1231 (2007).

And Is of the Essence of the Right to Recover. —

The plaintiff ’s inchoate right to compensation arose by operation of law on the date of the accident. But his substantive right to compensation was not fixed by the simple fact of injury arising out of and in the course of his employment. The requirement of filing a claim within the time limited by this section was a condition precedent to his right to compensation. Necessarily, then, the element of filing a claim within the time limited was of the very essence of the plaintiff ’s right to recover compensation. McCrater v. Stone & Webster Eng'g Corp., 248 N.C. 707, 104 S.E.2d 858, 1958 N.C. LEXIS 382 (1958).

Timely Filing of Claim or Submission of Settlement Agreement Is Jurisdictional. —

Where there was no evidence that the Industrial Commission acquired jurisdiction either by the timely filing of a claim or by the submission of a voluntary settlement agreement to the Commission for approval, the Industrial Commission properly dismissed plaintiff ’s claim for lack of jurisdiction. Barham v. Kayser-Roth Hosiery Co., 15 N.C. App. 519, 190 S.E.2d 306, 1972 N.C. App. LEXIS 1954 (1972).

Timely filing of a claim for compensation is a condition precedent to the right to compensation. Under this construction, failure to file a claim in a timely fashion works a jurisdictional bar to the right to receive compensation. The general rule is that a jurisdictional bar cannot be overcome by consent of the parties, waiver or estoppel. Weston v. Sears Roebuck & Co., 65 N.C. App. 309, 309 S.E.2d 273, 1983 N.C. App. LEXIS 3462 (1983).

The Industrial Commission lacked jurisdiction over a workers’ compensation claim filed more than two years after the claimant’s injury; thus, the Commission could not reach the issue of whether the defendants waived their right to contest the compensability of and their liability for the claim. Wall v. Macfield/Unifi, 131 N.C. App. 863, 509 S.E.2d 798, 1998 N.C. App. LEXIS 1562 (1998).

Time Limit in Effect on Date of Accident Controls. —

The time limit fixed by this section as it existed on the date of the accident, being a part of the plaintiff ’s substantive right of recovery, could not be enlarged by subsequent statute, i.e., the 1955 amendment changing the limit from one year to two years. To do so would be to deprive the defendants of a vested right. McCrater v. Stone & Webster Eng'g Corp., 248 N.C. 707, 104 S.E.2d 858, 1958 N.C. LEXIS 382 (1958).

Party may be equitably estopped from asserting time limitation in this section as a bar to jurisdiction. Belfield v. Weyerhaeuser Co., 77 N.C. App. 332, 335 S.E.2d 44, 1985 N.C. App. LEXIS 4074 (1985).

Equitable law of laches applies in workers’ compensation proceedings. Daugherty v. Cherry Hosp., 195 N.C. App. 97, 670 S.E.2d 915, 2009 N.C. App. LEXIS 60 (2009).

Medical Expenses Paid Within Two Years of Filing Claim. —

Worker’s compensation claim was timely filed under G.S. 97-24 where the employer admitted to paying medical expenses within two years of the claim being filed. There was no restriction under the definition of medical compensation in G.S. 97-2(19) that such medical payments had to be made in the State to qualify as medical payments. McGhee v. Bank of Am. Corp., 173 N.C. App. 422, 618 S.E.2d 833, 2005 N.C. App. LEXIS 2016 (2005).

North Carolina Industrial Commission properly determined that an employee timely filed a claim for workers’ compensation benefits pursuant to G.S. 97-24 that included a lumbar spine injury and a cervical spine injury where the claim that was filed related to a spinal injury and the employer and its insurance carrier did not seek further definition; additionally, the employer and carrier paid medical compensation to the employee during the course of treatments that related to the cervical spine injury within two years of the time when the claim was filed pursuant to G.S. 97-24(a)(ii). Erickson v. Siegler, 195 N.C. App. 513, 672 S.E.2d 772, 2009 N.C. App. LEXIS 213 (2009).

North Carolina Industrial Commission had subject matter jurisdiction over a claim for worker’s compensation benefits where the worker filed the claim form within two years of the last payment made to health care providers in another state, pursuant to another state’s workers’ compensation statute, his entitlement to disability payments under North Carolina law had not been previously determined at the time the claim was filed, and thus, he met the criteria specified in G.S. 97-24(a)(ii). Hall v. United States Xpress, Inc., 256 N.C. App. 635, 808 S.E.2d 595, 2017 N.C. App. LEXIS 1016 (2017).

North Carolina case law establishes that (1) medical compensation provided to a health care provider outside of North Carolina or pursuant to the workers’ compensation laws of another state may be considered in determining whether a plaintiff has filed a workers’ compensation claim in North Carolina within two years of the last medical compensation, but that (2) for purposes of determining a plaintiff’s compliance with G.S. 97-24(a)(ii), disability or other indemnity payments are not considered other compensation within the meaning of the statute unless the payments were made pursuant to a North Carolina workers’ compensation claim. Hall v. United States Xpress, Inc., 256 N.C. App. 635, 808 S.E.2d 595, 2017 N.C. App. LEXIS 1016 (2017).

North Carolina Industrial Commission erred in concluding that the claimant’s 2014 claim was jurisdictionally barred because the claimant’s return visit to a physical therapist on 25 April 2017 — which he related back to his 2014-15 treatment of the claimant and was paid for by the employer — was related to her alleged 27 May 2014 injury; and a flare-up of an old back injury could require subsequent treatment — even where there had been a lapse in continuous care; thus, the Commission had jurisdiction over the claimant’s 27 May 2014 claim as she filed within two years of the last payment of medical compensation because she filed a claim for compensation on 19 May 2017, which was within two years of her treatment on 25 April 2017. Cunningham v. Goodyear Tire & Rubber Co., 273 N.C. App. 497, 849 S.E.2d 880, 2020 N.C. App. LEXIS 689 (2020).

Report of Accident and Claim of Employee Filed by Employer. —

When the employer has filed with the Commission a report of the accident and claim of the injured employee, the claim is filed with the Commission within the meaning of this section. Hardison v. W.H. Hampton & Son, 203 N.C. 187, 165 S.E. 355, 1932 N.C. LEXIS 343 (1932).

There is no provision in the North Carolina act requiring an injured employee to file a claim for compensation for his injury with the North Carolina Industrial Commission. When the employer has filed with the Commission a report of the accident and claim of the injured employee, the Commission has jurisdiction of the matter, and the claim is filed with the Commission within the meaning of this section. Smith v. Allied Exterminators, Inc., 11 N.C. App. 76, 180 S.E.2d 390, 1971 N.C. App. LEXIS 1453, rev'd, 279 N.C. 583, 184 S.E.2d 296, 1971 N.C. LEXIS 891 (1971); Hardison v. W.H. Hampton & Son, 203 N.C. 187, 165 S.E. 355, 1932 N.C. LEXIS 343 (1932).

Report Filed by Employer on Verbal Information. —

Where an employer files a report with the Commission within the prescribed time upon verbal information given by the representative of the employee, the representative not being able to read or write, and the employer admits liability, the report has been properly filed with the Industrial Commission as a claim and the Commission acquires jurisdiction. Hanks v. Southern Pub. Util. Co., 210 N.C. 312, 186 S.E. 252, 1936 N.C. LEXIS 93 (1936) (noted with proposal for amendment in 15 N.C.L. Rev. 85 (1937)) .

Notice to Commission Insufficient to Toll Statute. —

The Industrial Commission erred by exercising jurisdiction over and hearing plaintiff’s claim arising from a second accident where plaintiff did not file a claim for the accident until after the two-year filing period mandated by this section had elapsed; his earlier actions only informed the Commission that he was involved in an accident but did not amount to a filing. Tilly v. High Point Sprinkler, 143 N.C. App. 142, 546 S.E.2d 404, 2001 N.C. App. LEXIS 229 (2001).

Letter Held Sufficient Filing of Claim. —

A letter which was written to the Commission within two years of the alleged accident and injury to plaintiff and which specifically requested a hearing upon the alleged injury constituted sufficient filing of claim and compliance with this section to vest jurisdiction of the accident in the Commission. Cross v. Fieldcrest Mills, Inc., 19 N.C. App. 29, 198 S.E.2d 110, 1973 N.C. App. LEXIS 1557 (1973).

When Informal Letter Insufficient. —

An informal letter may not serve as the filing of a claim for compensation for statute of limitations purposes where it contains no request for a hearing and fails to assert in any way that the plaintiff is demanding compensation or that action by the Industrial Commission is necessary to settle the question. Gantt v. Edmos Corp., 56 N.C. App. 408, 289 S.E.2d 75, 1982 N.C. App. LEXIS 2424 (1982).

Claim Need Not Be Filed Before Bringing Action. —

Subsection (b) of this section does not require plaintiff to file a claim with the Industrial Commission, as a court of first instance, before bringing an action in the superior court. The subsection was intended to defer the time in which action in the proper court might be brought when mistaken resort to the Commission has been made. Barber v. Minges, 223 N.C. 213, 25 S.E.2d 837, 1943 N.C. LEXIS 244 (1943).

Payment of Medical Expenses by Defendant Carrier Does Not Constitute Waiver of Limitation. —

The voluntary payment of a medical bill by defendant carrier is not an admission of liability and does not dispense with the necessity of filing a claim with the Industrial Commission within two years of the date of the accident. Barham v. Kayser-Roth Hosiery Co., 15 N.C. App. 519, 190 S.E.2d 306, 1972 N.C. App. LEXIS 1954 (1972).

Report Filed by Employer and Award for Medical Expenses. —

The employer gave notice to the Commission of an accident to its employee. Subsequently an award for medical expenses was made by the Commission on application of the doctor, but no hearing before the Commission was ever asked by employer or employee. In a suit by the employee against the alleged negligent third party, the period of limitation prescribed in this section having passed, the court observed that the period for filing plaintiff ’s claim had elapsed and “no other right of action could now accrue for the benefit of the employer, or its insurance carrier.” Thompson v. Virginia & C.S.R.R., 216 N.C. 554, 6 S.E.2d 38, 1939 N.C. LEXIS 46 (1939).

Claims Not Filed Within Time Prescribed. —

Where an employee did not file a claim until more than the prescribed time after injury, and the employer did not file a report of the accident because it did not have knowledge thereof, although it delivered claimant’s wages to him after the disability resulting from the injury, but thought the disability was due to a prior injury, had no knowledge of the subsequent injury, and made no representations that the wages delivered to the claimant were in lieu of compensation, the evidence supported a finding that the claim was not filed within the time prescribed by this section. Lilly v. Belk Bros., 210 N.C. 735, 188 S.E. 319, 1936 N.C. LEXIS 215 (1936).

Claimant was injured by accident arising out of and in the course of his employment. He reported the accident to the employer, who, on the day of the accident, reported it to the Industrial Commission as required by G.S. 97-92. Subsequently, bills for medical services rendered claimant as a result of the injury were approved for payment by the Commission. No claim for compensation was filed by the employee, the employer or the insurance carrier. After the expiration of the period of limitation, the employee first discovered the serious effects of the accident and requested a hearing before the Industrial Commission. It was held that no claim for compensation having been filed within the statutory period from the date of the accident and no request for hearing having been made within that time, and no payment of bills for medical treatment having been made within the statutory period prior to the request for a hearing, the claim was barred by this section. Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109, 1948 N.C. LEXIS 254 (1948) (distinguishing) Hardison v. W.H. Hampton & Son, 203 N.C. 187, 165 S.E. 355, 1932 N.C. LEXIS 343 (1932) (and) Hanks v. Southern Pub. Utils. Co., 210 N.C. 312, 186 S.E. 252, 1936 N.C. LEXIS 93 (1936).

Commission’s finding that the employee did not file his claim within the period of limitation, and that claim was therefore barred, was affirmed on appeal. Coats v. B. & R. Wilson, Inc., 244 N.C. 76, 92 S.E.2d 446, 1956 N.C. LEXIS 651 (1956).

When, in a wrongful death case, a court dismissed a challenge to subject-matter jurisdiction brought months after entry of a default judgment against an employer, dismissing the challenge asserting workers’ compensation exclusivity deprived the court of jurisdiction, on equitable estoppel and laches grounds, the court erred because: (1) the court’s subject-matter jurisdiction could be contested at any time; (2) subject-matter jurisdiction was independent of the parties’ conduct, making equitable estoppel and laches inapplicable; (3) the court made no required findings and conclusions regarding jurisdiction after the employer legitimately challenged the court’s jurisdiction; and (4) the two-year workers’ compensation claim filing requirement did not necessarily bar any untimely claim as the employer’s fault caused the delay. Burgess v. Smith, 260 N.C. App. 504, 818 S.E.2d 164, 2018 N.C. App. LEXIS 753 (2018).

Claim Filed Within Time Prescribed. —

Because plaintiff timely filed her claim for her back injury against defendant employer pursuant to G.S. 97-24, the Industrial Commission erred in denying her claim due to her failure to file a claim against a specific insurance company. Hawkins v. Wilkes Reg'l Med. Ctr., 256 N.C. App. 695, 808 S.E.2d 505, 2017 N.C. App. LEXIS 1007 (2017).

Limitation Tolled as to Employee Under 18 and Without Guardian. —

The limitation of time provided by this section as against an employee under 18 years of age, who is without a guardian or other legal representative, is tolled until he arrives at the age of 18. Lineberry v. Town of Mebane, 219 N.C. 257, 13 S.E.2d 429, 1941 N.C. LEXIS 303 (1941).

Claim Based on Rare Brain Condition Diagnosis Not Time Barred. —

Worker suffered from a rare brain condition that was difficult to properly diagnose given its symptoms, and it would have defeated the purpose of the Workers’ Compensation Act to deny him benefits because he was unable to fully diagnose his condition himself within the two-year statute of limitations period; the reference in the worker’s Form 18 to his neck, back, and leg sufficiently identified the body parts affected by his work-related injury, and because he filed his Form 18 prior to the expiration of the two-year statute of limitations, the North Carolina Industrial Commission did not err in concluding his claim was not time barred. Wyatt v. Haldex Hydraulics, 237 N.C. App. 599, 768 S.E.2d 150, 2014 N.C. App. LEXIS 1239 (2014).

Prosecuting Common-Law Action and Failing to File Application for Hearing Held Not Abandonment of Filed Claim. —

The prosecution of a suit at common law and the failure to file application for a hearing when requested did not amount to an abandonment of claim for compensation, and no final award having been made at the time of the filing of a formal petition for an award, the matter was pending at that time before the Commission, and it was error to deny compensation on the ground that claimant was barred by failure to file a claim within the time prescribed after the death of the deceased employee. Hanks v. Southern Pub. Util. Co., 210 N.C. 312, 186 S.E. 252, 1936 N.C. LEXIS 93 (1936) (noted in 15 N.C.L. Rev. 85 (1937)) .

Implied Agreement Not to Plead Statute. —

Where the injured party was led to believe that his wages were accruing to his benefit, and he delayed filing his claim for more than the time prescribed, it was held that the facts did not bring the case within the principle of equitable estoppel, there being no request by defendant that claimant delay the pursuit of his rights, nor an express or implied agreement not to plead the statute. Wilson v. E.H. Clement Co., 207 N.C. 541, 177 S.E. 797, 1935 N.C. LEXIS 199 (1935).

Evidence held not to show any representation by the employer that the accident had been reported, or any agreement, express or implied, that the bar of the statute of limitations in this section would not be pleaded, and therefore the employer was not estopped from setting up the defense of the bar of the statute. Jacobs v. Safie Mfg. Co., 229 N.C. 660, 50 S.E.2d 738, 1948 N.C. LEXIS 380 (1948).

Prolonged Reliance on Employer’s Promise to Take Care of Injury. —

While plaintiff ’s reliance on defendant’s promise to “take care of [his injury]” may have been reasonable in light of the circumstances at the time, the reasonableness of this reliance became suspect after nine years from the time when the promise was made with no indication that the promise would be honored. This alone would be enough to dissipate the effect of the alleged misrepresentation by defendant. These facts did not support the conclusion that defendant was equitably estopped from challenging the commission’s jurisdiction to hear plaintiff ’s claim. Weston v. Sears Roebuck & Co., 65 N.C. App. 309, 309 S.E.2d 273, 1983 N.C. App. LEXIS 3462 (1983).

Equitable Estoppel Not Found. —

The employer and insurer were not equitably estopped from asserting the jurisdictional bar of this section, where the employer did not lull claimant into a false sense of security by promising to take care of her, but rather, told her that any claim she filed would be denied. Wall v. Macfield/Unifi, 131 N.C. App. 863, 509 S.E.2d 798, 1998 N.C. App. LEXIS 1562 (1998).

Effect of Dismissal on Rights of Dependents. —

Where the claim of an employee under the Workers’ Compensation Act was dismissed because it was not filed within the period prescribed by this section, and pending appeal the employee died as a result of the accidental injury, his dependents’ claim for compensation for his death brought one month after his death was not barred, the dependents not being parties in interest in the prior proceeding, and their claim being an original right enforceable only after his death. Wray v. Carolina Cotton & Woolen Mills Co., 205 N.C. 782, 172 S.E. 487, 1934 N.C. LEXIS 70 (1934) (decided prior to the 1933 amendment) .

Award Protecting Employee Against Possible Future Loss of Rights. —

Where claimant suffered a general partial disability, but continued to receive the same wages, which amounted to more than the assessable amount of compensation for his injury, he could not receive additional compensation. To protect the employee against the possibility that the employer might, after the expiration of the period of limitation, discontinue the employment and thus defeat the rights of the employee, the Commission, after finding the existence of the disability, directed that an award issue subject to specified limitations. It directed compensation at the statutory rate “at any time it is shown that the claimant is earning less,” etc., during the statutory period of 300 weeks. By this order the Commission, in effect, retained jurisdiction for future adjustments. In so doing it did not exceed its authority. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Letter Held Not to Constitute Demand. —

Where plaintiff’s letter made no demand for compensation nor requested a hearing on the matter, and letter merely inquired as to claimant’s physical progress and medical charges, such letter did not satisfy statutory requirement that a “claim” be filed within two years of accident. Reinhardt v. Women's Pavilion, Inc., 102 N.C. App. 83, 401 S.E.2d 138, 1991 N.C. App. LEXIS 196 (1991).

Prerequisites to Equitable Estoppel. —

Although defendant furniture company may have thought plaintiff’s injuries would be covered by another insurer, neither bad faith, fraud nor intent to deceive is necessary before the doctrine of equitable estoppel can be applied. Craver v. Dixie Furn. Co., 115 N.C. App. 570, 447 S.E.2d 789, 1994 N.C. App. LEXIS 916 (1994).

The basis for effecting equitable estoppel is the inconsistent position subsequently taken, rather than in the original conduct and where plaintiff was misled to her detriment, it was under such circumstances that application of the doctrine of equitable estoppel was appropriate. Craver v. Dixie Furn. Co., 115 N.C. App. 570, 447 S.E.2d 789, 1994 N.C. App. LEXIS 916 (1994).

Egregious Circumstances May Cause Estoppel. —

Where the circumstances are deemed egregious, the doctrine of estoppel will be employed and will prevent a party from raising the time limitation of G.S. 97-24. Reinhardt v. Women's Pavilion, Inc., 102 N.C. App. 83, 401 S.E.2d 138, 1991 N.C. App. LEXIS 196 (1991).

Employer’s Payment of Injured Employee’s Medical Bills Did Not Establish Estoppel. —

Employer’s payment of injured employee’s medical bills did not estop employer from opposing the acceptance of employee’s claim filed more than two years after employee’s accident, as voluntarily paying an employee’s medical bills is not enough to establish an estoppel. Abels v. Renfro Corp., 100 N.C. App. 186, 394 S.E.2d 658, 1990 N.C. App. LEXIS 889 (1990).

Defendants Were Equitably Estopped from Pleading Time Limitation. —

Defendants were equitably estopped from pleading the two year time limit for filing under subsection (a) of this section as a bar to jurisdiction where that plaintiff detrimentally relied as a matter of law on statements of defendant’s agent. Parker v. Thompson-Arthur Paving Co., 100 N.C. App. 367, 396 S.E.2d 626, 1990 N.C. App. LEXIS 982 (1990).

Form Sufficient for Claim Despite Incorrect Date. —

While the case law interpreting the specific traumatic incident provision of G.S. 97-2(6) requires the plaintiff to prove an injury at a cognizable time, this does not compel the plaintiff to allege the specific hour or day of the injury; where a Form 18 specifically described the accident causing an employee’s injury as a tire changing incident, this was sufficient to constitute a claim arising out of that incident, despite the fact that the form listed the date of a later truck exiting incident as the date of the accident. Crane v. Berry's Clean-Up & Landscaping, Inc., 169 N.C. App. 323, 610 S.E.2d 464, 2005 N.C. App. LEXIS 614 (2005).

§ 97-25. Medical treatment and supplies.

  1. Medical compensation shall be provided by the employer.
  2. Upon the written request of the employee to the employer, the employer may agree to authorize and pay for a second opinion examination with a duly qualified physician licensed to practice in North Carolina, or licensed in another state if agreed to by the parties or ordered by the Commission. If, within 14 calendar days of the receipt of the written request, the request is denied or the parties, in good faith, are unable to agree upon a health care provider to perform a second opinion examination, the employee may request that the Industrial Commission order a second opinion examination. The expense thereof shall be borne by the employer upon the same terms and conditions as provided in this section for medical compensation.
  3. Provided, however, if the employee so desires, an injured employee may select a health care provider of the employee’s own choosing to attend, prescribe, and assume the care and charge of the employee’s case subject to the approval of the Industrial Commission. In addition, in case of a controversy arising between the employer and the employee, the Industrial Commission may order necessary treatment. In order for the Commission to grant an employee’s request to change treatment or health care provider, the employee must show by a preponderance of the evidence that the change is reasonably necessary to effect a cure, provide relief, or lessen the period of disability. When deciding whether to grant an employee’s request to change treatment or health care provider, the Commission may disregard or give less weight to the opinion of a health care provider from whom the employee sought evaluation, diagnosis, or treatment before the employee first requested authorization in writing from the employer, insurer, or Commission.
  4. The refusal of the employee to accept any medical compensation when ordered by the Industrial Commission shall bar the employee from further compensation until such refusal ceases, and no compensation shall at any time be paid for the period of suspension unless in the opinion of the Industrial Commission the circumstances justified the refusal. Any order issued by the Commission suspending compensation pursuant to G.S. 97-18.1 shall specify what action the employee should take to end the suspension and reinstate the compensation.
  5. If in an emergency on account of the employer’s failure to provide medical compensation, a physician other than provided by the employer is called to treat the injured employee, the reasonable cost of such service shall be paid by the employer if so ordered by the Industrial Commission.
  6. In claims subject to G.S. 97-18(b) and (d), a party may file a motion as set forth in this subsection regarding a request for medical compensation or a dispute involving medical issues. The nonmoving party shall have the right to contest the motion. Motions and responses shall be submitted contemporaneously via electronic means to the Commission and to the opposing party or the opposing party’s attorney, as follows:
    1. A party may file a motion with the Executive Secretary for an administrative ruling regarding a request for medical compensation or a dispute involving medical issues. The motion shall be decided administratively pursuant to rules governing motions practices in contested cases. The Commission shall decide the motion within 30 days of the filing of the motion unless an extension of time to respond to the motion has been granted for good cause shown. Either party may file a motion for reconsideration of the administrative order with the Executive Secretary. Either party may request an expedited formal hearing pursuant to G.S. 97-84 and subdivision (2) of this subsection to appeal the decision of the Executive Secretary approving or denying the original motion or the motion for reconsideration. Within five days of the filing of a request for an expedited formal hearing pursuant to G.S. 97-84 and subdivision (2) of this subsection to appeal the decision of the Executive Secretary, the Commission shall assign a Deputy Commissioner to conduct the formal hearing. The decision shall not be stayed during the pendency of an appeal pursuant to G.S. 97-84 and subdivision (2) of this subsection except under those circumstances set out in subdivision (4) of this subsection. A motion to stay shall be filed with the Deputy Commissioner scheduled to conduct the formal hearing pursuant to G.S. 97-84. Either party may appeal the decision of the Deputy Commissioner pursuant to G.S. 97-84 to the Full Commission pursuant to G.S. 97-85. The decision of the Deputy Commissioner shall not be stayed during the pendency of an appeal except under those circumstances set out in subdivision (4) of this subsection. A motion to stay the decision of the Deputy Commissioner pursuant to G.S. 97-84 shall be directed to the Chair of the Commission. The Full Commission shall render a decision on the appeal of the Deputy Commissioner’s decision on the motion within 60 days of the filing of the notice of appeal.
    2. In lieu of filing a motion with the Executive Secretary for an administrative ruling pursuant to subdivision (1) of this subsection, when appealing a ruling made pursuant to subdivision (1) of this subsection or when appealing an administrative ruling of the Chief Deputy or the Chief Deputy’s designee on an emergency motion, a party may request a full evidentiary hearing pursuant to G.S. 97-84 on an expedited basis, limited to a request for medical compensation or a dispute involving medical issues, by filing a motion with the Office of the Chief Deputy Commissioner. The case will not be ordered into mediation based upon a party’s request for hearing on the motion or appeal under this subdivision, except upon the consent of the parties. The Commission shall set the date of the expedited hearing, which shall be held within 30 days of the filing of the motion or appeal and shall notify the parties of the time and place of the hearing on the motion or appeal. Upon request, the Commission may order expedited discovery. The record shall be closed within 60 days of the filing of the motion, or in the case of an appeal pursuant to subdivisions (1) and (3) of this subsection, within 60 days of the filing of the appeal, unless the parties agree otherwise or the Commission so orders. Transcripts of depositions shall be expedited if necessary and paid pursuant to rules promulgated by the Commission related to depositions and shall be submitted electronically to the Commission. The Commission shall decide the issue in dispute and make findings of fact based upon the preponderance of the evidence in view of the entire record. The award, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue shall be filed with the record of the proceedings within 15 days of the close of the hearing record, and a copy of the award shall immediately be sent to the parties. Either party may appeal the decision of the Deputy Commissioner pursuant to G.S. 97-84 to the Full Commission pursuant to G.S. 97-85. The decision of the Deputy Commissioner pursuant to G.S. 97-84 shall not be stayed during the pendency of an appeal except under those circumstances set out in subdivision (4) of this subsection. A motion to stay the decision of the Deputy Commissioner pursuant to G.S. 97-84 shall be directed to the Chair of the Commission. The Full Commission shall render a decision on the appeal of the Deputy Commissioner’s decision on the motion within 60 days of the filing of the notice of appeal.
    3. An emergency medical motion filed by either party shall be filed with the Office of the Chief Deputy Commissioner. The Chief Deputy or Chief Deputy’s designee shall rule on the motion within five days of receipt unless the Chief Deputy or Chief Deputy’s designee determines that the motion is not an emergency, in which case the motion shall be referred to the Executive Secretary for an administrative ruling pursuant to subdivision (1) of this subsection. Motions requesting emergency medical relief shall contain all of the following:
      1. An explanation of the medical diagnosis and treatment recommendation of the health care provider that requires emergency attention.
      2. A specific statement detailing the time-sensitive nature of the request to include relevant dates and the potential for adverse consequences to the movant if the recommended relief is not provided emergently.
      3. An explanation of opinions known and in the possession of the movant of additional medical or other relevant experts, independent medical examiners, and second opinion examiners.
      4. Documentation known and in the possession of the movant in support of the request, including relevant medical records.
      5. A representation that informal means of resolving the issue have been attempted.
    4. The Commission shall consider, among other factors, all of the following when determining whether to grant a motion to stay filed pursuant to this subsection:
      1. Whether there would be immediate and irreparable injury, harm, loss, or damage to either party.
      2. The nature and cost of the medical relief sought.
      3. The risk for further injury or disability to the employee inherent in the treatment or its delay.
      4. Whether it has been recommended by an authorized physician.
      5. Whether alternative therapeutic modalities are available and reasonable.
    5. If the Commission determines that any party has acted unreasonably by initiating or objecting to a motion filed pursuant to this section, the Commission may assess costs associated with any proceeding, including any reasonable attorneys’ fees and deposition costs, against the offending party.
  7. , (h)Repealed by Session Laws 2014-77, s. 4, effective July 22, 2014.

Either party may appeal the decision of the Chief Deputy or the Chief Deputy’s designee on the emergency motion by requesting an expedited formal hearing pursuant to G.S. 97-84 and subdivision (2) of this subsection to appeal the administrative decision of the Chief Deputy or the Chief Deputy’s designee on the emergency motion. Within five days of the filing of a request for an expedited formal hearing pursuant to G.S. 97-84 and subdivision (2) of this subsection, the Commission shall assign a Deputy Commissioner to conduct the formal hearing. The decision of the Chief Deputy or the Chief Deputy’s designee shall not be stayed during the pendency of an appeal of the administrative decision except under those circumstances set out in subdivision (4) of this subsection. Any motion to stay shall be filed with the Deputy Commissioner scheduled to conduct the expedited formal hearing pursuant to G.S. 97-84 and subdivision (2) of this subsection. Either party may appeal the decision of the Deputy Commissioner pursuant to G.S. 97-84 to the Full Commission pursuant to G.S. 97-85. If so, the decision of the Deputy Commissioner shall not be stayed during the pendency of an appeal except under those circumstances set out in subdivision (4) of this subsection. Any motion to stay the decision of the Deputy Commissioner pursuant to G.S. 97-84 shall be directed to the Chair of the Commission. The Full Commission shall render a decision on the appeal of the Deputy Commissioner’s decision on the motion within 60 days of the filing of the notice of appeal.

History. 1929, c. 120, s. 25; 1931, c. 274, s. 4; 1933, c. 506; 1955, c. 1026, s. 2; 1973, c. 520, s. 1; 1991, c. 703, s. 3; 1997-308, s. 1; 1999-150, s. 1; 2005-448, s. 6.2; 2011-287, s. 6; 2013-294, s. 4; 2014-77, s. 4; 2017-102, s. 15.

Cross References.

As to independent suit by physician against employee to recover for medical services, see note to G.S. 97-90.

Editor’s Note.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 6, which rewrote the section, was applicable to claims pending on or after June 24, 2011.

Effect of Amendments.

Session Laws 2005-448, s. 6.2, effective September 29, 2005, and applicable to claims pending and filed on or after that date, deleted the former second sentence in the first paragraph, which read: “Notwithstanding the provisions of G.S. 8-53, any law relating to the privacy of medical records or information, and the prohibition against ex parte communications at common law, an employer paying medical compensation to a provider rendering treatment under this Chapter may obtain records of the treatment without the express authorization of the employee.”

Session Laws 2011-287, s. 6, effective June 24, 2011, and applicable to claims pending on or after that date, rewrote the section.

Session Laws 2013-294, s. 4, effective July 18, 2013, designated the existing provisions as subsections (a) through (e); and added subsections (f) through (h).

Session Laws 2014-77, s. 4, effective July 22, 2014, rewrote subsection (f); and deleted former subsections (g) and (h).

Session Laws 2017-102, s. 15, effective July 12, 2017, in the introductory paragraph in subsection (f), substituted “electronic means” for “electronic mail” and “attorney, as follows” for “attorney[, as follows]” in the second sentence.

Legal Periodicals.

See 9 N.C.L. Rev. 405 (1931).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1032 (1981).

For Survey of Developments in North Carolina Law (1992), see 71 N.C.L. Rev. 1893 (1993).

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For 1997 legislative survey, see 20 Campbell L. Rev. 487.

For article, “Why Aren’t You Working?: Medlin with Proof of Disability Under the North Carolina Workers’ Compensation Act,” see 38 Campbell L. Rev. 211 (2016).

CASE NOTES

Analysis

I.In General

Application of 1973 Amendment. —

The 1973 amendment to this section, which eliminated the 10-week limitation for the recovery of medical expenses for an employee’s treatments which are necessary “to effect a cure or give relief,” will not be applied retroactively to a case in which the claimant arose out of an accident occurring prior to the effective date of the amendment. Peeler v. State Hwy. Comm'n, 302 N.C. 183, 273 S.E.2d 705, 1981 N.C. LEXIS 1039 (1981).

Effect of 1991 amendment. —

Although the North Carolina Industrial Commission had previously been required to find that a plaintiff’s chosen physician was reasonably required to effect a cure or give relief in order for the care to be compensable, the 1991 amendment to G.S. 97-25 deleted the language supporting such a requirement; a finding that medical care by a plaintiff’s chosen physician was reasonably required to effect a cure or give relief was not necessarily required in cases post-dating the 1991 amendment. Craven v. VF Corp., 167 N.C. App. 612, 606 S.E.2d 160, 2004 N.C. App. LEXIS 2376 (2004), writ denied, 359 N.C. 320, 611 S.E.2d 172, 2005 N.C. LEXIS 293 (2005).

The legislature intended (1) that medical compensation, including hospital services provided by the employer, ordered by the Industrial Commission, provided pursuant to emergencies, or chosen by the employee, subject to the approval of the Commission, be limited by the terms and conditions contained in this section; (2) that such medical compensation be reasonably required to effect a cure or give relief or tend to lessen the period of disability; and (3) that the employer not be charged more than his employee would have been had the employee paid for the services. Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716, 1994 N.C. LEXIS 240, dismissed, 336 N.C. 305, 443 S.E.2d 733, 1994 N.C. LEXIS 231 (1994).

The legislature intended that the Industrial Commission’s authority under this section be limited to review and approval of hospital charges to ensure, first, that the employer is charged only for those reasonably required services, and, second, that the employer is not charged more for such services than the prevailing charge for the same or similar hospital service in the same community. Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716, 1994 N.C. LEXIS 240, dismissed, 336 N.C. 305, 443 S.E.2d 733, 1994 N.C. LEXIS 231 (1994).

Implicit in the authority accorded the Commission to order additional compensation under this section and further medical treatment is the requirement that the supplemental compensation and future treatment be directly related to the original compensable injury. Peeler v. Piedmont Elastic, Inc., 132 N.C. App. 713, 514 S.E.2d 108, 1999 N.C. App. LEXIS 266 (1999).

Findings Required. —

Where the order of the Commission lacked any finding as to the reasonableness of the time frame within which plaintiff requested approval for his medical treatment, the case was remanded. Larramore v. Richardson Sports, Ltd., 141 N.C. App. 250, 540 S.E.2d 768, 2000 N.C. App. LEXIS 1305 (2000), aff'd, 353 N.C. 520, 546 S.E.2d 87, 2001 N.C. LEXIS 533 (2001).

Presumption. —

North Carolina Industrial Commission erred by failing to apply to plaintiff’s request for additional medical treatment and compensation for his complaints of anxiety and depression the presumption that additional medical treatment was directly related to the compensable injury once plaintiff met the initial burden of demonstrating that the injury suffered was causally related to the work-related accident; the Commission instead kept the burden on plaintiff to demonstrate causation despite defendant’s prior admission of compensability, and doing so was a misapplication of the law. Wilkes v. City of Greenville, 243 N.C. App. 491, 777 S.E.2d 282, 2015 N.C. App. LEXIS 826 (2015), aff'd in part, modified, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

Continually placing the burden on an employee to prove that his or her symptoms are causally related to his or her admittedly compensable injury before he or she can receive further medical treatment ignores the prior award; accordingly, an admission of compensability approved under the Workers’ Compensation Act entitles an employee to a presumption that additional medical treatment is causally related to his or her compensable injury. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

Court of appeals properly vacated the North Carolina Industrial Commission’s finding that an employee failed to establish that his anxiety and depression were a result of his work-related accident because the employee was entitled to a presumption that additional medical treatment was related to his compensable conditions; the Commission did not apply any presumption, and instead placed the initial burden on the employee to prove causation for any medical compensation he sought. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

Parents’ Travel Expenses. —

Workers’ compensation claimant was entitled to reimbursement for the travel expenses of the claimant’s parents as the claimant’s mother held the claimant down or washed the claimant’s wounds, changed the claimant’s dressings, and helped the claimant stretch and work the claimant’s muscles in the hospital and after the claimant was released, and the psychological benefits to the claimant from having the claimant’s parents’ support while the claimant was in the hospital with devastating burns constituted relief under G.S. 97-25. Price v. Piggy Palace, 205 N.C. App. 381, 696 S.E.2d 716, 2010 N.C. App. LEXIS 1304 (2010).

No “Change of Condition” Requirement. —

Nothing in the language of this section implies that the “change of condition” requirement of G.S. 97-47 applies to any request by an employee for the payment of his medical expenses by his employer. Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698, 1993 N.C. LEXIS 219 (1993).

The complete absence of an express or implied reference in this section to any “change of condition” requirement, in addition to this section’s clear language permitting the Industrial Commission to review medical treatment an employee is receiving and order further treatment at any time if an employee requests such a review, indicated that the legislature did not intend for an injured employee to make any showing of a change in condition before his employer would be required to pay for further medical services or treatment needed as a result of his compensable injury. Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698, 1993 N.C. LEXIS 219 (1993).

The provisions of this section are in pari materia and must be construed together as a whole. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

Section 97-10.2 Construed In Pari Materia. —

Section 97-10.2 and this section relate to the same subject matter and must be construed in pari materia. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917, 1990 N.C. App. LEXIS 1223 (1990).

Construction with § 97-47. —

Because “compensation” does not include the payment of medical expenses, the provisions of § 97-47 do not affect the Commission’s grant or denial of an employee’s request for payments of those expenses. The Commission’s authority for requiring an employer to pay the medical expenses of an injured employee is established by the terms of this section. Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698, 1993 N.C. LEXIS 219 (1993).

Where employee’s refusal to cooperate with employer’s physician resulted in litigation, the plaintiff’s claim for further compensation, filed 2 years after her last compensation check, was not time-barred because her claim was not a change-of-condition case under G.S. 97-47, but a case still pending under this section, and defendants’ filing of a Form 28B had no effect on employee’s right to further compensation. Scurlock v. Durham County Gen. Hosp., 136 N.C. App. 144, 523 S.E.2d 439, 1999 N.C. App. LEXIS 1299 (1999).

Construction with G.S. 97-2(19). —

Inherent in a North Carolina Industrial Commission’s award granted pursuant to G.S. 97-25 (1999) is that the compensation will incorporate the parameters of G.S. 97-2(19). Johnson v. S. Tire Sales & Serv., 152 N.C. App. 323, 567 S.E.2d 773, 2002 N.C. App. LEXIS 920 (2002), rev'd, 358 N.C. 701, 599 S.E.2d 508, 2004 N.C. LEXIS 915 (2004).

Jurisdiction of Industrial Commission. —

An employee brought action against the insurance carrier and its agent, alleging that after his injury the agent, on behalf of the insurer, induced him to dispense with the services of his physician and to consult physicians selected by insurer, and that the insurer promised to provide hospitalization and surgical service recommended by insurer’s physicians, but failed to do so to plaintiff ’s permanent injury. It was held that the insurer’s obligation to furnish medical attention necessary to plaintiff ’s complete recovery was founded on this section, and that the Industrial Commission had exclusive jurisdiction of plaintiff ’s claim. Hedgepeth v. Lumbermen's Mut. Cas. Co., 209 N.C. 45, 182 S.E. 704, 1935 N.C. LEXIS 19 (1935).

Appeal of Award Does Not Suspend Jurisdiction of Commission. —

An appeal of an award of the Industrial Commission does not suspend that agency’s authority to accept notification of an employee’s decision to select his own doctor; neither does an appeal deprive the Commission of its jurisdiction to accept the submission of a claim. It may well be that the determination of the particular claim will be delayed until the outcome of the appeal. Nevertheless, the Commission has jurisdiction to receive the claim and is, in fact, the only agency vested with that jurisdiction. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

Employer’s Motion to Designate Treating Physician. —

The fact that this section expressly grants employees the power to request a change in their treating physician, but does not make a similar grant to employers, does not mean that employers cannot make motions to designate a treating physician. Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11, 510 S.E.2d 388, 1999 N.C. App. LEXIS 2 (1999).

Medical, etc., expenses are not included in the maximum amount recoverable for one injury. See Morris v. Laughlin Chevrolet Co., 217 N.C. 428, 8 S.E.2d 484, 1940 N.C. LEXIS 254 (1940).

Payment of Medical Expenses Does Not Constitute Admission or Waiver by Employer. —

The Workers’ Compensation Act, by this section, requires or permits an employer to pay bills for medical and other treatment of an employee, and the payment of such bills, approved by the Commission, even without formal denial of liability, cannot have the effect of an admission of liability by the employer or constitute a waiver of the requirement of filing a timely claim by the employee as provided in G.S. 97-24. Such facts are insufficient to invoke the doctrine of estoppel. Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777, 1953 N.C. LEXIS 704 (1953).

Payment of Full Wages Does Not Determine Liability for Treatment. —

The act of an employer in paying an injured employee’s wages in full from the date of the injury should not be determinative of the employee’s disability and thereby relieve the employer or insurance carrier from liability for hospital and medical care designed to improve his capacity to earn wages. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755, 1967 N.C. LEXIS 1159 (1967).

The rule that denies compensation to an injured employee who has lost no wages is necessarily applied in some cases growing out of G.S. 97-30 in order to determine the amount of compensation due, but it is not applicable to medical, surgical, hospital, and nursing services under this section, as medical and hospital expenses are not a part of, and are not included in, determining recoverable compensation. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755, 1967 N.C. LEXIS 1159 (1967).

Employer’s Failure to Rebut Evidence of Causal Connection. —

Employee was entitled to additional medical compensation under G.S. 97-25 where the employer offered no evidence to rebut the employee’s evidence showing that the herniated disc was directly related to the compensable injury she suffered when she slipped and fell while working as a flight attendant for the employer. Perez v. Am. Airlines/AMR Corp., 174 N.C. App. 128, 620 S.E.2d 288, 2005 N.C. App. LEXIS 2304 (2005).

Relaxation of Rule as to Fees for Practical Nursing. —

Industrial Commission was not entitled to relax its rule that fees for practical nursing would not be allowed unless written authority was obtained from Commission in advance, so as to award mother of injured employee an amount for practical nursing services rendered to injured employee, where record showed that Commission never gave its written or oral permission for rendition of services. Hatchett v. Hitchcock Corp., 240 N.C. 591, 83 S.E.2d 539, 1954 N.C. LEXIS 486 (1954).

Cost of Treatment of Veteran. —

The Administrator of Veterans Affairs (now Department of Military and Veterans Affairs) may recover from the employer and its insurance carrier the cost of treatment in a veterans hospital for compensable injuries received by an indigent ex-serviceman in the course of his employment. Marshall v. Robert's Poultry Ranch & Egg Sales, 268 N.C. 223, 150 S.E.2d 423, 1966 N.C. LEXIS 1168 (1966).

Appeal from Approval of Medical Bills. —

When the Commission approves claimant’s medical, etc., bills, defendant then has a right on appeal to challenge the action of the Commission in respect to the bills approved by it, in whole or in part, if it deems it advisable to do so. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570, 1962 N.C. LEXIS 687 (1962).

Controlling Effect of § 97-59 in Cases Involving Occupational Disease. —

Section 97-59, which is a more recent and specific statute dealing with awards of medical benefits in cases involving occupational disease, controls over this section in such cases. Smith v. American & Efird Mills, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

Where insurance company agreed to pay all necessary medical expenses incurred by plaintiff through May 31, 1983, while plaintiff waived any and all rights to reopen a claim for further compensation, and insurer was notified on May 16, 1983, that plaintiff urgently needed medical attention relating to his industrial injury, but took no action and did not authorize the urgently needed hospitalization, defendant breached its duty of good faith and fair dealing by acting to delay the treatment until after May 31, 1983, and the case would be remanded to determine how soon after notification the insurance company could have reasonably granted the authorization and to determine what portion of the costs would have then occurred prior to May 31, 1983, for which defendant was liable. Gallimore v. Daniels Constr. Co., 78 N.C. App. 747, 338 S.E.2d 317, 1986 N.C. App. LEXIS 1992 (1986).

Refusal of Insurers to Provide Chiropractic Treatment as Workers’ Compensation Coverage. —

Plaintiff chiropractors alleging that defendant insurance companies had interfered with their contractual rights by refusing to honor employers’ choices of chiropractors as providers of health care treatment to employees under the Workers’ Compensation Act, that defendants had misrepresented to employer insureds that their workers’ compensation policies did not provide coverage for chiropractic treatment, that said misrepresentations were unfair and deceptive trade practices in violation of G.S. 75-1.1, and that defendants had conspired among themselves and with members of the medical profession to deprive plaintiffs of business opportunities by refusing to pay for chiropractic services provided in compliance with the act, an illegal restraint of trade in violation of G.S. 75-1 and 15 U.S.C. § 1, could not maintain their action in superior court without first seeking relief from the Industrial Commission. North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312, 1988 N.C. App. LEXIS 230 (1988) (remanding case to the trial court for entry of an order staying plaintiffs’ action pending a determination of the underlying workers’ compensation issues by the Commission) .

Chronic Fatigue Syndrome. —

Evidence that an employee of a waste company whose job was to collect and dispose of raw sewage developed chronic fatigue syndrome and other ailments after being accidentally sprayed with raw sewage and that the employee’s illnesses were most probably the result of the accident supported a ruling of the North Carolina Industrial Commission awarding the employee permanent workers’ compensation disability benefits. Norton v. Waste Mgmt., 146 N.C. App. 409, 552 S.E.2d 702, 2001 N.C. App. LEXIS 938 (2001).

Reimbursement Under § 97-10.2 (f)(1)(c). —

The party claiming a right to reimbursement under G.S. 97-10.2 (f)(1)(c), i.e., the employer or its insurance carrier, must show, pursuant to this section, (1) that the treatment provided was in the form of medical treatment, surgical treatment, hospital treatment, nursing services, medicines, sick travel, rehabilitation services, or other treatment including medical and surgical supplies, and (2) that the treatment provided was reasonably required for at least one of three purposes, namely, to effect a cure, give relief, or lessen the period of the plaintiff ’s disability. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917, 1990 N.C. App. LEXIS 1223 (1990).

Accounting Fees. —

North Carolina Industrial Commission did not err in denying reimbursement of an employee’s accounting fees because there was no evidence presented that the accounting fees were part of any life care plan nor was there testimony or evidence from a medical or rehabilitative specialist stating that the expense was medically necessary because of the employee’s specific injuries. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180, 2015 N.C. App. LEXIS 50 (2015).

Attorney’s Fees. —

Even though the Industrial Commission found the functional capacity evaluation (FCE) was not medical compensation, the Commission properly concluded that defendants’; motion to compel a FCE was not unreasonable as defendants reasonably acted within their statutory rights after treatments and claims of lack of pain to determine the status of the claimant’s compensable shoulder injury; thus, the Commission properly concluded an award of attorney’s fees in favor of the claimant was not allowed. Richardson v. Goodyear Tire & Rubber Co., 277 N.C. App. 614, 861 S.E.2d 356, 2021- NCCOA-234, 2021 N.C. App. LEXIS 244 (2021).

Reimbursement for Rehabilitation Services. —

Insurance carrier did not need the Commission’s approval for the charges connected with rehabilitation services in order to obtain reimbursement for those expenses because G.S. 97-90(a) does not require approval of the Commission for rehabilitation services. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917, 1990 N.C. App. LEXIS 1223 (1990).

Since G.S. 97-25 required the State industrial commission to find as fact that services were rehabilitative in nature and were reasonably required to effect a cure or give relief in order to find that a workers’ compensation carrier was entitled to a lien against payments made for rehabilitative services, those services were not a benefit as a matter of law to an injured motorist who received worker’s compensation benefits from an auto accident that occurred during the course of employment; since a specific determination was required as to whether the services conferred a benefit to the motorist, and since an underinsured motorist carrier did not provide any proof of such a benefit, a credit to the carrier for payments made through workers’ compensation to a rehabilitative center were properly excluded from the calculation of how much credit the carrier was entitled to against the underinsured motorist benefits that the motorist was entitled to. Walker v. Penn Nat'l Sec. Ins. Co., 168 N.C. App. 555, 608 S.E.2d 107, 2005 N.C. App. LEXIS 349 (2005).

Employee Not Required to Undergo Rehabilitation When Not Beneficial. —

Competent evidence in the form of testimony by doctors and psychologists supported the Commission’s decision that an employee who suffered psychological disorders as a result of encephalitis from surgery to correct a back injury from work did not have to undergo rehabilitation, because he would not be able to become employable again in spite of the rehabilitation. Shoemaker v. Creative Builders, 150 N.C. App. 523, 563 S.E.2d 622, 2002 N.C. App. LEXIS 588 (2002).

Return to College for Vocational Rehabilitation. —

The Commission did not err in approving of employee’s return to college as a proper form of vocational rehabilitation under G.S. 97-25 where the evidence showed that further schooling was the employee’s only hope of securing wages comparable to the employee’s pre-injury flight attendant wages. Foster v. U.S. Airways, Inc., 149 N.C. App. 913, 563 S.E.2d 235, 2002 N.C. App. LEXIS 406 (2002).

Education Expenses. —

North Carolina Industrial Commission did not abuse its discretion in denying reimbursement of an employee’s educational expenses because there were no findings or evidence in the record showing that any medical or rehabilitative professional recommended the employee’s educational pursuits as part of a rehabilitation plan or that those educational pursuits were reasonably necessary to effect a cure, give relief, or will lessen a claimant’s period of disability. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180, 2015 N.C. App. LEXIS 50 (2015).

Burden of Proof. —

The Industrial Commission committed legal error by placing the burden on plaintiff/employee to prove causation of her headaches where she met this burden in prior proceeding. Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867, 1997 N.C. App. LEXIS 527 (1997).

The Commission erroneously placed on the plaintiff the burden of proving the medical treatment he sought was causally related to a past compensable injury, and the case was remanded for a new determination of causation. Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 523 S.E.2d 720, 1999 N.C. App. LEXIS 1374 (1999).

The Commission’s failure to make sufficient findings to support its denial of a seamstress’s claim, based her refusal to see an authorized physician under this section or because she was not due any compensation for the first seven days of her injury under G.S. 97-28, resulted in remand. Kanipe v. Lane Upholstery, 141 N.C. App. 620, 540 S.E.2d 785, 2000 N.C. App. LEXIS 1302 (2000).

Exclusion of Evidence. —

Exclusion of written response from a treating physician, which was in response to a facsimile sent by defense counsel that detailed three questions regarding causation of an employee’s alleged work-related injury and subsequent disability, was proper since the communication was ex parte and consisted of interrogatories to a non-party, which were not authorized by any caselaw precedent nor any rule of evidence. Mayfield v. Parker Hannifin, 174 N.C. App. 386, 621 S.E.2d 243, 2005 N.C. App. LEXIS 2472 (2005).

The Industrial Commission was required to state reasons for its denial of authorization of the medical treatment related to plaintiff’s stomach reduction procedure, sought pursuant to this section. Clark v. Sanger Clinic, P.A., 142 N.C. App. 350, 542 S.E.2d 668, 2001 N.C. App. LEXIS 97 (2001).

Further Injury While En Route to Doctor’s Appointment. —

Where employee sustained an injury to his back as a direct result of a specific traumatic incident arising out of and in the course of employment, a subsequent car accident while en route to a doctor’s appointment was not an intervening cause that precluded compensation for aggravation of the employee’s work-related injury since the accident was not the fault of the employee. Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 614 S.E.2d 440, 2005 N.C. App. LEXIS 1254 (2005).

North Carolina Industrial Commission found that no medical evidence existed that showed that the employee either required any additional medical treatment after the date of maximum medical improvement (MMI) or that the employee suffered any permanent injury; since the evidence indicated that the employee had reached MMI, there could be no medical treatment that would lessen the period of the employee’s disability, effect a cure or otherwise give the employee relief. Therefore, the Commission correctly concluded that the employee did not need and was not entitled to any additional medical treatment under G.S. 97-25 and there was nothing in the Commission’s conclusion that would foreclose the employee from requesting additional treatment pursuant to G.S. 97-25.1. Fonville v. GMC, 200 N.C. App. 267, 683 S.E.2d 445, 2009 N.C. App. LEXIS 1609 (2009).

Evidence Insufficient to Support Award of Medical Benefits. —

Because there was no evidence a claimant had leg injuries or pain due to a work-related accident, and given a doctor’s statement that any such pain was not causally related to the accident, the North Carolina Industrial Commission’s finding that the claimant sustained injuries to her legs due to the accident, and thus was entitled to temporary total disability benefits, including past and future medical expenses, was without evidentiary support. Williams v. Law Cos. Group, Inc., 188 N.C. App. 235, 654 S.E.2d 725, 2008 N.C. App. LEXIS 75, rev'd, 362 N.C. 506, 666 S.E.2d 750, 2008 N.C. LEXIS 802 (2008).

Evidence Sufficient to Support Award of Medical Benefits. —

North Carolina Industrial Commission properly concluded that, pursuant to G.S. 97-25, a claimant was entitled to additional medical treatment reasonably related to his compensable hand injury as the evidence showed that the claimant’s hand was x-rayed immediately after the accident and revealed fractures and that the claimant’s hand had not been “fixed” because the insurer would not pay for an orthopedic surgeon to evaluate the claimant’s hand. Heatherly v. Hollingsworth Co., 211 N.C. App. 282, 712 S.E.2d 345, 2011 N.C. App. LEXIS 704 (2011).

II.What Treatment Must Be Provided

The legislature’s obvious intent in amending this section in 1973 by deleting the 10 week limitation with respect to medical treatments required to effect or cure or give relief was to compel employers to provide medical treatments reasonably required to “effect a cure or give relief ” more than 10 weeks after the date of injury. Little v. Penn Ventilator Co., 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

Exclusive Jurisdiction of Commission. —

What treatment is appropriate for a particular employee is a matter within the exclusive jurisdiction of the Industrial Commission. North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312, 1988 N.C. App. LEXIS 230 (1988).

Under this section, the Industrial Commission may order treatment or rehabilitative procedures that the Commission determines in its discretion to be reasonably necessary to effect a cure or give relief for an injured employee. Neal v. Carolina Mgt., 130 N.C. App. 220, 502 S.E.2d 424 (1998).

Findings of Fact by the Industrial Commission are Conclusive on Appeal if Supported by Any Competent Evidence. —

Thus, on appeal, a reviewing court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding. Timmons v. North Carolina DOT, 351 N.C. 177, 522 S.E.2d 62, 1999 N.C. LEXIS 1251 (1999).

Preparation of a life care plan is not necessary in all workers’ compensation cases, but the subject record contained some competent evidence to support the Industrial Commission’s finding requiring the employer to pay plaintiff’s doctor for the cost of preparing his life care plan. Timmons v. North Carolina DOT, 351 N.C. 177, 522 S.E.2d 62, 1999 N.C. LEXIS 1251 (1999).

Future Medical Expenses Not Limited to Those Lessening Period of Disability. —

This section does not limit an employer’s obligation to pay future medical expenses to those cases in which such expenses will lessen the period of disability. The statute also requires employers to pay the expenses of future medical treatments even if they will not lessen the period of disability, as long as they are reasonably required to (1) effect a cure, or (2) give relief. Little v. Penn Ventilator Co., 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

Subsequent Treatment of Compensable Injury. —

To require plaintiff to re-prove causation each time she seeks treatment for the very injury that the Industrial Commission has previously determined to be the result of a compensable accident is unjust and violates the duty to interpret the Worker’s Compensation Act in the favor of injured employees. Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867, 1997 N.C. App. LEXIS 527 (1997).

The Industrial Commission committed legal error by placing the burden on plaintiff to prove causation for further medical treatment after she already proved causation at the initial hearing. Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867, 1997 N.C. App. LEXIS 527 (1997).

“Relief ”. —

“Relief ” embraces not only an affirmative improvement towards an injured employee’s health, but also the prevention or mitigation of further decline in that health due to the compensable injury. Little v. Penn Ventilator Co., 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

Relief from pain is a legitimate aspect of the “relief” anticipated by future medical treatment under this section. Simon v. Triangle Materials, Inc., 106 N.C. App. 39, 415 S.E.2d 105, 1992 N.C. App. LEXIS 347 (1992).

Relief from pain constituted “relief” as that term was used in this section prior to 1991 amendment. Radica v. Carolina Mills, 113 N.C. App. 440, 439 S.E.2d 185, 1994 N.C. App. LEXIS 103 (1994).

The phrase “lessen the period of disability,” as used in this section means “lessen the period of time of diminution in earnings.” Peeler v. State Hwy. Comm'n, 48 N.C. App. 1, 269 S.E.2d 153, 1980 N.C. App. LEXIS 3199 (1980), aff'd, 302 N.C. 183, 273 S.E.2d 705, 1981 N.C. LEXIS 1039 (1981).

Treatment to Prevent Further Decline. —

As a result of the 1973 amendment to this section, employers must provide treatments reasonably required more than 10 weeks after an injury to prevent an employee’s health from further declining. Little v. Penn Ventilator Co., 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

Pre-existing Condition. —

Where a North Carolina Industrial Commission finding that plaintiff’s worsening lumbar spine condition was directly related to his original back condition and not caused by a work related accident was supported by competent evidence, the Commission did not err in denying plaintiff’s claim for additional compensation and medical treatment. Pittman v. Thomas & Howard, 122 N.C. App. 124, 468 S.E.2d 283, 1996 N.C. App. LEXIS 220 (1996).

Additional Medical Treatment to Lessen Period of Disability. —

The provision of this section that the employer should be liable for additional medical treatment to effect a cure or give relief is limited by the provision of this section to cases in which such additional medical treatment would tend to lessen the period of the employee’s disability, and the discretionary power to award such additional medical treatment is also subject to this limitation; nor may liability for medical attention be extended upon the ground that public policy demands that the care of a permanently disabled employee should not be cast upon the State, the extent of liability under the act being definitely prescribed by its provisions. Millwood v. Firestone Cotton Mills, 215 N.C. 519, 2 S.E.2d 560, 1939 N.C. LEXIS 301 (1939) (decided under prior laws) .

The provision of this section that the employer should be liable for medical and nursing services for such time as such services will tend to lessen the period of disability does not preclude such payments when the disability is permanent, provided such services will tend to lessen the degree of disability. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755, 1967 N.C. LEXIS 1159 (1967) (decided under prior laws) .

Future expenses incurred to monitor an employee’s medical condition are reasonably required to give relief if there is a substantial risk that the employee’s condition may take a turn for the worse. Little v. Penn Ventilator Co., 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

Future Medical Expenses for Procedure to Relieve Pain. —

Defendants were required to pay for plaintiff’s back surgery and related medical expenses as long as the surgery would give plaintiff relief, regardless of whether such surgery would lessen the period of disability or effect a cure for his injury, where, plaintiff contended the surgery would relieve a substantial portion of the pain he was suffering. Simon v. Triangle Materials, Inc., 106 N.C. App. 39, 415 S.E.2d 105, 1992 N.C. App. LEXIS 347 (1992).

Permanently Disabled Employee Entitled to Medical Expenses for Life. —

In a workers’ compensation case, there was no merit to defendant’s argument that medical expenses should be compensated only to the extent they would tend to lessen the period of disability, since, if a plaintiff is found to be totally and permanently disabled, he will be entitled to medical expenses for life, dating from the time he became totally disabled, subject only to the requirements of G.S. 97-29 that the expenses be “reasonable and necessary.” Smith v. American & Efird Mills, 51 N.C. App. 480, 277 S.E.2d 83, 1981 N.C. App. LEXIS 2277 (1981), modified, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

Life Care Plan Costs. —

The Industrial Commission did not have authority to order the employer to pay for every item and service mentioned in a life care plan prepared by an expert, where the plan was prepared by an expert appointed by the Commission for an employee who had been rendered a paraplegic in a compensable workplace injury, but the plan included costs for items that the law would not require the defendant to pay, and the expert testified that she prepared the plan without regard to what medical benefits the defendant would be required by law to provide the plaintiff. Timmons v. North Carolina DOT, 130 N.C. App. 745, 504 S.E.2d 567, 1998 N.C. App. LEXIS 1162 (1998), reaff'd, 132 N.C. App. 377, 511 S.E.2d 659, 1999 N.C. App. LEXIS 122 (1999).

North Carolina Industrial Commission’s conclusion that a workers’ compensation claimant’s life care plan was a “reasonable rehabilitative service” under G.S. 97-2(19) and G.S. 97-25 was supported by a doctor’s opinion that the life care plan was medically necessary for the claimant. Scarboro v. Emery Worldwide Freight Corp., 192 N.C. App. 488, 665 S.E.2d 781, 2008 N.C. App. LEXIS 1616 (2008).

Competent medical evidence supported a determination that an employee, who suffered from a back injury, did not need life care planning as a necessary medical treatment because the record showed that the Commission gave proper consideration to a doctor’s testimony regarding life care planning to support its findings of fact on this issue. Boylan v. Verizon Wireless, 201 N.C. App. 81, 685 S.E.2d 155, 2009 N.C. App. LEXIS 1854 (2009).

North Carolina Industrial Commission’s opinion and award of the life care plan was reversed because the Commission only determined that the physician believed his own recommendations were reasonable, and the recommendations did not support the Commission’s conclusion that the life care plan was a reasonably necessary rehabilitative service. Espinosa v. Tradesource, Inc., 231 N.C. App. 174, 752 S.E.2d 153, 2013 N.C. App. LEXIS 1232 (2013).

Attendant Services. —

There was sufficient competent evidence to support the factual findings of the North Carolina Industrial Commission with respect to an award of attendant care to plaintiff, including that plaintiff would “benefit medically” from the care for eight hours per day pursuant to G.S. 97-2(19), 97-25, and 97-25.1. Boylan v. Verizon Wireless, 224 N.C. App. 436, 736 S.E.2d 773, 2012 N.C. App. LEXIS 1467 (2012).

There was sufficient competent evidence to support the factual findings of the North Carolina Industrial Commission with respect to the compensation rate awarded for plaintiff’s attendant care pursuant to G.S. 97-2(19), 97-25, and 97-25.1, although such care was provided by plaintiff’s daughter, who was unskilled; the compensation rate was deemed reasonable, even though the evidence only addressed compensation rates for professional caregivers. Boylan v. Verizon Wireless, 224 N.C. App. 436, 736 S.E.2d 773, 2012 N.C. App. LEXIS 1467 (2012).

Injured employee’s wife could be compensated for the attendant care she provided the employee even before the North Carolina Industrial Commission approved her rendering that service, contrary to the Commission’s Medical Fee Schedule, because such care was medical compensation within the meaning of G.S. 97-2(19), for which the employer was responsible under G.S. 97-25, and the approval requirement exceeded the Commission’s power. Mehaffey v. Burger King, 367 N.C. 120, 749 S.E.2d 252, 2013 N.C. LEXIS 1161 (2013).

Incurable Injury. —

Plaintiff suffered a head injury and developed dementia praecox, which physicians pronounced incurable. She required constant medical attention. The order requiring defendant to continue treatment was reversed. While the plaintiff might be made more comfortable by further treatment, the evidence showed that the period of disability would not be lessened. Millwood v. Firestone Cotton Mills, 215 N.C. 519, 2 S.E.2d 560 (1939), superseded by Dereby v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986) But see § 97-29 .

Aggravation of Work-Related Injury. —

Employee was awarded workers’ compensation benefits for all of his medical treatment and his ongoing disability because the employee’s original injury at work and resultant surgery led to scar tissue and made him more prone to degenerative changes, which in turn necessitated a second surgery after he fell at his home following his return to work. Davis v. Harrah's Cherokee Casino, 362 N.C. 133, 655 S.E.2d 392, 2008 N.C. LEXIS 30 (2008).

Handicapped Accessible Housing. —

An employer’s duty to provide other treatment or care is sufficiently broad to include the duty to provide handicapped accessible housing. Timmons v. North Carolina DOT, 123 N.C. App. 456, 473 S.E.2d 356, 1996 N.C. App. LEXIS 727 (1996), aff'd, 346 N.C. 173, 484 S.E.2d 551, 1997 N.C. LEXIS 204 (1997).

Employer and its insurance carrier was obligated to pay one-half of the ongoing rental expenses for an additional bedroom in an injured employee’s rented apartment when the bedroom was used to store the equipment, supplies, and mobility-related devices needed to accommodate the employee’s paraplegia. Burnham v. McGee Bros. Co., 221 N.C. App. 341, 727 S.E.2d 724, 2012 N.C. App. LEXIS 758 (2012), cert. denied, 366 N.C. 437, 737 S.E.2d 106, 2013 N.C. LEXIS 161 (2013).

North Carolina Industrial Commission did not err by distributing the cost of adaptive housing on a pro rata basis because the claimant did not own his own home, he was required to find new rental accommodations that would meet his needs, and therefore it was appropriate for the Commission to require the employer to pay the difference between the two. Espinosa v. Tradesource, Inc., 231 N.C. App. 174, 752 S.E.2d 153, 2013 N.C. App. LEXIS 1232 (2013).

Employer could be ordered, under G.S. 97-29, to pay to rent handicapped accessible housing for a quadriplegic employee because: (1) the employee had no home that could be renovated; (2) the employer had paid to house the employee in a skilled nursing or long-term care facility; and (3) such facilities were not in the employee’s medical best interest. Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 758 S.E.2d 169, 2014 N.C. App. LEXIS 418 (2014).

Failure To Receive Pre-Approval For Attendant Care Services. —

Employer was not required to reimburse an employee for the attendant care services provided by his wife because the employee did not receive pre-approval for the attendant care services provided by his wife; the employee brought his claim for retroactive payment for those services under G.S. 97-25 and G.S. 97-26. Mehaffey v. Burger King, 217 N.C. App. 318, 718 S.E.2d 720, 2011 N.C. App. LEXIS 2423 (2011), rev'd in part, 367 N.C. 120, 749 S.E.2d 252, 2013 N.C. LEXIS 1161 (2013).

North Carolina Industrial Commission did not err by awarding the claimant retroactive attendant care because its determination that the claimant timely sought reimbursement for the attendant care services provided by his father and sister was not disputed by the parties. Espinosa v. Tradesource, Inc., 231 N.C. App. 174, 752 S.E.2d 153, 2013 N.C. App. LEXIS 1232 (2013).

Workers’ compensation claimant was not entitled to reimbursement of the cost of heating her home pool under G.S. 97-25 because such compensation was not considered “medical compensation” under G.S. 97-2(19) because the claimant did not show that she was entitled to pool maintenance reimbursement rather than reimbursement for treatment at a center that provided pool therapy; further, although pool therapy was a compensable medical treatment, the record did not support a minimum of five days per week of pool therapy as there was no finding that a doctor had prescribed a minimum of five sessions a week. Winders v. Edgecombe County Home Health Care, 187 N.C. App. 668, 653 S.E.2d 575, 2007 N.C. App. LEXIS 2559 (2007).

Compensation for Lawn Services Prohibited. —

North Carolina Industrial Commission’s factual findings supported its conclusion that although a workers’ compensation claimant should refrain from mowing the claimant’s lawn due to the claimant’s medical condition, the lawn care services were an ordinary life expense that were not included in medical compensation under G.S. 97-2(19) and G.S. 97-25; providing the claimant with the resources to comply with a restrictive covenant as to yard upkeep on the claimant’s property was not “other treatment.” Scarboro v. Emery Worldwide Freight Corp., 192 N.C. App. 488, 665 S.E.2d 781, 2008 N.C. App. LEXIS 1616 (2008).

Reasonableness is determined by whether the surgery is of serious magnitude and risk, and whether the surgery involves much pain and suffering and is of uncertain benefit. Watkins v. City of Asheville, 99 N.C. App. 302, 392 S.E.2d 754, 1990 N.C. App. LEXIS 493 (1990).

Award of Expenses for Medical Treatment Held Appropriate. —

North Carolina Industrial Commission’s finding that a claimant’s compensable post-traumatic stress disorder aggravated his diabetes, thereby obliging the employer to pay for his diabetes treatment, was supported by the evidence; the Commission was entitled to find the testimony of the claimant’s treating physicians more credible than that of the employer’s experts. Lewis v. N.C. Dep't of Corr., 167 N.C. App. 560, 606 S.E.2d 199, 2004 N.C. App. LEXIS 2385 (2004).

Award of Future Medical Expenses Appropriate. —

The Industrial Commission’s award of future medical expenses was appropriate, where four physicians testified that worker suffered from ongoing psychological disorders caused by her electrical shock injury, that these disorders in turn decreased her ability to use her right hand, and that plaintiff suffered a mild cognitive impairment. Cooke v. P.H. Glatfelter/Ecusta, 130 N.C. App. 220, 502 S.E.2d 419, 1998 N.C. App. LEXIS 915 (1998).

III.Refusal to Accept Treatment

Refusal Defined. —

“Refusal”, as used in this section, connotes a willful or intentional act. Johnson v. Jones Group, Inc., 123 N.C. App. 219, 472 S.E.2d 587, 1996 N.C. App. LEXIS 679 (1996).

Findings Regarding Willingness to Cooperate. —

Where full Commission focused only on defendants’ non-compliance and made no finding as to plaintiff’s own compliance, or lack thereof, the case had to be remanded for a determination of whether plaintiff affirmatively established her present willingness to cooperate with her employer’s offers of medical treatment and rehabilitative services with her authorized physician. Scurlock v. Durham County Gen. Hosp., 136 N.C. App. 144, 523 S.E.2d 439, 1999 N.C. App. LEXIS 1299 (1999).

Where the North Carolina Industrial Commission based its decision on a claimant’s failure to fully comply with vocational rehabilitation under G.S. 97-25, it failed to apply the correct legal standard in its determination, and remand for further findings of fact under the correct legal standard was necessary. Because the claimant was participating to some degree in vocational rehabilitation services, the Commission should have determined whether she was substantially complying and not significantly interfering with the vocational rehabilitation specialist’s efforts. Powe v. Centerpoint Human Servs., 215 N.C. App. 395, 715 S.E.2d 296, 2011 N.C. App. LEXIS 1908 (2011).

Cessation of vocational rehabilitation was erroneous, because plaintiff, while difficult to work with and motivate, would have benefitted from continued counseling and computer training. Powe v. Centerpoint Human Servs., 226 N.C. App. 256, 742 S.E.2d 218, 2013 N.C. App. LEXIS 347 (2013).

For case upholding Commission’s decision that the back surgery recommended by plaintiff’s physician had a high probability of significantly reducing the period of plaintiff ’s disability and would be sought by a similarly situated reasonable man, and that required plaintiff to undergo that surgery or lose his right to compensation, see Watkins v. City of Asheville, 99 N.C. App. 302, 392 S.E.2d 754, 1990 N.C. App. LEXIS 493 (1990).

The failure of the employer to seek relief from the Commission precludes the employer from raising the refusal to submit to an operation in opposition to the employee’s claim for compensation. Crawley v. Southern Devices, Inc., 31 N.C. App. 284, 229 S.E.2d 325, 1976 N.C. App. LEXIS 1969 (1976), cert. denied, 292 N.C. 467, 234 S.E.2d 2, 1977 N.C. LEXIS 1115 (1977).

Brain Damaged Worker Incapable of Refusal. —

Where the injury to the worker included brain damage to the extent that he became incapable of cooperating with rehabilitation efforts, the policy of liberality of the Workers’ Compensation Act in favor of that injured worker precluded denial of benefits based upon his failure to accept, as opposed to willful refusal of, treatment. Johnson v. Jones Group, Inc., 123 N.C. App. 219, 472 S.E.2d 587, 1996 N.C. App. LEXIS 679 (1996).

Reasonableness of a refusal to accept treatment by an employee is measured by whether a reasonable person who is motivated to improve his health would accept the proffered treatment. Johnson v. Jones Group, Inc., 123 N.C. App. 219, 472 S.E.2d 587, 1996 N.C. App. LEXIS 679 (1996).

Argument of defendants, an employer and its workers’ compensation carrier, that an injured employee’s refusal to cooperate with vocational rehabilitation precluded an award of disability benefits under N.C. Gen. Stat. § 97-25, was rejected on appeal based on the Industrial Commission’s finding that the claimant visited a sheltered workshop and that his decision to leave based on the overwhelming noise and number of developmentally disabled individuals at the shelter was reasonable. Hunter v. Apac/Barrus Constr. Co., 188 N.C. App. 723, 656 S.E.2d 652, 2008 N.C. App. LEXIS 274 (2008).

Reasonable Person Standard. —

In cases where the ability of a claimant to make rational decisions regarding his welfare is at issue, the commission must make findings regarding the claimant’s ability to act as a “reasonable person” in weighing medical options and making treatment decisions before denying benefits based on his refusal of treatment. Johnson v. Jones Group, Inc., 123 N.C. App. 219, 472 S.E.2d 587, 1996 N.C. App. LEXIS 679 (1996).

Attorney Involvement Does Not Constitute Refusal to Cooperate. —

A letter from the claimant’s attorney to her rehabilitation specialist requesting that the specialist contact the attorney directly did not constitute refusal to cooperate with rehabilitation procedure, where there was no evidence that the claimant had refused any rehabilitative procedure ordered by the Industrial Commission. Deskins v. Ithaca Indus., Inc., 131 N.C. App. 826, 509 S.E.2d 232, 1998 N.C. App. LEXIS 1549 (1998).

Proof of Compliance with Treatment. —

An unverified application and written motion, otherwise unsupported by the record, are not competent evidence on which the Industrial Commission may base a finding that the claimant kept an appointment with the designated physician, which would then support an order reinstating claimant’s right to compensation. Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11, 510 S.E.2d 388, 1999 N.C. App. LEXIS 2 (1999).

Employee Not in Compliance With Treatment Recommendations. —

North Carolina Industrial Commission erred in finding that an employee was in compliance with the treatment recommendations of the doctor the Commission had authorized to provide the employee treatment because the employee did not return to the doctor to re-establish a treatment relationship, but his purpose was to obtain a referral to the physicians of his choice, none of whom was authorized to treat him; the employee’s effort in seeking a referral was not a good faith effort to comply with the Commissioner’s previous order, and the employee did not provide any reason for his continued non-compliance. Sykes v. Moss Trucking Co., 199 N.C. App. 540, 685 S.E.2d 1, 2009 N.C. App. LEXIS 1479 (2009).

Refusal to Undergo Surgery with Employer-Selected Physician. —

An employee was not justified in choosing to undergo surgery with her own physician where the employer had already accepted liability orally and in writing and was therefore entitled to direct the medical treatment, where she failed to request authorization from the Commission within a reasonable period of time, and where she did not have good cause to refuse the treatment by the employer’s physician. Kanipe v. Lane Upholstery, 141 N.C. App. 620, 540 S.E.2d 785, 2000 N.C. App. LEXIS 1302 (2000).

IV.Emergency

“Emergency” as Function of Circumstances. —

This section does not define an emergency. What may be an emergency under one set of circumstances may not qualify as such under another. Schofield v. Great Atl. & Pac. Tea Co., 43 N.C. App. 567, 259 S.E.2d 338, 1979 N.C. App. LEXIS 3119 (1979), vacated, 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

Emergency Treatment. —

Treatment received by a plaintiff employee in a workers’ compensation case could be of an emergency nature even though it extended over a 17-month period of time. Schofield v. Great Atl. & Pac. Tea Co., 43 N.C. App. 567, 259 S.E.2d 338, 1979 N.C. App. LEXIS 3119 (1979), vacated, 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

North Carolina Industrial Commission properly affirmed a decision awarding a therapist medical treatment pursuant to G.S. 97-25 because the treatment was an emergency, as the therapist still reported pain after a physician determined that maximum medical improvement had been reached, and the therapist had already sought authorization from the Commission prior to obtaining the care on his own. Cash v. Lincare Holdings, 181 N.C. App. 259, 639 S.E.2d 9, 2007 N.C. App. LEXIS 92 (2007).

“Failure to Provide Services.” —

An employee is justified under this section in seeking another physician in an emergency where the employer’s “failure to provide” medical services amounts merely to an inability to provide those services. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

V.Selection of Physician by Employee

Proviso Relates to Entire Section. —

The proviso at the end of this section, relating to choice of personal physician, constitutes a proviso to the entire section, and not solely to the emergency provision. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

Employee May Choose Physician Even in Absence of Emergency. —

The proviso to this section, relating to choice of personal physician, constitutes a proviso to the entire section, and not solely to the emergency provision. Construed in this light, the proviso clearly states that an injured employee has the right to procure, even in the absence of an emergency, a physician of his own choosing, subject to the approval of the Commission. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

Employer was required to pay medical expenses for treatment at a hospital of an injured employee with psychological disorders, where the employee without prior authorization admitted himself to the hospital, as an emergency was not required and the hospitalization was necessary to treat the employee’s depression and suicidal feelings. Shoemaker v. Creative Builders, 150 N.C. App. 523, 563 S.E.2d 622, 2002 N.C. App. LEXIS 588 (2002).

There is no limitation on the number of physicians an employee may choose. —

The only requirements are that each physician be approved by the Commission, and that treatment facilitate recovery and rehabilitation. Lucas v. Thomas Built Buses, Inc., 88 N.C. App. 587, 364 S.E.2d 147, 1988 N.C. App. LEXIS 50 (1988).

Same Terms Apply to Treatment Whether Chosen by Employee or Employer. —

Fairness requires that medical treatment provided by the employee’s own doctor be subject to the same limitations, terms and conditions as apply to medical treatment provided by the employer. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

Approval of Physician Chosen by Employee. —

An employee is required to obtain approval of the Commission within a reasonable time after he has selected a physician of his own choosing to assume treatment. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

Claimant must obtain Industrial Commission approval for a physician selected by claimant, within a reasonable time after procuring the services of the physician, and if approval is sought within a reasonable time, if the commission approves a plaintiff’s choice and if the treatment sought is to effectuate a cure or rehabilitation, then the employer has a statutory duty under this section to pay for the treatment. Forrest v. Pitt County Bd. of Educ., 100 N.C. App. 119, 394 S.E.2d 659, 1990 N.C. App. LEXIS 896 (1990), cert. denied, 328 N.C. 330, 400 S.E.2d 448, 1991 N.C. LEXIS 98 (1991), aff'd, 328 N.C. 327, 401 S.E.2d 366, 1991 N.C. LEXIS 183 (1991).

The unambiguous language of this statute leaves the approval of a physician within the discretion of the Industrial Commission and the Commission’s determination may only be reversed upon a finding of a manifest abuse of discretion. Franklin v. Broyhill Furn. Indus., 123 N.C. App. 200, 472 S.E.2d 382, 1996 N.C. App. LEXIS 682, cert. denied, 344 N.C. 629, 477 S.E.2d 39, 1996 N.C. LEXIS 559 (1996).

Pursuant to G.S. 97-2(18) and G.S. 97-25, an employee was entitled to payment of medical expenses for treatment to relieve substantial and continual back pain arising from an accident where she fell and injured her back in the course of her employment, where the record reflected that she had obtained authorization from the Industrial Commission for such future treatment; however, there was no indication in the record of the necessary authorization in order to allow reimbursement for past medical treatments, and accordingly, an award rendered for that was vacated and further consideration had to be made on the issue of whether the proper authorization was obtained prior to such treatment or within a reasonable time thereafter. Whitfield v. Lab. Corp., 158 N.C. App. 341, 581 S.E.2d 778, 2003 N.C. App. LEXIS 1192 (2003).

The treatment of the physician was authorized and the physician was permitted to testify before the Industrial Commission on the injured employee’s claim where: (1) employee moved for authorization to allow psychological treatment and to have a physician’s treatment approved by the North Carolina Industrial Commission within a reasonable time; (2) the employer’s carrier recommended but never actually denied the request; and (3) the Industrial Commission denied request, but told the employee that the employee could request a hearing on the matter if the employee continued to believe that psychological treatment was necessary. Terry v. PPG Indus., 156 N.C. App. 512, 577 S.E.2d 326, 2003 N.C. App. LEXIS 199 (2003).

North Carolina Industrial Commission did not err in approving plaintiff’s doctor as a treating physician; because the employer fully contested the compensability of plaintiff’s claim, and lost before the Full Commission, it did not have a right to direct plaintiff’s treatment. Yingling v. Bank of Am., 225 N.C. App. 820, 741 S.E.2d 395, 2013 N.C. App. LEXIS 224 (2013).

Approval Must Be Within Reasonable Time and Not Necessarily Prior to Services. —

The Industrial Commission does not have to preclude payments for a physician’s services solely because approval for those services was not previously requested; under this section, a plaintiff must only seek approval within a reasonable time not necessarily prior to the services or surgery rendered by the physician. Forrest v. Pitt County Bd. of Educ., 100 N.C. App. 119, 394 S.E.2d 659, 1990 N.C. App. LEXIS 896 (1990), cert. denied, 328 N.C. 330, 400 S.E.2d 448, 1991 N.C. LEXIS 98 (1991), aff'd, 328 N.C. 327, 401 S.E.2d 366, 1991 N.C. LEXIS 183 (1991).

North Carolina Industrial Commission did not abuse its discretion in finding that a four-month delay before the employee sought authorization for a psychiatrist as a treating physician was reasonable. Dicamillo v. Arvin Meritor, Inc., 183 N.C. App. 357, 644 S.E.2d 647, 2007 N.C. App. LEXIS 1155 (2007).

Employer and carrier were properly required to pay for medical treatment provided by a second physician chosen by an employee because (1) the employee filed a motion for approval of the second physician within a reasonable time after the employee selected the physician to provide treatment, (2) less than two months elapsed between the time the employee selected the second physician as the employee’s treating physician and the time the employee sought approval from the Industrial Commission, and (3) the evidence showed the employee complied with Workers’ Comp. R. N.C. Indus. Comm’n 407(4), as the employee’s first physician said it was reasonable to seek a second opinion, felt the second physician’s recommendation was reasonable, and was willing to leave the employee’s treatment up to the second physician. Lipscomb v. Mayflower Vehicle Sys., 213 N.C. App. 440, 716 S.E.2d 345, 2011 N.C. App. LEXIS 1491 (2011).

Unilateral Change of Physician Authorized. —

The claimant’s unilateral decision to change treating physicians was authorized under this section, and thus, was not adequate to support a finding that she unjustifiably refused to cooperate with vocational rehabilitation, where she continued to suffer pain from carpal tunnel syndrome after being released to return to work by her previous physician. Deskins v. Ithaca Indus., Inc., 131 N.C. App. 826, 509 S.E.2d 232, 1998 N.C. App. LEXIS 1549 (1998).

Where an employee was released by the employer’s authorized physician while the employee continued to suffer from back and leg pain, the North Carolina Industrial Commission did not abuse its discretion in approving treatment subsequently provided by physicians chosen by the employee. Lakey v. United States Airways, 155 N.C. App. 169, 573 S.E.2d 703, 2002 N.C. App. LEXIS 1596 (2002).

Failure to obtain approval for payments of medical expenses does not raise an estoppel claim. Knight v. Cannon Mills Co., 82 N.C. App. 453, 347 S.E.2d 832, 1986 N.C. App. LEXIS 2520 (1986).

Failure to Timely File Motion to Approve Choice of Osteopath. —

Where an employee appealing a decision of the North Carolina Industrial Commission did not assign as error the commission’s finding that her motion to approve an osteopath’s treatment was “not timely filed,” that finding was binding on appeal; since the employee failed to obtain the commission’s approval of the osteopath within a reasonable time, the employer was not required to pay for her treatments. Thompson v. Fed. Express Ground, 175 N.C. App. 564, 623 S.E.2d 811, 2006 N.C. App. LEXIS 184 (2006).

Findings Required to Support Approval of Claim for Treatment by Employee’s Physician. —

Upon submission of a claim for approval for medical treatment rendered by the employee’s own physician, there must be findings based upon competent evidence that the treatment was “required to effect a cure or give relief,” or where additional time is involved, that it has “tend[ed] to lessen the period of disability.” There should also be findings that the condition treated is, or was, caused by, or was otherwise traceable to or related to the injury giving rise to the compensable claim. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

Since an employee who procures his own doctor must obtain approval by the Commission within a reasonable time after such procurement, the Commission must make findings relative to whether such approval was sought within a reasonable time. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

Implicit in determining whether the cost of emergency treatment is reasonable is a determination of how long the emergency lasted. Before approving the cost of emergency treatment rendered by “a physician other than provided by the employer,” the Industrial Commission must make findings, based upon competent evidence, relative to the duration of the emergency. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

The Industrial Commission must make appropriate findings relative to whether approval of an employee’s procurement of his or her own physician was sought within a reasonable time. Hudson v. Mastercraft Div., 86 N.C. App. 411, 358 S.E.2d 134, 1987 N.C. App. LEXIS 2733 (1987).

The full Commission made insufficient findings to support its approval of employee’s request where employee waited three years to request authorization to use her own physician after she and the employer-approved physician discontinued their relationship. Scurlock v. Durham County Gen. Hosp., 136 N.C. App. 144, 523 S.E.2d 439, 1999 N.C. App. LEXIS 1299 (1999).

Employer did not have the right to select or limit an employee’s physicians or treatment where the self-employed employer and its insurance administrator did not accept the employee’s claim as compensable, but rather denied the alleged accident and injury; therefore, the North Carolina Industrial Commission did not err in not finding as a fact that the employee failed to offer evidence that the medical treatment rendered by certain physicians and treatment centers was necessary to effect a cure, to give relief, or to lessen the employee’s period of disability. Craven v. VF Corp., 167 N.C. App. 612, 606 S.E.2d 160, 2004 N.C. App. LEXIS 2376 (2004), writ denied, 359 N.C. 320, 611 S.E.2d 172, 2005 N.C. LEXIS 293 (2005).

§ 97-25.1. Limitation of duration of medical compensation.

The right to medical compensation shall terminate two years after the employer’s last payment of medical or indemnity compensation unless, prior to the expiration of this period, either: (i) the employee files with the Commission an application for additional medical compensation which is thereafter approved by the Commission, or (ii) the Commission on its own motion orders additional medical compensation. If the Commission determines that there is a substantial risk of the necessity of future medical compensation, the Commission shall provide by order for payment of future necessary medical compensation.

History. 1993 (Reg. Sess., 1994), c. 679, s. 2.5.

Legal Periodicals.

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

CASE NOTES

Claim Not Barred For Injury Prior to Ratification. —

Where worker’s compensable back injury occurred prior to the ratification of G.S. 97-25.1, the worker was not barred from recovering benefits for new or additional medical expenses for admittedly compensable injury, even if there had been no material change in the worker’s condition or in the available medical treatments. McAllister v. Wellman, Inc., 162 N.C. App. 146, 590 S.E.2d 311, 2004 N.C. App. LEXIS 58 (2004).

Illustrative Cases. —

North Carolina Industrial Commission’s order that employer was obligated to pay “for all related medical expenses incurred” was overly broad because it did not set a time limit on payments. Johnson v. S. Tire Sales & Serv., 152 N.C. App. 323, 567 S.E.2d 773, 2002 N.C. App. LEXIS 920 (2002), rev'd, 358 N.C. 701, 599 S.E.2d 508, 2004 N.C. LEXIS 915 (2004).

Industrial Commission wrongly declined to leave a workers’ compensation claim open for future medical treatment pursuant to G.S. 97-25.1; the commission improperly placed the burden of proof on an employee to show that future treatment was related to an original injury. Taylor v. Bridgestone/Firestone, Inc., 157 N.C. App. 453, 579 S.E.2d 413, 2003 N.C. App. LEXIS 737, rev'd, 357 N.C. 565, 598 S.E.2d 379, 2003 N.C. LEXIS 1273 (2003).

Award providing that an employer and its insurer were required to pay medical benefits was not overly broad, despite the fact that it failed to delineate the two-year time limitation set forth in G.S. 97-25.1. Guerrero v. Brodie Contrs., Inc., 158 N.C. App. 678, 582 S.E.2d 346, 2003 N.C. App. LEXIS 1226 (2003).

Period of limitations provided by G.S. 97-25.1 was inherent in the Full Commission’s award that an employer and a carrier pay for medical compensation incurred by an employee as a result of the injuries the employee sustained when she fell at work and subsequently at home, as the award was based upon the Full Commission’s prior conclusion of law, in which the Full Commission cited G.S. 97-25 and G.S. 97-25.1. Brown v. Kroger Co., 169 N.C. App. 312, 610 S.E.2d 447, 2005 N.C. App. LEXIS 611 (2005).

North Carolina Industrial Commission had sufficient evidence in two doctors’ depositions to support the findings of fact and to conclude that there was a substantial likelihood that an injured employee would need additional treatment for an injured knee in the future, regardless of what that treatment might entail. Adams v. Frit Car, Inc., 185 N.C. App. 714, 649 S.E.2d 651, 2007 N.C. App. LEXIS 1946 (2007).

North Carolina Industrial Commission (Commission) found that no medical evidence existed that showed that the employee either required any additional medical treatment after the date of maximum medical improvement (MMI) or that the employee suffered any permanent injury; since the evidence indicated that the employee had reached MMI, there could be no medical treatment that would lessen the period of the employee’s disability, effect a cure or otherwise give the employee relief. Therefore, the Commission correctly concluded that the employee did not need and was not entitled to any additional medical treatment under G.S. 97-25 and there was nothing in the Commission’s conclusion that would foreclose the employee from requesting additional treatment pursuant to G.S. 97-25.1. Fonville v. GMC, 200 N.C. App. 267, 683 S.E.2d 445, 2009 N.C. App. LEXIS 1609 (2009).

As the last payment of medical or indemnity compensation for a fall was a check issued to the worker, and the application for additional medical compensation was not filed until more than two years later, the worker’s right to medical compensation for that injury had terminated. Busque v. Mid-America Apt. Cmtys., 209 N.C. App. 696, 707 S.E.2d 692, 2011 N.C. App. LEXIS 373 (2011).

There was sufficient competent evidence to support the factual findings of the North Carolina Industrial Commission with respect to an award of attendant care to plaintiff, including that plaintiff would “benefit medically” from the care for eight hours per day pursuant to G.S. 97-2(19), 97-25, and 97-25.1. Boylan v. Verizon Wireless, 224 N.C. App. 436, 736 S.E.2d 773, 2012 N.C. App. LEXIS 1467 (2012).

There was sufficient competent evidence to support the factual findings of the North Carolina Industrial Commission with respect to the compensation rate awarded for plaintiff’s attendant care pursuant to G.S. 97-2(19), 97-25, and 97-25.1, although such care was provided by plaintiff’s daughter, who was unskilled; the compensation rate was deemed reasonable, even though the evidence only addressed compensation rates for professional caregivers. Boylan v. Verizon Wireless, 224 N.C. App. 436, 736 S.E.2d 773, 2012 N.C. App. LEXIS 1467 (2012).

Employee timely filed her claim for additional benefits because the employer last provided medical compensation for the employee’s injury when it tendered payment to a medical company; the services the medical company provided constitute “rehabilitative services” because its role as an administrative intermediary was necessary to ensure the employee received the appropriate treatment in order to effect a cure or give relief for her compensable back injury. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54, 2014 N.C. App. LEXIS 299 (2014).

Employee’s claim for additional medical compensation was time-barred because (1) compensation was last paid more than two years before the claim, and (2) a subsequent payment correcting an underpayment in indemnity compensation did not cause the claim to be timely. Lewis v. Transit Mgmt. of Charlotte, 250 N.C. App. 619, 792 S.E.2d 890, 2016 N.C. App. LEXIS 1241 (2016).

Equitable doctrine of laches did not bar an employee’s claim for underpaid indemnity compensation because (1) both G.S. 97-25.1 and G.S. 97-47 supplied remedies at law to bar claims where there was a delay, so an equitable remedy was unavailable, and (2) the fact that the limitations period had not run to bar recovery of underpaid compensation did not make the doctrine of laches available. Lewis v. Transit Mgmt. of Charlotte, 250 N.C. App. 619, 792 S.E.2d 890, 2016 N.C. App. LEXIS 1241 (2016).

There was sufficient evidence to support the Industrial Commission’s findings of fact and conclusions of law that the medical treatment of an employee’s right shoulder was causally related to her compensable right shoulder injury because doctors’ testimony supported the presumption that additional medical treatment was directly related to the compensable right shoulder injury; the employer failed to present evidence to disprove the causal connection. Bell v. Goodyear Tire & Rubber Co., 252 N.C. App. 268, 798 S.E.2d 143, 2017 N.C. App. LEXIS 176 (2017).

Employee’s additional medical compensation claim for a work-related injury was time-barred because the claim was filed over two years after the last actual payment of any compensation. Anders v. Universal Leaf North Am., 253 N.C. App. 241, 800 S.E.2d 99, 2017 N.C. App. LEXIS 323, superseded, 254 N.C. App. 851, 803 S.E.2d 463, 2017 N.C. App. LEXIS 642 (2017).

Court of appeals properly vacated the North Carolina Industrial Commission’s finding that an employee failed to establish that his anxiety and depression were a result of his work-related accident because the employee was entitled to a presumption that additional medical treatment was related to his compensable conditions; the Commission did not apply any presumption, and instead placed the initial burden on the employee to prove causation for any medical compensation he sought. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

Workers’ Compensation Act did not deprive plaintiff of liberty or property interest or vested right because plaintiff was not entitled to further medical compensation where more than two years elapsed since defendants last made a compensation payment, notwithstanding lack of notice last payment would be final one. Dunbar v. Acme Southern, 274 N.C. App. 251, 852 S.E.2d 394, 2020 N.C. App. LEXIS 781 (2020), dismissed, 377 N.C. 219, 856 S.E.2d 856, 2021 N.C. LEXIS 359 (2021).

§ 97-25.2. Managed care organizations.

The requirements of G.S. 97-25 may be satisfied by contracting with a managed care organization. Notwithstanding any other provision of this Article, if an employer or carrier contracts with a managed care organization for medical services pursuant to this Article, those employees who are covered by the contract with the managed care organization shall receive medical services for a condition for which the employer has accepted liability or authorized treatment under this Article in the manner prescribed by the contract and in accordance with the managed care organization’s certificate of authority; provided that the contract complies with rules adopted by the Commission, consistent with this Article, governing managed care organizations. An employee must exhaust all dispute resolution procedures of a managed care organization before applying to the Commission for review of any issue related to medical services compensable under this Article. Once application to the Commission has been made, the employee shall be entitled to an examination by a duly qualified physician or surgeon in the same manner as provided by G.S. 97-27.

If an employee’s medical services are provided through a managed care organization pursuant to this section, subject to the rules of the managed care organization, the employee shall select the attending physician from those physicians who are members of the managed care organization’s panel, and may subsequently change attending physicians once within the group of physicians who are members of the managed care organization’s panel without approval from the employer or insurer. Additional changes in the attending physician or any change to a physician or examination by a physician not a member of the insurer’s managed care organization’s panel shall only be made pursuant to the organization’s contract or upon reasonable grounds by order of the Commission.

History. 1993 (Reg. Sess., 1994), c. 679, s. 2.1.

Legal Periodicals.

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For comment, “Managed Care Organizations in North Carolina: Tort Liability Theories and Defenses,” see 23 N.C. Cent. L.J. 58 (1997).

§ 97-25.3. Preauthorization.

  1. An insurer may require preauthorization for inpatient admission to a hospital, inpatient admission to a treatment center, and inpatient or outpatient surgery. The insurer’s preauthorization requirement must adhere to the following standards:
    1. The insurer may require no more than 10 days advance notice of the inpatient admission or surgery.
    2. The insurer must respond to a request for preauthorization within two business days of the request.
    3. The insurer shall review the need for the inpatient admission or surgery and may require the employee to submit to an independent medical examination as provided in G.S. 97-27(a). This examination must be completed and the insurer must make its determination on the request for preauthorization within seven days of the date of the request unless this time is extended by the Commission for good cause.
    4. The insurer shall document its review findings and determination in writing and shall provide a copy of the findings and determination to the employee and the employee’s attending physician, and, if applicable, to the hospital or treatment center.
    5. The insurer shall authorize the inpatient admission or surgery when it requires the employee to submit to a medical examination as provided in G.S. 97-27(a) and the examining physician concurs with the original recommendation for the inpatient admission or surgery. The insurer shall also authorize the inpatient admission or surgery when the employee obtains a second opinion from a physician approved by the insurer or the Commission, and the second physician concurs with the original recommendation for the inpatient admission or surgery. However, the insurer shall not be required by this subdivision to authorize the inpatient admission or surgery if it denies liability under this Article for the particular medical condition for which the services are sought.
    6. Except as provided in subsection (c) of this section, the insurer may reduce its reimbursement of the provider’s eligible charges under this Article by up to fifty percent (50%) if the insurer has notified the provider in writing of its preauthorization requirement and the provider failed to timely obtain preauthorization. The employee shall not be liable for the balance of the charges.
    7. The insurer shall adhere to all other procedures for preauthorization prescribed by the Commission.
  2. An insurer may not impose a preauthorization requirement for the following:
    1. Emergency services;
    2. Services rendered in the diagnosis or treatment of an injury or illness for which the insurer has not admitted liability or authorized payment for treatment pursuant to this Article; and
    3. Services rendered in the diagnosis and treatment of a specific medical condition for which the insurer has not admitted liability or authorized payment for treatment although the insurer admits the employee has suffered a compensable injury or illness.
  3. The Commission may, upon reasonable grounds, upon the request of the employee or provider, authorize treatment for which preauthorization is otherwise required by this section but was not obtained if the Commission determines that the treatment is or was reasonably required to effect a cure or give relief.
  4. The Commission may adopt procedures governing the use of preauthorization requirements and expeditious review of preauthorization denials.
  5. A managed care organization may impose preauthorization requirements consistent with the provisions of Chapter 58 of the General Statutes.
  6. A provider that refuses to treat an employee for other than an emergency medical condition because preauthorization has not been obtained shall be immune from liability in any civil action for the refusal to treat the employee because of lack of preauthorization.

History. 1993 (Reg. Sess., 1994), c. 679, s. 2.2.

CASE NOTES

Preauthorization Allowed But Not Required by Statute. —

Commission did not err in awarding additional medical compensation to a claimant based on a change of condition under G.S. 97-47 on the grounds that she failed to obtain preauthorization before obtaining significant medical treatment; although G.S. 97-25.3 allowed preauthorization, it did not require it and there was no showing that defendants actually required preauthorization. Moreover, defendants could not have imposed a preauthorization requirement as they denied liability for the claimant’s treatment on the grounds that there was no causal connection between that compensable injury and the medical treatment at issue. Perry v. CKE Rests., Inc., 187 N.C. App. 759, 654 S.E.2d 33, 2007 N.C. App. LEXIS 2532 (2007).

§ 97-25.4. Utilization guidelines for medical treatment.

  1. The Commission may adopt utilization rules and guidelines, consistent with this Article, for medical care and medical rehabilitation services, other than those services provided by managed care organizations pursuant to G.S. 97-25.2, including, but not limited to, necessary palliative care, physical therapy treatment, psychological therapy, chiropractic services, medical rehabilitation services, and attendant care. The Commission’s rules and guidelines shall ensure that injured employees are provided the services and care intended by this Article and that medical costs are adequately contained. In developing the rules and guidelines, the Commission may consider, among other factors, the practice guidelines adopted by the boards and associations representing medical and rehabilitation professionals.
  2. Palliative care rules or guidelines adopted by the Commission may require that the provider (i) supply to the employer a treatment plan, including a schedule of measurable objectives, a projected termination date for treatment, and an estimated cost of services, and (ii) obtain preauthorization from the employer, not inconsistent with the provisions of G.S. 97-25.3.

History. 1993 (Reg. Sess., 1994), c. 679, s. 2.4.

Editor’s Note.

Session Laws 2017-203, s. 4(a), (b), provides: “(a) The Industrial Commission shall adopt rules and guidelines, consistent with G.S. 97-25.4, for the utilization of opioids, related prescriptions, and pain management treatment.

“(b) The Industrial Commission is exempt from the fiscal note requirement of G.S. 150B-21.4 in developing and implementing the rules and guidelines for opioids, related prescriptions, and pain management treatment.”

Legal Periodicals.

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

§ 97-25.5. Utilization guidelines for vocational and other rehabilitation.

The Commission may adopt utilization rules and guidelines, consistent with this Article, for vocational rehabilitation services and other types of rehabilitation services. In developing the rules and guidelines, the Commission may consider, among other factors, the practice and treatment guidelines adopted by professional rehabilitation associations and organizations.

History. 1993 (Reg. Sess., 1994), c. 679, s. 2.4.

Legal Periodicals.

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

CASE NOTES

Refusal to Cooperate With Vocational Rehabilitation Not Justified. —

North Carolina Industrial Commission erred in concluding that an employee’s failure to cooperate with vocational rehabilitation services was justified because an employer’s vocational rehabilitation efforts to allow the employee to return to the work force had to be made under the supervision of the employee’s authorized treating physician, but the employee refused to seek treatment from the physician who had been authorized by the Commission to provide treatment to the employee; there was no evidence that the employer’s counsel made any admissions before the Commission with regard to vocational rehabilitation services that could or could not have been offered to the employee, and because the employee was not under the care of an authorized physician, and there was no authorized treating physician to oversee his vocational rehabilitation, the employer could not have offered vocational rehabilitation services to the employee. Sykes v. Moss Trucking Co., 199 N.C. App. 540, 685 S.E.2d 1, 2009 N.C. App. LEXIS 1479 (2009).

§ 97-25.6. Reasonable access to medical information.

  1. Notwithstanding any provision of G.S. 8-53 to the contrary, and because discovery is limited pursuant to G.S. 97-80, it is the policy of this State to protect the employee’s right to a confidential physician-patient relationship while allowing the parties to have reasonable access to all relevant medical information, including medical records, reports, and information necessary to the fair and swift administration and resolution of workers’ compensation claims, while limiting unnecessary communications with and administrative requests to health care providers.
  2. As used in this section, “relevant medical information” means any medical record, report, or information that is any of the following:
    1. Restricted to the particular evaluation, diagnosis, or treatment of the injury or disease for which compensation, including medical compensation, is sought.
    2. Reasonably related to the injury or disease for which the employee claims compensation.
    3. Related to an assessment of the employee’s ability to return to work as a result of the particular injury or disease.
  3. Relevant medical information shall be requested and provided subject to the following provisions:
    1. Medical records. —  An employer is entitled, without the express authorization of the employee, to obtain the employee’s medical records containing relevant medical information from the employee’s health care providers. In a claim in which the employer is not paying medical compensation to a health care provider from whom the medical records are sought, or in a claim denied pursuant to G.S. 97-18(c), the employer shall provide the employee with contemporaneous written notice of the request for medical records. Upon the request of the employee, the employer shall provide the employee with a copy of any records received in response to this request within 30 days of its receipt by the employer.
    2. Written communications with health care providers. —  An employer may communicate with the employee’s authorized health care provider in writing, without the express authorization of the employee, to obtain relevant medical information not available in the employee’s medical records. The employer shall provide the employee with contemporaneous written notice of the written communication. The employer may request the following additional information:
      1. The diagnosis of the employee’s condition.
      2. The appropriate course of treatment.
      3. The anticipated time that the employee will be out of work.
      4. The relationship, if any, of the employee’s condition to the employment.
      5. Work restrictions resulting from the condition, including whether the employee is able to return to the employee’s employment with the employer of injury as provided in an attached job description.
      6. The kind of work for which the employee may be eligible.
      7. The anticipated time the employee will be restricted.
      8. Any permanent impairment as a result of the condition.
    3. Oral communications with health care providers. —  An employer may communicate with the employee’s authorized health care provider by oral communication to obtain relevant medical information not contained in the employee’s medical records, not available through written communication, and not otherwise available to the employer, subject to the following:
      1. The employer must give the employee prior notice of the purpose of the intended oral communication and an opportunity for the employee to participate in the oral communication at a mutually convenient time for the employer, employee, and health care provider.
      2. The employer shall provide the employee with a summary of the communication with the health care provider within 10 business days of any oral communication in which the employee did not participate.
  4. Additional Information Submitted by the Employer. —  Notwithstanding subsection (c) of this section, an employer may submit additional relevant medical information not already contained in the employee’s medical records to the employee’s authorized health care provider and may communicate in writing with the health care provider about the additional information in accordance with the following procedure:
    1. The employer shall first notify the employee in writing that the employer intends to communicate additional information about the employee to the employee’s health care provider. The notice shall include the employer’s proposed written communication to the health care provider and the additional information to be submitted.
    2. The employee shall have 10 business days from the postmark or verifiable facsimile or electronic mail either to consent or object to the employer’s proposed written communication.
    3. Upon consent of the employee or in the absence of the employee’s timely objection, the employer may submit the additional information directly to the health care provider.
    4. Upon making a timely objection, the employee may request a protective order to prevent the written communication, in which case the employer shall refrain from communicating with the health care provider until the Commission has ruled upon the employee’s request. If the employee does not file with the Industrial Commission a request for a protective order within the time period set forth in subdivision (2) of subsection (d) of this section, the employer may submit the additional information directly to the health care provider. In deciding whether to allow the submission of additional information to the health care provider, in part or in whole, the Commission shall determine whether the proposed written communication and additional information are pertinent to and necessary for the fair and swift administration and resolution of the workers’ compensation claim and whether there is an alternative method to discover the information. If the Industrial Commission determines that any party has acted unreasonably by initiating or objecting to the submission of additional information to the health care provider, the Commission may assess costs associated with any proceeding, including reasonable attorneys’ fees and deposition costs, against the offending party.
  5. Any medical records or reports that reflect evaluation, diagnosis, or treatment of the particular injury or disease for which compensation is sought or are reasonably related to the injury or disease for which the employee seeks compensation that are in the possession of a party shall be furnished to the requesting party by the opposing party when requested in writing, except for records or reports generated by a retained expert.
  6. Upon motion by an employee or the health care provider from whom medical records, reports, or information are sought, or with whom oral communication is sought, or upon its own motion, for good cause shown, the Commission may make any order which justice requires to protect an employee, health care provider, or other person from unreasonable annoyance, embarrassment, oppression, or undue burden or expense.
  7. Other forms of communication with a health care provider may be authorized by any of the following:
    1. A valid written authorization voluntarily given and signed by the employee.
    2. An agreement of the parties.
    3. An order of the Industrial Commission issued upon a showing that the information sought is necessary for the administration of the employee’s claim and is not otherwise reasonably obtainable under this section or through other discovery authorized by the rules of the Commission.
  8. The employer may communicate with the health care provider to request medical bills or a response to a pending written request, or about nonsubstantive administrative matters without the express authorization of the employee.
  9. The Commission shall establish an appropriate fee to compensate health care providers for time spent communicating with the employer or employee. Each party shall bear its own costs for said communication.
  10. No cause of action shall arise and no health care provider shall incur any liability as a result of the release of medical records, reports, or information pursuant to this Article.
  11. For purposes of this section, the term “employer” means the employer, the employer’s attorney, and the employer’s insurance carrier or third-party administrator; and the term “employee” means the employee, legally appointed guardian, or any attorney representing the employee.

The employer shall provide a copy of the health care provider’s response to the employee within 10 business days of its receipt by the employer.

History. 2005-448, s. 6.1; 2011-287, s. 7; 2012-135, s. 2.

Editor’s Note.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 7, which rewrote the section, was applicable to claims pending on or after June 24, 2011.

Session Laws 2012-135, s. 9, made the amendments to this section effective July 1, 2012, and applicable to claims pending on or after that date, and provided, in part: “Notwithstanding G.S. 97-31.1, this act is effective when it becomes law [July 1, 2012].”

Effect of Amendments.

Session Laws 2011-287, s. 7, effective June 24, 2011, and applicable to claims pending on or after that date, rewrote the section.

Session Laws 2012-135, s. 2, made minor stylistic and punctuation changes throughout; added “any of the following” at the end of the introductory language of subsection (b); added “Upon the request of the employee” at the beginning of the third sentence in subdivision (c)(1); added “including whether the employee is able to return to the employee’s employment with the employer of injury as provided in an attached job description” at the end of subdivision (c)(2)e.; substituted “ojection” for “response” in subdivision (d)(3); added the present second sentence in subdivision (c)(4); rewrote subsection (g); and substituted “establish an appropriate fee” for “establish annually an appropriate medical fee” in subsection (i). For effective date and applicability, see editor’s note.

§ 97-26. Fees allowed for medical treatment; malpractice of physician.

  1. Fee Schedule. —  The Commission shall adopt by rule a schedule of maximum fees for medical compensation and shall periodically review the schedule and make revisions.The fees adopted by the Commission in its schedule shall be adequate to ensure that (i) injured workers are provided the standard of services and care intended by this Chapter, (ii) providers are reimbursed reasonable fees for providing these services, and (iii) medical costs are adequately contained.The Commission may consider any and all reimbursement systems and plans in establishing its fee schedule, including, but not limited to, the State Health Plan for Teachers and State Employees (hereinafter, “State Plan”), Blue Cross and Blue Shield, and any other private or governmental plans. The Commission may also consider any and all reimbursement methodologies, including, but not limited to, the use of current procedural terminology (“CPT”) codes, diagnostic-related groupings (“DRGs”), per diem rates, capitated payments, and resource-based relative-value system (“RBRVS”) payments. The Commission may consider statewide fee averages, geographical and community variations in provider costs, and any other factors affecting provider costs.
  2. Hospital Fees. —  Each hospital subject to the provisions of this section shall be reimbursed the amount provided for in this section unless it has agreed under contract with the insurer, managed care organization, employer (or other payor obligated to reimburse for inpatient hospital services rendered under this Chapter) to accept a different amount or reimbursement methodology.The explanation of the fee schedule change that is published pursuant to G.S. 150B-21.2(c)(2) shall include a summary of the data and calculations on which the fee schedule rate is based.A hospital’s itemized charges on the UB-92 claim form for workers’ compensation services shall be the same as itemized charges for like services for all other payers.
  3. Maximum Reimbursement for Providers Under Subsection (a). —  Each health care provider subject to the provisions of subsection (a) of this section shall be reimbursed the amount specified under the fee schedule unless the provider has agreed under contract with the insurer or managed care organization to accept a different amount or reimbursement methodology. In any instance in which neither the fee schedule nor a contractual fee applies, the maximum reimbursement to which a provider under subsection (a) is entitled under this Article is the usual, customary, and reasonable charge for the service or treatment rendered. In no event shall a provider under subsection (a) charge more than its usual fee for the service or treatment rendered.
  4. Information to Commission. —  Each health care provider seeking reimbursement for medical compensation under this Article shall provide the Commission information requested by the Commission for the development of fee schedules and the determination of appropriate reimbursement.
  5. When Charges Submitted. —  Health care providers shall submit charges to the insurer or managed care organization within 30 days of treatment, within 30 days after the end of the month during which multiple treatments were provided, or within such other reasonable period of time as allowed by the Commission. If an insurer or managed care organization disputes a portion of a health care provider’s bill, it shall pay the uncontested portion of the bill and shall resolve disputes regarding the balance of the charges in accordance with this Article or its contractual arrangement.
  6. Repeating Diagnostic Tests. —  A health care provider shall not authorize a diagnostic test previously conducted by another provider, unless the health care provider has reasonable grounds to believe a change in patient condition may have occurred or the quality of the prior test is doubted. The Commission may adopt rules establishing reasonable requirements for reports and records to be made available to other health care providers to prevent unnecessary duplication of tests and examinations. A health care provider that violates this subsection shall not be reimbursed for the costs associated with administering or analyzing the test.
  7. Direct Reimbursement. —  The Commission may adopt rules to allow insurers and managed care organizations to review and reimburse charges for medical compensation without submitting the charges to the Commission for review and approval.
  8. Administrative Simplification. —  The applicable administrative standards for code sets, identifiers, formats, and electronic transactions to be used in processing electronic medical bills under this Article shall comply with 45 C.F.R. § 162. The Commission shall adopt rules to require electronic medical billing and payment processes, to standardize the necessary medical documentation for billing adjudication, to provide for effective dates and compliance, and for further implementation of this subsection.
  9. Malpractice. —  The employer shall not be liable in damages for malpractice by a physician or surgeon furnished by him pursuant to the provisions of this section, but the consequences of any such malpractice shall be deemed part of the injury resulting from the accident, and shall be compensated for as such.
  10. Resolution of Dispute. —  The employee or health care provider may apply to the Commission by motion or for a hearing to resolve any dispute regarding the payment of charges for medical compensation in accordance with this Article.

History. 1929, c. 120, s. 26; 1955, c. 1026, s. 3; 1993 (Reg. Sess., 1994), c. 679, s. 2.3; 1995 (Reg. Sess., 1996), c. 548, s. 1; 1997-145, s. 1; 2001-410, s. 3; 2001-413, s. 8.2(a); 2005-448, s. 5; 2007-323, s. 28.22A(o); 2007-345, s. 12; 2011-287, s. 8; 2012-135, s. 3; 2013-410, s. 33(b).

Industrial Commission Hospital Fee Schedule.

Session Laws 2013-410, s. 33(a), provides: “Industrial Commission Hospital Fee Schedule:

“(1) Medicare methodology for physician and hospital fee schedules. — With respect to the schedule of maximum fees for physician and hospital compensation adopted by the Industrial Commission pursuant to G.S. 97-26, those fee schedules shall be based on the applicable Medicare payment methodologies, with such adjustments and exceptions as are necessary and appropriate to ensure that (i) injured workers are provided the standard of services and care intended by Chapter 97 of the General Statutes, (ii) providers are reimbursed reasonable fees for providing these services, and (iii) medical costs are adequately contained. Such fee schedules shall also be periodically reviewed to ensure that they continue to adhere to these standards and applicable fee schedule requirements of Chapter 97. In addition to the statewide fee averages, geographical and community variations in provider costs, and other factors affecting provider costs that the Commission may consider pursuant to G.S. 97-26, the Commission may also consider other payment systems in North Carolina, other states’ cost and payment structures for workers’ compensation, the impact of changes over time to Medicare fee schedules on payers and providers, and cost issues for providers and payers relating to frequency of service, case mix index, and related issues.

“(2) Transition to direct billing. — Pursuant to G.S. 97-26(g) through (g1) and applicable rules, the Commission shall provide for transition to direct claims submission and reimbursement for medical and hospital fees, including an implementation timeline, notice to affected stakeholders, and related compliance issues.

“(3) Expedite rule-making process for fee schedule. — The Industrial Commission is exempt from the certification requirements of G.S. 150B-19.1(h) and the fiscal note requirement of G.S. 150B-21.4 in developing the fee schedules required pursuant to this section.”

Editor’s Note.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2012-135, s. 9 made the amendments to this section effective July 1, 2012, and provided, in part: “Notwithstanding G.S. 97-31.1, this act is effective when it becomes law [July 1, 2012].”

Effect of Amendments.

Session Laws 2005-448, s. 5, effective September 29, 2005, and applicable to claims pending and filed on or after that date, added subsection (i).

Session Laws 2007-323, s. 28.22A(o), as amended by Session Laws 2007-345, s. 12, effective July 1, 2008, substituted “State Health Plan for Teachers and State Employees” for “Teachers’ and State Employees’ Comprehensive Major Medical Plan” in the fourth paragraph of subsection (a).

Session Laws 2011-287, s. 8, effective June 24, 2011, added subsection (g1).

Session Laws 2012-135, s. 3, in subsection (a), in the first paragraph, added “by rule” and deleted “pursuant to the provisions of this Article” following “revisions,” and deleted the former third and fifth paragraphs regarding public hearings for adoption of fee schedule, and appeals from decision; and, in subsection (b), added “and adopted by rule” at the end of the first sentence in the second paragraph, deleted the former third paragraph, regarding determination of payment rates, and added the present third paragraph. For effective date, see editor’s note.

Session Laws 2013-410, s. 33(b), effective August 23, 2013, deleted “except as provided in subsection (b) of this section” following “compensation” in the first paragraph of subsection (a); in subsection (b), substituted “section” for “subsection” twice in the first paragraph, and deleted the second paragraph and subdivisions (b)(1) through (b)(3).

Legal Periodicals.

For note, “Houses and Wages: An Increase in Workers’ Compensation Recovery,” see 65 N.C.L. Rev. 1499 (1987).

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

CASE NOTES

This section contains the correct measure of employer liability for hospital charges. Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716, 1994 N.C. LEXIS 240, dismissed, 336 N.C. 305, 443 S.E.2d 733, 1994 N.C. LEXIS 231 (1994).

The legislature intended (1) that medical compensation, including hospital services provided by the employer, ordered by the Industrial Commission, provided pursuant to emergencies, or chosen by the employee, subject to the approval of the Commission, be limited by the terms and conditions contained in G.S. 97-25; (2) that such medical compensation be reasonably required to effect a cure or give relief or tend to lessen the period of disability; and (3) that the employer not be charged more than his employee would have been had the employee paid for the services. Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716, 1994 N.C. LEXIS 240, dismissed, 336 N.C. 305, 443 S.E.2d 733, 1994 N.C. LEXIS 231 (1994).

The legislature intended that the Industrial Commission’s authority under G.S. 97-25 be limited to review and approval of hospital charges to ensure, first, that the employer is charged only for those reasonably required services, and, second, that the employer is not charged more for such services than the prevailing charge for the same or similar hospital service in the same community. Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716, 1994 N.C. LEXIS 240, dismissed, 336 N.C. 305, 443 S.E.2d 733, 1994 N.C. LEXIS 231 (1994).

Employer’s Liability for Medical Expense Not Preempted by Federal Law. —

The obligation of an employer to pay claimant’s reasonable and necessary medical expenses, and the ability of health-care providers to accept such payment, was not controlled or preempted by federal Medicaid statutes or regulations. Pearson v. C.P. Buckner Steel Erection Co., 348 N.C. 239, 498 S.E.2d 818, 1998 N.C. LEXIS 220 (1998).

Determination of Payment Amount. —

An employer who denied liability but was ordered to pay medical expenses under the Workers’ Compensation Act was required to pay health-care providers the difference between the amount covered by Medicaid and the full amount authorized by the Commission’s fee schedule. Pearson v. C.P. Buckner Steel Erection Co., 348 N.C. 239, 498 S.E.2d 818, 1998 N.C. LEXIS 220 (1998).

Liability of Physician or Surgeon Is Not Affected by This Section. —

The purpose of this section is to treat the consequences of malpractice by a physician or surgeon as part of the consequences of the original injury as between the employee and the employer, and so, the employer’s insurance carrier. Thus, the employee’s right to benefit under the act on account of the consequences of such malpractice does not depend upon the employer’s negligence. Conversely, the employer’s liability for such consequences of malpractice by a physician or surgeon is limited to those benefits provided under the act. It was not the purpose of this section to affect in any way the liability of the physician or surgeon. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

This section relates to the right of the employee to recover damages or benefits under the act from the employer, and so from the insurance carrier of the employer. It does not impose liability upon the physician or surgeon or relieve him thereof. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966); Bryant v. Dougherty, 270 N.C. 748, 155 S.E.2d 181, 1967 N.C. LEXIS 1418 (1967).

Act Does Not Deprive Employee of Right of Action Against Physician or Surgeon. —

The act does not deprive an employee of the right to maintain an action at common law for malpractice against the physician or surgeon selected by the employer to treat his injuries received in the course of his employment, when the physician is not a full-time employee of the employer. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

Provided Physician Carries on Independent Practice. —

Where a physician is carrying on an independent practice of medicine or surgery, he is not “conducting the business” of an industrial corporation merely because the manager of the plant sends to him, for examination and treatment, those who, from time to time, sustain injuries in the plant. Under these circumstances, G.S. 97-9 does not deprive the employee of his common-law right to a physician or surgeon who, in the course of such examination or treatment, is negligent and thereby aggravates the original injury. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

Nor Confer Jurisdiction on Commission to Determine Such Action. —

The act does not abrogate the employee’s common-law right of action against the attending physician or surgeon, and does not confer upon the Industrial Commission jurisdiction to hear and determine such action. Bryant v. Dougherty, 270 N.C. 748, 155 S.E.2d 181, 1967 N.C. LEXIS 1418 (1967).

The act does not confer upon the Industrial Commission jurisdiction to hear and determine an action brought by an injured employee against a physician or surgeon to recover damages for injury due to the negligence of the latter in the performance of his professional services to the employee. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966); Bryant v. Dougherty, 270 N.C. 748, 155 S.E.2d 181, 1967 N.C. LEXIS 1418 (1967).

Superior Court Has Jurisdiction of Malpractice Action. —

Since the act does not abrogate the employee’s common-law right of action against the attending physician or surgeon and does not confer upon the Industrial Commission jurisdiction to hear and determine such action, the superior court has jurisdiction to do so. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

Malpractice Not Grounds for Action Against Employer or Carrier. —

The malpractice of the physician or surgeon selected by the employer or carrier is not grounds for an independent action against the employer or the carrier, but is, as to them, one of the consequences of the original injury, and is to be compensated as such in accordance with the provision of the Workers’ Compensation Act. Hence, a cross-action for contribution on the theory that the carrier and the physician were joint tortfeasors would not lie. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

Injury or suffering sustained by employee in consequence of malpractice of a physician or surgeon furnished by the employer or carrier is not ground for an independent action; under this section it is a constituent element of the employee’s injury, for which he is entitled to compensation. In such event, the employer and the carrier are primarily liable, and the question of secondary liability is eliminated. Hoover v. Globe Indem. Co., 202 N.C. 655, 163 S.E. 758, 1932 N.C. LEXIS 179 (1932).

The physician and carrier are not joint tortfeasors within the meaning of former G.S. 1-240. Hoover v. Globe Indem. Co., 202 N.C. 655, 163 S.E. 758, 1932 N.C. LEXIS 179 (1932) (following) Brown v. Southern Ry., 202 N.C. 256, 162 S.E. 613, 1932 N.C. LEXIS 478 (1932).

Approval of Bills Where Liability for Medical Care Is Voluntarily Incurred by Employer. —

When liability for the medical care of an employee who has suffered an accident is voluntarily incurred by the employer, the bills therefor must be approved by the Commission before the employer can demand reimbursement from its insurance carrier. In this manner, such expenditures are kept within the schedule of fees and charges adopted by the Commission. Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777, 1953 N.C. LEXIS 704 (1953).

Failure To Receive Pre-Approval For Attendant Care Services. —

Employer was not required to reimburse an employee for the attendant care services provided by his wife because the employee did not receive pre-approval for the attendant care services provided by his wife; the employee brought his claim for retroactive payment for those services under G.S. 97-25 and G.S. 97-26. Mehaffey v. Burger King, 217 N.C. App. 318, 718 S.E.2d 720, 2011 N.C. App. LEXIS 2423 (2011), rev'd in part, 367 N.C. 120, 749 S.E.2d 252, 2013 N.C. LEXIS 1161 (2013).

Injured employee’s wife could be compensated for the attendant care she provided the employee even before the North Carolina Industrial Commission approved her rendering that service, contrary to the Commission’s Medical Fee Schedule, because the approval requirement exceeded the Commission’s power as granted by the General Assembly. Mehaffey v. Burger King, 367 N.C. 120, 749 S.E.2d 252, 2013 N.C. LEXIS 1161 (2013).

Ambulatory Surgical Centers Included In Definition of Hospital. —

Superior court improperly concluded that hospitals were separate and legally distinct entities from ambulatory surgical centers because it erred in referring to the statute to define “hospital” as it was used in 2013 N.C. Sess. Laws ch. 410, § 33.(a), which regarded a fee schedule adopted by the Industrial Commission; the inclusion of ambulatory surgical centers in the definition of hospital, subjecting them to the Medicare methodology for hospital fee schedules, did not frustrate § 33.(a). Surgical Care Affiliates, LLC v. N.C. Indus. Comm'n, 256 N.C. App. 614, 807 S.E.2d 679, 2017 N.C. App. LEXIS 981 (2017).

§ 97-26.1. Fees for medical records and reports; expert witnesses; communications with health care providers.

The Commission may establish maximum fees for the following when related to a claim under this Article: (i) the searching, handling, copying, and mailing of medical records, (ii) the preparation of medical reports and narratives, (iii) the presentation of expert testimony in a Commission proceeding, and (iv) the time spent communicating with the employer or employee pursuant to G.S. 97-25.6(i).

History. 1993 (Reg. Sess., 1994), c. 679, s. 5.6; 2012-135, s. 4.

Editor’s Note.

Session Laws 2012-135, s. 9 made the amendments to this section, which added (iv), effective July 1, 2012, and provided, in part: “Notwithstanding G.S. 97-31.1, this act is effective when it becomes law [July 1, 2012].”

Effect of Amendments.

Session Laws 2012-135, s. 4, added “communications with health care providers” at the end of the section heading; and added item (iv), and made a related stylistic and punctuation change. For effective date, see editor’s note.

§ 97-26.2. Reimbursement for prescription drugs, prescribed over-the-counter drugs, and professional pharmaceutical services.

  1. The reimbursement amount for prescription drugs, prescribed over-the-counter drugs, and professional pharmaceutical services shall be limited to the lesser of ninety-five percent (95%) of the average wholesale price (AWP) of the product, calculated on a per unit basis, as of the date of dispensing or the reimbursement amount provided for in an agreement between the dispensing health care provider and the payor employer or workers’ compensation insurance carrier.
  2. All of the following shall apply to the reimbursement for prescription drugs and professional pharmaceutical services:
    1. A health care provider seeking reimbursement for health care provider-dispensed prescription drugs, prescribed over-the-counter drugs, and pharmaceutical services shall include the original manufacturer’s National Drug Code (NDC) number, as assigned by the United States Food and Drug Administration, on any billing documents or invoices issued.
    2. In no event may a health care provider receive reimbursement in excess of ninety-five percent (95%) of the AWP of the drugs dispensed by a health care provider, as determined by reference to the original manufacturer’s NDC number.
    3. A repackaged NDC number may not be individually used on any billing documents or invoices issued and will not be considered the original manufacturer’s NDC number. A repackaged NDC number may only appear in conjunction with the manufacturer’s NDC number. If a health care provider seeking reimbursement for drugs dispensed by a health care provider does not include the original manufacturer’s NDC number on any billing documents or invoices issued, reimbursement shall be limited to one hundred percent (100%) of the AWP of the least expensive clinically equivalent drug, calculated on a per unit basis.
    4. No outpatient health care provider, other than a licensed pharmacy, may receive reimbursement for a Schedule II controlled substance, as defined in G.S. 90-90, a Schedule III controlled substance, as defined in G.S. 90-91, a Schedule IV controlled substance, as defined in G.S. 90-92, or a Schedule V controlled substance, as defined in G.S. 90-93, dispensed in excess of an initial five-day supply, commencing upon the employee’s initial treatment following injury. Reimbursement under this subdivision shall be made for the five-day supply at the rates provided in this section.
    5. For purposes of this section, the term “clinically equivalent” means a drug has chemical equivalents which, when administered in the same amounts, will provide essentially the same therapeutic effect as measured by the control of a symptom or disease.

History. 2014-100, s. 15.16A(a); 2015-241, s. 15.13B(a).

Effect of Amendments.

Session Laws 2015-241, s. 15.13B(a), effective October 1, 2015, substituted “drugs, prescribed over-the-counter drugs” for “drugs” in the section heading; in subsection (a), substituted “amount for drugs, prescribed over-the-counter drugs, and” for “for prescription drugs and”, inserted “the lesser of”, and added “or the reimbursement amount provided for in an agreement between the dispensing health care provider and the payor employer or workers’ compensation insurance carrier”; and rewrote subdivisions (b)(1) through (4).

§ 97-27. Medical examination; facts not privileged; refusal to be examined suspends compensation; other medical opinions; autopsy.

  1. After an injury, and so long as the employee claims compensation, the employee, if so requested by his or her employer or ordered by the Industrial Commission, shall submit to independent medical examinations, at reasonable times and places, by a duly qualified physician who is licensed and practicing in North Carolina and is designated and paid by the employer or the Industrial Commission, even if the employee’s claim has been denied pursuant to G.S. 97-18(c). The independent medical examination shall be subject to the following provisions:
    1. The injured employee has the right to have present at the independent medical examination any physician provided and paid by the employee.
    2. Notwithstanding the provisions of G.S. 8-53, no fact communicated to or otherwise learned by any physician who may have attended or examined the employee, or who may have been present at any examination, shall be privileged with respect to a claim before the Industrial Commission.
    3. Notwithstanding the provisions of G.S. 97-25.6 to the contrary, an employer or its agent shall be allowed to openly communicate either orally or in writing with an independent medical examiner chosen by the employer regardless of whether the examiner physically examined the employee.
    4. If the examiner physically examined the employee, the employer must produce the examiner’s report to the employee within 10 business days of receipt by the employer, along with a copy of all documents and written communication sent to the independent medical examiner pertaining to the employee.
    5. If the employee refuses to submit to or in any way obstructs an independent medical examination requested and provided by the employer, the employee’s right to compensation and to take or prosecute any proceedings under this Article shall be suspended pursuant to G.S. 97-18.1 until the refusal or objection ceases, and no compensation shall at any time be payable for the period of obstruction, unless in the opinion of the Industrial Commission the circumstances justify the refusal or obstruction. When the employer seeks to suspend compensation under this subdivision, it shall not be necessary for the employer to have first obtained an order compelling the employee to submit to the proposed independent medical examination. Any order issued by the Commission suspending compensation pursuant to G.S. 97-18.1 shall specify what action the employee should take to end the suspension and reinstate the compensation.
  2. In any case arising under this Article in which the employee is dissatisfied with the percentage of permanent disability as provided by G.S. 97-31 and determined by the authorized health care provider, the employee is entitled to have another examination solely on the percentage of permanent disability provided by a duly qualified physician of the employee’s choosing who is licensed to practice in North Carolina, or licensed in another state if agreed to by the parties or ordered by the Commission, and designated by the employee. That physician shall be paid by the employer in the same manner as health care providers designated by the employer or the Industrial Commission are paid. The Industrial Commission must either disregard or give less weight to the opinions of the duly qualified physician chosen by the employee pursuant to this subsection on issues outside the scope of the G.S. 97-27(b) examination. No fact that is communicated to or otherwise learned by any physician who attended or examined the employee, or who was present at any examination, shall be privileged with respect to a claim before the Industrial Commission. Provided, however, that all travel expenses incurred in obtaining the examination shall be paid by the employee.
  3. The employer, or the Industrial Commission, has the right in any case of death to require an autopsy at its expense.

History. 1929, c. 120, s. 27; 1959, c. 732; 1969, c. 135; 1973, c. 520, s. 2; 1977, c. 511; 1991, c. 636, s. 3; 2011-287, s. 9; 2012-135, s. 5.

Cross References.

As to application of this section to certain State law-enforcement officers, see G.S. 143-166.15.

Editor’s Note.

Session Laws 2001-410, s. 3, purported to amend subsection (b) of this section but was corrected to amend G.S. 96-26(b) by Session Laws 2001-413, s. 8.2(a).

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 9, which inserted “other medical opinions” in the section heading, rewrote subsections (a) and (b), and added subsection (c), was applicable to claims pending on or after June 24, 2011.

Session Laws 2012-135, s. 9 added the last sentence of subsection (b) effective July 1, 2012, and applicable to travel expenses incurred for examinations under G.S. 97-27(b) on or after that date, and provided, in part: “Notwithstanding G.S. 97-31.1, this act is effective when it becomes law [July 1, 2012].”

Effect of Amendments.

Session Laws 2011-287, s. 9, effective June 24, 2011, and applicable to claims pending on or after that date, inserted “other medical opinions” in the section catchline; rewrote subsections (a) and (b); and added subsection (c).

Session Laws 2012-135, s. 5, added the last sentence of subsection (b). For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment on release of medical records by North Carolina hospitals, see 7 N.C. Cent. L.J. 299 (1976).

For article, “Primary Issues in Compensation Litigation,” see 17 Campbell L. Rev. 443 (1995).

CASE NOTES

The language of this section is mandatory as to the employee. The employee “shall” submit himself to an examination if it is requested by his employer or ordered by the Industrial Commission. The language of this section, however, imposes no mandatory obligation on the Industrial Commission to order an examination. Taylor v. M.L. Hatcher Pick-Up & Delivery Serv., 45 N.C. App. 682, 263 S.E.2d 788, 1980 N.C. App. LEXIS 2698 (1980).

Commission Approval of Request for Examination Is Discretionary. —

When an employer requests the Commission to order an employee to submit to an examination, whether the Commission grants or denies the employer’s request is within the discretion of the Commission. Taylor v. M.L. Hatcher Pick-Up & Delivery Serv., 45 N.C. App. 682, 263 S.E.2d 788, 1980 N.C. App. LEXIS 2698 (1980).

Where employer chose the treating doctor who gave employee the disability rating for his right leg, and the employer failed to show any abuse of discretion by the Deputy Commissioner in finding that the employer was not entitled to an independent medical evaluation for the employee’s leg injury, the Full Commission did not err in affirming the Deputy Commissioner’s findings and awarding the employee compensation for his leg injuries. Haley v. ABB, Inc., 174 N.C. App. 469, 621 S.E.2d 180, 2005 N.C. App. LEXIS 2496 (2005).

Refusal to Undergo Diagnostic Tests. —

Under subsection (a) of this section, employee was required to undergo the diagnostic tests requested by the physician designated by his employer or, in the alternative, request the Commission to find such test to be not reasonable, in which case the Commission would be required to decide the matter. Where he did neither, but simply unilaterally refused the tests, employee would not be entitled to compensation until that time when he submitted to further examination by the physician. Hooks v. Eastway Mills, Inc., 74 N.C. App. 432, 328 S.E.2d 602, 1985 N.C. App. LEXIS 3536, rev'd, 314 N.C. 657, 335 S.E.2d 898, 1985 N.C. LEXIS 2089 (1985).

The Workers’ Compensation Statute does not compel the employer, nor the Industrial Commission, to rely upon one source of medical information, that provided by the injured plaintiff. The statute specifically suspends an injured employee’s right to compensation should he or she refuse to submit to examination by a physician designated and paid for by the employer. Blankley v. White Swan Uniform Rentals, 107 N.C. App. 751, 421 S.E.2d 603, 1992 N.C. App. LEXIS 802 (1992).

Investigation Of Injuries. —

Medical issues can be complex and the extent of an employee’s injuries may be difficult to determine at the time of the accident; however, the legislature has wisely given employers who are uncertain about the compensability of an employee’s injuries the methods to investigate such injuries without admitting any liability under the Workers’ Compensation Act while still providing prompt payments to injured employees. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

Refusal to Undergo Surgery with Employer-Selected Physician. —

An employee was not justified in choosing to undergo surgery with her own physician where the employer had already accepted liability orally and in writing and was therefore entitled to direct the medical treatment, where she failed to request authorization from the Commission within a reasonable period of time, and where she did not have good cause to refuse the treatment by the employer’s physician. Kanipe v. Lane Upholstery, 141 N.C. App. 620, 540 S.E.2d 785, 2000 N.C. App. LEXIS 1302 (2000).

Remand Where Findings Fail to Determine Justification for Refusal. —

Where the findings of fact of the Industrial Commission fail to determine whether the circumstances justified the plaintiff ’s refusal to submit to medical procedures, the case must be remanded to the Industrial Commission for determination of whether the plaintiff ’s refusal to undergo the procedures was reasonable under the circumstances. Hooks v. Eastway Mills, Inc. & Affiliates, 314 N.C. 657, 335 S.E.2d 898, 1985 N.C. LEXIS 2089 (1985).

Analysis of Blood Taken from Body After Death. —

The percentage of alcohol in the bloodstream of a deceased employee, determined by chemical analysis of a sample of blood taken from his body shortly after death, was competent evidence on the question of intoxication. Osborne v. Colonial Ice Co., 249 N.C. 387, 106 S.E.2d 573, 1959 N.C. LEXIS 360 (1959).

Autopsy after Burial. —

One month after deceased’s burial, defendant requested that the body be disinterred and a postmortem examination be made to determine the cause of his death. It was held that plaintiff ’s consent was rightfully refused. There is a distinction between the right to have an autopsy before and after burial. The latter will not be granted except in cases of extreme emergency. Cabe v. Parker-Graham-Sexton, Inc., 202 N.C. 176, 162 S.E. 223, 1932 N.C. LEXIS 457 (1932).

The Commission erred by admitting the deposition testimony of plaintiff’s surgeon in light of the non-consensual ex parte contact between defendant and plaintiff’s surgeon. Salaam v. North Carolina DOT, 122 N.C. App. 83, 468 S.E.2d 536, 1996 N.C. App. LEXIS 203 (1996).

§ 97-28. Seven-day waiting period; exceptions.

No compensation, as defined in G.S. 97-2(11), shall be allowed for the first seven calendar days of disability resulting from an injury, except the benefits provided for in G.S. 97-25. Provided however, that in the case the injury results in disability of more than 21 days, the compensation shall be allowed from the date of the disability. Nothing in this section shall prevent an employer from allowing an employee to use paid sick leave, vacation or annual leave, or disability benefits provided directly by the employer during the first seven calendar days of disability.

History. 1929, c. 120, s. 28; 1983, c. 599; 1987, c. 729, s. 5.

CASE NOTES

The Commission’s failure to make sufficient findings to support its denial of a seamstress’s claim, based on her refusal to see an authorized physician under this section or because she was not due any compensation for the first seven days of her injury under G.S. 97-28, resulted in remand. Kanipe v. Lane Upholstery, 141 N.C. App. 620, 540 S.E.2d 785, 2000 N.C. App. LEXIS 1302 (2000).

§ 97-29. Rates and duration of compensation for total incapacity.

  1. When an employee qualifies for total disability, the employer shall pay or cause to be paid, as hereinafter provided by subsections (b) through (d) of this section, to the injured employee a weekly compensation equal to sixty-six and two-thirds percent (662/3%) of his average weekly wages, but not more than the amount established annually to be effective January 1 as provided herein, nor less than thirty dollars ($30.00) per week.
  2. When a claim is compensable pursuant to G.S. 97-18(b), paid without prejudice pursuant to G.S. 97-18(d), agreed by the parties pursuant to G.S. 97-82, or when a claim has been deemed compensable following a hearing pursuant to G.S. 97-84, the employee qualifies for temporary total disability subject to the limitations noted herein. The employee shall not be entitled to compensation pursuant to this subsection greater than 500 weeks from the date of first disability unless the employee qualifies for extended compensation under subsection (c) of this section.
  3. An employee may qualify for extended compensation in excess of the 500-week limitation on temporary total disability as described in subsection (b) of this section only if (i) at the time the employee makes application to the Commission to exceed the 500-week limitation on temporary total disability as described in subsection (b) of this section, 425 weeks have passed since the date of first disability and (ii) pursuant to the provisions of G.S. 97-84, unless agreed to by the parties, the employee shall prove by a preponderance of the evidence that the employee has sustained a total loss of wage-earning capacity. If an employee makes application for extended compensation pursuant to this subsection and is awarded extended compensation by the Commission, the award shall not be stayed pursuant to G.S. 97-85 or G.S. 97-86 until the full Commission or an appellate court determines otherwise. Upon its own motion or upon the application of any party in interest, the Industrial Commission may review an award for extended compensation in excess of the 500-week limitation on temporary total disability described in subsection (b) of this section, and, on such review, may make an award ending or continuing extended compensation. When reviewing a prior award to determine if the employee remains entitled to extended compensation, the Commission shall determine if the employer has proven by a preponderance of the evidence that the employee no longer has a total loss of wage-earning capacity. When an employee is receiving full retirement benefits under section 202(a) of the Social Security Act, after attainment of retirement age, as defined in section 216(l) of the Social Security Act, the employer may reduce the extended compensation by one hundred percent (100%) of the employee’s retirement benefit. The reduction shall consist of the employee’s primary benefit paid pursuant to section 202(a) of the Social Security Act but shall not include any dependent or auxiliary benefits paid pursuant to any other section of the Social Security Act, if any, or any cost-of-living increases in benefits made pursuant to section 215(i) of the Social Security Act.
  4. An injured employee may qualify for permanent total disability only if the employee has one or more of the following physical or mental limitations resulting from the injury:
    1. The loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof, as provided by G.S. 97-31(17).
    2. Spinal injury involving severe paralysis of both arms, both legs, or the trunk.
    3. Severe brain or closed head injury as evidenced by severe and permanent:
      1. Sensory or motor disturbances;
      2. Communication disturbances;
      3. Complex integrated disturbances of cerebral function; or
      4. Neurological disorders.
    4. Second-degree or third-degree burns to thirty-three percent (33%) or more of the total body surface.An employee who qualifies for permanent total disability pursuant to this subsection shall be entitled to compensation, including medical compensation, during the lifetime of the injured employee, unless the employer shows by a preponderance of the evidence that the employee is capable of returning to suitable employment as defined in G.S. 97-2(22). Provided, however, the termination or suspension of compensation because the employee is capable of returning to suitable employment as defined in G.S. 97-2(22) does not affect the employee’s entitlement to medical compensation. An employee who qualifies for permanent total disability under subdivision (1) of this subsection is entitled to lifetime compensation, including medical compensation, regardless of whether or not the employee has returned to work in any capacity. In no other case shall an employee be eligible for lifetime compensation for permanent total disability.
  5. An employee shall not be entitled to benefits under this section or G.S. 97-30 and G.S. 97-31 at the same time.
  6. Where an employee can show entitlement to compensation pursuant to this section or G.S. 97-30 and a specific physical impairment pursuant to G.S. 97-31, the employee shall not collect benefits concurrently pursuant to both this section or G.S. 97-30 and G.S. 97-31, but rather is entitled to select the statutory compensation which provides the more favorable remedy.
  7. The weekly compensation payment for members of the North Carolina National Guard and the North Carolina State Defense Militia shall be the maximum amount established annually in accordance with subsection (i) of this section per week as fixed herein. The weekly compensation payment for deputy sheriffs, or those acting in the capacity of deputy sheriffs, who serve upon a fee basis, shall be thirty dollars ($30.00) a week as fixed herein.
  8. An officer or member of the State Highway Patrol shall not be awarded any weekly compensation under the provisions of this section for the first two years of any incapacity resulting from an injury by accident arising out of and in the course of the performance by him of his official duties if, during such incapacity, he continues to be an officer or member of the State Highway Patrol, but he shall be awarded any other benefits to which he may be entitled under the provisions of this Article.
  9. Notwithstanding any other provision of this Article, on July 1 of each year, a maximum weekly benefit amount shall be computed. The amount of this maximum weekly benefit shall be derived by obtaining the average weekly insured wage, as defined in G.S. 96-1, by multiplying such average weekly insured wage by 1.10, and by rounding such figure to its nearest multiple of two dollars ($2.00), and this said maximum weekly benefit shall be applicable to all injuries and claims arising on and after January 1 following such computation. Such maximum weekly benefit shall apply to all provisions of this Chapter and shall be adjusted July 1 and effective January 1 of each year as herein provided.
  10. If death results from the injury or occupational disease, then the employer shall pay compensation in accordance with the provisions of G.S. 97-38.

History. 1929, c. 120, s. 29; 1939, c. 277, s. 1; 1943, c. 502, s. 3; c. 543; c. 672, s. 2; 1945, c. 766; 1947, c. 823; 1949, c. 1017; 1951, c. 70, s. 1; 1953, c. 1135, s. 1; c. 1195, s. 2; 1955, c. 1026, s. 5; 1957, c. 1217; 1963, c. 604, s. 1; 1967, c. 84, s. 1; 1969, c. 143, s. 1; 1971, c. 281, s. 1; c. 321, s. 1; 1973, c. 515, s. 1; c. 759, s. 1; c. 1103, s. 1; c. 1308, ss. 1, 2; 1975, c. 284, s. 4; 1979, c. 244; 1981, c. 276, s. 2; c. 378, s. 1; c. 421, s. 3; c. 521, s. 2; c. 920, s. 1; 1987, c. 729, s. 6; 1991, c. 703, s. 4; 1999-456, s. 33(d); 2009-281, s. 1; 2011-287, s. 10; 2012-135, s. 6; 2013-2, s. 9(e); 2013-224, s. 19; 2013-410, s. 19.

Cross References.

As to certain State law-enforcement officers, see G.S. 143-166.16.

Effect of Amendments.

Session Laws 2009-281, s. 1, effective July 10, 2009, substituted “National Guard” for “national guard” in the first sentence of the third paragraph.

Session Laws 2011-287, s. 10, effective June 24, 2011, and applicable to claims arising on or after that date, substituted “Rates and duration of compensation” for “Compensation rates” in the section catchline; and rewrote the section.

Session Laws 2012-135, s. 6, substituted “when a claim has been deemed compensable following a hearing pursuant to G.S. 97-84” for “when an employee proves by a preponderance of the evidence that the employee is unable to earn the same wages the employee had earned before the injury, either in the same or other employment” in the first sentence of subsection (b). For effective date and applicability, see editor’s note.

Session Laws 2013-2, s. 9(e), substituted “wage, as defined in G.S. 96-1” for “wage in accordance with G.S. 96-8(22)” in the second sentence of subsection (i). For effective date and applicability, see editor’s note.

Session Laws 2013-410, s. 19, effective August 23, 2013, substituted “subsection (i)” for “the last paragraph” in the first sentence of subsection (g).

Legal Periodicals.

For a discussion of this section, see 8 N.C.L. Rev. 427 (1930).

For comment on the 1943 amendments, see 21 N.C.L. Rev. 384 (1943).

As to the 1949 amendment, see 27 N.C.L. Rev. 495 (1949).

For a discussion of the increase in allowable recovery by the 1951 amendment, see 29 N.C.L. Rev. 428 (1951).

For note on average weekly wage and combination of wages, see 44 N.C.L. Rev. 1177 (1966).

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For note discussing the use of age, education, and work experience in determining disability in workers’ compensation cases, see 15 Wake Forest L. Rev. 570 (1979).

For survey of 1980 tort law, see 59 N.C.L. Rev. 1239 (1981).

For comment on Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458 (1981), see 4 Campbell L. Rev. 107 (1981).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For survey, “Vernon v. Stephen L. Mabe Builders: The Requirements of Fairness in Settlement Agreements Under the North Carolina Workers’ Compensation Act,” see 73 N.C.L. Rev. 2529 (1995).

For article, “Why Aren’t You Working?: Medlin with Proof of Disability Under the North Carolina Workers’ Compensation Act,” see 38 Campbell L. Rev. 211 (2016).

CASE NOTES

Analysis

I.In General

Legislative Intent. —

The legislature’s expansion of this section in 1973 reflects an obvious intent to address the plight of a worker who suffers an injury permanently abrogating his earning ability. Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336, 1986 N.C. LEXIS 2586 (1986).

This section is not constitutionally infirm; its application bears a rational relationship to a legitimate state interest. Clark v. Sanger Clinic, P.A., 142 N.C. App. 350, 542 S.E.2d 668, 2001 N.C. App. LEXIS 97 (2001).

The North Carolina Industrial Commission is the sole judge of the weight and credibility of the evidence in an industrial injury matter. Hensley v. Indus. Maint. Overflow, 166 N.C. App. 413, 601 S.E.2d 893, 2004 N.C. App. LEXIS 1729 (2004).

Findings Must Support Award and Commission, Not Court of Appeals, Must Make Findings. —

While the Court of Appeals was correct that no finding of fact supported the Industrial Commission’s conclusion that plaintiff was totally disabled under this section because his business was not “employment” and his earnings were not “wages,” the Court of Appeals erred when it usurped the Commission’s fact-finding role and determined that plaintiff’s management skills were marketable in the labor market and that plaintiff was “actively involved in the personal management of [his] business.” Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 530 S.E.2d 54, 2000 N.C. LEXIS 434 (2000).

Judicial Review. —

If there is competent evidence to support the North Carolina Industrial Commission’s findings of fact, those findings must stand, even if there is evidence to the contrary and a reviewing court must affirm an opinion and award. Hensley v. Indus. Maint. Overflow, 166 N.C. App. 413, 601 S.E.2d 893, 2004 N.C. App. LEXIS 1729 (2004).

Cost-effectiveness is not the sole goal of the Workers’ Compensation Act. Grantham v. Cherry Hosp., 98 N.C. App. 34, 389 S.E.2d 822, 1990 N.C. App. LEXIS 319 (1990).

For discussion of the two lines of case law relating to the concept of Maximum Medical Improvement and its applicability to G.S. 97-29, 97-30 and 97-31, see Effingham v. Kroger Co., 149 N.C. App. 105, 561 S.E.2d 287, 2002 N.C. App. LEXIS 141 (2002).

Concept of Maximum Medical Improvement Is Not Applicable to G.S. 97-29 or G.S. 97-30. —

While G.S. 97-31 contemplates a “healing period” followed by a statutory period of time corresponding to the specific physical injury, and allows an employee to receive scheduled benefits for a specific physical impairment only once “the healing period” ends, neither G.S. 97-29 nor G.S. 97-30 contemplates a framework similar to that established by G.S. 97-31. Under G.S. 97-29 or G.S. 97-30, an employee may receive compensation once the employee has established a total or partial loss of wage-earning capacity, and the employee may receive such compensation for as long as the loss of wage-earning capacity continues, for a maximum of 300 weeks in cases of partial loss of wage-earning capacity. Hence, the primary significance of the concept of Maximum Medical Improvement (MMI) is to delineate a crucial point in time only within the context of a claim for scheduled benefits under G.S. 97-31; the concept of MMI does not have any direct bearing upon an employee’s right to continue to receive temporary disability benefits once the employee has established a loss of wage-earning capacity pursuant to G.S. 97-29 or G.S. 97-30. Knight v. Wal-Mart Stores, Inc., 149 N.C. App. 1, 562 S.E.2d 434, 2002 N.C. App. LEXIS 140 (2002), aff'd, 357 N.C. 44, 577 S.E.2d 620, 2003 N.C. LEXIS 310 (2003).

Maximum Medical Improvement as Prerequisite to Permanent Disability. —

An employee may seek a determination of her entitlement to permanent disability under G.S. 97-29, 97-30, or 97-31 only after reaching maximum medical improvement. Effingham v. Kroger Co., 149 N.C. App. 105, 561 S.E.2d 287, 2002 N.C. App. LEXIS 141 (2002).

This section and G.S. 97-30 are mutually exclusive. A claimant cannot simultaneously be both totally and partially incapacitated. Carothers v. Ti-Caro, 83 N.C. App. 301, 350 S.E.2d 95, 1986 N.C. App. LEXIS 2695 (1986).

When an employee suffers a diminution of the power or capacity to earn, he or she is entitled to benefits under G.S. 97-30; when the power or capacity to earn is totally obliterated, he or she is entitled to benefits under this section. Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674, 1987 N.C. LEXIS 2173 (1987).

Award of benefits by the North Carolina Industrial Commission was remanded to allow an employer and its insurer a credit for an award of permanent partial disability because an employee was unable to recover simultaneous benefits under G.S. 97-29 or G.S. 97-30 and G.S. 97-31. Guerrero v. Brodie Contrs., Inc., 158 N.C. App. 678, 582 S.E.2d 346, 2003 N.C. App. LEXIS 1226 (2003).

Construction with G.S. 97-31. —

This section should be construed in pari materia with G.S. 97-31, allowing compensation for the loss of members, and so construed it is held that where an employee has suffered an injury to his hand arising out of and in the course of his employment, and the injury causes him total temporary disability in the course of its healing, and renders it necessary to amputate certain parts of certain fingers of the hand, he is entitled to receive compensation under this section for total temporary disability, and in addition thereto compensation for the loss of the parts of his fingers under G.S. 97-31, there being no provision in the act that the latter should preclude the former, compensation for the latter to begin upon expiration of the compensation for the former. Rice v. Denny Roll & Panel Co., 199 N.C. 154, 154 S.E. 69, 1930 N.C. LEXIS 72 (1930); Whitley v. Columbia Lumber Mfg. Co., 78 N.C. App. 217, 336 S.E.2d 642, 1985 N.C. App. LEXIS 4250 (1985), rev'd, 318 N.C. 89, 348 S.E.2d 336, 1986 N.C. LEXIS 2586 (1986).

Deceased employee’s estate, which recovered death benefits, did not have a vested right in additional compensation resulting from the employee’s loss of vision under G.S. 97-31 because the employee was not entitled to recover once under G.S. 97-29 and then again under G.S. 97-31. Kelly v. Duke Univ., 190 N.C. App. 733, 661 S.E.2d 745, 2008 N.C. App. LEXIS 1073 (2008).

Same — Award Under This Section More Favorable. —

In many instances, an award under this section better fulfills the policy of the Workers’ Compensation Act than an award under G.S. 97-31, because it is a more favorable remedy and is more directly related to compensating inability to work. West v. Bladenboro Cotton Mills, Inc., 62 N.C. App. 267, 302 S.E.2d 645, 1983 N.C. App. LEXIS 2850 (1983).

Same — Award When All Injuries Not Covered Under G.S. 97-31. —

When all of a worker’s injuries are not covered by the schedule contained in G.S. 97-31 and the worker’s earning capacity has been totally and permanently impaired, he is entitled to an award for permanent and total disability under the provisions of this section. Jones v. Murdoch Center, 74 N.C. App. 128, 327 S.E.2d 294, 1985 N.C. App. LEXIS 3358 (1985).

Where all of a worker’s injuries are compensable under G.S. 97-31, the compensation provided for under that section is in lieu of all other compensation. When, however, an employee cannot be fully compensated under G.S. 97-31 and is permanently incapacitated, he or she is entitled to compensation under this section for total incapacity or under G.S. 97-30 for partial incapacity. Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E.2d 122, 1986 N.C. App. LEXIS 2155 (1986).

An employee who suffers an injury scheduled in G.S. 97-31 may recover compensation under this section instead of G.S. 97-31 if he is totally and permanently disabled. Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336, 1986 N.C. LEXIS 2586 (1986).

When all of an employee’s injuries are included in the schedule set out in G.S. 97-31, the employee’s entitlement to compensation is exclusively under that section. However, if an employee receives an injury which is compensable and the injury causes him to become so emotionally disturbed that he is unable to work, he is entitled to compensation for total incapacity under this section. Hill v. Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1, 1986 N.C. App. LEXIS 2021 (1986), aff'd in part, vacated in part, 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

An employee may be compensated for both a scheduled compensable injury under G.S. 97-31 and total incapacity for work under this section when the total incapacity is caused by a psychiatric disorder brought on by the scheduled injury. Hill v. Hanes Corp., 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

If a claimant is totally and permanently disabled within the meaning of this section, then he is not limited to a recovery under the schedule of compensation of G.S. 97-31. Mitchell v. Fieldcrest Mills, Inc., 84 N.C. App. 661, 353 S.E.2d 638, 1987 N.C. App. LEXIS 2551 (1987).

Where claimant is totally disabled as a result of injuries not included in G.S. 97-31 schedule, claimant is entitled to an award for total disability under this section. Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 354 S.E.2d 477, 1987 N.C. LEXIS 1935 (1987).

Same — Award When G.S. 97-31 Covers All Injuries. —

When all of a worker’s injuries are included in the schedule set out in G.S. 97-31 his compensation is limited to that provided for in the statutory schedule without regard to his ability or inability to earn wages. Jones v. Murdoch Center, 74 N.C. App. 128, 327 S.E.2d 294, 1985 N.C. App. LEXIS 3358 (1985).

Same — Disablement Presumed Under G.S. 97-31. —

In all cases in which compensation is sought under this section or G.S. 97-30, total or partial disablement must be shown; however, if compensation is sought in the alternative under G.S. 97-31, disablement is presumed from the injury and compensation is accordingly based on the schedule. Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

Same — Illustrative Cases. —

Plaintiff, who suffered a fall causing a permanent partial impairment to his back of 20% and whom the Commission found unable to work at his previous job as a nurse or at any other employment, was totally and permanently disabled and was entitled to recover under this section, and was not limited to recovery under G.S. 97-31. Taylor v. Margaret R. Pardee Mem. Hosp., 83 N.C. App. 385, 350 S.E.2d 148, 1986 N.C. App. LEXIS 2713 (1986).

The “in lieu of” clause in G.S. 97-31 does not prevent a worker who qualifies from recovering lifetime benefits under this section. Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336, 1986 N.C. LEXIS 2586 (1986) (overruling) Perry v. Hibriten Furn. Co., 296 N.C. 88, 249 S.E.2d 397, 1978 N.C. LEXIS 1163 (1978).

The interpretation of Perry v. Hibriten Furn. Co., 296 N.C. 88, 249 S.E.2d 397 (1978), that when all of a plaintiff ’s disability resulting from an injury is covered by G.S. 97-31, an employee is entitled to no compensation for permanent total disability, was overruled in Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336 (1986), which held that the “in lieu of” clause of G.S. 97-31 does not prevent a worker who qualifies from recovering lifetime benefits under this section. Harrington v. Pait Logging Company/Georgia Pac., 86 N.C. App. 77, 356 S.E.2d 365, 1987 N.C. App. LEXIS 2657 (1987).

This section is an alternate source of compensation for an employee who suffers an injury which is also included under the schedule under G.S. 97-31; the injured worker is allowed to select the more favorable remedy, but he or she cannot recover compensation under both sections, because G.S. 97-31 is “in lieu of all other compensation.” Harrington v. Pait Logging Company/Georgia Pac., 86 N.C. App. 77, 356 S.E.2d 365, 1987 N.C. App. LEXIS 2657 (1987); McKenzie v. McCarter Elec. Co., 86 N.C. App. 619, 359 S.E.2d 249, 1987 N.C. App. LEXIS 2751 (1987).

Often an award under this section, and by implication G.S. 97-30, better fulfills the policy of the Workers’ Compensation Act than an award under G.S. 97-31(24). Strickland v. Burlington Indus., Inc., 87 N.C. App. 507, 361 S.E.2d 394, 1987 N.C. App. LEXIS 3208 (1987).

Right to Elect Coverage Under This Section. —

Even if all injuries are covered under G.S. 97-31, the scheduled injury section, an employee may nevertheless elect to claim under this section if this section is more favorable, but he may not recover under both sections. Hill v. Hanes Corp., 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Construction with G.S. 97-47. —

North Carolina Industrial Commission erred by awarding a workers’ compensation claimant additional disability compensation as the claimant did not prove the claimant had sustained a change of condition under G.S. 97-47, and the only way an award could be modified under G.S. 97-29 was if the claimant showed a change in condition. Ward v. Floors Perfect, 183 N.C. App. 541, 645 S.E.2d 109, 2007 N.C. App. LEXIS 1179 (2007), rev'd, 362 N.C. 280, 658 S.E.2d 656, 2008 N.C. LEXIS 332 (2008).

Additional Recovery for Concurrent Symptoms Not Available. —

Where an employee has received compensation for a brain injury under the total disability provisions of this section, additional recovery is not available for concurrent symptoms caused by that injury. Dishmond v. International Paper Co., 132 N.C. App. 576, 512 S.E.2d 771, 1999 N.C. App. LEXIS 230 (1999).

The Industrial Commission is required to conduct a full investigation and a determination that a Form 26 compensation agreement is fair and just, in order to assure that the settlement is in accord with the intent and purpose of the Workers’ Compensation Act that an injured employee receive the disability benefits to which he is entitled, and, particularly, that an employee qualifying for disability compensation under both this section and G.S. 97-31 have the benefit of the more favorable remedy. Vernon v. Steven L. Mabe Bldrs., 336 N.C. 425, 444 S.E.2d 191, 1994 N.C. LEXIS 308 (1994).

Failure of Commission to Determine Fairness of Agreement. —

Where plaintiff may have been entitled to permanent total disability benefits under this section, as well as permanent partial disability benefits under G.S. 97-31, but under this section plaintiff would receive such benefits for as long as he remained totally disabled rather than 45 weeks, and claims employee assumed, rather than determined, that plaintiff was knowledgeable about workers’ compensation benefits and his rights, in approving the Form 26 compensation agreement between plaintiff and defendants, the Industrial Commission did not, as the statute requires, act in a judicial capacity to determine the fairness of the agreement. Vernon v. Steven L. Mabe Bldrs., 336 N.C. 425, 444 S.E.2d 191, 1994 N.C. LEXIS 308 (1994).

Where an employee suffered a back injury and entered into a compromise settlement agreement with an insurance carrier, the North Carolina Industrial Commission erred by not setting aside the agreement because, inter alia, the Commission failed to undertake a full investigation to determine if the agreement was fair and just since the employee may have been entitled to total disability benefits instead of a scheduled injury or partial disability benefits. Kyle v. Holston Group, 188 N.C. App. 686, 656 S.E.2d 667, 2008 N.C. App. LEXIS 282 (2008).

Worker May Select More Favorable Remedy. —

This section is an alternative source of compensation for an employee who suffers an injury which is also included in the schedule, and the worker may select the more favorable remedy. Wilder v. Barbour Boat Works, 84 N.C. App. 188, 352 S.E.2d 690, 1987 N.C. App. LEXIS 2489 (1987).

This section and G.S. 97-31 are alternate sources of compensation for an employee who suffers a disabling injury which is also included as a scheduled injury. The injured worker is allowed to select the more favorable remedy, but he cannot recover compensation under both sections. Cockman v. PPG Indus., 84 N.C. App. 101, 351 S.E.2d 771, 1987 N.C. App. LEXIS 2457 (1987); Dishmond v. International Paper Co., 132 N.C. App. 576, 512 S.E.2d 771, 1999 N.C. App. LEXIS 230 (1999).

Commission Erred by Not Assessing Most Munificent Remedy. —

The Industrial Commission erred when it awarded permanent disability compensation solely for plaintiff’s scheduled hand injury under G.S. 97-31 without assessing whether this section or G.S. 97-30 would provide him a more munificent remedy. McLean v. Eaton Corp., 125 N.C. App. 391, 481 S.E.2d 289, 1997 N.C. App. LEXIS 105 (1997).

Version of Statute in Effect for Determining Compensation. —

Plaintiff, who became partially disabled in 1973 and was compensated pursuant to the laws in effect at that time, was entitled to compensation for total disability (arising out of the same injury) under the laws in effect in 1981, when he became totally disabled. Peace v. J.P. Stevens Co., 95 N.C. App. 129, 381 S.E.2d 798, 1989 N.C. App. LEXIS 687 (1989).

Calculation of Average Weekly Wage and Compensation Rate. —

North Carolina Industrial Commission’s findings, under G.S. 97-29, as to an injured city employee’s average weekly wage and compensation rate was supported by competent evidence based on the employee’s total yearly earnings, longevity bonus, and overtime adjustment for longevity, which were then divided by the number of weeks the employee worked in the year. Cox v. City of Winston-Salem, 171 N.C. App. 112, 613 S.E.2d 746, 2005 N.C. App. LEXIS 1161 (2005).

North Carolina Industrial Commission’s finding that an employee retained only minimal earning capacity was supported by the medical and record evidence and accorded to the appellate court’s mandate in an earlier remand; the commission properly took judicial notice of the federal minimum wage to conclude that the employee was entitled to $14,181 more under G.S. 97-30 than he was under the Form 26 agreement, and to set the agreement aside and award the employee $14,181. Lewis v. Craven Reg'l Med. Ctr., 174 N.C. App. 561, 621 S.E.2d 259, 2005 N.C. App. LEXIS 2473 (2005).

North Carolina Industrial Commission correctly determined that decedent’s average weekly wages for 1987 were $807 based on G.S. 97-2(5), but the Commission erred by failing to apply the average weekly wages in conjunction with G.S. 97-38 because the Commission failed to apply the 66 percent aspect of the statute to the average weekly wages of $807; upon applying the 66 percent, the compensation became $538, and because $ 538 was below the maximum compensation rate of $730 for 2006, the year a decedent was diagnosed, the decedent’s dependent was entitled to the full amount of $538 for 400 weeks. Johnson v. Covil Corp., 212 N.C. App. 407, 711 S.E.2d 500, 2011 N.C. App. LEXIS 1047 (2011).

North Carolina Industrial Commission erred in figuring that a decedent had average weekly wages of $807 based on his 1987 wages and in concluding that the maximum compensation rate of $308 for 1987 applied because although the proper year for determining his average weekly wages was 1987, G.S. 97-29 did not provide an unjust result but required that the maximum compensation rate for 2006 be used, as that was the year of the decedent’s diagnosis; the North Carolina Industrial Commission made the correct determination that to have a just and fair result it had to resort to using a decedent’s average weekly wages from his last year of employment with the employer, but the Commission erred in failing to explain why the first method of G.S. 97-2(5) would produce unjust results. Johnson v. Covil Corp., 212 N.C. App. 407, 711 S.E.2d 500, 2011 N.C. App. LEXIS 1047 (2011).

Where the North Carolina Industrial Commission determined that plaintiff was disabled as the result of the effects of two separate compensable injuries and that plaintiff was entitled to temporary total disability benefits under G.S. 97-29(a), the Commission’s findings regarding plaintiff’s weekly compensation rate were insufficient to permit a proper application of the formula prescribed in G.S. 97-34 because the Commission did not determine whether plaintiff received an injury for which compensation was payable while being entitled to compensation for a previous injury in the same employment and, if so, which of the applicable compensation rates would cover the longest period and provide the largest amount payable. Thus, it was necessary to remand the case to the Commission for the entry of a new order containing adequate findings and conclusions. Helfrich v. Coca-Cola Bottling Co. Consol., 225 N.C. App. 701, 741 S.E.2d 408, 2013 N.C. App. LEXIS 221 (2013).

Payment of Employee’s Consumer Debts as Rehabilitative Service Not Authorized. —

The Workers’ Compensation Act does not authorize the Commission to order an employer to pay an employee’s common consumer debts as a rehabilitative service. Grantham v. Cherry Hosp., 98 N.C. App. 34, 389 S.E.2d 822, 1990 N.C. App. LEXIS 319 (1990).

It is not a reasonable interpretation of the Workers’ Compensation Act to classify the payment of consumer debt as a rehabilitative service. Grantham v. Cherry Hosp., 98 N.C. App. 34, 389 S.E.2d 822, 1990 N.C. App. LEXIS 319 (1990).

Where an employee is properly determined to be totally and permanently disabled under this section, § 97-32 has no application. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Inability to Obtain Future Employment. —

Where an employee’s effort to obtain employment would be futile because of age, inexperience, lack of education or other preexisting factors, the employee should not be precluded from compensation for failing to engage in the meaningless exercise of seeking a job which does not exist. Lackey v. R.L. Stowe Mills, Inc., 106 N.C. App. 658, 418 S.E.2d 517, 1992 N.C. App. LEXIS 609 (1992).

This section is not subject to the limitation imposed by the proviso of G.S. 97-37. Inman v. Meares, 247 N.C. 661, 101 S.E.2d 692, 1958 N.C. LEXIS 296 (1958).

Where an employee filed a claim for total temporary disability under this section and thereafter recovered from his disabling injury and returned to his employment and was fatally injured in a compensable accident unconnected with the prior claim, the claim for disability did not come within the proviso of G.S. 97-37 and the right to payments accrued at the time of the employee’s death had vested and survived to his personal representative. Inman v. Meares, 247 N.C. 661, 101 S.E.2d 692, 1958 N.C. LEXIS 296 (1958).

Self-Employment. —

Questions regarding whether a claimant’s self-employment involves marketable skills and whether a claimant’s active involvement in the day-to-day operation of a business are questions of fact. Hensley v. Indus. Maint. Overflow, 166 N.C. App. 413, 601 S.E.2d 893, 2004 N.C. App. LEXIS 1729 (2004).

Termination Date of Temporary Total Disability Benefits Not Required. —

This section does not require a finding nor a conclusion regarding the termination date of temporary total disability benefits. Such a requirement would be illogical since a case of temporary total disability is one in which the duration of the disability is uncertain. Kennedy v. Duke Univ. Medical Center, 101 N.C. App. 24, 398 S.E.2d 677, 1990 N.C. App. LEXIS 1224 (1990).

Claimant Unable to Earn Wages in Any Job for Which Qualified Was Totally, Not Partially, Disabled. —

The Commission erred as a matter of law by awarding claimant compensation for partial disability when it found as fact that plaintiff was incapable of earning wages in any employment for which plaintiff was qualified. Based on the Commission’s findings, plaintiff was totally disabled within the meaning of this section. Carothers v. Ti-Caro, 83 N.C. App. 301, 350 S.E.2d 95, 1986 N.C. App. LEXIS 2695 (1986).

Accrued Unpaid Compensation Is Asset of Deceased Worker’s Estate. —

Compensation which accrues under this section during the lifetime of an injured worker, but is unpaid at his death, becomes an asset of his estate. McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467, 1966 N.C. LEXIS 1376 (1966).

Disability, as used in the act, means impairment of wage earning capacity rather than physical impairment. Priddy v. Blue Bird Cab Co., 9 N.C. App. 291, 176 S.E.2d 26, 1970 N.C. App. LEXIS 1343 (1970).

A person may be wholly incapable of working and earning wages even though her ability to carry out normal life functions has not been wholly destroyed and even though she has not lost 100 percent use of her nervous system. Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743, 1978 N.C. LEXIS 1019 (1978).

In order to support a conclusion of disability, the Industrial Commission must find that after the injury, the plaintiff was incapable of earning the same wages he or she earned before the injury in the same or any other employment and that the plaintiff ’s incapacity to earn was caused or significantly contributed to by the injury. Harrington v. Pait Logging Company/Georgia Pac., 86 N.C. App. 77, 356 S.E.2d 365, 1987 N.C. App. LEXIS 2657 (1987); Strickland v. Burlington Indus., Inc., 86 N.C. App. 598, 359 S.E.2d 19, 1987 N.C. App. LEXIS 2754 (1987).

In order to prove disability the burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment. The employee may meet this burden in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury. Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 425 S.E.2d 454, 1993 N.C. App. LEXIS 176 (1993).

Agreement Affects Consequent Burden of Proof. —

The Commission erred in concluding that as a matter of law because defendants had the burden of proof to present evidence sufficient to rebut a presumption of continued total disability raised by Form 21 agreement, and defendants had not met that burden, plaintiff was entitled to a continuing presumption of total disability; plaintiff employee’s later Form 26 agreement with its specific duration superseded the earlier Form 21 agreement which covered her total disability for an indefinite period, and consequently, she had the burden of rebutting the existing presumption of partial disability through the presentation of evidence supporting total disability. Dancy v. Abbott Labs., 139 N.C. App. 553, 534 S.E.2d 601, 2000 N.C. App. LEXIS 982 (2000), aff'd, 353 N.C. 446, 545 S.E.2d 211, 2001 N.C. LEXIS 431 (2001).

The relevant inquiry under this section is not whether all or some persons with plaintiff ’s degree of injury are capable of working and earning wages, but whether plaintiff herself has such capacity. Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743, 1978 N.C. LEXIS 1019 (1978); Allen v. Standard Mineral Co., 71 N.C. App. 597, 322 S.E.2d 644, 1984 N.C. App. LEXIS 3915 (1984).

If preexisting conditions such as the employee’s age, education and work experience are such that an injury causes the employee a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the actual incapacity he or she suffers, and not for the degree of disability which would be suffered by someone who is younger or who possesses superior education or work experience. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Under the traditional four-way classification of disabilities, a total disability under this section must be either permanent or temporary. Gamble v. Borden, Inc., 45 N.C. App. 506, 263 S.E.2d 280, 1980 N.C. App. LEXIS 2647 (1980).

Occupational Disease Is Not Compensable Until It Causes Incapacity to Work. —

An occupational disease does not become compensable under this section (relating to total incapacity) or G.S. 97-30 (relating to partial incapacity) until it causes incapacity for work. This incapacity is the basic “loss” for which the worker receives compensation. Caulder v. Mills, 314 N.C. 70, 331 S.E.2d 646, 1985 N.C. LEXIS 1707 (1985).

In determining the extent of a particular employee’s capacity for work, the Commission may consider such factors as the individual’s degree of pain and the individual’s age, education and work experience. Niple v. Seawell Realty & Indus. Co., 88 N.C. App. 136, 362 S.E.2d 572, 1987 N.C. App. LEXIS 3441 (1987).

Fact that plaintiff can perform sedentary work does not in itself preclude the Commission from making an award for total disability if it finds upon supporting evidence that plaintiff, because of other preexisting limitations, is not qualified to perform the kind of sedentary jobs that might be available in the marketplace. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Where occupational lung disease incapacitates an employee from all but sedentary employment, and because of the employee’s age, limited education or work experience no sedentary employment for which the employee is qualified exists, the employee is entitled to compensation for total disability. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Disability Related to Asbestosis. —

The claimant could not recover compensation for total or partial incapacity to earn wages, both of which require a showing of disablement, where his prior award of 104-weeks’ compensation for asbestosis did not establish his disablement, but he was entitled to compensation for permanent injury to his lungs. Davis v. Weyerhaeuser Co., 132 N.C. App. 771, 514 S.E.2d 91, 1999 N.C. App. LEXIS 284 (1999).

When an injury to the back causes referred pain to the extremities of the body and this pain impairs the use of the extremities, then the award of workers’ compensation must take into account such impairment. Harmon v. Public Serv. of N.C. Inc., 81 N.C. App. 482, 344 S.E.2d 285, 1986 N.C. App. LEXIS 2301 (1986).

When an injury to the back causes referred pain to the extremities of the body, and this pain impairs the use of the extremities, then the award of workers’ compensation must take into account such impairment; furthermore, a disabled plaintiff suffering from “chronic back and leg pain” as a result of a work-related injury to the back cannot be fully compensated under G.S. 97-31(23) and is entitled to compensation under this section. Therefore, the Industrial Commission’s failure to make findings as to disability to the plaintiff ’s legs caused by the arachnoiditis was error and required a remand to the Commission for appropriate findings. McKenzie v. McCarter Elec. Co., 86 N.C. App. 619, 359 S.E.2d 249, 1987 N.C. App. LEXIS 2751 (1987).

Remand for Findings as to Other Employment for Which Qualified. —

Where the Commission found that plaintiff had chronic obstructive pulmonary disease caused in part by her exposure to respirable cotton dust during her employment, but that her impairment was not sufficient to render plaintiff incapable of performing types of employment which did not require very strenuous activity or exposure to cotton dust, but the Commission’s findings did not address evidence that due to plaintiff ’s education, age and experience she was probably not capable of earning wages in any employment which did not require substantial physical exertion, the case was remanded for appropriate findings and conclusions of plaintiff ’s capacity to earn wages in employment for which she might be qualified. Webb v. Pauline Knitting Indus., 78 N.C. App. 184, 336 S.E.2d 645, 1985 N.C. App. LEXIS 4248 (1985).

Remand for Findings as to Wage Earning Capacity. —

Where plaintiff suffered a permanent disability to her lungs, the Industrial Commission committed error in compensating her under G.S. 97-31, but failing to consider or make findings of fact as to whether her disability affected her wage earning capacity under either this section, or G.S. 97-30, as this prevented plaintiff from electing to recover under either this section or G.S. 97-30, if she was so entitled. Strickland v. Burlington Indus., Inc., 87 N.C. App. 507, 361 S.E.2d 394, 1987 N.C. App. LEXIS 3208 (1987).

Presumption of Duration of Disability. —

The Supreme Court has held that “if an award is made, payable during disability, and there is a presumption that disability lasts until the employee returns to work, there is likewise a presumption that disability ended when the employee returned to work.” Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109, 1951 N.C. LEXIS 545 (1951).

Wheelchair Accessible Residence. —

The employer’s obligation to furnish “other treatment or care” may include the duty to furnish alternate, wheelchair accessible housing. Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814, 1986 N.C. LEXIS 2585 (1986).

Evidence that plaintiff ’s present rented home had not been modified to accommodate his wheelchair, that the owners would not permit such modification, and that plaintiff could not enter the bathroom or kitchen and thus could not use the bath or toilet facilities or prepare meals for himself supported the Commission’s finding of fact that plaintiff ’s present residence was not satisfactory and its award for wheelchair accessible housing. Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814, 1986 N.C. LEXIS 2585 (1986).

Employer could be ordered, under G.S. 97-29, to pay to rent handicapped accessible housing for a quadriplegic employee because: (1) the employee had no home that could be renovated; (2) the employer had paid to house the employee in a skilled nursing or long-term care facility; and (3) such facilities were not in the employee’s medical best interest. Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 758 S.E.2d 169, 2014 N.C. App. LEXIS 418 (2014).

North Carolina Industrial Commission did not err in requiring a worker to contribute $400 per month toward the cost of renting his apartment. Hall v. United States Xpress, Inc., 256 N.C. App. 635, 808 S.E.2d 595, 2017 N.C. App. LEXIS 1016 (2017).

Handicapped Accessible Housing. —

An employer’s duty to provide other treatment or care is sufficiently broad to include the duty to provide handicapped accessible housing. Timmons v. North Carolina DOT, 123 N.C. App. 456, 473 S.E.2d 356, 1996 N.C. App. LEXIS 727 (1996), aff'd, 346 N.C. 173, 484 S.E.2d 551, 1997 N.C. LEXIS 204 (1997).

Specially Equipped Van. —

Neither the phrase “other treatment or care” nor the term “rehabilitative services” in this section can reasonably be interpreted to include a specially equipped van. McDonald v. Brunswick Elec. Membership Corp., 77 N.C. App. 753, 336 S.E.2d 407, 1985 N.C. App. LEXIS 4381 (1985) (affirming the Commission’s opinion and award, however, to the extent that it required defendants to reimburse plaintiff for the cost of special adaptive equipment in his specially equipped van) .

It was not error to deny a quadriplegic employee’s request to order an employer to provide an adaptable van because the record showed transportation services available to the employee were satisfactory. Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 758 S.E.2d 169, 2014 N.C. App. LEXIS 418 (2014).

Psychological injuries are compensable, if at all, under this section or G.S. 97-31 and wage-earning capacity is critical to the assessment of a plaintiff’s entitlement to benefits under these sections. McLean v. Eaton Corp., 125 N.C. App. 391, 481 S.E.2d 289, 1997 N.C. App. LEXIS 105 (1997).

Evidence Held Sufficient to Show That Injurious Exposure Occurred During Course of Employment. —

Where the record disclosed that plaintiff did not continue earning wages after 1969, her unsuccessful attempts to work during the years 1969 to 1980, when considered in conjunction with the medical evidence, merely demonstrated her total incapacity to earn wages; thus the commission’s determination that plaintiff ’s last injurious exposure to the hazards of her occupational disease occurred while she was employed in 1968, and its order that employer and its carrier in 1968 pay her an award under the provisions of this section in effect on October 1, 1968, would be affirmed. Gregory v. Sadie Cotton Mills, Inc., 90 N.C. App. 433, 368 S.E.2d 650, 1988 N.C. App. LEXIS 556 (1988).

Testimony of two doctors and a vocational rehabilitation counselor was amply competent to support the Commission’s finding that employee had no capacity to earn wages in either the same or any other employment up to the date of a hearing before a deputy commissioner. Kennedy v. Duke Univ. Medical Center, 101 N.C. App. 24, 398 S.E.2d 677, 1990 N.C. App. LEXIS 1224 (1990).

Where an employee, who was a traveling nursing assistant, had traveled to a patient’s home, left on a personal errand, and was injured in an automobile accident on her return to the patient’s home, the full North Carolina Industrial Commission’s award of temporary total disability benefits was upheld on appeal, because the personal errand had been completed and the employee had resumed her business travel route when the accident occurred; thus, the accident was properly determined to have occurred in the course of employment, making the injury compensable. Chavis v. TLC Home Health Care, 172 N.C. App. 366, 616 S.E.2d 403, 2005 N.C. App. LEXIS 1770 (2005).

Employee Bore Burden of Rebutting Presumption That She Was Temporarily Partially Disabled. —

The plaintiff bore the burden of proving total disability at the hearing before the Commission where—after entering into a Form 21 agreement which did not specifically note the type of disability for which plaintiff was being compensated but in which the weekly compensation rate was fixed at a level equivalent to the amount payable for total disability under this section—she entered a Form 26 agreement which created the presumption that plaintiff was temporarily partially disabled, and not totally disabled. Saunders v. Edenton Ob/Gyn Ctr., 352 N.C. 136, 530 S.E.2d 62, 2000 N.C. LEXIS 439 (2000).

Burden of Proof. —

A claimant who asserts that he is entitled to compensation under this section has the burden of proving that he is, as a result of the injury arising out of and in the course of his employment, totally unable to earn wages which in the same or any other employment. Burwell v. Winn-Dixie Raleigh, Inc., 114 N.C. App. 69, 441 S.E.2d 145, 1994 N.C. App. LEXIS 258 (1994).

Industrial Commission’s findings that an employee had not unjustifiably refused suitable employment, after having received temporary disability benefits due to a slip and fall during her employment, was supported by the evidence which indicated that she had called in sick daily, as directed by her supervisor; accordingly, her discharge a week later for her failure to report to work was not credible as a refusal to work and the Commission’s award of continuing benefits was upheld due to the failure of the employer to meet its burden pursuant to G.S. 97-29 and 97-30. Whitfield v. Lab. Corp., 158 N.C. App. 341, 581 S.E.2d 778, 2003 N.C. App. LEXIS 1192 (2003).

Employee’s additional indemnity compensation claim for a work-related injury failed because, (1) after the employer met Seagraves by showing the employee’s post-injury termination was not due to the employee’s workers’ compensation claim, the employee did not show the employee was disabled except for the time when benefits were paid, and (2) the employee did not show the employee suffered loss or permanent damage to an important organ or body part. Anders v. Universal Leaf North Am., 253 N.C. App. 241, 800 S.E.2d 99, 2017 N.C. App. LEXIS 323, superseded, 254 N.C. App. 851, 803 S.E.2d 463, 2017 N.C. App. LEXIS 642 (2017).

Defendants Held Not Entitled to Credit for Scheduled Award. —

Where temporary total disability payments for stress-induced depression resulting from injury were to begin approximately six months after the final payment on the scheduled award for permanent partial disability, the defendants would not be given credit on the compensation awarded for temporary total disability for compensation previously awarded under G.S. 97-31(15). Hill v. Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1, 1986 N.C. App. LEXIS 2021 (1986), aff'd in part, vacated in part, 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Findings Implying Temporary Total Disability Held Sufficient. —

Commission’s findings implying that plaintiff ’s disability was a temporary total one were sufficiently definite to determine the rights of the parties, even though the Commission failed to make specific findings regarding both the extent and the permanency of the plaintiff ’s injury. Kennedy v. Duke Univ. Medical Center, 101 N.C. App. 24, 398 S.E.2d 677, 1990 N.C. App. LEXIS 1224 (1990).

Evidence Sufficient to Support Temporary Total Disability Rating. —

Evidence held sufficient to support the Commission’s award of compensation for temporary total disability based on stress-induced depression resulting from injury. Hill v. Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1, 1986 N.C. App. LEXIS 2021 (1986), aff'd in part, vacated in part, 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Where plaintiff testified that his arm was “no good;” that he had worked as a roofer in the United States, although he had no green card and was not a citizen, since 1995; that he was in continuous pain and had been unable to work since he fell from a forklift; and that his doctor assigned him a 10% impairment rating for his left wrist, the Industrial Commission did not err in assigning plaintiff a rating of temporary total disability under this section. Rivera v. Trapp, 135 N.C. App. 296, 519 S.E.2d 777, 1999 N.C. App. LEXIS 1058 (1999).

Evidence Insufficient to Support Temporary Total Disability Rating. —

Because there was no evidence a claimant had leg injuries or pain due to a work-related accident, and given a doctor’s statement that any such pain was not causally related to the accident, the North Carolina Industrial Commission’s finding that the claimant sustained injuries to her legs due to the accident, and thus was entitled to temporary total disability benefits, was without evidentiary support. Williams v. Law Cos. Group, Inc., 188 N.C. App. 235, 654 S.E.2d 725, 2008 N.C. App. LEXIS 75, rev'd, 362 N.C. 506, 666 S.E.2d 750, 2008 N.C. LEXIS 802 (2008).

Evidence Sufficient to Show Permanent Total Incapacity. —

Where physician testified that plaintiff suffered continuous pain in his back, both hips, and legs and continuous numbness of the right foot, and that he was 100% disabled, and opined that plaintiff ’s pain was caused by the use of his back in coordination with his hips and legs, the Commission could determine that plaintiff would not be totally compensated for his injuries under G.S. 97-31 and that, as a result, he was entitled to compensation for permanent total incapacity under this section. Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E.2d 122, 1986 N.C. App. LEXIS 2155 (1986).

Evidence Sufficient to Award Permanent Partial Disability. —

Plaintiff, who received temporary total disability benefits under this section for a compensable heart attack in April, 1979, was properly awarded permanent partial disability under G.S. 97-30 on his application under G.S. 97-47 for modification of the prior award following three additional heart attacks, where the Commission found that he had been permanently and totally disabled since June, 1981, partially as a result of his compensable heart attack in 1979. Weaver v. Swedish Imports Maintenance, Inc., 80 N.C. App. 432, 343 S.E.2d 205, 1986 N.C. App. LEXIS 2200 (1986), aff'd in part and rev'd in part, 319 N.C. 243, 354 S.E.2d 477, 1987 N.C. LEXIS 1935 (1987).

No Change in Condition Found. —

North Carolina Industrial Commission properly found that a workers’ compensation claimant was not entitled to benefits under G.S. 97-29 as the only method by which a change in the award could be made was that provided by G.S. 97-47; the claimant’s award could not be modified as the claimant failed to prove a change of condition under G.S. 97-47. Ward v. Floors Perfect, 183 N.C. App. 541, 645 S.E.2d 109, 2007 N.C. App. LEXIS 1179 (2007), rev'd, 362 N.C. 280, 658 S.E.2d 656, 2008 N.C. LEXIS 332 (2008).

Evidence of an employer’s refusal to allow an employee to return to work because there was no “light” work available supports a finding that the employee is not capable of earning wages in the same employment. Moore v. Davis Auto Serv., 118 N.C. App. 624, 456 S.E.2d 847, 1995 N.C. App. LEXIS 336 (1995).

Return to Work Assertion Does Not Necessarily Raise Wage Earning Capacity Issue. —

Where defendants did not assert any other reason for termination of plaintiff’s benefits besides “return to work” on the Form 28T, the record revealed that the plaintiff denied that she ever attempted a “trial return to work” and that she, therefore, was not required to file a Form 28U, and it was undisputed that defendants did not file a Form 24 seeking to terminate plaintiff’s compensation on grounds other than plaintiff’s “return to work”, the only issue before the Full Commission was whether or not plaintiff had returned to work, warranting termination of benefits pursuant to N.C. Gen. Stat. G.S. 97-18.1(b); thus it did not consider the issue of whether or not plaintiff had wage earning capacity and neither would the Court of Appeals. Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 526 S.E.2d 671, 2000 N.C. App. LEXIS 257 (2000).

Trial Return to Work. —

Employee may attempt a trial return to work for a period not to exceed nine months and, during a trial return to work period, the employee shall be paid any compensation that may be owed for partial disability pursuant to G.S. 97-30. If the trial return to work was unsuccessful, the employee’s right to continuing compensation under G.S. 97-29 shall be unimpaired unless terminated or suspended thereafter for other reasons. Richardson v. Maxim Healthcare/Allegis Group, 2007 N.C. App. LEXIS 2112 (N.C. Ct. App. Oct. 2, 2007).

No Benefits for Unjustifiable Refusal of Employment. —

If an employer shows that an employee has unjustifiably refused employment procured for the employee that is suitable to the employee’s capacity and the evidence is accepted by the Industrial Commission, the employee is not entitled to any benefits pursuant to this section or G.S. 97-30. Franklin v. Broyhill Furn. Indus., 123 N.C. App. 200, 472 S.E.2d 382, 1996 N.C. App. LEXIS 682, cert. denied, 344 N.C. 629, 477 S.E.2d 39, 1996 N.C. LEXIS 559 (1996).

When deciding whether an employee who sought salary continuation benefits refused suitable employment, it was error for the North Carolina Industrial Commission to apply a workers’ compensation analysis under G.S. 97-29 and G.S. 97-30 because the distinct governing standard was whether the employee refused to perform duties to which the employee was properly assigned, under G.S. 143-166.19. Yerby v. N.C. Dep't of Pub. Safety/Div. of Juvenile Justice, 232 N.C. App. 515, 754 S.E.2d 209, 2014 N.C. App. LEXIS 171 (2014).

As to construction of section prior to its early amendment, see Smith v. Carolina Power & Light Co., 198 N.C. 614, 152 S.E. 805, 1930 N.C. LEXIS 429 (1930).

Effect of Litigation of Earning Capacity on Review of Form 26 Agreement. —

Where plaintiff’s earning capacity was actually litigated and necessary to the outcome of his G.S. 97-47 hearing, the Industrial Commission was bound by that finding in determining if a Form 26 agreement was fair and just; therefore, its finding that the agreement was “improvidently approved” on the grounds that plaintiff had no earning capacity, thus qualifying him for benefits under this section, had to be reversed. Lewis v. Craven Reg'l Med. Ctr., 134 N.C. App. 438, 518 S.E.2d 1, 1999 N.C. App. LEXIS 804 (1999), aff'd, 352 N.C. 668, 535 S.E.2d 33, 2000 N.C. LEXIS 750 (2000).

Concept of Maximum Medical Improvement Is Not Applicable to Temporary Disability Payments. —

Employee’s reaching of maximum medical improvement (MMI) did not affect the employee’s right to continue to receive temporary disability workers’ compensation benefits and MMI did not represent the point in time at which a loss of wage-earning capacity automatically converted from temporary to permanent. Hooker v. Stokes-Reynolds Hospital/North Carolina Baptist Hosp. Inc., 161 N.C. App. 111, 587 S.E.2d 440, 2003 N.C. App. LEXIS 1975 (2003).

No double recovery. —

There was no double recovery in a workers’ compensation case because the amount paid to a claimant for temporary total disability was deducted from the balance of the permanent partial disability benefits awarded. Lewis v. N.C. Dep't of Corr., 234 N.C. App. 376, 760 S.E.2d 15, 2014 N.C. App. LEXIS 610 (2014).

II.Permanent and Total Disability

Temporary Total Disability Benefits Allowed in Light of Agreements. —

The Commission did not err in awarding employee temporary total disability (TTD) benefits, given that the parties had entered into a Form 21 agreement and a Form 26 supplemental agreement stipulating to TTD benefits. Foster v. U.S. Airways, Inc., 149 N.C. App. 913, 563 S.E.2d 235, 2002 N.C. App. LEXIS 406 (2002).

This section contains a mandatory provision that applies when the Commission finds a permanent and total disability. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982).

Establishment of Permanent Incapacity. —

Once an employee has reached their maximum medical improvement, the employee may establish permanent incapacity pursuant to either this section, G.S. 97-30 or G.S. 97-31. Franklin v. Broyhill Furn. Indus., 123 N.C. App. 200, 472 S.E.2d 382, 1996 N.C. App. LEXIS 682, cert. denied, 344 N.C. 629, 477 S.E.2d 39, 1996 N.C. LEXIS 559 (1996).

Other Treatment Provision Is in Addition to Named Items. —

The provision for other treatment or care goes beyond and is in addition to the specific named essential items and services set out in this section. Godwin v. Swift & Co., 270 N.C. 690, 155 S.E.2d 157, 1967 N.C. LEXIS 1406 (1967).

Medical Expenses Compensated Only Where Disability Is Total and Permanent. —

This section entitles a claimant to recover compensation for medical care only where disability is found to be total and permanent. Peeler v. State Hwy. Comm'n, 48 N.C. App. 1, 269 S.E.2d 153, 1980 N.C. App. LEXIS 3199 (1980), aff'd, 302 N.C. 183, 273 S.E.2d 705, 1981 N.C. LEXIS 1039 (1981).

An employee’s presumption of disability may not be defeated merely by a return to work. Kisiah v. W.R. Kisiah Plumbing, Inc., 124 N.C. App. 72, 476 S.E.2d 434, 1996 N.C. App. LEXIS 1006 (1996).

Once the Form 21 agreement was entered into by the parties and approved by the Commission, a concomitant presumption of disability attached in favor of employee, and the burden of proof was on the employer, not the employee, to demonstrate that plaintiff was no longer entitled to his disability award. Kisiah v. W.R. Kisiah Plumbing, Inc., 124 N.C. App. 72, 476 S.E.2d 434, 1996 N.C. App. LEXIS 1006 (1996).

North Carolina Industrial Commission’s conclusion that the claimant had not proven that the claimant was totally disabled or had diminished wage-earning capacity was erroneous, because the parties’ final Form 26 gave the claimant the benefit of a continuing presumption of disability and the burden rested on defendants to prove the claimant’s employability. Alphin v. Tart L.P. Gas Co., 192 N.C. App. 576, 666 S.E.2d 160, 2008 N.C. App. LEXIS 1659 (2008).

Combination of Compensable and Noncompensable Illnesses. —

Where a claimant is rendered totally unable to earn wages, partially as a result of a compensable injury and partially as a result of a non-work-related medical condition, the claimant is entitled to an award for total disability under this section. Counts v. Black & Decker Corp., 121 N.C. App. 387, 465 S.E.2d 343, 1996 N.C. App. LEXIS 24 (1996).

There was competent evidence before the Industrial Commission to support its finding that plaintiff’s work-related shoulder injury combined with her non-work-related arthritic condition to render her totally disabled. Counts v. Black & Decker Corp., 121 N.C. App. 387, 465 S.E.2d 343, 1996 N.C. App. LEXIS 24 (1996).

Total Incapacity from Emotional Disturbance Caused by Injury. —

Where employee receives a compensable injury which causes her to become so emotionally disturbed that she is unable to work, she is entitled to compensation for total incapacity under this section. Fayne v. Fieldcrest Mills, Inc., 54 N.C. App. 144, 282 S.E.2d 539, 1981 N.C. App. LEXIS 2779 (1981).

If an employee suffers a compensable injury and the injury causes an emotional disturbance which renders him unable to work, he is entitled to compensation for total incapacity under this section. McLean v. Eaton Corp., 125 N.C. App. 391, 481 S.E.2d 289, 1997 N.C. App. LEXIS 105 (1997).

Compensation for Byssinosis. —

It was not until 1975, when the General Assembly enacted the amendments to this section, that employees suffering from byssinosis were able to receive unlimited weekly benefits for their total and permanent disability. Prior to that time, this section only provided lifetime weekly benefits for persons disabled due to paralysis resulting from injury to the brain or spinal cord or from loss of mental capacity due to injury to the brain. In all other cases of total disability, compensation was restricted in the amount of money paid per week, in the amount of weeks paid and in the maximum amount which the claimant could receive. Taylor v. J.P. Stevens Co., 57 N.C. App. 643, 292 S.E.2d 277, 1982 N.C. App. LEXIS 2695 (1982), modified, aff'd, 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

An award for damage to the lungs may be made under subdivision (24) of G.S. 97-31. But such an award, by the express terms of the statute, would be in lieu of all other compensation. Such award may also be based on this section, as had been done in many other reported cases involving byssinosis disability. West v. Bladenboro Cotton Mills, Inc., 62 N.C. App. 267, 302 S.E.2d 645, 1983 N.C. App. LEXIS 2850 (1983).

Loss of Both Legs. —

G.S. 97-31(17) provides that the loss of both legs constitutes total and permanent disability to be compensated according to this section, which provides for lifetime benefits. Timmons v. North Carolina DOT, 123 N.C. App. 456, 473 S.E.2d 356, 1996 N.C. App. LEXIS 727 (1996), aff'd, 346 N.C. 173, 484 S.E.2d 551, 1997 N.C. LEXIS 204 (1997).

Although plaintiff, who had lost both legs, returned to full-time employment, the employee was entitled to on-going benefits. Timmons v. North Carolina DOT, 123 N.C. App. 456, 473 S.E.2d 356, 1996 N.C. App. LEXIS 727 (1996), aff'd, 346 N.C. 173, 484 S.E.2d 551, 1997 N.C. LEXIS 204 (1997).

Depression Caused by Injury. —

Evidence held sufficient to support the Commission’s conclusion that employee was entitled to compensation under this section for total disability due to stress induced depression caused by on-the-job physical injuries which rendered him totally disabled. Hill v. Hanes Corp., 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Chronic Fatigue Syndrome. —

Evidence that an employee of a waste company whose job was to collect and dispose of raw sewage developed chronic fatigue syndrome and other ailments after being accidentally sprayed with raw sewage and that the employee’s illnesses were most probably the result of the accident supported a ruling of the North Carolina Industrial Commission awarding the employee permanent workers’ compensation disability benefits. Norton v. Waste Mgmt., 146 N.C. App. 409, 552 S.E.2d 702, 2001 N.C. App. LEXIS 938 (2001).

Aggravation of Latent Condition. —

When a pre-existing, nondisabling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment or by an occupational disease so that disability results, then the employer must compensate the employee for the entire resulting disability, even though it would not have disabled a normal person to that extent. In such a case, where an injury has aggravated an existing condition and thus proximately caused the incapacity, the relative contributions of the accident and the pre-existing condition will not be weighed. Wilder v. Barbour Boat Works, 84 N.C. App. 689, 352 S.E.2d 690 (1987).

Evidence held to clearly indicate that plaintiff ’s 1983 injury to his leg aggravated a latent condition due to an unrelated 1977 injury and therefore proximately contributed to his total disability. Although a normal person may not have been disabled to that extent, plaintiff ’s entire disability was compensable. Wilder v. Barbour Boat Works, 84 N.C. App. 689, 352 S.E.2d 690 (1987).

Where an injury has aggravated an existing condition and thus proximately caused the incapacity, the relative contributions of the accident and the preexisting condition will not be weighed. McKenzie v. McCarter Elec. Co., 86 N.C. App. 619, 359 S.E.2d 249, 1987 N.C. App. LEXIS 2751 (1987).

Although evidence in the record supported the North Carolina Industrial Commission’s judgment that an employee’s cancer was accelerated by injuries the employee sustained in a work-related accident, and the appellate court affirmed the Commission’s decision to award temporary total disability benefits to the employee, the court remanded the case to the Commission for further proceedings because the record did not explain how the Commission had determined the employee’s average weekly wage, a determination that was central to its award of benefits, and because there was conflicting evidence in the record which raised questions about the Commission’s findings that a city which employed the employee was entitled to a credit for long-term disability benefits it paid the employee, and that the employee was not entitled to an award of attorney’s fees. Cox v. City of Winston-Salem, 157 N.C. App. 228, 578 S.E.2d 669, 2003 N.C. App. LEXIS 535 (2003).

Total Incapacity Resulting from More Than One Injury. —

If an injured employee is permanently and totally disabled, then he or she is entitled to receive compensation under this section, even if no single injury resulted in total and permanent disability, so long as the combined effect of all of the injuries caused permanent and total disability. McKenzie v. McCarter Elec. Co., 86 N.C. App. 619, 359 S.E.2d 249, 1987 N.C. App. LEXIS 2751 (1987).

When Apportionment Not Permitted. —

Apportionment is not permitted when an employee becomes totally and permanently disabled due to a compensable injury’s aggravation or acceleration of the employee’s nondisabling, pre-existing disease or infirmity. Errante v. Cumberland County Solid Waste Mgt., 106 N.C. App. 114, 415 S.E.2d 583, 1992 N.C. App. LEXIS 358 (1992).

An employee is also entitled to full compensation for total disability without apportionment when the nature of the employee’s total disability makes any attempt at apportionment between work-related and non-work-related causes speculative. Errante v. Cumberland County Solid Waste Mgt., 106 N.C. App. 114, 415 S.E.2d 583, 1992 N.C. App. LEXIS 358 (1992).

In a workers’ compensation case wherein the employee was awarded compensation after being found permanently and totally disabled, the North Carolina Industrial Commission properly determined that the employee’s impairment could not be apportioned between occupational and non-occupational causes and that the employee was entitled to continued compensation as competent evidence in the record supported the Commission’s finding that the employee’s disability could not reasonably be apportioned between the work-related asbestosis and the other non-work-related lung disease and, in turn, the Commission’s findings of fact supported its conclusion that the employer was liable to compensate the employee for the entire disability. Bolick v. ABF Freight Sys., 188 N.C. App. 294, 654 S.E.2d 793, 2008 N.C. App. LEXIS 81 (2008).

Apportionment Held Necessary. —

Where it is clear that claimant’s permanent and total disability was only partially a result of the initial compensable heart attack, the award must be apportioned to reflect the extent to which claimant’s permanent total disability was caused by the compensable heart attack. Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 354 S.E.2d 477, 1987 N.C. LEXIS 1935 (1987).

The apportionment rule established by Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458 (1981), was applicable to a silicosis case in which there was some evidence of the existence of a nonwork-related disease or condition which independently contributed to the employee’s incapacity to earn wages. Pitman v. Feldspar Corp., 87 N.C. App. 208, 360 S.E.2d 696, 1987 N.C. App. LEXIS 3121 (1987) (remanding for specific findings as to what extent plaintiff ’s silicosis caused his incapacity for work) .

Plaintiff could prove total loss of wage-earning capacity by producing evidence that he was capable of some work but, after a reasonable effort on his part, was unsuccessful in his effort to obtain employment. Zimmerman v. Eagle Elec. Mfg. Co., 147 N.C. App. 748, 556 S.E.2d 678, 2001 N.C. App. LEXIS 1255 (2001).

Evidence of Total Disability Held Sufficient. —

Evidence provided by plaintiff’s treating physician, occupational therapists, psychological associates, and vocational rehabilitation specialists supported the Commission’s finding that plaintiff was unable, as a result of injury sustained in the course and scope of his employment, to earn wages in his former employment or in any other employment. Moore v. Davis Auto Serv., 118 N.C. App. 624, 456 S.E.2d 847, 1995 N.C. App. LEXIS 336 (1995).

Award of ongoing permanent and total disability compensation to plaintiff pursuant to G.S. 97-29 was upheld upon appellate court review where defendants, the former employer and its insurer, failed to meet their burden of showing that plaintiff was capable of returning to gainful employment and the greater weight of the evidence showed, by the testimony of an orthopedic specialist, that it was unlikely plaintiff would ever return to gainful employment due to her osteoporosis and compression fractures; defendants failed to present any evidence that employment opportunities existed for plaintiff that she had not explored given her age, education, physical limitations, vocational skills, and experience and the specialist’s opinion that plaintiff would not be able to return to work and his reservation of plaintiff’s ability to perform a sedentary job with no lifting requirements showed her incapacity to earn any wages on a permanent basis. Clark v. Wal-Mart, 163 N.C. App. 686, 594 S.E.2d 433, 2004 N.C. App. LEXIS 584 (2004), rev'd, 360 N.C. 41, 619 S.E.2d 491, 2005 N.C. LEXIS 990 (2005).

Award finding a claimant totally disabled was upheld, despite the claimant receiving a tobacco allotment and owning a mobile home park, because the claimant did not perform any physical activity involved with either enterprise, and competent evidence showed that the claimant was unable to (1) walk or stand for any sustained period of time, (2) sleep for more than a few hours at a time because of continuous knee pain, and (3) remain balanced for any length of time. Hensley v. Indus. Maint. Overflow, 166 N.C. App. 413, 601 S.E.2d 893, 2004 N.C. App. LEXIS 1729 (2004).

North Carolina Industrial Commission’s denial of a workers’ compensation claimant’s application for temporary total disability benefits was affirmed as: (1) the Commission was entitled to give greater weight to the testimony of some doctors over others, (2) the Commission made findings sufficient to address the issues and evidence before it, and (3) a doctor’s testimony did not justify overturning the Commission’s findings that a lightning strike was the precipitating event for the claimant’s somatization disorder, but did not establish causation. Perkins v. U.S. Airways, 177 N.C. App. 205, 628 S.E.2d 402, 2006 N.C. App. LEXIS 867 (2006).

Employee’s estate was entitled to permanent and total disability benefits under G.S. 97-29 and G.S. 97-54 because: (1) testimony by a physician appointed by the industrial commission supported the commission’s finding of fact that the employee suffered from asbestosis as a result of his employment with the employer as an asbestos tile installer; (2) the employee’s medical course continued as the appointed physician had predicted that it would based on his diagnosis; and (3) the employee suffered from breathing problems as a result of asbestosis that severely impaired his daily activities and rendered him unable to perform gainful employment. Estate of Gainey v. S. Flooring & Acoustical Co., 184 N.C. App. 497, 646 S.E.2d 604, 2007 N.C. App. LEXIS 1468 (2007).

Employee was properly awarded temporary total disability benefits for bilateral carpal tunnel syndrome (CTS) because, inter alia, (1) there was sufficient evidence that the employee’s CTS was a compensable occupational disease, (2) the evidence tended to show that any current effort by the employee to obtain sedentary light-duty employment would have been futile based on the employee’s medical problems, limited education, limited work experience, and limited training, and (3) there was insufficient evidence for apportionment. Johnson v. City of Winston-Salem, 188 N.C. App. 383, 656 S.E.2d 608, 2008 N.C. App. LEXIS 209, aff'd, 362 N.C. 676, 669 S.E.2d 319, 2008 N.C. LEXIS 989 (2008).

Evidence of Total Disability Held Insufficient. —

There was no evidence in the medical records submitted to the Commission that supported an award of permanent total disability benefits under this section. Salaam v. North Carolina DOT, 122 N.C. App. 83, 468 S.E.2d 536, 1996 N.C. App. LEXIS 203 (1996).

No finding of fact supported the Commission’s conclusion of law that an injured employee was entitled to permanent and total disability where because of an accident the employee may have aggravated her preexisting condition, but all the evidence showed that she was not totally incapable of earning wages, and instead the competent evidence showed that her wage earning capacity was greater than or equal to that prior to her fall at work. Frazier v. McDonald's, 149 N.C. App. 745, 562 S.E.2d 295, 2002 N.C. App. LEXIS 293 (2002), cert. denied, 356 N.C. 670, 577 S.E.2d 117, 2003 N.C. LEXIS 266 (2003).

Although evidence in the record supported the North Carolina Industrial Commission’s judgment that an employee’s cancer was accelerated by injuries the employee sustained in a work-related accident, and the appellate court affirmed the Commission’s decision to award temporary total disability benefits to the employee, the court remanded the case to the Commission for further proceedings because the record did not explain how the Commission had determined the employee’s average weekly wage, a determination that was central to its award of benefits, and because there was conflicting evidence in the record which raised questions about the Commission’s findings that a city which employed the employee was entitled to a credit for long-term disability benefits it paid the employee, and that the employee was not entitled to an award of attorney’s fees. Cox v. City of Winston-Salem, 157 N.C. App. 228, 578 S.E.2d 669, 2003 N.C. App. LEXIS 535 (2003).

Workers’ compensation claimant was not entitled to compensation under G.S. 97-29 or G.S. 97-30 after a Form 24 was approved as the evidence supported the North Carolina Industrial Commission’s determinations that the claimant was capable of returning to full-duty work without restrictions and that she failed in her burden of proving that she remained disabled as a result of the compensable injury where, while there was medical evidence to support a determination that the claimant could not return to full-time work as a flight attendant, this alone was insufficient to establish that she was incapable of earning wages at any job; the claimant’s one contact with her employer about a light duty position was insufficient to establish she had made a reasonable effort to obtain employment under the second Russell option. Perkins v. U.S. Airways, 177 N.C. App. 205, 628 S.E.2d 402, 2006 N.C. App. LEXIS 867 (2006).

North Carolina Industrial Commission erred in awarding employee temporary total disability compensation because the Commission’s finding that the employee was unable to work at her job or any other job was not based on medical evidence, but only on employee’s testimony. Everett v. N.C. Indus. Comm'n No. 102217 Well Care & Nursing Servs., 180 N.C. App. 314, 636 S.E.2d 824, 2006 N.C. App. LEXIS 2313 (2006).

Industrial Commission’s opinion and award concluding that plaintiff was entitled to temporary total disability benefits from May 15 through Nov. 29, 2000, under G.S. 97-29, and was limited to benefits thereafter under G.S. 97-31 based on a five percent impairment rating, was remanded for additional findings of fact, because the Commission determined the existence of plaintiff’s disability, but did not determine the extent of plaintiff’s disability because it failed to address whether plaintiff was capable of earning the same wages he was earning at the time of his injury. Outerbridge v. Perdue Farms, Inc., 181 N.C. App. 50, 638 S.E.2d 564, 2007 N.C. App. LEXIS 40, aff'd, 361 N.C. 583, 650 S.E.2d 594, 2007 N.C. LEXIS 1007 (2007).

Retirement. —

Plaintiff was not barred from seeking disability benefits if his retirement was for reasons unrelated to his occupational disease; the pertinent issue was whether plaintiff, subsequent to retirement, experienced a loss in wage-earning capacity. Stroud v. Caswell Ctr., 124 N.C. App. 653, 478 S.E.2d 234, 1996 N.C. App. LEXIS 1206 (1996).

Claimant was not barred from receiving workers’ compensation benefits for an occupational disease solely because he or she was retired; the commission’s award of benefits based on a worker’s asbestosis was not error based on the fact that the worker “retired voluntarily” and not due to pulmonary problems. Austin v. Cont'l Gen. Tire, 185 N.C. App. 488, 648 S.E.2d 570, 2007 N.C. App. LEXIS 1813 (2007).

III.Maximum Weekly Benefit

Legislative Intent. —

The legislature intended the maximums to be separate and independent provisions of this section. Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

The 1973 amendment to this section governing the maximum weekly workers’ compensation benefit applies to G.S. 97-38, so that G.S. 97-38 no longer limited recovery for death claims to $80.00 per week. Andrews v. Nu-Woods, Inc., 43 N.C. App. 591, 259 S.E.2d 306, 1979 N.C. App. LEXIS 3095 (1979), aff'd, 299 N.C. 723, 264 S.E.2d 99, 1980 N.C. LEXIS 990 (1980).

The 1973 amendment clearly establishes maximum weekly benefits for all sections of the Workers’ Compensation Act, including benefits for total incapacity and death, and benefits under G.S. 97-38 are no longer limited to $80.00 per week. Andrews v. Nu-Woods, Inc., 299 N.C. 723, 264 S.E.2d 99, 1980 N.C. LEXIS 990 (1980).

Application of Section as Amended in 1978 Upheld. —

Where all of the evidence disclosed that plaintiff did not become totally disabled until 1978, no right to recover for permanent total disability vested until after the enactment of the 1978 version of this section (Session Laws 1973, c. 1308, G.S. 1, 2) and no possible liability accrued to defendants as a result of plaintiff ’s permanent total disability until after the enactment and effective date of the 1973 revision of this section; hence, the application of the 1978 version of this section did not constitute an unconstitutional application of substantive law. Smith v. American & Efird Mills, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

In a workers’ compensation case, plaintiff was compensated for his permanent and total disability under this section as it read in 1978 when his disability became permanent and total, rather than as it read in 1970 when he first became disabled and was entitled to compensation for partial disability under G.S. 97-30, since plaintiff had no right to claim compensation, nor was the employer exposed to liability, under this section until 1978 when plaintiff appeared to have become totally disabled. Smith v. American & Efird Mills, 51 N.C. App. 480, 277 S.E.2d 83, 1981 N.C. App. LEXIS 2277 (1981), modified, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

G.S. 97-29.1 Provides Parity with Certain Benefits Under This Section. —

The import of G.S. 97-29.1 was to effectuate some economic parity in benefits afforded persons who prior to G.S. 97-29.1 received lifetime weekly benefits with those who received lifetime weekly benefits by virtue of the 1975 amendment to this section. Taylor v. J.P. Stevens Co., 57 N.C. App. 643, 292 S.E.2d 277, 1982 N.C. App. LEXIS 2695 (1982), modified, aff'd, 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

Stacking of Benefits Under G.S. 97-30 and This Section Not Permitted. —

If the Industrial Commission in workers’ compensation actions should find that a plaintiff is totally and permanently disabled, the plaintiff ’s compensation should be to the fullest extent allowed under this section and should be awarded without regard to compensation previously awarded the plaintiff under G.S. 97-30 for partial disability; however, a plaintiff should receive full compensation under this section only where an award under G.S. 97-30 was fully paid before the plaintiff became totally disabled, since, if the period for partial disability award overlapped the period for the total award, the stacking of total benefits on top of partial benefits for the same time period would allow the plaintiff a greater recovery than the legislature intended. Smith v. American & Efird Mills, 51 N.C. App. 480, 277 S.E.2d 83, 1981 N.C. App. LEXIS 2277 (1981), modified, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

At a given point in time, the provisions of this section and G.S. 97-30 must be mutually exclusive; that is, a claimant cannot simultaneously be both totally and partially incapacitated. Smith v. American & Efird Mills, 51 N.C. App. 480, 277 S.E.2d 83, 1981 N.C. App. LEXIS 2277 (1981), modified, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

This section did not entitle the plaintiff-registered nurse to yearly increases commensurate with the maximum rate calculated per annum. Clark v. Sanger Clinic, P.A., 142 N.C. App. 350, 542 S.E.2d 668, 2001 N.C. App. LEXIS 97 (2001).

Weekly Wages Improperly Calculated. —

Although an employee was entitled to temporary total disability benefits, pursuant to G.S. 97-29, the employee’s average weekly wage was improperly calculated because the Industrial Commission erroneously found the employee worked less than 52 weeks for the employer, and the Commission’s erroneous finding improperly triggered method three under G.S. § 97-2(5). James v. Carolina Power & Light, 212 N.C. App. 441, 713 S.E.2d 50, 2011 N.C. App. LEXIS 1164 (2011).

North Carolina Industrial Commission erred in determining a workers’ compensation claimant’s average weekly wage for G.S. 97-29 purposes based solely on G.S. 97-2(5) as it did not specify which of the five methods it used in calculating the claimant’s average weekly wage. Mauldin v. A.C. Corp., 217 N.C. App. 36, 719 S.E.2d 110, 2011 N.C. App. LEXIS 2336 (2011), rev'd in part, 366 N.C. 140, 727 S.E.2d 874, 2012 N.C. LEXIS 415 (2012).

Award Held Proper. —

Industrial commission did not err in awarding the claimant, as a temporary total disability benefit, his average weekly wage multiplied by the maximum percentage award he was entitled to under statutory law, for a two-month period rather than including the seven months that passed from his injury that occurred prior to the two-month period; the evidence did not show that claimant was disabled during that seven-month time period, and the claimant did not show that an alternate calculation should have been used to determine his average weekly wage used to determine the temporary total disability benefit award. France v. Murrow's Transfer, 163 N.C. App. 340, 593 S.E.2d 450, 2004 N.C. App. LEXIS 377 (2004).

§ 97-29.1. Increase in payments in cases for total and permanent disability occurring prior to July 1, 1973.

In all cases of total and permanent disability occurring prior to July 1, 1973, weekly compensation payments shall be increased effective July 1, 1977, to an amount computed by multiplying the number of calendar years prior to July 1, 1973, that the case arose by five percent (5%). Payments made by the employer or its insurance carrier by reason of such increase in weekly benefits may be deducted by such employer or insurance carrier from the tax levied on such employer or carrier pursuant to G.S. 105-228.5 or G.S. 97-100. Every employer or insurance carrier claiming such deduction or credit shall verify such claim to the Secretary of Revenue or the Industrial Commission by affidavit or by such other method as may be prescribed by the Secretary of Revenue or the Industrial Commission.

History. 1977, c. 651.

CASE NOTES

Purpose. —

In enacting this section, the legislature did not intend to do anything other than increase the weekly benefits of claimants who were totally and permanently disabled. Taylor v. J.P. Stevens Co., 57 N.C. App. 643, 292 S.E.2d 277, 1982 N.C. App. LEXIS 2695 (1982), modified, aff'd, 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

The legislative history of this section reveals an intent to provide additional benefits for persons who were disabled prior to 1973. Taylor v. J.P. Stevens Co., 57 N.C. App. 643, 292 S.E.2d 277, 1982 N.C. App. LEXIS 2695 (1982), modified, aff'd, 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

By enacting this section, the legislature intended only to affect those cases in which the claimant received lifetime weekly benefits under G.S. 97-29 prior to 1975 amendment to that statute which provided lifetime weekly benefits for total and permanent disability regardless of the cause of disability. Taylor v. J.P. Stevens Co., 57 N.C. App. 643, 292 S.E.2d 277, 1982 N.C. App. LEXIS 2695 (1982), modified, aff'd, 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

Effect of Section. —

This section increases only the weekly compensation benefits in all cases of total and permanent disability occurring prior to July 1, 1973; no provision has been made for an increase in total benefits. It is a well-settled principle of statutory construction that where a statute is intelligible without any additional words, no additional words may be supplied. Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

Section Provides Parity with Certain Benefits Under G.S. 97-29. —

The import of this section was to effectuate some economic parity in benefits afforded persons who prior to this section received lifetime weekly benefits with those who received lifetime weekly benefits by virtue of the 1975 amendment to G.S. 97-29. Taylor v. J.P. Stevens Co., 57 N.C. App. 643, 292 S.E.2d 277, 1982 N.C. App. LEXIS 2695 (1982), modified, aff'd, 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

Commission Properly Found No Causation. —

North Carolina Industrial Commission properly held that a workers’ compensation claimant’s arthritic condition in her knees was not compensable as, although a prior award included “problems caused by falls” as compensable conditions, the degenerative arthritis was not the very injury that the Commission had previously determined to be the result of a compensable accident. Clark v. Sanger Clinic, P.A., 175 N.C. App. 76, 623 S.E.2d 293, 2005 N.C. App. LEXIS 2742 (2005).

North Carolina Industrial Commission properly found that a workers’ compensation claimant’s arthritic condition in her knees was not compensable where, although tears in the claimant’s knees were related to falls, and therefore were compensable, the claimant failed to establish that she had a pre-existing arthritic condition in her knees and an expert testified that a long-standing tear could not cause arthritis of the knee; while there was evidence that the claimant’s falls could have aggravated her degenerative knee condition, there was also testimony that the claimant’s pre-existing obesity could have aggravated the degenerative changes in her knees. Clark v. Sanger Clinic, P.A., 175 N.C. App. 76, 623 S.E.2d 293, 2005 N.C. App. LEXIS 2742 (2005).

North Carolina Industrial Commission did not err in holding that the causal relationship between a workers’ compensation claimant’s compensable injuries and the need for restorative dental treatment was tenuous as an expert testified that the claimant’s dental condition could have been caused by poor hygiene, xerostomia (“dry mouth” syndrome), possibly brought on by plaintiff’s medications, stones in her salivary glands, or the six weeks that the claimant was in a coma following her unrelated gastric bypass procedure; while another expert testified that “dry mouth” syndrome was a potential side effect of several of the claimant’s medications, there was no testimony as to what actually caused the claimant’s dental condition. Clark v. Sanger Clinic, P.A., 175 N.C. App. 76, 623 S.E.2d 293, 2005 N.C. App. LEXIS 2742 (2005).

North Carolina Industrial Commission properly failed to specify treatment for a workers’ compensation claimant’s esophageal reflux, constipation, and nausea as compensable as there was no testimony as to what actually caused the conditions; while a treating physician testified that many of the claimant’s medications had esophageal reflux, constipation, and nausea as side effects, there was no testimony that these conditions were causally related to the claimant’s compensable injuries. Further, the physician testified that the claimant had ample reason to have nausea due to her gastric surgery, the complications from that, and her pain medication; further, if the claimant could establish that the conditions were related to her compensable injuries, her employer was obligated to provide the treatment for the ailments. Clark v. Sanger Clinic, P.A., 175 N.C. App. 76, 623 S.E.2d 293, 2005 N.C. App. LEXIS 2742 (2005).

§ 97-30. Partial incapacity.

Except as otherwise provided in G.S. 97-31, where the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such disability, a weekly compensation equal to sixty-six and two-thirds percent (662/3%) of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than the amount established annually to be effective January 1 as provided in G.S. 97-29 a week, and in no case shall the employee receive more than 500 weeks of payments under this section. Any weeks of payments made pursuant to G.S. 97-29 shall be deducted from the 500 weeks of payments available under this section. An officer or member of the State Highway Patrol shall not be awarded any weekly compensation under the provisions of this section for the first two years of any incapacity resulting from an injury by accident arising out of and in the course of the performance by him of his official duties if, during such incapacity, he continues to be an officer or member of the State Highway Patrol, but he shall be awarded any other benefits to which he may be entitled under the provisions of this Article.

History. 1929, c. 120, s. 30; 1943, c. 502, s. 4; 1947, c. 823; 1951, c. 70, s. 2; 1953, c. 1195, s. 3; 1955, c. 1026, s. 6; 1957, c. 1217; 1963, c. 604, s. 2; 1967, c. 84, s. 2; 1969, c. 143, s. 2; 1971, c. 281, s. 2; 1973, c. 515, s. 2; c. 759, s. 2; 1981, c. 276, s. 1; 2011-287, s. 11.

Cross References.

As to credits, see G.S. 97-42.

As to certain State law-enforcement officers, see G.S. 143-166.16.

Editor’s Note.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 11, which, in the first sentence, substituted “January 1” for “October 1” and substituted “in no case shall the employee receive more than 500 weeks of payments under this section” for “in no case shall the period covered by such compensation be greater than 300 weeks from the date of injury,” added the present second sentence, and deleted the former second sentence, was applicable to claims arising on or after June 24, 2011.

Effect of Amendments.

Session Laws 2011-287, s. 11, effective June 24, 2011, and applicable to claims arising on or after that date, in the first sentence, substituted “January 1” for “October 1” and “in no case shall the employee receive more than 500 weeks of payments under this section” for “in no case shall the period covered by such compensation be greater than 300 weeks from the date of injury,” added the second sentence, and deleted the former second sentence, which read: “In case the partial disability begins after a period of total disability, the latter period shall be deducted from the maximum period herein allowed for partial disability.”

Legal Periodicals.

For comment on the 1943 amendment, which increased the maximum weekly compensation, see 21 N.C.L. Rev. 384 (1943).

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For comment on Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458 (1981), see 4 Campbell L. Rev. 107 (1981).

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For article, “Why Aren’t You Working?: Medlin with Proof of Disability Under the North Carolina Workers’ Compensation Act,” see 38 Campbell L. Rev. 211 (2016).

CASE NOTES

Application of Seagraves Test. —

Issue of whether the Seagraves test was properly applied in a case in which an employer denied an injured employee’s claim for workers’ compensation benefits on the grounds that the employee had been terminated for reasons unrelated to his injury was not resolved by the appellate court; although the test was appropriate if circumstances surrounding termination warranted preclusion or discontinuation of injury related benefits under G.S. 97-32, the commission failed to make the necessary findings or conclusions to explain why it applied Seagraves. Jones v. Modern Chevrolet, 194 N.C. App. 86, 671 S.E.2d 333, 2008 N.C. App. LEXIS 2459 (2008).

Employee’s additional indemnity compensation claim for a work-related injury failed because, (1) after the employer met Seagraves by showing the employee’s post-injury termination was not due to the employee’s workers’ compensation claim, the employee did not show the employee was disabled except for the time when benefits were paid, and (2) the employee did not show the employee suffered loss or permanent damage to an important organ or body part. Anders v. Universal Leaf North Am., 253 N.C. App. 241, 800 S.E.2d 99, 2017 N.C. App. LEXIS 323, superseded, 254 N.C. App. 851, 803 S.E.2d 463, 2017 N.C. App. LEXIS 642 (2017).

The Workers’ Compensation Act is only intended to furnish compensation for loss of earning capacity. Without such loss, there is no provision for compensation in this section, even if permanent physical injury is suffered. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Test of Earning Capacity. —

Under the act, wages earned, or the capacity to earn wages, is the test of earning capacity, or to state it differently, the diminution of the power or capacity to earn is the measure of compensability. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865 (1943), in which claimant, who was found to have suffered one-third “general partial disability” due to back injury, returned to lighter work but was paid the same wage as before the injury, and the Supreme Court rejected his contention that he was unable to work as he had before the injury and was thus entitled to compensation although still receiving the same wage, decided prior to the 1955 amendment to G.S. 97-31, which made back injuries compensable as specific disabilities under that section. Wilhite v. Liberty Veneer Co., 47 N.C. App. 434, 267 S.E.2d 566, 1980 N.C. App. LEXIS 3127 (1980), aff'd in part and rev'd in part, 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

The disability of an employee is to be measured by his capacity or incapacity to earn the wages he was receiving at the time of the injury. Loss of earning capacity is the criterion. Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438, 1951 N.C. LEXIS 322 (1951).

Compensation must be based upon loss of wage-earning power rather than the amount actually received. Hill v. DuBose, 234 N.C. 446, 67 S.E.2d 371, 1951 N.C. LEXIS 483 (1951). See also Evans v. Asheville Citizens Times Co., 246 N.C. 669, 100 S.E.2d 75, 1957 N.C. LEXIS 527 (1957).

Version of Statute in Effect for Determining Compensation. —

Plaintiff, who became partially disabled in 1973 and was compensated pursuant to the laws in effect at that time, was entitled to compensation for total disability (arising out of the same injury) under the laws in effect in 1981, when he became totally disabled. Peace v. J.P. Stevens Co., 95 N.C. App. 129, 381 S.E.2d 798, 1989 N.C. App. LEXIS 687 (1989).

Medical Services to Employee Who Loses No Wages. —

The rule that denies compensation to an injured employee who has lost no wages is necessarily applied in some cases growing out of this section in order to determine the amount of compensation due, but it is not applicable to medical, surgical, hospital, and nursing services under G.S. 97-25, as medical and hospital expenses are not a part of, and are not included in, determining recoverable compensation. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755, 1967 N.C. LEXIS 1159 (1967).

Return to Work — Generally. —

If there is a presumption that disability lasts until the employee returns to work, there is likewise a presumption that disability ended when the employee returned to work. Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109, 1951 N.C. LEXIS 545 (1951).

Employee may attempt a trial return to work for a period not to exceed nine months and, during a trial return to work period, the employee shall be paid any compensation that may be owed for partial disability pursuant to G.S. 97-30. If the trial return to work was unsuccessful, the employee’s right to continuing compensation under G.S. 97-29 shall be unimpaired unless terminated or suspended thereafter for other reasons. Richardson v. Maxim Healthcare/Allegis Group, 2007 N.C. App. LEXIS 2112 (N.C. Ct. App. Oct. 2, 2007).

Same — At Higher Wages. —

Employee was receiving compensation under this section for permanent partial disability resulting from injury to his back. He obtained a new job in which he earned more than he was earning at the time of injury. His physical condition remained unchanged. The Supreme Court held that he had undergone a change of condition within the meaning of G.S. 97-47 justifying a modification of the award and reduction of the compensation payable. Smith v. Swift & Co., 212 N.C. 608, 194 S.E. 106, 1937 N.C. LEXIS 380 (1937) (decided prior to the 1955 amendment to G.S. 97-31 which made back injuries compensable as specific disabilities under that section) .

Establishment of Permanent Incapacity. —

Once an employee has reached their maximum medical improvement, the employee may establish permanent incapacity pursuant to either this section, G.S. 97-29 or G.S. 97-31. Franklin v. Broyhill Furn. Indus., 123 N.C. App. 200, 472 S.E.2d 382, 1996 N.C. App. LEXIS 682, cert. denied, 344 N.C. 629, 477 S.E.2d 39, 1996 N.C. LEXIS 559 (1996).

For discussion of the two lines of case law relating to the concept of Maximum Medical Improvement and its applicability to G.S. 97-29, 97-30 and 97-31, see Effingham v. Kroger Co., 149 N.C. App. 105, 561 S.E.2d 287, 2002 N.C. App. LEXIS 141 (2002).

Concept of Maximum Medical Improvement Is Not Applicable to G.S. 97-29 or G.S. 97-30. —

While G.S. 97-31 contemplates a “healing period” followed by a statutory period of time corresponding to the specific physical injury, and allows an employee to receive scheduled benefits for a specific physical impairment only once “the healing period” ends, neither G.S. 97-29 nor G.S. 97-30 contemplates a framework similar to that established by G.S. 97-31. Under G.S. 97-29 or G.S. 97-30, an employee may receive compensation once the employee has established a total or partial loss of wage-earning capacity, and the employee may receive such compensation for as long as the loss of wage-earning capacity continues, for a maximum of 300 weeks in cases of partial loss of wage-earning capacity. Hence, the primary significance of the concept of Maximum Medical Improvement (MMI) is to delineate a crucial point in time only within the context of a claim for scheduled benefits under G.S. 97-31; the concept of MMI does not have any direct bearing upon an employee’s right to continue to receive temporary disability benefits once the employee has established a loss of wage-earning capacity pursuant to G.S. 97-29 or G.S. 97-30. Knight v. Wal-Mart Stores, Inc., 149 N.C. App. 1, 562 S.E.2d 434, 2002 N.C. App. LEXIS 140 (2002), aff'd, 357 N.C. 44, 577 S.E.2d 620, 2003 N.C. LEXIS 310 (2003).

Maximum Medical Improvements Prerequisite to Permanent Disability. —

An employee may seek a determination of her entitlement to permanent disability under G.S. 97-29, 97-30, or 97-31 only after reaching maximum medical improvement. Effingham v. Kroger Co., 149 N.C. App. 105, 561 S.E.2d 287, 2002 N.C. App. LEXIS 141 (2002).

Extent of Disability Must Be Known. —

The Commission is not in a position to make a proper award until the extent of disability or permanent injury, if any, is determined. Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965).

Since Degree of Disability Is Measure for Compensation. —

Under this section, compensation for permanent partial disability is measured by the degree of disability, except in case of loss of a member as specified in G.S. 97-31. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755, 1967 N.C. LEXIS 1159 (1967).

Version of Statute in Effect for Determining Compensation. —

Plaintiff, who became partially disabled in 1973 and was compensated pursuant to the laws in effect at that time, was entitled to compensation for total disability (arising out of the same injury) under the laws in effect in 1981, when he became totally disabled. Peace v. J.P. Stevens Co., 95 N.C. App. 129, 381 S.E.2d 798, 1989 N.C. App. LEXIS 687 (1989).

This section and G.S. 97-29 are mutually exclusive. A claimant cannot simultaneously be both totally and partially incapacitated. Carothers v. Ti-Caro, 83 N.C. App. 301, 350 S.E.2d 95, 1986 N.C. App. LEXIS 2695 (1986).

When an employee suffers a diminution of the power or capacity to earn, he or she is entitled to benefits under this section; when the power or capacity to earn is totally obliterated, he or she is entitled to benefits under G.S. 97-29. Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674, 1987 N.C. LEXIS 2173 (1987).

Award of benefits by the North Carolina Industrial Commission was remanded to allow an employer and its insurer a credit for an award of permanent partial disability because an employee was unable to recover simultaneous benefits under G.S. 97-29 or G.S. 97-30 and G.S. 97-31. Guerrero v. Brodie Contrs., Inc., 158 N.C. App. 678, 582 S.E.2d 346, 2003 N.C. App. LEXIS 1226 (2003).

Stacking of Benefits Under G.S. 97-29 and This Section Not Permitted. —

If the Industrial Commission in workers’ compensation actions should find that a plaintiff became totally and permanently disabled, the plaintiff ’s compensation should be to the fullest extent allowed under G.S. 97-29 and should be awarded without regard to compensation previously awarded the plaintiff under this section for partial disability; however, a plaintiff should receive full compensation under G.S. 97-29 only where an award under this section was fully paid before the plaintiff became totally disabled, since if the period for the partial disability award overlapped the period for the total award, the stacking of total benefits on top of partial benefits, for the same time period, would allow the plaintiff a greater recovery than the legislature intended. Smith v. American & Efird Mills, 51 N.C. App. 480, 277 S.E.2d 83, 1981 N.C. App. LEXIS 2277 (1981), modified, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

At a given point in time, the provisions of G.S. 97-29 and this section must be mutually exclusive; that is, a claimant cannot simultaneously be both totally and partially incapacitated. Smith v. American & Efird Mills, 51 N.C. App. 480, 277 S.E.2d 83, 1981 N.C. App. LEXIS 2277 (1981), modified, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

The proper formula for compensation under this section would be the difference between wages before and after the disease multiplied by 662/3 percent multiplied by the percentage of disability for work on account of work-related causes rather than by the percentage of the physical impairment that is work-related. Parrish v. Burlington Indus., Inc., 71 N.C. App. 196, 321 S.E.2d 492, 1984 N.C. App. LEXIS 3775 (1984).

Industrial Commission’s (Commission) temporary partial disability compensation award was vacated because the Commission’s factual findings of the employee’s wage-earning capacity differed from the Commission’s conclusions on that capacity, and it could not be determined how either figure was reached, nor did applying the formula in G.S. 97-30 to either figure yield the award that was ordered, so competent evidence did not support the award. Lipscomb v. Mayflower Vehicle Sys., 213 N.C. App. 440, 716 S.E.2d 345, 2011 N.C. App. LEXIS 1491 (2011).

G.S. 97-31 Compared. —

In all cases in which compensation is sought under G.S. 97-29 or this section, total or partial disablement must be shown; however, if compensation is sought in the alternative under G.S. 97-31, disablement is presumed from the injury and compensation is accordingly based on the schedule. Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

Often an award under G.S. 97-29, and by implication of this section, better fulfills the policy of the Workers’ Compensation Act than an award under G.S. 97-31(24). Strickland v. Burlington Indus., Inc., 87 N.C. App. 507, 361 S.E.2d 394, 1987 N.C. App. LEXIS 3208 (1987).

An employee who suffers injuries resulting in partial disability of a general nature is entitled to compensation under this section, while an employee who sustains injuries of a specific nature is entitled to recover pursuant to the schedule provided in G.S. 97-31. In fact, an employee who sustains both general and specific injuries may recover benefits under both this section and G.S. 97-31. Gray v. Carolina Freight Carriers, Inc., 105 N.C. App. 480, 414 S.E.2d 102, 1992 N.C. App. LEXIS 279 (1992).

Where all of a worker’s injuries are included in the schedule set out in G.S. 97-31 his compensation is limited to that provided for in the statutory schedule without regard to his ability or inability to earn wages. Jones v. Murdoch Center, 74 N.C. App. 128, 327 S.E.2d 294, 1985 N.C. App. LEXIS 3358 (1985).

Unjustifiable Refusal of Employment. —

If an employer shows that the employee has unjustifiably refused employment procured for him that is suitable to the employee’s capacity and the evidence is accepted by the Industrial Commission, the employee is not entitled to any benefits pursuant to this section or G.S. 97-29. Franklin v. Broyhill Furn. Indus., 123 N.C. App. 200, 472 S.E.2d 382, 1996 N.C. App. LEXIS 682, cert. denied, 344 N.C. 629, 477 S.E.2d 39, 1996 N.C. LEXIS 559 (1996).

Industrial Commission’s findings that an employee had not unjustifiably refused suitable employment, after having received temporary disability benefits due to a slip and fall during her employment, was supported by the evidence that indicated that she had called in sick daily, as directed by her supervisor; accordingly, her discharge a week later for her failure to report to work was not credible as a refusal to work and the Commission’s award of continuing benefits was upheld due to the failure of the employer to meet its burden pursuant to G.S. 97-29 and 97-30. Whitfield v. Lab. Corp., 158 N.C. App. 341, 581 S.E.2d 778, 2003 N.C. App. LEXIS 1192 (2003).

When deciding whether an employee who sought salary continuation benefits refused suitable employment, it was error for the North Carolina Industrial Commission to apply a workers’ compensation analysis under G.S. 97-29 and G.S. 97-30 because the distinct governing standard was whether the employee refused to perform duties to which the employee was properly assigned, under G.S. 143-166.19. Yerby v. N.C. Dep't of Pub. Safety/Div. of Juvenile Justice, 232 N.C. App. 515, 754 S.E.2d 209, 2014 N.C. App. LEXIS 171 (2014).

Section Construed With G.S. 97-42. —

Where the employer and insurer paid workers’ compensation benefits to the employee while he was incarcerated to which the employee was not entitled, the employer and insurer were entitled to credit under G.S. 97-42; because the award was for an indefinite period, the employer and insurer were permitted to reduce the amount of the employee’s payments, as shortening the period of benefits was not possible because the employee’s benefits were to terminate pursuant to G.S. 97-30, G.S. 97-31 when the employee returned to work and there would be no opportunity to shorten the period of disability. Easton v. J.D. Denson Mowing, 173 N.C. App. 439, 620 S.E.2d 201, 2005 N.C. App. LEXIS 2014 (2005).

Where all of a worker’s injuries are not included in the schedule contained in G.S. 97-31 and the worker’s earning capacity has been permanently, but only partially, impaired he is entitled to the scheduled compensation provided for in G.S. 97-31 and an award for permanent partial disability as provided for in this section. Jones v. Murdoch Center, 74 N.C. App. 128, 327 S.E.2d 294, 1985 N.C. App. LEXIS 3358 (1985).

Injuries Also Entitling Employee to Compensation Under G.S. 97-31. —

An employee sustained injuries resulting in disability of a general nature such as would entitle him to compensation under this section. In addition to such injuries, he had also sustained injuries of a specific nature such as to entitle him to compensation under G.S. 97-31. He is entitled to compensation for the specific injuries under G.S. 97-31, and then, if still disabled as a result of the other injuries, compensation will be paid under this section. Morgan v. Town of Norwood, 211 N.C. 600, 191 S.E. 345, 1937 N.C. LEXIS 157 (1937).

Where all of a worker’s injuries are compensable under G.S. 97-31, the compensation provided for under that section is in lieu of all other compensation. When, however, an employee cannot be fully compensated under G.S. 97-31 and is permanently incapacitated, he or she is entitled to compensation under G.S. 97-29 for total incapacity or this section for partial incapacity. Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E.2d 122, 1986 N.C. App. LEXIS 2155 (1986).

Because stacking of benefits covering the same injury for the same time period is prohibited, and because the prevention of double recovery, not exclusivity of remedy, is patently the intent of the “in lieu of all other compensation” clause in G.S. 97-31, a plaintiff entitled to select a remedy under either G.S. 97-31 or this section may receive benefits under the provisions offering the more generous benefits, less the amount he or she has already received. Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674, 1987 N.C. LEXIS 2173 (1987).

Award for both partial incapacity under this section and for disfigurement under G.S. 97-31(22) is now permissible for injuries occurring since July 1, 1963. Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965).

When an employee’s power to earn is diminished but not obliterated, he is entitled to benefits under this section for a permanent partial disability. Brown v. S & N Communications, Inc., 124 N.C. App. 320, 477 S.E.2d 197, 1996 N.C. App. LEXIS 1051 (1996).

Award for Partial Disability Not Increased to Compensation for Total Disability. —

Where an award was entered for total disability for a certain length of time, and for partial disability thereafter for a total of 300 weeks under this section, the Industrial Commission could not increase the award of compensation to that allowed for total disability, upon its finding that at the time of the review of the award claimant’s condition was unchanged and that he was at the time only 50 percent disabled. Murray v. Nebel Knitting Co., 214 N.C. 437, 199 S.E. 609, 1938 N.C. LEXIS 370 (1938) (distinguishing) Smith v. Swift & Co., 212 N.C. 608, 194 S.E. 106, 1937 N.C. LEXIS 380 (1937).

Occupational Disease Is Not Compensable Until It Causes Incapacity for Work. —

An occupational disease does not become compensable under G.S. 97-29 (relating to total incapacity) or this section (relating to partial incapacity) until it causes incapacity for work. This incapacity is the basic “loss” for which the worker receives compensation under those statutes. Caulder v. Mills, 314 N.C. 70, 331 S.E.2d 646, 1985 N.C. LEXIS 1707 (1985).

Amount of Benefit. —

Subject to the limitations and percentages stated in the statute in partial disability cases, the weekly benefit due is based on the difference between the employee’s average weekly wage before the injury and average weekly wage which he is able to earn thereafter. Thomason v. Fiber Indus., 78 N.C. App. 159, 336 S.E.2d 632, 1985 N.C. App. LEXIS 4254 (1985).

Where the evidence tended to show that plaintiff was permanently partially disabled by reason of occupational disease and that after failing to obtain employment in the cotton textile industry in which he had been employed for 29 years, the plaintiff made an earnest and highly commendable search for other employment, and was able to obtain a permanent job with a restaurant at the minimum wage but was released from that employment only because business conditions resulted in the restaurant going out of business, the Commission was required to enter an award setting the plaintiff ’s compensation at two-thirds of the difference between his average wage of $196.91 a week while working for the defendant and the minimum wage of $134.00 a week which he received thereafter, an award of $41.94 per week, not to exceed 300 weeks. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Compensation under this section is to be computed upon the basis of the difference in the average weekly earnings before the injury and the average weekly wages the employee is able to earn thereafter. Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674, 1987 N.C. LEXIS 2173 (1987).

Commission Erred by Not Assessing Most Munificent Remedy. —

The Industrial Commission erred when it awarded permanent disability compensation solely for plaintiff’s scheduled hand injury under G.S. 97-31 without assessing whether G.S. 97-29 or this section would provide him a more munificent remedy. McLean v. Eaton Corp., 125 N.C. App. 391, 481 S.E.2d 289, 1997 N.C. App. LEXIS 105 (1997).

The Commission did not err in allowing defendants a credit only for the wages actually earned by employee after he was found to be disabled, as implicit in the Commission’s finding that employee was entitled to compensation at two-thirds the difference between his wages prior to disability and his average weekly wages immediately thereafter was a finding that the wages actually earned by the employee after he was found to be disabled were the wages he was capable of earning. Calloway v. Mills, 78 N.C. App. 702, 338 S.E.2d 548, 1986 N.C. App. LEXIS 1998 (1986) (remanding, however, for further findings so that the exact amount of credit could be set and compensation could be properly calculated) .

Showing Necessary to Secure Award Under Section. —

In order to secure an award under this section, the claimant has the burden of proving (1) that the injury resulted from accident arising out of and in the course of his employment; (2) that there resulted from that injury a loss of earning capacity (disability); and (3) the extent of that disability. Without such proof, there is no authority upon which to make an award, even though permanent physical injury may have been suffered. Gaddy v. Kern, 17 N.C. App. 680, 195 S.E.2d 141, 1973 N.C. App. LEXIS 1440, cert. denied, 283 N.C. 585, 197 S.E.2d 873, 1973 N.C. LEXIS 1010 (1973).

In order to secure an award under this section, the plaintiff has the burden of showing not only permanent partial disability, but also its degree. Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674, 1987 N.C. LEXIS 2173 (1987).

An employee’s presumption of disability may not be defeated merely by a return to work. Kisiah v. W.R. Kisiah Plumbing, Inc., 124 N.C. App. 72, 476 S.E.2d 434, 1996 N.C. App. LEXIS 1006 (1996).

Burden is on claimant to show permanent partial disability. Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965).

And also its degree. See Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965).

Presumption of Disability Not Rebutted. —

Where the parties executed a Form 21 Agreement relieving the employee of the burden of proving his disability, the fact that plaintiff held a job one year before the matter was initially heard was not sufficient to prove that suitable jobs were available to him and that he was capable of getting one. Flores v. Stacy Penny Masonry Co., 134 N.C. App. 452, 518 S.E.2d 200, 1999 N.C. App. LEXIS 807 (1999).

Determination that a plaintiff suffered a fractured wrist was supported by competent evidence and he was properly found entitled to 300 weeks of partial disability payments, as the employer failed to show that the plaintiff was capable of earning his pre-injury wages post-injury since the plaintiff was not in professional football player condition due to his injury; in the future, the defendant was entitled to file a motion with the Commission pursuant to G.S. 97-47 for a modification of the plaintiff’s award. Renfro v. Richardson Sports, Ltd. Partners, 172 N.C. App. 176, 616 S.E.2d 317, 2005 N.C. App. LEXIS 1435 (2005).

Because plaintiff’s presumption of post-injury diminished earning capacity was established by plaintiff and unrebutted by defendant, plaintiff was allowed to elect benefits pursuant to this section. Shaw v. UPS, 116 N.C. App. 598, 449 S.E.2d 50, 1994 N.C. App. LEXIS 1080 (1994), aff'd, 342 N.C. 189, 463 S.E.2d 78, 1995 N.C. LEXIS 554 (1995).

Entitlement to Partial Disability Compensation Shown. —

Plaintiff, who received temporary total disability benefits under G.S. 97-29 for a compensable heart attack in April, 1979, was properly awarded permanent partial disability under this section on his application under G.S. 97-47 for modification of the prior award following three additional heart attacks, where the Commission found that he had been permanently and totally disabled since June 1981, partially as a result of his compensable heart attack in 1979. Weaver v. Swedish Imports Maintenance, Inc., 80 N.C. App. 432, 343 S.E.2d 205, 1986 N.C. App. LEXIS 2200 (1986), aff'd in part and rev'd in part, 319 N.C. 243, 354 S.E.2d 477, 1987 N.C. LEXIS 1935 (1987).

Individual who retired from job in which he had 47 years of experience at age 70, and subsequently attempted to return to work but could not obtain comparable employment, was entitled to partial disability compensation based on the difference between his present and former wages, in view of environmental restriction, caused by his occupational disease (COPD), which combined with other factors to limit the scope of his potential employment. Preslar v. Cannon Mills Co., 80 N.C. App. 610, 343 S.E.2d 209, 1986 N.C. App. LEXIS 2236 (1986).

Truck driver, who suffered a 7% loss in the visual field of one eye in a job-related accident and was unable thereafter to find work at wages comparable to those he had been earning as a truck driver, was not precluded from receiving benefits under this section merely because he had received some compensation under G.S. 97-31 for a scheduled injury. Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674, 1987 N.C. LEXIS 2173 (1987).

The record contained competent evidence to support the plaintiff’s temporary partial disability compensation: the Commission’s determination that, but for his injury, plaintiff would have received the Panthers contract amount of $ 86,000; its finding that plaintiff was unable to obtain other professional football employment; plaintiff’s failure to obtain employment with the Dallas Cowboys; and his three treating physicians’ note that a symptomatic disc would contraindicate his playing professional football. Larramore v. Richardson Sports, Ltd., 141 N.C. App. 250, 540 S.E.2d 768, 2000 N.C. App. LEXIS 1305 (2000), aff'd, 353 N.C. 520, 546 S.E.2d 87, 2001 N.C. LEXIS 533 (2001).

Employee met burden of proving employment at a diminished capacity after a work-related injury by showing employment at a wage lower than pre-injury employment wage and because employer did not prove that the employee was able to earn higher wages, the North Carolina Industrial Commission did not err by finding that the employee was eligible to receive partial disability compensation. Osmond v. Carolina Concrete Specialties, 151 N.C. App. 541, 568 S.E.2d 204, 2002 N.C. App. LEXIS 906 (2002).

Where an employee suffered a general partial disability, but continued to receive the same wages, which amounted to more than the assessable compensation for his injury, he could not receive additional compensation. But to protect the employee against the possibility that the employer might, after the expiration of the time limit specified in G.S. 97-24, discontinue the employment and thus defeat the rights of the employee, the Commission, after finding the existing of the disability, directed that an award issue subject to specified limitations. It directed compensation at the statutory rate “at any time it is shown that the claimant is earning less,” etc., during the statutory period of 300 weeks. By this order the Commission, in effect retained jurisdiction for future adjustments. In so doing it did not exceed its authority. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Partial Disability Benefits Not Warranted. —

An award also containing a provision by which the Commission sought to retain jurisdiction during 300 weeks so that claimant might be paid more compensation if he had a wage loss as a result of his injury within that time was held to be error by the Supreme Court, which said, “There is nothing in the statute . . . that contemplates or authorizes an anticipatory finding by the Commission that a physical impairment may develop into a compensable disability. Neither does the statute vest in the Commission the power to retain jurisdiction of a claim, after compensation has been awarded, merely because some physical impairment suffered by the claimant may, at some time in the future, cause a loss of wages. The Commission is concerned with conditions existing prior to and at the time of the hearing. If such conditions change in the future, to the detriment of the claimant, the statute affords the claimant a remedy and fixes the time within which he must seek it. G.S. 97-47.” Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438, 1951 N.C. LEXIS 322 (1951).

In Harris v. Asheville Contracting Co., 240 N.C. 715, 83 S.E.2d 802 (1954), the court again stated that the Commission was without jurisdiction to retain jurisdiction for 300 weeks. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986); Hill v. DuBose, 237 N.C. 501, 75 S.E.2d 401, 1953 N.C. LEXIS 672 (1953).

Workers’ compensation claimant was not entitled to compensation under G.S. 97-29 or G.S. 97-30 after a Form 24 was approved as the evidence supported the North Carolina Industrial Commission’s determinations that the claimant was capable of returning to full-duty work without restrictions and that she failed in her burden of proving that she remained disabled as a result of the compensable injury where, while there was medical evidence to support a determination that the claimant could not return to full-time work as a flight attendant, this alone was insufficient to establish that she was incapable of earning wages at any job; the claimant’s one contact with her employer about a light duty position was insufficient to establish she had made a reasonable effort to obtain employment under the second Russell option. Perkins v. U.S. Airways, 177 N.C. App. 205, 628 S.E.2d 402, 2006 N.C. App. LEXIS 867 (2006).

Apportionment Held Proper. —

Where evidence supported the Industrial Commission’s conclusion that claimant was totally disabled and that 55 percent of her disability was due to an occupational disease while 45 percent was due to other physical infirmities, it was not error for the Industrial Commission to award claimant compensation for a 55 percent partial disability rather than for total disability. Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458, 1981 N.C. LEXIS 1337 (1981).

Plaintiff cannot aggregate or combine his or her wages from more than one employment in calculating his or her compensation rate, and thus, for purposes of computing compensation rate where a plaintiff worked two separate jobs at the time of injury, his or her average weekly wages are determined only from the earnings of the employment in which he or she was injured. Tunell v. Res. MFG/Prologistix, 222 N.C. App. 271, 731 S.E.2d 844, 2012 N.C. App. LEXIS 934 (2012).

Since North Carolina statutes and case law do not allow aggregation of wages from concurrent employment in calculating a plaintiff’s average weekly wages pursuant to G.S. 97-2(5), by extension, an employer cannot deduct wages earned from concurrent employment in calculating the employer’s obligation to pay partial disability compensation pursuant to G.S. 97-30; however, that this holding may not apply in situations where the post-injury employment is found to have been enlarged or used as a substitute for the loss of earnings in the injury producing employment. Tunell v. Res. MFG/Prologistix, 222 N.C. App. 271, 731 S.E.2d 844, 2012 N.C. App. LEXIS 934 (2012).

Aggregation Of Wages Not Allowed. —

North Carolina Industrial Commission erred by subtracting an employee’s post-injury earnings from a second employer in calculating a first employer’s obligation to pay temporary partial disability compensation because the employee’s earnings from the second employer were not included in his average weekly wages before his injury; because North Carolina law does not allow aggregation of wages from concurrent employment in calculating a plaintiff’s average weekly wages, by extension, an employer cannot deduct wages earned from a concurrent employer in calculating partial disability compensation. Tunell v. Res. MFG/Prologistix, 222 N.C. App. 271, 731 S.E.2d 844, 2012 N.C. App. LEXIS 934 (2012).

Employer’s failure to tell employee about benefits provided under this section was not sufficient reason to set aside the award where employee-plaintiff entered into an agreement, accepted all the benefits from it, and chose not to contest it until almost two years after entering the agreement. Crump v. Independence Nissan, 112 N.C. App. 587, 436 S.E.2d 589, 1993 N.C. App. LEXIS 1208 (1993).

Failure of Commission to Determine Fairness of Agreement. —

Where an employee suffered a back injury and entered into a compromise settlement agreement with an insurance carrier, the North Carolina Industrial Commission erred by not setting aside the agreement because, inter alia, the Commission failed to undertake a full investigation to determine if the agreement was fair and just since the employee may have been entitled to total disability benefits instead of a scheduled injury or partial disability benefits. Kyle v. Holston Group, 188 N.C. App. 686, 656 S.E.2d 667, 2008 N.C. App. LEXIS 282 (2008).

Exaggerated Post-Injury Earnings. —

Where plaintiff’s hourly wage after he terminated his employment due to lung impairment was less than he had earned; however, his weekly income was approximately the same as pre-injury due to his working more hours post-injury, plaintiff’s actual post-injury earnings were exaggerated and were not a reliable indicator of his earning capacity. Harris v. North Am. Prods., 125 N.C. App. 349, 481 S.E.2d 321, 1997 N.C. App. LEXIS 96 (1997).

Factors other than actual post-injury earnings may be considered in determining an injured employee’s post-injury earning capacity. Harris v. North Am. Prods., 125 N.C. App. 349, 481 S.E.2d 321, 1997 N.C. App. LEXIS 96 (1997).

Failure to Make Required Findings as to Earning Capacity. —

Industrial commission erred in determining a worker’s permanent partial disability rating pursuant to G.S. 97-31; disability was defined by a diminished capacity to earn wages, not by physical infirmity alone, G.S. 97-2(9), and the commission failed to make required findings pursuant to G.S. 97-30 on whether the job offered to the worker by her employer accurately reflected her ability to earn wages. Baker v. Sam's Club, 161 N.C. App. 712, 589 S.E.2d 387, 2003 N.C. App. LEXIS 2255 (2003).

North Carolina Industrial Commission erred in awarding an employee temporary partial disability compensation at varying rates not to exceed $442 per week for up to 300 weeks from the date of his injury because the Commission made no findings about the employee’s wages or earnings in the years following his injury; while the Commission made a finding of futility, it was related only to the employee’s temporary total disability, which began two weeks before August 30, 2001, and its findings of fact did not address the employee’s ability to earn wages in fields other than stunt work for the period between October 1993 and July 1999. Barrett v. All Payment Servs., Inc., 201 N.C. App. 522, 686 S.E.2d 920, 2009 N.C. App. LEXIS 2333 (2009), writ denied, 363 N.C. 853, 693 S.E.2d 915, 2010 N.C. LEXIS 260 (2010).

Remand for Findings as to Wage Earning Capacity. —

Where plaintiff suffered a permanent disability to her lungs, the Industrial Commission committed error in compensating her under G.S. 97-31, but failing to consider or make findings of fact as to whether her disability affected her wage earning capacity under either G.S. 97-29 or this section, as this prevented plaintiff from electing to recover under either this section or G.S. 97-29, if she was so entitled. Strickland v. Burlington Indus., Inc., 87 N.C. App. 507, 361 S.E.2d 394, 1987 N.C. App. LEXIS 3208 (1987).

Psychological injuries are compensable, if at all, under G.S. 97-29 or this section and wage-earning capacity is critical to the assessment of a plaintiff’s entitlement to benefits under these sections. McLean v. Eaton Corp., 125 N.C. App. 391, 481 S.E.2d 289, 1997 N.C. App. LEXIS 105 (1997).

Disability Related to Asbestosis. —

The claimant could not recover compensation for total or partial incapacity to earn wages, both of which require a showing of disablement, where his prior award of 104-weeks compensation for asbestosis did not establish his disablement, but he was entitled to compensation for permanent injury to his lungs. Davis v. Weyerhaeuser Co., 132 N.C. App. 771, 514 S.E.2d 91, 1999 N.C. App. LEXIS 284 (1999).

Concept of Maximum Medical Improvement Is Not Applicable to Temporary Disability Payments. —

Employee’s reaching of maximum medical improvement (MMI) did not affect the employee’s right to continue to receive temporary disability workers’ compensation benefits and MMI did not represent the point in time at which a loss of wage-earning capacity automatically converted from temporary to permanent. Hooker v. Stokes-Reynolds Hospital/North Carolina Baptist Hosp. Inc., 161 N.C. App. 111, 587 S.E.2d 440, 2003 N.C. App. LEXIS 1975 (2003).

Award finding a claimant totally disabled was upheld, despite the claimant receiving a tobacco allotment and owning a mobile home park, because the claimant did not perform any physical activity involved with either enterprise, and competent evidence showed that the claimant was unable to (1) walk or stand for any sustained period of time, (2) sleep for more than a few hours at a time because of continuous knee pain, and (3) remain balanced for any length of time. Hensley v. Indus. Maint. Overflow, 166 N.C. App. 413, 601 S.E.2d 893, 2004 N.C. App. LEXIS 1729 (2004).

Award Supported By the Evidence. —

North Carolina Industrial Commission’s finding that an employee retained only minimal earning capacity was supported by the medical and record evidence and accorded to the appellate court’s mandate in an earlier remand; the commission properly took judicial notice of the federal minimum wage to conclude that the employee was entitled to $14,181 more under G.S. 97-30 than he was under the Form 26 agreement, and to set the agreement aside and award the employee $14,181. Lewis v. Craven Reg'l Med. Ctr., 174 N.C. App. 561, 621 S.E.2d 259, 2005 N.C. App. LEXIS 2473 (2005).

§ 97-31. Schedule of injuries; rate and period of compensation.

In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation, including disfigurement, to wit:

  1. For the loss of a thumb, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 75 weeks.
  2. For the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 45 weeks.
  3. For the loss of a second finger, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 40 weeks.
  4. For the loss of a third finger, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 25 weeks.
  5. For the loss of a fourth finger, commonly called the little finger, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 20 weeks.
  6. The loss of the first phalange of the thumb or any finger shall be considered to be equal to the loss of one half of such thumb or finger, and the compensation shall be for one half of the periods of time above specified.
  7. The loss of more than one phalange shall be considered the loss of the entire finger or thumb: Provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand.
  8. For the loss of a great toe, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 35 weeks.
  9. For the loss of one of the toes other than a great toe, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 10 weeks.
  10. The loss of the first phalange of any toe shall be considered to be equal to the loss of one half of such toe, and the compensation shall be for one half of the periods of time above specified.
  11. The loss of more than one phalange shall be considered as the loss of the entire toe.
  12. For the loss of a hand, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 200 weeks.
  13. For the loss of an arm, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 240 weeks.
  14. For the loss of a foot, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 144 weeks.
  15. For the loss of a leg, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 200 weeks.
  16. For the loss of an eye, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 120 weeks.
  17. The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, shall constitute total and permanent disability, to be compensated according to the provisions of G.S. 97-29. The employee shall have a vested right in a minimum amount of compensation for the total number of weeks of benefits provided under this section for each member involved. When an employee dies from any cause other than the injury for which he is entitled to compensation, payment of the minimum amount of compensation shall be payable as provided in G.S. 97-37.
  18. For the complete loss of hearing in one ear, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 70 weeks; for the complete loss of hearing in both ears, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 150 weeks.
  19. Total loss of use of a member or loss of vision of an eye shall be considered as equivalent to the loss of such member or eye. The compensation for partial loss of or for partial loss of use of a member or for partial loss of vision of an eye or for partial loss of hearing shall be such proportion of the periods of payment above provided for total loss as such partial loss bears to total loss, except that in cases where there is eighty-five per centum (85%), or more, loss of vision in any eye, this shall be deemed “industrial blindness” and compensated as for total loss of vision of such eye.
  20. The weekly compensation payments referred to in this section shall all be subject to the same limitations as to maximum and minimum as set out in G.S. 97-29.
  21. In case of serious facial or head disfigurement, the Industrial Commission shall award proper and equitable compensation not to exceed twenty thousand dollars ($20,000). In case of enucleation where an artificial eye cannot be fitted and used, the Industrial Commission may award compensation as for serious facial disfigurement.
  22. In case of serious bodily disfigurement for which no compensation is payable under any other subdivision of this section, but excluding the disfigurement resulting from permanent loss or permanent partial loss of use of any member of the body for which compensation is fixed in the schedule contained in this section, the Industrial Commission may award proper and equitable compensation not to exceed ten thousand dollars ($10,000).
  23. For the total loss of use of the back, sixty-six and two-thirds percent (662/3%) of the average weekly wages during 300 weeks. The compensation for partial loss of use of the back shall be such proportion of the periods of payment herein provided for total loss as such partial loss bears to total loss, except that in cases where there is seventy-five per centum (75%) or more loss of use of the back, in which event the injured employee shall be deemed to have suffered “total industrial disability” and compensated as for total loss of use of the back.
  24. In case of the loss of or permanent injury to any important external or internal organ or part of the body for which no compensation is payable under any other subdivision of this section, the Industrial Commission may award proper and equitable compensation not to exceed twenty thousand dollars ($20,000).

History. 1929, c. 120, s. 31; 1931, c. 164; 1943, c. 502, s. 2; 1955, c. 1026, s. 7; 1957, c. 1221; c. 1396, ss. 2, 3; 1963, c. 424, ss. 1, 2; 1967, c. 84, s. 3; 1969, c. 143, s. 3; 1973, c. 515, s. 3; c. 759, s. 3; c. 761, ss. 1, 2; 1975, c. 164, s. 1; 1977, c. 892, s. 1; 1979, c. 250; 1987, c. 729, ss. 7, 8.

Legal Periodicals.

For comment on the 1943 amendment, which rewrote this section, see 21 N.C.L. Rev. 384 (1943).

For note as to eye injuries and loss of vision, see 35 N.C.L. Rev. 443 (1957).

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For note discussing the use of age, education, and work experience in determining disability in workers’ compensation cases, see 15 Wake Forest L. Rev. 570 (1979).

For survey of 1980 tort law, see 59 N.C.L. Rev. 1239 (1981).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

For note discussing proof of causation requirement in occupational disease cases, in light of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983), see 7 Campbell L. Rev. 99 (1984).

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For survey, “Vernon v. Stephen L. Mabe Builders: The Requirements of Fairness in Settlement Agreements Under the North Carolina Workers’ Compensation Act,” see 73 N.C.L. Rev. 2529 (1995).

CASE NOTES

Analysis

I.In General

Editor’s Note. —

Many of the cases below construe this section as it read prior to the 1943 amendment.

The amending statute of 1963 is not retroactive. Arrington v. Stone & Webster Eng'g Corp., 264 N.C. 38, 140 S.E.2d 759, 1965 N.C. LEXIS 1105 (1965).

The 1963 Amendment Separated Provisions for Disfigurement and Loss of Organ. —

By Session Laws 1963, c. 424, the General Assembly rewrote subdivision (22) and added subdivision (24), separating the provisions for awards of compensation for disfigurement and for loss of an important organ of the body. Cates v. Hunt Constr. Co., 267 N.C. 560, 148 S.E.2d 604, 1966 N.C. LEXIS 1081 (1966).

Which Are Not Covered by Subdivisions (1) to (20). —

Subdivisions (1) to (20), inclusive, do not provide any compensation whatever for injuries on account of disfigurement. Neither do they provide compensation for loss of or injury to an organ or part of the body. Cates v. Hunt Constr. Co., 267 N.C. 560, 148 S.E.2d 604, 1966 N.C. LEXIS 1081 (1966).

Liberal Construction. —

The act should be liberally construed to the end that the benefits thereof shall not be denied upon technical, narrow, and strict interpretation. Cates v. Hunt Constr. Co., 267 N.C. 560, 148 S.E.2d 604, 1966 N.C. LEXIS 1081 (1966).

The act requires the Industrial Commission and the courts to construe the compensation act liberally in favor of the injured worker. Cates v. Hunt Constr. Co., 267 N.C. 560, 148 S.E.2d 604, 1966 N.C. LEXIS 1081 (1966).

This section should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow and strict interpretation. Gaddy v. Anson Wood Prods., 92 N.C. App. 483, 374 S.E.2d 477, 1988 N.C. App. LEXIS 1073 (1988).

Purpose of Schedule Is to Expand Employee’s Remedies. —

Although this section relieves an employee from proving diminished earning capacity for injuries caused thereunder, it was not intended to mean that the presumption of reduced earning capacity should be used to the employee’s detriment. The purpose of the schedule was to expand, not restrict, the employee’s remedies. Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336, 1986 N.C. LEXIS 2586 (1986).

Findings of Fact Insufficient. —

North Carolina Industrial Commission had to modify a finding of fact and conclusion of law because the finding was simply a recitation of the evidence and did not constitute a finding of fact sufficient to comply with the Workers’ Compensation Act; the Commission had to explain its finding of no permanent impairment, given the nearly eight years of treatment between a doctor’s medical opinion and the date when the condition was found compensable. Harrison v. Gemma Power Sys., LLC, 369 N.C. 572, 799 S.E.2d 855, 2017 N.C. LEXIS 402 (2017).

Findings of fact were insufficient to enable the supreme court to determine an employee’s right to benefits because the North Carolina Industrial Commission failed to adequately address the mandate of the court of appeals that it make additional findings of fact and conclusions of law on the issue of the employee’s entitlement to permanent partial impairment benefits; without findings, the supreme court could not review any determination regarding whether the employee was entitled to benefits. Harrison v. Gemma Power Sys., LLC, 369 N.C. 572, 799 S.E.2d 855, 2017 N.C. LEXIS 402 (2017).

Purpose of “In Lieu of ” Clause. —

The legislature enacted the “in lieu of ” clause in this section to express its intent not to permit compensation for both loss and disfigurement of body parts. Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336, 1986 N.C. LEXIS 2586 (1986).

The “in lieu of ” clause of this section acts to prevent double recovery of benefits under different sections of the Workers’ Compensation Act, but it does not provide for an exclusive remedy. Mitchell v. Fieldcrest Mills, Inc., 84 N.C. App. 661, 353 S.E.2d 638, 1987 N.C. App. LEXIS 2551 (1987).

Applicability of “In Lieu of ” Provisions. —

The “in lieu of ” provisions of this section, the scheduled injury statute, apply only when all the employee’s injuries fall within those set out in the schedule. Hill v. Hanes Corp., 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Meaning of “Shall Be Deemed”. —

The words “shall be deemed,” as used in the opening paragraph of this section, mean “shall be held,” “shall be adjudged,” “shall be determined,” “shall be treated as if,” “shall be construed.” Watts v. Brewer, 243 N.C. 422, 90 S.E.2d 764, 1956 N.C. LEXIS 360 (1956).

Disablement Presumed. —

In all cases in which compensation is sought under G.S. 97-29 or G.S. 97-30, total or partial disablement must be shown; however, if compensation is sought in the alternative under this section, disablement is presumed from the injury and compensation is accordingly based on the schedule. Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

To obtain an award of benefits under any subsection of this section, a specific showing that the claimant has undergone a diminution in wage-earning capacity is not required; instead, disability is presumed from the fact of injury. Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

This section is a schedule of losses for which compensation is payable even if a claimant does not demonstrate loss of wage-earning capacity. Losses included in the schedule are conclusively presumed to diminish wage-earning ability. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

Under this section, a worker may receive compensation even if he or she cannot demonstrate loss of wage-earning capacity, because losses included in the schedule are conclusively presumed to diminish wage-earning ability. Strickland v. Burlington Indus., Inc., 86 N.C. App. 598, 359 S.E.2d 19, 1987 N.C. App. LEXIS 2754 (1987).

Maximum Medical Improvement. —

The healing period ends when after a course of treatment and observation, the injury is discovered to be permanent and that fact is duly established; the point at which the injury has stabilized is often called “maximum medical improvement.” Horne v. Universal Leaf Tobacco Processors, 119 N.C. App. 682, 459 S.E.2d 797, 1995 N.C. App. LEXIS 622 (1995).

Evidence indicating that a skin graft would be necessary before a complete healing of plaintiff’s foot would occur and the release of plaintiff to work only with certain restrictions supported the finding that plaintiff had not yet reached maximum medical improvement. Davis v. Embree-Reed, Inc., 135 N.C. App. 80, 519 S.E.2d 763, 1999 N.C. App. LEXIS 923 (1999).

A finding of maximum medical improvement is simply the prerequisite to a determination of the amount of any permanent disability under this section. Silver v. Roberts Welding Contractors, 117 N.C. App. 707, 453 S.E.2d 216, 1995 N.C. App. LEXIS 71 (1995).

Once an employee has reached their maximum medical improvement, the employee may establish permanent incapacity pursuant to either this section, G.S. 97-29 or G.S. 97-30. Franklin v. Broyhill Furn. Indus., 123 N.C. App. 200, 472 S.E.2d 382, 1996 N.C. App. LEXIS 682, cert. denied, 344 N.C. 629, 477 S.E.2d 39, 1996 N.C. LEXIS 559 (1996).

Contrary to the defendants’ contention, the plaintiff reached maximum medical improvement—given his refusal to undergo further surgeries recommended by his doctor—with respect to his right and left upper extremities on January 24, 1994 and with respect to all of his injuries, on October 3, 1994 when he was found to be permanently and totally disabled. Aderholt v. A.M. Castle Co., 137 N.C. App. 718, 529 S.E.2d 474, 2000 N.C. App. LEXIS 492, cert. denied, 352 N.C. 356, 544 S.E.2d 546, 2000 N.C. LEXIS 550 (2000).

The Industrial Commission’s award of temporary total disability benefits without determining whether the employee had reached maximum medical improvement required a remand for such a determination. Anderson v. Gulistan Carpet, Inc., 144 N.C. App. 661, 550 S.E.2d 237, 2001 N.C. App. LEXIS 575 (2001).

A workers’ compensation commission could not award benefits for lost earning capacity to an injured employee where it did not find the date a “healing period” ended or the date an employee reached “maximum medical improvement.” Arnold v. Wal-Mart Stores, 154 N.C. App. 482, 571 S.E.2d 888, 2002 N.C. App. LEXIS 1461 (2002).

Employee’s reaching of maximum medical improvement (MMI) did not affect the employee’s right to continue to receive temporary disability workers’ compensation benefits and MMI did not represent the point in time at which a loss of wage-earning capacity automatically converted from temporary to permanent. Hooker v. Stokes-Reynolds Hospital/North Carolina Baptist Hosp. Inc., 161 N.C. App. 111, 587 S.E.2d 440, 2003 N.C. App. LEXIS 1975 (2003).

For discussion of the two lines of case law relating to the concept of Maximum Medical Improvement and its applicability to G.S. 97-29, 97-30 and 97-31, see Effingham v. Kroger Co., 149 N.C. App. 105, 561 S.E.2d 287, 2002 N.C. App. LEXIS 141 (2002).

Concept of Maximum Medical Improvement Is Not Applicable to G.S. 97-29 or G.S. 97-30. —

While G.S. 97-31 contemplates a “healing period” followed by a statutory period of time corresponding to the specific physical injury, and allows an employee to receive scheduled benefits for a specific physical impairment only once “the healing period” ends, neither G.S. 97-29 nor G.S. 97-30 contemplates a framework similar to that established by G.S. 97-31. Under G.S. 97-29 or G.S. 97-30, an employee may receive compensation once the employee has established a total or partial loss of wage-earning capacity, and the employee may receive such compensation for as long as the loss of wage-earning capacity continues, for a maximum of 300 weeks in cases of partial loss of wage-earning capacity. Hence, the primary significance of the concept of Maximum Medical Improvement (MMI) is to delineate a crucial point in time only within the context of a claim for scheduled benefits under G.S. 97-31; the concept of MMI does not have any direct bearing upon an employee’s right to continue to receive temporary disability benefits once the employee has established a loss of wage-earning capacity pursuant to G.S. 97-29 or G.S. 97-30. Effingham v. Kroger Co., 149 N.C. App. 105, 561 S.E.2d 287, 2002 N.C. App. LEXIS 141 (2002).

Maximum Medical Improvement Is Prerequisite to Determine Disability. —

A finding of maximum medical improvement is not the equivalent of a finding that the employee is able to earn the same wage earned prior to injury; the maximum medical improvement finding is solely the prerequisite to determination of the amount of any permanent disability for purposes of this section. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 374 S.E.2d 483, 1988 N.C. App. LEXIS 1057 (1988).

Employee may seek a determination of her entitlement to permanent disability under G.S. 97-29, 97-30, or 97-31 only after reaching maximum medical improvement. Effingham v. Kroger Co., 149 N.C. App. 105, 561 S.E.2d 287, 2002 N.C. App. LEXIS 141 (2002).

Section Construed with G.S. 97-29. —

In many instances, an award under G.S. 97-29 better fulfills the policy of the Workers’ Compensation Act than an award under this section, because it is a more favorable remedy and is more directly related to compensating inability to work. West v. Bladenboro Cotton Mills, Inc., 62 N.C. App. 267, 302 S.E.2d 645, 1983 N.C. App. LEXIS 2850 (1983).

Deceased employee’s estate, which recovered death benefits, did not have a vested right in additional compensation resulting from the employee’s loss of vision under G.S. 97-31 because the employee was not entitled to recover once under G.S. 97-29 and then again under G.S. 97-31. Kelly v. Duke Univ., 190 N.C. App. 733, 661 S.E.2d 745, 2008 N.C. App. LEXIS 1073 (2008).

An employee who suffers an injury scheduled in this section may recover compensation under G.S. 97-29 instead of under this section if he is totally and permanently disabled. Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336, 1986 N.C. LEXIS 2586 (1986).

Section Construed With G.S. 97-42. —

Where the employer and insurer paid workers’ compensation benefits to the employee while he was incarcerated to which the employee was not entitled, the employer and insurer were entitled to credit under G.S. 97-42; because the award was for an indefinite period, the employer and insurer were permitted to reduce the amount of the employee’s payments, as shortening the period of benefits was not possible because the employee’s benefits were to terminate pursuant to G.S. 97-30, G.S. 97-31 when the employee returned to work and there would be no opportunity to shorten the period of disability. Easton v. J.D. Denson Mowing, 173 N.C. App. 439, 620 S.E.2d 201, 2005 N.C. App. LEXIS 2014 (2005).

The “in lieu of ” clause in this section does not prevent a worker who qualifies from recovering lifetime benefits under G.S. 97-29. Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336, 1986 N.C. LEXIS 2586 (1986) (overruling) Perry v. Hibriten Furn. Co., 296 N.C. 88, 249 S.E.2d 397, 1978 N.C. LEXIS 1163 (1978).

If a claimant is totally and permanently disabled within the meaning of G.S. 97-29, then that claimant is not limited to a recovery under the schedule of compensation of this section. Mitchell v. Fieldcrest Mills, Inc., 84 N.C. App. 661, 353 S.E.2d 638, 1987 N.C. App. LEXIS 2551 (1987).

Where claimant is totally disabled as a result of injuries not included in G.S. 97-31 schedule, claimant is entitled to an award for total disability under G.S. 97-29. Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 354 S.E.2d 477, 1987 N.C. LEXIS 1935 (1987).

The interpretation of Perry v. Hibriten Furn. Co., 296 N.C. 88, 249 S.E.2d 397 (1978), that when all of a plaintiff ’s disability resulting from an injury are covered by this section, an employee is entitled to no compensation for permanent total disability, was overruled in Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336 (1986), which held that the “in lieu of ” clause of this section does not prevent a worker who qualifies from recovering lifetime benefits under G.S. 97-29. Harrington v. Pait Logging Company/Georgia Pac., 86 N.C. App. 77, 356 S.E.2d 365, 1987 N.C. App. LEXIS 2657 (1987).

G.S. 97-29 and this section are alternate sources of compensation for an employee who suffers a disabling injury which is also included as a scheduled injury. The injured worker is allowed to select the more favorable remedy, but he cannot recover compensation under both sections. Cockman v. PPG Indus., 84 N.C. App. 101, 351 S.E.2d 771, 1987 N.C. App. LEXIS 2457 (1987).

Right to Claim Under G.S. 97-29. —

Even if all injuries are covered under this section, the scheduled injury section, an employee may nevertheless elect to claim under G.S. 97-29 if G.S. 97-29 is more favorable, but he may not recover under both sections. Hill v. Hanes Corp., 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

G.S. 97-29 is an alternate source of compensation for an employee who suffers an injury which is also included under the schedule under this section; the injured worker is allowed to select the more favorable remedy, but he or she cannot recover compensation under both sections, because this section is “in lieu of all other compensation.” Harrington v. Pait Logging Company/Georgia Pac., 86 N.C. App. 77, 356 S.E.2d 365, 1987 N.C. App. LEXIS 2657 (1987); McKenzie v. McCarter Elec. Co., 86 N.C. App. 619, 359 S.E.2d 249, 1987 N.C. App. LEXIS 2751 (1987).

Employee Required to Elect Section Under Which to Proceed. —

Claimant who suffered a brain injury accompanied by hearing and vision loss was not entitled to recover under both this section and G.S. 97-29, but was required to elect to proceed under one section or the other. Dishmond v. International Paper Co., 132 N.C. App. 576, 512 S.E.2d 771, 1999 N.C. App. LEXIS 230 (1999).

The Industrial Commission is required to conduct a full investigation and a determination that a Form 26 compensation agreement is fair and just, in order to assure that the settlement is in accord with the intent and purpose of the Workers’ Compensation Act, that an injured employee receives the disability benefits to which he is entitled, and, particularly, that an employee qualifying for disability compensation under both G.S. 97-29 and this section have the benefit of the more favorable remedy. Vernon v. Steven L. Mabe Bldrs., 336 N.C. 425, 444 S.E.2d 191, 1994 N.C. LEXIS 308 (1994).

Failure of Commission to Determine Fairness of Agreement. —

Where plaintiff may have been entitled to permanent total disability benefits under G.S. 97-29, as well as permanent partial disability benefits under this section, but under G.S. 97-29 plaintiff would receive such benefits for as long as he remained totally disabled rather than 45 weeks, and claims employee assumed, rather than determined, that plaintiff was knowledgeable about workers’ compensation benefits and his rights, in approving the Form 26 compensation agreement between plaintiff and defendants, the Industrial Commission did not, as the statute requires, act in a judicial capacity to determine the fairness of the agreement. Vernon v. Steven L. Mabe Bldrs., 336 N.C. 425, 444 S.E.2d 191, 1994 N.C. LEXIS 308 (1994).

Where an employee suffered a back injury and entered into a compromise settlement agreement with an insurance carrier, the North Carolina Industrial Commission erred by not setting aside the agreement because, inter alia, the Commission failed to undertake a full investigation to determine if the agreement was fair and just since the employee may have been entitled to total disability benefits instead of a scheduled injury or partial disability benefits. Kyle v. Holston Group, 188 N.C. App. 686, 656 S.E.2d 667, 2008 N.C. App. LEXIS 282 (2008).

Award Under G.S. 97-29 Upheld. —

There was sufficient evidence to support award and the provision of vocational rehabilitation services where the Industrial Commission found that plaintiff was impaired as a result of his head injury and had yet to overcome resistance on the part of potential employers in order to obtain employment and required vocational rehabilitation to assist him in obtaining stable employment. Silver v. Roberts Welding Contractors, 117 N.C. App. 707, 453 S.E.2d 216, 1995 N.C. App. LEXIS 71 (1995).

Where physician testified that plaintiff suffered continuous pain in his back, both hips, and legs and continuous numbness of the right foot, and that he was 100% disabled, and opined that plaintiff ’s pain was caused by the use of his back in coordination with the hips and the legs, the Commission could determine that plaintiff would not be totally compensated for his injuries under this section and that, as a result, he was entitled to compensation for permanent total incapacity under G.S. 97-29. Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E.2d 122, 1986 N.C. App. LEXIS 2155 (1986).

Plaintiff, who suffered a fall causing a permanent partial impairment to his back of 20% and whom the Commission found unable to work at his previous job as a nurse or at any other employment, was totally and permanently disabled and was entitled to recover under G.S. 97-29, and was not limited to recovery under this section. Taylor v. Margaret R. Pardee Mem. Hosp., 83 N.C. App. 385, 350 S.E.2d 148, 1986 N.C. App. LEXIS 2713 (1986).

Plaintiff, who sustained a 30% permanent physical impairment of his left leg as a result of a 1977 leg condition, and a 15% permanent physical impairment of the left leg as a result of a December, 1983 job related accident, was not limited to recovery under this section. Wilder v. Barbour Boat Works, 84 N.C. App. 689, 352 S.E.2d 690 (1987).

An employee may be compensated for both a scheduled compensable injury under this section and total incapacity for work under G.S. 97-29 when the total incapacity is caused by a psychiatric disorder brought on by the scheduled injury. Hill v. Hanes Corp., 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Truck driver who suffered a 7% loss in the visual field of one eye in a job-related accident, and was unable thereafter to find work at wages comparable to those he had been earning as a truck driver, was not precluded from receiving benefits under G.S. 97-30 merely because he had received some compensation under this section for a scheduled injury. Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674, 1987 N.C. LEXIS 2173 (1987).

Section Construed with G.S. 97-30. —

Because stacking of benefits covering the same injury for the same time period is prohibited, and because the prevention of double recovery, not exclusivity of remedy, is patently the intent of the “in lieu of all other compensation” clause in this section, a plaintiff entitled to select a remedy under either this section or G.S. 97-30 may receive benefits under the provisions offering the more generous benefits, less the amount he or she has already received. Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674, 1987 N.C. LEXIS 2173 (1987).

An employee who suffers injuries resulting in partial disability of a general nature is entitled to compensation under G.S. 97-30, while an employee who sustains injuries of a specific nature is entitled to recover pursuant to the schedule provided in this section. In fact, an employee who sustains both general and specific injuries may recover benefits under both G.S. 97-30 and this section. Gray v. Carolina Freight Carriers, Inc., 105 N.C. App. 480, 414 S.E.2d 102, 1992 N.C. App. LEXIS 279 (1992).

This Section Is Exception to G.S. 97-30. —

Under G.S. 97-30 compensation for permanent partial disability is measured by the degree of disability, except in case of loss of a member as specified in this section. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755, 1967 N.C. LEXIS 1159 (1967).

Disability Need Not Be Shown. —

North Carolina Industrial Commission was correct in holding that a disability need not be proven in order for G.S. 97-31(24) to apply. Childress v. Fluor Daniel. Inc., 162 N.C. App. 524, 590 S.E.2d 893, 2004 N.C. App. LEXIS 185 (2004).

G.S. 97-52 Does Not Require Showing of Disability. —

The obvious intent of the Legislature in enacting G.S. 97-52 was to permit and not restrict recovery for occupational diseases. G.S. 97-52, therefore, does not require that disability be shown as a condition to recovery under the schedule for occupational disease in this section. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

Words “disablement or death” in G.S. 97-52 merely describe a condition that must occur before recovery may be had under G.S. 97-29. They do not predicate recovery under this section upon disability. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

Section Construed with G.S. 97-61.5. —

The acceptance of benefits under G.S. 97-61.5 does not necessarily preclude an award under subsection (24) of this section. Hicks v. Leviton Mfg. Co., 121 N.C. App. 453, 466 S.E.2d 78, 1996 N.C. App. LEXIS 68 (1996).

The philosophy which supports the Workers’ Compensation Act is that the wear and tear of the worker, as well as the machinery, shall be charged to the industry. Cates v. Hunt Constr. Co., 267 N.C. 560, 148 S.E.2d 604, 1966 N.C. LEXIS 1081 (1966).

This section sets out a strict and exclusive compensation scheme. Perry v. Hibriten Furniture Co., 35 N.C. App. 518, 241 S.E.2d 697, 1978 N.C. App. LEXIS 3016, aff'd in part, 296 N.C. 88, 249 S.E.2d 397, 1978 N.C. LEXIS 1163 (1978).

The Provisions of Which Are Mandatory. —

The language of this section is clear, and its provisions are mandatory, so that the Commission is without authority to deny the compensation for which it provides on the ground that the employee is earning as much as he was earning before the injury. Watts v. Brewer, 243 N.C. 422, 90 S.E.2d 764, 1956 N.C. LEXIS 360 (1956); Loflin v. Loflin, 13 N.C. App. 574, 186 S.E.2d 660, 1972 N.C. App. LEXIS 2281, cert. denied, 281 N.C. 154, 187 S.E.2d 585, 1972 N.C. LEXIS 1022 (1972).

Injuries Enumerated in Schedule Not Compensated Under Other Provisions. —

The fact that an injury is one of those enumerated in the schedule of payments set forth under this section precludes the Commission from awarding compensation under any other provision of the act. Loflin v. Loflin, 13 N.C. App. 574, 186 S.E.2d 660, 1972 N.C. App. LEXIS 2281, cert. denied, 281 N.C. 154, 187 S.E.2d 585, 1972 N.C. LEXIS 1022 (1972); Baldwin v. North Carolina Mem. Hosp., 32 N.C. App. 779, 233 S.E.2d 600, 1977 N.C. App. LEXIS 2064 (1977).

When all of an employee’s injuries are included in the schedule set out in this section, his entitlement to compensation is exclusively under this section. Perry v. Hibriten Furn. Co., 296 N.C. 88, 249 S.E.2d 397, 1978 N.C. LEXIS 1163 (1978), overruled, Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336, 1986 N.C. LEXIS 2586 (1986).

If by reason of any compensable injury an employee is unable to work and earn any wages, he is totally disabled and entitled to compensation for permanent total disability under G.S. 97-29, unless all his injuries are included in the schedule set out in this section. In that event, the injured employee is entitled to compensation exclusively under this section, regardless of his ability or inability to earn wages in the same or any other employment; such compensation is “in lieu of all other compensation, including disfigurement.” Perry v. Hibriten Furn. Co., 296 N.C. 88, 249 S.E.2d 397, 1978 N.C. LEXIS 1163 (1978), overruled, Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336, 1986 N.C. LEXIS 2586 (1986).

Where all of a worker’s injuries are included in the schedule set out in this section his compensation is limited to that provided for in the statutory schedule without regard to his ability or inability to earn wages. Jones v. Murdoch Center, 74 N.C. App. 128, 327 S.E.2d 294, 1985 N.C. App. LEXIS 3358 (1985).

Where the only injury plaintiff sustained was an injury to a bodily member covered by this section, her compensation after returning to her job was limited to the schedule stated in this section, whether earning capacity was impaired or not. Algary v. McCarley & Co., 74 N.C. App. 125, 327 S.E.2d 296, 1985 N.C. App. LEXIS 3359 (1985).

When all of an employee’s injuries are included in the schedule set out in this section, the employee’s entitlement to compensation is exclusively under that section. However, if an employee receives an injury which is compensable and the injury causes him to become so emotionally disturbed that he is unable to work, he is entitled to compensation for total incapacity under G.S. 97-29. Hill v. Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1, 1986 N.C. App. LEXIS 2021 (1986), aff'd in part, vacated in part, 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Where all of a worker’s injuries are not included in the schedule contained in this section and the worker’s earning capacity has been permanently, but only partially, impaired he is entitled to the scheduled compensation provided for in this section and an award for permanent partial disability as provided for in G.S. 97-29 and G.S. 97-30. Jones v. Murdoch Center, 74 N.C. App. 128, 327 S.E.2d 294, 1985 N.C. App. LEXIS 3358 (1985).

Where all of a worker’s injuries are compensable under this section, the compensation provided for under this section is in lieu of all other compensation. When, however, an employee cannot be fully compensated under this section and is permanently incapacitated, he or she is entitled to compensation under G.S. 97-29 for total incapacity or G.S. 97-30 for partial incapacity. Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E.2d 122, 1986 N.C. App. LEXIS 2155 (1986).

Measure of Compensation. —

Though “disability” signifies an impairment of wage-earning capacity rather than a physical impairment, this signification does not establish impairment of wage-earning capacity as the measure of compensation. Perry v. Hibriten Furniture Co., 35 N.C. App. 518, 241 S.E.2d 697, 1978 N.C. App. LEXIS 3016, aff'd in part, 296 N.C. 88, 249 S.E.2d 397, 1978 N.C. LEXIS 1163 (1978).

Meaning of “Disability”. —

As used in this section, the term “disability” signifies an impairment of wage-earning capacity rather than a physical impairment. Loflin v. Loflin, 13 N.C. App. 574, 186 S.E.2d 660, 1972 N.C. App. LEXIS 2281, cert. denied, 281 N.C. 154, 187 S.E.2d 585, 1972 N.C. LEXIS 1022 (1972).

To support a conclusion of disability the North Carolina Supreme Court has said that the Commission must find the following three facts: (1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual’s incapacity to earn was caused by plaintiff ’s injury. Cook v. Bladenboro Cotton Mills, Inc., 61 N.C. App. 562, 300 S.E.2d 852, 1983 N.C. App. LEXIS 2726 (1983).

Partial Disability Term. —

The term of partial disability, not the term of total and partial disability combined, is to last no longer than 300 weeks less the period of total disability; the 300-week maximum partial disability period includes the time during which temporary total disability is paid or is in addition to the time in which temporary total disability is paid. Brown v. Public Works Comm'n, 122 N.C. App. 473, 470 S.E.2d 352, 1996 N.C. App. LEXIS 453 (1996).

In determining the extent of a particular employee’s capacity for work, the Commission may consider such factors as the individual’s degree of pain and the individual’s age, education, and work experience. Niple v. Seawell Realty & Indus. Co., 88 N.C. App. 136, 362 S.E.2d 572, 1987 N.C. App. LEXIS 3441 (1987).

Pain. —

Pain is not in and of itself a compensable injury. Jackson v. Fayetteville Area Sys. of Transp., 78 N.C. App. 412, 337 S.E.2d 110, 1985 N.C. App. LEXIS 4337 (1985).

Pain, rather than being itself an injury, is a manifestation or indication of an injury. Jackson v. Fayetteville Area Sys. of Transp., 78 N.C. App. 412, 337 S.E.2d 110, 1985 N.C. App. LEXIS 4337 (1985).

Finding that plaintiff experienced pain as a result of what occurred while she was performing her duties was not a sufficient finding that plaintiff sustained an injury. Jackson v. Fayetteville Area Sys. of Transp., 78 N.C. App. 412, 337 S.E.2d 110, 1985 N.C. App. LEXIS 4337 (1985).

“Healing Period” Defined. —

The healing period, within the meaning of this section, is the time when the claimant is unable to work because of his injury, is submitting to treatment, which may include an operation or operations, or is convalescing. Crawley v. Southern Devices, Inc., 31 N.C. App. 284, 229 S.E.2d 325, 1976 N.C. App. LEXIS 1969 (1976), cert. denied, 292 N.C. 467, 234 S.E.2d 2, 1977 N.C. LEXIS 1115 (1977); Perry v. Hibriten Furniture Co., 35 N.C. App. 518, 241 S.E.2d 697, 1978 N.C. App. LEXIS 3016, aff'd in part, 296 N.C. 88, 249 S.E.2d 397, 1978 N.C. LEXIS 1163 (1978).

The “healing period” of the injury is the time when the claimant is unable to work because of his injury, is submitting to treatment, which may include an operation or operations, or is convalescing. This period of temporary total disability contemplates that eventually there will be either complete recovery, or an impaired bodily condition which is stabilized. The “healing period” ends when, after a course of treatment and observation, the injury is discovered to be permanent and that fact is duly established. Carpenter v. Industrial Piping Co., 73 N.C. App. 309, 326 S.E.2d 328, 1985 N.C. App. LEXIS 3283 (1985).

The healing period within the meaning of this section does not include time when an injured worker is able to and does work at his or her regular job. Algary v. McCarley & Co., 74 N.C. App. 125, 327 S.E.2d 296, 1985 N.C. App. LEXIS 3359 (1985).

The healing period of an injury is defined as the time when the claimant is unable to work because of the injury, is submitting to treatment, or is convalescing; the healing period ends when, after a course of treatment and observation, the injury is discovered to be permanent, and that fact is duly established. Hudson v. Mastercraft Div., 86 N.C. App. 411, 358 S.E.2d 134, 1987 N.C. App. LEXIS 2733 (1987).

This section provides for compensation of temporary disability during the healing period of the injury and for permanent disability at the end of the healing period, when maximum recovery has been achieved. Carpenter v. Industrial Piping Co., 73 N.C. App. 309, 326 S.E.2d 328, 1985 N.C. App. LEXIS 3283 (1985).

Compensation for temporary disability is available until maximum recovery has been achieved. Permanent disability is available pursuant to this section at the end of the healing period when maximum recovery has been achieved. Moretz v. Richards & Assocs., 74 N.C. App. 72, 327 S.E.2d 290, 1985 N.C. App. LEXIS 3357 (1985), modified, 316 N.C. 539, 342 S.E.2d 844, 1986 N.C. LEXIS 2158 (1986).

A disability is deemed to continue after the healing period of employee’s injuries and is made compensable under the provisions of this section without regard to the loss of wage-earning power and in lieu of all other compensation. Loflin v. Loflin, 13 N.C. App. 574, 186 S.E.2d 660, 1972 N.C. App. LEXIS 2281, cert. denied, 281 N.C. 154, 187 S.E.2d 585, 1972 N.C. LEXIS 1022 (1972); Perry v. Hibriten Furniture Co., 35 N.C. App. 518, 241 S.E.2d 697, 1978 N.C. App. LEXIS 3016, aff'd in part, 296 N.C. 88, 249 S.E.2d 397, 1978 N.C. LEXIS 1163 (1978).

When Healing Period Terminates. —

Maximum recovery from the injury, not from an operation, is what signifies termination of the healing period. Crawley v. Southern Devices, Inc., 31 N.C. App. 284, 229 S.E.2d 325, 1976 N.C. App. LEXIS 1969 (1976), cert. denied, 292 N.C. 467, 234 S.E.2d 2, 1977 N.C. LEXIS 1115 (1977).

When the claimant has an operation to correct or improve the impairment resulting from his injury, the healing period continues after recovery from the operation until he reaches maximum recovery. The healing period continues until, after a course of treatment and observation, the injury is discovered to be permanent and that fact is duly established. Crawley v. Southern Devices, Inc., 31 N.C. App. 284, 229 S.E.2d 325, 1976 N.C. App. LEXIS 1969 (1976), cert. denied, 292 N.C. 467, 234 S.E.2d 2, 1977 N.C. LEXIS 1115 (1977); Perry v. Hibriten Furniture Co., 35 N.C. App. 518, 241 S.E.2d 697, 1978 N.C. App. LEXIS 3016, aff'd in part, 296 N.C. 88, 249 S.E.2d 397, 1978 N.C. LEXIS 1163 (1978).

The point at which the injury has stabilized is often called “maximum medical improvement,” although that term is not found in the statute itself. This term creates confusion. It connotes that a claimant is only temporarily totally disabled and his body healing when his condition is steadily improving, and/or he is receiving medical treatment. Carpenter v. Industrial Piping Co., 73 N.C. App. 309, 326 S.E.2d 328, 1985 N.C. App. LEXIS 3283 (1985).

Recovery from injuries often entails a healing period of alternating improvement and deterioration. In these cases, the healing period is over when the impaired bodily condition is stabilized, or determined to be permanent, and not at one of the temporary high points. In many cases the body is able to heal itself, and during convalescence doctors refrain from active treatment with surgery or drugs. Thus, the absence of such medical treatment does not mean that the injury has completely improved or that the impaired bodily condition has stabilized. Carpenter v. Industrial Piping Co., 73 N.C. App. 309, 326 S.E.2d 328, 1985 N.C. App. LEXIS 3283 (1985).

Where plaintiff ’s “healing period” had stabilized and he had reached his maximum recovery by December 1977, it was this date that marked the termination of his compensation for temporary total disability and the initiation of compensation for permanent disability. And where according to the payment schedule of this section and in accord with the findings of the Commission, plaintiff was entitled to 180 weeks of permanent disability payments, and plaintiff had received nearly 255 weeks of disability payments since that date, plaintiff had already received more than he was entitled by statute to receive, and defendants owed plaintiff no additional compensation. Moretz v. Richards & Assocs., 316 N.C. 539, 342 S.E.2d 844, 1986 N.C. LEXIS 2158 (1986).

Healing Period Ends with Maximum Medical Improvement. —

Temporary total disability is payable only during the healing period. The healing period ends when an employee reaches maximum medical improvement; only them does the question of entitlement to permanent disability arise. Franklin v. Broyhill Furn. Indus., 123 N.C. App. 200, 472 S.E.2d 382, 1996 N.C. App. LEXIS 682, cert. denied, 344 N.C. 629, 477 S.E.2d 39, 1996 N.C. LEXIS 559 (1996).

Aggravation of Existing Condition. —

Where an injury has aggravated an existing condition and thus proximately caused the incapacity, the relative contributions of the accident and the preexisting condition will not be weighed. McKenzie v. McCarter Elec. Co., 86 N.C. App. 619, 359 S.E.2d 249, 1987 N.C. App. LEXIS 2751 (1987).

Employee Must Establish Disability Unless It Is Included in the Schedule. —

In order to obtain compensation, an employee must establish that his injury caused his “disability,” unless it is included in the schedule of injuries made compensable by this section without regard to loss of wage-earning power. Loflin v. Loflin, 13 N.C. App. 574, 186 S.E.2d 660, 1972 N.C. App. LEXIS 2281, cert. denied, 281 N.C. 154, 187 S.E.2d 585, 1972 N.C. LEXIS 1022 (1972).

Psychological Injury Not Compensable. —

Findings and conclusions regarding wage-earning capacity are not required when only scheduled injuries under this section are involved; however, this approach is inadequate for any psychological disability suffered by plaintiff because psychological injuries are not compensable under this section. McLean v. Eaton Corp., 125 N.C. App. 391, 481 S.E.2d 289, 1997 N.C. App. LEXIS 105 (1997).

Specific Disability Following Temporary Total Disability. —

Where claimant suffers an injury that results in temporary total disability, followed by a specific disability compensable under this section, compensation for specific disability is payable in addition to that awarded for temporary total disability. Rice v. Denny Roll & Panel Co., 199 N.C. 154, 154 S.E. 69, 1930 N.C. LEXIS 72 (1930); Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971); Loflin v. Loflin, 13 N.C. App. 574, 186 S.E.2d 660, 1972 N.C. App. LEXIS 2281, cert. denied, 281 N.C. 154, 187 S.E.2d 585, 1972 N.C. LEXIS 1022 (1972); Moretz v. Richards & Assocs., 74 N.C. App. 72, 327 S.E.2d 290, 1985 N.C. App. LEXIS 3357 (1985), modified, 316 N.C. 539, 342 S.E.2d 844, 1986 N.C. LEXIS 2158 (1986).

Failure to Prove Continuing Disability. —

North Carolina Industrial Commission did not err in determining that a claimant was entitled to permanent partial disability benefits for a period of time because the claimant failed to prove that the claimant suffered from a continuing disability in that, when the claimant reached maximum medical improvement, the claimant failed to prove that the claimant made reasonable efforts to find other employment or that such effort would have been futile. Seamon v. Ingersoll Rand, 238 N.C. App. 452, 767 S.E.2d 592, 2014 N.C. App. LEXIS 1394 (2014).

Employee’s additional indemnity compensation claim for a work-related injury failed because, (1) after the employer met Seagraves by showing the employee’s post-injury termination was not due to the employee’s workers’ compensation claim, the employee did not show the employee was disabled except for the time when benefits were paid, and (2) the employee did not show the employee suffered loss or permanent damage to an important organ or body part. Anders v. Universal Leaf North Am., 253 N.C. App. 241, 800 S.E.2d 99, 2017 N.C. App. LEXIS 323, superseded, 254 N.C. App. 851, 803 S.E.2d 463, 2017 N.C. App. LEXIS 642 (2017).

Loss of Earning Power. —

Although disability compensation under this section is awarded for physical impairment irrespective of ability to work or loss of wage-earning power, there is nothing in this section or the case law that forbids consideration of loss of earning capacity. Key v. McLean Trucking, 61 N.C. App. 143, 300 S.E.2d 280, 1983 N.C. App. LEXIS 2556 (1983).

Failure to Make Required Findings Concerning Earning Capacity in Relation to Knee Injury. —

Industrial commission erred in determining a worker’s permanent partial disability rating pursuant to G.S. 97-31; disability was defined by a diminished capacity to earn wages, not by physical infirmity alone, G.S. 97-2(9), and the commission failed to make required findings pursuant to G.S. 97-30 on whether the job offered to the worker by her employer accurately reflected her ability to earn wages. Baker v. Sam's Club, 161 N.C. App. 712, 589 S.E.2d 387, 2003 N.C. App. LEXIS 2255 (2003).

Retirement. —

Plaintiff was not barred from seeking disability benefits if his retirement was for reasons unrelated to his occupational disease; the pertinent issue was whether plaintiff, subsequent to retirement, experienced a loss in wage-earning capacity. Stroud v. Caswell Ctr., 124 N.C. App. 653, 478 S.E.2d 234, 1996 N.C. App. LEXIS 1206 (1996).

Proceedings Pend Until All Injuries Adjudicated. —

Until all of an injured employee’s compensable injuries and disabilities have been considered and adjudicated by the commission, the proceeding pends for the purpose of evaluation, absent laches or some statutory time limitation. Wilhite v. Liberty Veneer Co., 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

Deductions from Gross Income in Calculating Farm Income. —

Farm income of injured volunteer fireman could not be properly calculated without deducting from gross income interest on money which was borrowed to finance crop production, depreciation on equipment used to produce the crops, license fees for things used in crop production, and taxes on land used to produce crops. York v. Unionville Volunteer Fire Dep't, 58 N.C. App. 591, 293 S.E.2d 812, 1982 N.C. App. LEXIS 2785 (1982).

Defendants Held Not Entitled to Credit for Scheduled Award. —

Where temporary total disability payments for stress-induced depression resulting from injury were to begin approximately six months after the final payment on the scheduled award for permanent partial disability, the defendants would not be given credit on the compensation awarded for temporary total disability for compensation previously awarded under subdivision (15) of this section. Hill v. Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1, 1986 N.C. App. LEXIS 2021 (1986), aff'd in part, vacated in part, 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Survivor Held Not Entitled to Benefits. —

The dependent of a deceased employee who, prior to his death, was receiving benefits for permanent disability under subdivision (17) of this section, due to an injury that occurred prior to July 1, 1979, the effective date of the 1979 amendment, was not entitled to receive payments under the Workers’ Compensation Act as a survivor. Costner v. A.A. Ramsey & Sons, 81 N.C. App. 121, 343 S.E.2d 607, 1986 N.C. App. LEXIS 2254 (1986), aff'd, 318 N.C. 687, 351 S.E.2d 299, 1987 N.C. LEXIS 1747 (1987).

Deduction of Period of Total Disability Benefits from Maximum Period for Partial Disability Benefits. —

The term of partial disability, not the term of total and partial disability combined, is to last no longer than 300 weeks less the period of total disability; the 300-week maximum partial disability period includes the time during which temporary total disability is paid or is in addition to the time in which temporary total disability is paid. Brown v. Public Works Comm'n, 122 N.C. App. 473, 470 S.E.2d 352, 1996 N.C. App. LEXIS 453 (1996).

Award of benefits by the North Carolina Industrial Commission was remanded to allow an employer and its insurer a credit for an award of permanent partial disability because an employee was unable to recover simultaneous benefits under G.S. 97-29 or G.S. 97-30 and G.S. 97-31. Guerrero v. Brodie Contrs., Inc., 158 N.C. App. 678, 582 S.E.2d 346, 2003 N.C. App. LEXIS 1226 (2003).

Matter Remanded for Consideration of G.S. 97-31. —

Workers’ compensation claimant’s appeal was remanded to the North Carolina Industrial Commission for a determination of whether the claimant was entitled to compensation under G.S. 97-31 where the Commission did not address a doctor’s opinion that the claimant had a 10 percent permanent partial disability rating to the right upper extremity; further, the Commission’s opinion did not explain why the Commission did not believe that the claimant was entitled to compensation for permanent partial disability benefits based on that rating. Perkins v. U.S. Airways, 177 N.C. App. 205, 628 S.E.2d 402, 2006 N.C. App. LEXIS 867 (2006).

Employee Eligible for Benefits Under Section. —

North Carolina Industrial Commission did not err in finding that a former employee was eligible for benefits only under the Workers’ Compensation Act, G.S. 97-31, because the employee failed to show that the Commission misapplied the law or that the Commission’s findings of fact were not based on competent evidence; the employee’s post-injury employment was not modified so as to constitute make work because the company was aware of her restrictions when the company hired her. Polk v. Nationwide Recyclers, Inc., 192 N.C. App. 211, 664 S.E.2d 619, 2008 N.C. App. LEXIS 1521 (2008).

II.Thumb or Fingers

Loss of Use of Thumb. —

Where the distal portion of an employee’s left thumb was amputated, the rate of compensation for permanent partial disability was not limited to 25 percent under Industrial Commission Rule XV(1) for partial loss of the thumb itself, and the employee could be compensated at a higher rate under subdivision (1) and (19) of this section for loss of use of the thumb. Caesar v. Piedmont Publishing Co., 46 N.C. App. 619, 265 S.E.2d 474, 1980 N.C. App. LEXIS 2862 (1980).

Loss of More Than One Phalange Due to Surgical Procedure. —

Fact that amputation of part of plaintiff ’s middle phalange of the fourth finger was necessitated by surgical procedure rather than amputated during the accident itself did not affect plaintiff ’s recovery under subdivision (7). Gaddy v. Anson Wood Prods., 92 N.C. App. 483, 374 S.E.2d 477, 1988 N.C. App. LEXIS 1073 (1988).

III.Hands

“Hand,” as used in subdivision (12), refers to the fingers and thumb, the hand proper and the wrist. Thompson v. Frank IX & Sons, 33 N.C. App. 350, 235 S.E.2d 250, 1977 N.C. App. LEXIS 2191 (1977), aff'd, 294 N.C. 358, 240 S.E.2d 783, 1978 N.C. LEXIS 1243 (1978).

Consideration of Other Sections. —

The Industrial Commission erred when it awarded permanent disability compensation solely for plaintiff’s scheduled hand injury under this section without assessing whether G.S. 97-29 or G.S. 97-30 would provide him a more munificent remedy. McLean v. Eaton Corp., 125 N.C. App. 391, 481 S.E.2d 289, 1997 N.C. App. LEXIS 105 (1997).

Award for 75% impairment of use of left hand upheld. See Pridmore v. McCrary, 245 N.C. 544, 96 S.E.2d 843, 1957 N.C. LEXIS 618 (1957).

Compensation for Injury to Hand and Finger Allowed. —

Where plaintiff asserted that she was entitled to compensation under subsection (12) for disability to her hand, in addition to compensation she had already received for disability to her second finger under subsection (3), the claim was not based on unfounded litigiousness; therefore, the awarding of attorney’s fees was unwarranted. Evans v. Young-Hinkle Corp., 123 N.C. App. 693, 474 S.E.2d 152, 1996 N.C. App. LEXIS 863 (1996).

Carpal Tunnel Syndrome. —

In a case in which an employee was properly awarded temporary total disability benefits for bilateral carpal tunnel syndrome (CTS), it was correctly determined that the employee had not reached maximum medical improvement because the employee’s medical treatment for CTS may not have been complete, the employee required further medical evaluation at a minimum, and the condition had not stabilized. Johnson v. City of Winston-Salem, 188 N.C. App. 383, 656 S.E.2d 608, 2008 N.C. App. LEXIS 209, aff'd, 362 N.C. 676, 669 S.E.2d 319, 2008 N.C. LEXIS 989 (2008).

IV.Legs

Injury to “Hip”. —

For purposes of this section, an injury to the “hip” will be considered an injury to the “leg.” Gasperson v. Buncombe County Pub. Schools, 52 N.C. App. 154, 277 S.E.2d 872, 1981 N.C. App. LEXIS 2323 (1981).

Lifetime Benefits for Loss of Legs. —

Subsection (17) provides that the loss of both legs constitutes total and permanent disability to be compensated according to G.S. 97-29, which provides for lifetime benefits. Timmons v. North Carolina DOT, 123 N.C. App. 456, 473 S.E.2d 356, 1996 N.C. App. LEXIS 727 (1996), aff'd, 346 N.C. 173, 484 S.E.2d 551, 1997 N.C. LEXIS 204 (1997).

Resumption of Work. —

Although plaintiff, who had lost both legs, returned to full-time employment, he was entitled to on-going benefits. Timmons v. North Carolina DOT, 123 N.C. App. 456, 473 S.E.2d 356, 1996 N.C. App. LEXIS 727 (1996), aff'd, 346 N.C. 173, 484 S.E.2d 551, 1997 N.C. LEXIS 204 (1997).

Competent evidence supported the Commission’s finding that plaintiff was temporarily and totally disabled from February 16, 1995, until July 7, 1995, where plaintiff’s primary care physician since 1989 testified that each of her three prior ankle injuries aggravated her pre-existing condition and were significant contributing factors in her continuing problems with non-healing ulcer that spontaneously erupted in February, 1995. Royce v. Rushco Food Stores, Inc., 139 N.C. App. 322, 533 S.E.2d 284, 2000 N.C. App. LEXIS 898 (2000).

V.Eyes

“Total Loss” of Vision. —

Prior to 1943, “total loss” of vision was taken in its ordinary meaning, that being “total destruction” of vision. Logan v. Johnson, 218 N.C. 200, 10 S.E.2d 653 (1940). By the 1943 amendment to this section, “total loss” was enlarged to include “industrial blindness, ” which is 85% or more loss of vision in one eye. See Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949).

Amount Awarded for Loss of Vision. —

Under this section, a worker who suffers a total loss of an eye is entitled to 60% (now 662/3%) of his average weekly wages during 120 weeks in addition to the compensation paid during the healing period. If, however, the injury produces only a partial loss of vision, he is entitled to receive that portion of the compensation provided in subdivision (16) that the percentage of loss of vision bears to a total loss. Watts v. Brewer, 243 N.C. 422, 90 S.E.2d 764, 1956 N.C. LEXIS 360 (1956).

Compensation for partial loss of vision by a claimant should be awarded on the basis of the vision remaining without the use of corrective lenses. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874, 1968 N.C. LEXIS 584 (1968).

Loss of 95% of Vision of Each Eye. —

Upon evidence showing that claimant had suffered permanent loss of 95% of the vision of each eye, it was held that, under the 1943 amendment to this section, an award for permanent and total loss of vision of each eye was proper. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949).

Prior Astigmatism Not Bar to Recovery. —

For case in which claimant was held entitled to full compensation for total loss of vision of an eye by this section, and in which it was held error to first deduct 40% loss due to astigmatism and award claimant only 60% of the amount recoverable for total loss of vision, see Schrum v. Catawba Upholstering Co., 214 N.C. 353, 199 S.E. 385, 1938 N.C. LEXIS 345 (1938).

Continuance of Disability from Loss of Eye. —

In case of the loss of an eye, the Commission must conclusively presume and adjudge that the disability resulting therefrom continued or will continue for 120 weeks beyond the healing period. Watts v. Brewer, 243 N.C. 422, 90 S.E.2d 764, 1956 N.C. LEXIS 360 (1956).

Eye Injury with Significant Risk of Future Vision Impairment. —

While an employee who suffered a laceration of his cornea when a piece of metal hit his eye, presenting a clear danger of retinal detachment in the future, unquestionably sustained a permanent injury to his eye, he did not lose the injured eye or suffer any loss of vision. Since his injury was not specifically encompassed by subdivisions (16) or (19) of this section, or any other subdivision, subdivision (24) was the appropriate basis for the Commission’s award. Little v. Penn Ventilator Co., 75 N.C. App. 92, 330 S.E.2d 276, 1985 N.C. App. LEXIS 3588 (1985), aff'd in part and rev'd in part, 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

While the evidence tended to support the claim of an employee suffering an eye injury that his risk of some form of future vision impairment was significantly increased, the statutory scheme allowed him to be compensated for “permanent injury,” but made no provision for an additional recovery because the claimant could be subject to a greater risk of permanent disability as a result of his accident. Consequently, the amount awarded — $2,500 — was supported by the evidence. Little v. Penn Ventilator Co., 75 N.C. App. 92, 330 S.E.2d 276, 1985 N.C. App. LEXIS 3588 (1985), aff'd in part and rev'd in part, 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

Eye Injury Without Immediate Loss of Vision Compensated Under Subdivision (24). —

Where plaintiff received a serious, permanent eye injury which placed him at great risk for future complications, although he had not yet suffered any loss of vision nor any decrease in earning ability, and the extent of his future complications as well as his prognosis if they should arise lay outside the realm of certainty, the Commission’s award of $2,500.00 for plaintiff ’s eye injury under subdivision (24) of this section would be affirmed. Little v. Penn Ventilator Co., 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

A 7% loss of field of vision in plaintiff ’s right eye was compensable under subdivisions (16) and (19) of this section. Gupton v. Builders Transp., 83 N.C. App. 1, 348 S.E.2d 601, 1986 N.C. App. LEXIS 2638 (1986), rev'd, 320 N.C. 38, 357 S.E.2d 674, 1987 N.C. LEXIS 2173 (1987).

VI.Partial Loss or Partial Loss of Use

Effect of 1957 Amendment to Subdivision (19). —

Before the 1957 amendment to subdivision (19) of this section, an award for partial disability was to be based on a percentage of the weekly wage for the entire period, rather than a percentage of the number of weekly payments. Kellams v. Carolina Metal Prods., Inc., 248 N.C. 199, 102 S.E.2d 841, 1958 N.C. LEXIS 365 (1958).

Compensation for Partial Loss of Member of or Use Thereof. —

When plaintiff can prove a case of either partial loss of a member subject to Industrial Commission Rule XV or partial loss of the use of that member he is entitled to compensation under either heading. This interpretation is consistent with the plain and explicit language of subdivision (19) of this section. Caesar v. Piedmont Publishing Co., 46 N.C. App. 619, 265 S.E.2d 474, 1980 N.C. App. LEXIS 2862 (1980).

Award for Partial Disability Under Subdivision (19) Is Subject to Minimum Provided in G.S. 97-29. —

Under the provisions of subdivision (20) of this section, awards for partial loss or partial loss of use of a member under subdivision (19) were subject to the minimum fixed in G.S. 97-29 in like manner as awards for total disability, and therefore the weekly payments of an award for partial disability should not have been less than the minimum fixed by G.S. 97-29. Kellams v. Carolina Metal Prods., Inc., 248 N.C. 199, 102 S.E.2d 841, 1958 N.C. LEXIS 365 (1958).

Commission Only Required to Find Percentage of Disability of Member Affected. —

Where an award is properly made under specific schedules and the Commission has found as a fact that the employee is not totally and permanently disabled, the commission is only required to find the percentage of disability of the member or members affected. Perry v. Hibriten Furn. Co., 296 N.C. 88, 249 S.E.2d 397, 1978 N.C. LEXIS 1163 (1978), overruled, Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336, 1986 N.C. LEXIS 2586 (1986).

VII.Disfigurement

Provision as to Bodily Disfigurement Is Constitutional. —

This section, authorizing the Industrial Commission to award compensation for bodily disfigurement, is sufficiently certain and prescribes the standard for the computation of an award thereunder with sufficient definiteness. Thus, the provision is valid and constitutional and is not void as a delegation of legislative power in contravention of N.C. Const., Art. I, § 8 (now N.C. Const., Art. I, § 6). Baxter v. W.H. Arthur Co., 216 N.C. 276, 4 S.E.2d 621, 1939 N.C. LEXIS 143 (1939).

Provisions as to Disfigurement Are Not Invalid for Failure to Provide Guide or Standard. —

The fact that there exists a broad area in which the judgment of the Commission with reference to the particular factual situation is determinative does not invalidate the statutory provision on grounds of failure to provide an intelligible guide or standard for the award of compensation for serious disfigurement causing impairment of future earning power. Davis v. Sanford Constr. Co., 247 N.C. 332, 101 S.E.2d 40, 1957 N.C. LEXIS 706 (1957).

Recovery for Disfigurement Is in Addition to Other Recovery. —

Subdivision (21) of this section, when properly read, means that a person may recover for serious facial and head disfigurement in addition to recovery under other parts of the section. Griffin v. Red & White Supermarket, 78 N.C. App. 617, 337 S.E.2d 657, 1985 N.C. App. LEXIS 4351 (1985).

Separate Awards to Be Entered in Cases Involving Facial and Bodily Disfigurement. —

Under this section prior to amendment in 1987, in cases where there was both facial and bodily disfigurement, where Commission did not specify in its opinion separate award amounts for each category of disfigurement, but made one award to compensate the injured worker for both types of disfigurement, would be upheld. However, in view of the 1987 amendment, in future cases, separate awards should be entered in cases involving both types of disfigurement. Crews v. North Carolina DOT, 103 N.C. App. 372, 405 S.E.2d 595, 1991 N.C. App. LEXIS 763 (1991).

Disfigurement must be evidenced by an outward observable blemish, scar or mutilation, under the act, and it must be so permanent and serious as to hamper or handicap the person in his earnings or in securing employment. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

A disfigurement is a blemish, a blot, a scar or a mutilation that is external and observable, marring the appearance. Arrington v. Stone & Webster Eng'g Corp., 264 N.C. 38, 140 S.E.2d 759, 1965 N.C. LEXIS 1105 (1965).

There is a serious disfigurement in law only when there is a serious disfigurement in fact. A serious disfigurement in fact is a disfigurement that mars and hence adversely affects the appearance of the injured employee to such extent that it may be reasonably presumed to lessen his opportunities for remunerative employment and so reduces his future earning power. No present loss of wages need be established; but to be serious, the disfigurement must be of such nature that it may be fairly presumed that the injured employee has suffered a diminution of his future earning power. Davis v. Sanford Constr. Co., 247 N.C. 332, 101 S.E.2d 40, 1957 N.C. LEXIS 706 (1957); Arrington v. Stone & Webster Eng'g Corp., 264 N.C. 38, 140 S.E.2d 759, 1965 N.C. LEXIS 1105 (1965); Wilhite v. Liberty Veneer Co., 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981); Liles v. Charles Lee Byrd Logging Co., 309 N.C. 150, 305 S.E.2d 523, 1983 N.C. LEXIS 1314 (1983); Locklear v. Canal Wood Corp., 63 N.C. App. 185, 303 S.E.2d 825, 1983 N.C. App. LEXIS 3004 (1983).

One who is so disfigured as to be considered “repulsive” to others is less likely to be hired and thus is hampered or handicapped in his earning or securing employment. Liles v. Charles Lee Byrd Logging Co., 309 N.C. 150, 305 S.E.2d 523, 1983 N.C. LEXIS 1314 (1983).

What Disfigurement Is Compensable. —

Disfigurement alone is not made compensable by the act. Before it is compensable it must be not only (1) marked disfigurement, but also one which (2) impairs the future usefulness or occupational opportunities of the injured employee. Wilhite v. Liberty Veneer Co., 47 N.C. App. 434, 267 S.E.2d 566, 1980 N.C. App. LEXIS 3127 (1980), aff'd in part and rev'd in part, 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

To warrant compensation for disfigurement it must be so permanent and serious that in some manner it hampers or handicaps the person in his earning or in securing employment, or it must be such as to make the person repulsive to other people. Liles v. Charles Lee Byrd Logging Co., 309 N.C. 150, 305 S.E.2d 523, 1983 N.C. LEXIS 1314 (1983).

Compensation Under Subdivision (21) for Loss of or Permanent Injury to Important Organ of Face or Head. —

While subdivision (21) does not refer in express terms to the loss of or permanent injury to any important organ of the face or head, such loss, if in fact a “serious facial or head disfigurement,” is compensable thereunder. Davis v. Sanford Constr. Co., 247 N.C. 332, 101 S.E.2d 40, 1957 N.C. LEXIS 706 (1957); Arrington v. Stone & Webster Eng'g Corp., 264 N.C. 38, 140 S.E.2d 759, 1965 N.C. LEXIS 1105 (1965).

Enucleation where artificial eye cannot be fitted and used is a type of facial disfigurement under subdivision (21). No other type of eye injury is a compensable disfigurement. Griffin v. Red & White Supermarket, 78 N.C. App. 617, 337 S.E.2d 657, 1985 N.C. App. LEXIS 4351 (1985).

Applicability of Subdivision (22). —

Subdivision (22) of this section applies only to serious bodily disfigurements which are not accompanied by any other disability which would already have been compensated for under another provision of the Workers’ Compensation Act. Liles v. Charles Lee Byrd Logging Co., 309 N.C. 150, 305 S.E.2d 523, 1983 N.C. LEXIS 1314 (1983).

Compensation of Disfigurement Under Subdivision (22). —

The Workers’ Compensation Act deals with compensation for reduced capacity for work. A bodily disfigurement, other than facial or head disfigurements which are governed by subdivision (21) of this section, is serious and compensable under subdivision (22) of this section only when it is of such a nature that it may be fairly presumed that it causes to the injured employee a diminution of his future earning capacity. Liles v. Charles Lee Byrd Logging Co., 59 N.C. App. 330, 296 S.E.2d 485, 1982 N.C. App. LEXIS 3097 (1982), modified, 309 N.C. 150, 305 S.E.2d 523, 1983 N.C. LEXIS 1314 (1983).

Natural physical handicap resulting from the disfigurement, and the age, training, experience, education, occupation and adaptability of the employee to obtain and retain employment are factors to be used in arriving at the diminution of earning power — the amount of an award. It follows, however, that these same factors are to be used as well to determine if any award is to be made, that is, whether the disfigurement is in fact serious and thus compensable under subdivision (22) of this section because it is such as to give rise to the presumption that the worker has suffered a diminution of his future earning power. Liles v. Charles Lee Byrd Logging Co., 309 N.C. 150, 305 S.E.2d 523, 1983 N.C. LEXIS 1314 (1983).

In order to be compensated for a bodily disfigurement under subsection (22), the injury must be of such a nature that it may be fairly presumed that the injured employee has suffered a diminution of his future earning power. Blackwell v. Multi Foods Mgt., Inc., 126 N.C. App. 189, 484 S.E.2d 815, 1997 N.C. App. LEXIS 347 (1997).

Scars Not Visible During Normal Employment. —

Evidence did not support the Industrial Commission’s award for serious disfigurement affecting plaintiff ’s future earning capacity where plaintiff ’s scars on the top of one of her breasts were not visible during her normal employment, plaintiff had affirmatively testified that she would not want a type of job where the scars might show, and she had returned to her former job without reduction in pay or apparent incident. Anderson v. Shoney's, 76 N.C. App. 158, 332 S.E.2d 93, 1985 N.C. App. LEXIS 3731 (1985).

Commission Has Discretion in Awarding Compensation for Bodily Disfigurement. —

Compensation for “serious bodily disfigurement” is not required by the act. Its allowance or disallowance is within the legal discretion of the Industrial Commission. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986); Davis v. Sanford Constr. Co., 247 N.C. 332, 101 S.E.2d 40, 1957 N.C. LEXIS 706 (1957).

Where serious bodily disfigurement is involved, an award of compensation therefor is not required by this section, but may be allowed in the discretion of the Industrial Commission. Wilhite v. Liberty Veneer Co., 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

But Compensation for Serious Facial or Head Disfigurement Is Mandatory. —

The statute makes it mandatory on the Commission to award proper and equitable compensation in case of serious facial or head disfigurement. This is not the case in regard to disfigurement of other parts of the body. Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570, 1942 N.C. LEXIS 77 (1942); Davis v. Sanford Constr. Co., 247 N.C. 332, 101 S.E.2d 40, 1957 N.C. LEXIS 706 (1957).

The General Assembly made provision for compensation for disfigurement of the head and body in separate subdivisions, and made compensation for head disfigurement mandatory and compensation for bodily disfigurement discretionary. Arrington v. Stone & Webster Eng'g Corp., 264 N.C. 38, 140 S.E.2d 759, 1965 N.C. LEXIS 1105 (1965).

Subdivision (21) is mandatory in providing that the Industrial Commission shall award proper and equitable compensation, not to exceed $3,500 (now $20,000.00), for serious facial or head disfigurement. Cates v. Hunt Constr. Co., 267 N.C. 560, 148 S.E.2d 604, 1966 N.C. LEXIS 1081 (1966).

Determining Award for Serious Disfigurement. —

In awarding compensation for serious disfigurement and arriving at the consequent diminution of earning power, the Commission should consider the natural physical handicap resulting and the age, training, experience, education, occupation and adaptability of the employee to obtain and retain employment. Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570, 1942 N.C. LEXIS 77 (1942); Davis v. Sanford Constr. Co., 247 N.C. 332, 101 S.E.2d 40, 1957 N.C. LEXIS 706 (1957); Wilhite v. Liberty Veneer Co., 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

Award for Disfigurement Is Separate. —

Weekly compensation under the schedules cannot be increased by the inclusion of compensation for disfigurement. Compensation for disfigurement, if allowed, must be a separate award and the aggregate awards in no case may exceed the total compensation fixed in the act. Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570, 1942 N.C. LEXIS 77 (1942).

No Double Recovery with Permanent and Temporary Disability Award. —

There was no double recovery in a workers’ compensation case because the amount paid to a claimant for temporary total disability was deducted from the balance of the permanent partial disability benefits awarded. Lewis v. N.C. Dep't of Corr., 234 N.C. App. 376, 760 S.E.2d 15, 2014 N.C. App. LEXIS 610 (2014).

No Award for Disfigurement If One Is Made for Total Permanent Disability. —

No award can be made for disfigurement where an award has been made for total permanent disability. Likewise, disfigurement must be serious in order that compensation may be allowed therefor. Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570, 1942 N.C. LEXIS 77 (1942).

No Award for Disfigurement for Period Covered by Temporary Total Disability Award. —

There can be no recovery for disfigurement during the period in which an award was made for temporary total disability payment; otherwise there would, in effect, be a double recovery for the same injury. Wilhite v. Liberty Veneer Co., 47 N.C. App. 434, 267 S.E.2d 566, 1980 N.C. App. LEXIS 3127 (1980), aff'd in part and rev'd in part, 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

Award for both partial incapacity under G.S. 97-30 and for disfigurement under subdivision (22) of this section is now permissible for injuries occurring since July 1, 1963. Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965).

Disfigurement and Partial Loss of Arm. —

Under this section, the Industrial Commission had authority to award compensation for facial and bodily disfigurement, in this case resulting from scar tissue from burns, and to award compensation for partial loss of the use of the arm resulting from such scar tissue, when such awards were supported by competent evidence, provided the award for the disfigurement did not exceed the maximum provided by the act, and provided that the aggregate of all awards did not exceed the maximum total compensation prescribed by G.S. 97-29. Baxter v. W.H. Arthur Co., 216 N.C. 276, 4 S.E.2d 621, 1939 N.C. LEXIS 143 (1939). See Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570, 1942 N.C. LEXIS 77 (1942).

Loss of Two Front Teeth. —

If the loss of two upper front teeth constitutes serious disfigurement within the meaning of this section, it would be a “serious facial or head disfigurement” compensable under subdivision (21) of this section, rather than a “serious bodily disfigurement” compensable under subdivision (22). In such case, plaintiff would be entitled under subdivision (21) to an award as a matter of right. Davis v. Sanford Constr. Co., 247 N.C. 332, 101 S.E.2d 40, 1957 N.C. LEXIS 706 (1957) (construing the former statute) .

Whether an injured employee has suffered a “serious facial or head disfigurement” in the loss of two upper front teeth is a question of fact to be determined by the Commission, after taking into consideration the factors involved, in relation to whether it may be fairly presumed to cause a diminution of his future earning power, construing the former statute. Davis v. Sanford Constr. Co., 247 N.C. 332, 101 S.E.2d 40, 1957 N.C. LEXIS 706 (1957).

Employee’s chipped teeth and tooth abscess did not diminish her future earning capacity and, thus, did not rise to the level of a serious disfigurement entitling her to compensation under G.S. 97-31(21). Russell v. Lab. Corp. of Am., 151 N.C. App. 63, 564 S.E.2d 634, 2002 N.C. App. LEXIS 644 (2002).

Disfigurement of Forearm and Permanent Partial Disability of Hand. —

An employee who had received compensation for the permanent partial disability of his left hand was entitled under subdivision (22) of this section to additional compensation for serious disfigurement because of surgical scars on his left forearm above the wrist. While a double recovery for a single injury compensated pursuant to this section is not authorized, since the settlement related only to partial loss of use of plaintiff ’s hand, and there was no evidence indicating that the scars extended to the wrist, plaintiff was entitled to the additional compensation. Thompson v. Frank IX & Sons, 33 N.C. App. 350, 235 S.E.2d 250, 1977 N.C. App. LEXIS 2191 (1977), aff'd, 294 N.C. 358, 240 S.E.2d 783, 1978 N.C. LEXIS 1243 (1978).

Injury to Finger Not Serious Bodily Disfigurement. —

In an action to recover an award for “serious bodily disfigurement” resulting from a cut finger sustained by an accident arising out of and in the course of plaintiff ’s employment with the defendant-employer, where plaintiff ’s finger was scarred and the nail had a roughish appearance and was deformed and where plaintiff suffered no pain or embarrassment as a result of the injury, there was no evidence in the record to support a finding by the Industrial Commission that the injury to plaintiff ’s finger resulted in “serious bodily disfigurement.” Weidle v. Cloverdale Ford, 50 N.C. App. 555, 274 S.E.2d 263, 1981 N.C. App. LEXIS 2151 (1981).

Burns. —

Findings that plaintiff’s injury which was caused by a severe burn, looked repulsive, required massage after periods of standing or walking, and limited his employment choices, were sufficient to support finding of disfigurement. Blackwell v. Multi Foods Mgt., Inc., 126 N.C. App. 189, 484 S.E.2d 815, 1997 N.C. App. LEXIS 347 (1997).

Post Mortem Award to Employee’s Dependents. —

Generally speaking, a lump sum award made prior to decedent’s death is deemed to be an accrued benefit, but logic compels the conclusion that if, pursuant to subdivision (22) of this section, no determination of the lump sum award for disfigurement had been made prior to death, then such entitlements are unaccrued until such time as they are determined, and, for that reason, the payment of the lump sum award for disfigurement would pass to the worker’s dependents pursuant to this section rather than to the deceased worker’s estate. Wilhite v. Liberty Veneer Co., 47 N.C. App. 434, 267 S.E.2d 566, 1980 N.C. App. LEXIS 3127 (1980), aff'd in part and rev'd in part, 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

Dependents of an employee who suffers a serious bodily disfigurement due to an accident covered by the Workers’ Compensation Act, but who dies due to an unrelated cause, are entitled to a post mortem award for serious bodily disfigurement. Bridges v. McCrary Stone Servs., Inc., 48 N.C. App. 185, 268 S.E.2d 559, 1980 N.C. App. LEXIS 3221 (1980).

When an employee suffers serious bodily disfigurement due to an accident covered by the Workers’ Compensation Act and dies from unrelated causes while drawing compensation for temporary total disability, his dependents are entitled to a postmortem award for serious bodily disfigurement. Wilhite v. Liberty Veneer Co., 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

VIII.Back

Compensation under subdivision (23) is made without regard to the loss of wage-earning power. Crawley v. Southern Devices, Inc., 31 N.C. App. 284, 229 S.E.2d 325, 1976 N.C. App. LEXIS 1969 (1976), cert. denied, 292 N.C. 467, 234 S.E.2d 2, 1977 N.C. LEXIS 1115 (1977).

Injury to Spinal Cord Held Not Limited to Award Under Subdivision (23). —

Where physicians indicated that an injury to plaintiff ’s spinal cord resulted in weakness in all of her extremities and numbness or loss of sensation throughout her body, and the doctors further testified that she suffered diminished mobility and had difficulty with position sense and with recognition of things in her hands when objects were placed in her hands, the commission could not limit plaintiff to an award under subdivision (23) of this section. Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743, 1978 N.C. LEXIS 1019 (1978).

When an injury to the back causes referred pain to the extremities of the body, and this pain impairs the use of the extremities, then the award of workers’ compensation must take into account such impairment. Harmon v. Public Serv. of N.C. Inc., 81 N.C. App. 482, 344 S.E.2d 285, 1986 N.C. App. LEXIS 2301 (1986).

When an injury to the back causes referred pain to the extremities of the body, and this pain impairs the use of the extremities, then the award of workers’ compensation must take into account such impairment; furthermore, a disabled plaintiff suffering from chronic back and leg pain as a result of a work-related injury to the back cannot be fully compensated under subdivision (23) of this section and is entitled to compensation under G.S. 97-29. Therefore, the Industrial Commission’s failure to make findings as to disability to the plaintiff ’s legs caused by the arachnoiditis was error and required a remand to the Commission for appropriate findings. McKenzie v. McCarter Elec. Co., 86 N.C. App. 619, 359 S.E.2d 249, 1987 N.C. App. LEXIS 2751 (1987).

The Full Industrial Commission erred in concluding that plaintiff was entitled to total and permanent disability benefits where the plaintiff did not meet his burden of showing, as required unless a presumption has been established through the filing of a Form 21, pursuant to G.S. 97-82, that he was totally disabled and therefore unable to earn any of the wages he was receiving at the time of his injury in the same or any other employment. Demery v. Converse, Inc., 138 N.C. App. 243, 530 S.E.2d 871, 2000 N.C. App. LEXIS 599 (2000).

Findings of Fact Insufficient to Support Award. —

Industrial Commission’s opinion and award concluding that plaintiff was entitled to temporary total disability benefits from May 15 through Nov. 29, 2000, under G.S. 97-29, and was limited to benefits thereafter under G.S. 97-31 based on a five percent impairment rating, was remanded for additional findings of fact, because the Commission determined the existence of plaintiff’s disability, but did not determine the extent of plaintiff’s disability because it failed to address whether plaintiff was capable of earning the same wages he was earning at the time of his injury. Outerbridge v. Perdue Farms, Inc., 181 N.C. App. 50, 638 S.E.2d 564, 2007 N.C. App. LEXIS 40, aff'd, 361 N.C. 583, 650 S.E.2d 594, 2007 N.C. LEXIS 1007 (2007).

IX.Important Organs

G.S. 97-29 and G.S. 97-30 Compared. —

Often an award under G.S. 97-29, and by implication G.S. 97-30, better fulfills the policy of the Workers’ Compensation Act than an award under this section. Strickland v. Burlington Indus., Inc., 87 N.C. App. 507, 361 S.E.2d 394, 1987 N.C. App. LEXIS 3208 (1987).

Proof Required for Claim Under Subdivision (24). —

In order for plaintiff to be entitled to workers’ compensation pursuant to subdivision (24) of this section, he must show from medical evidence that he has sustained loss of or permanent injury to an important external or internal organ or part of his body for which no compensation is payable under any other subdivision of this section. Porterfield v. RPC Corp., 47 N.C. App. 140, 266 S.E.2d 760, 1980 N.C. App. LEXIS 2975 (1980).

Awards under subdivision (24) are equitable in nature and within the Industrial Commission’s discretion. Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

Discretion of Commission. —

By employing the word “may” in subdivision (24) of this section, the legislature intended to give the Industrial Commission discretion whether to award compensation under that section. Little v. Penn Ventilator Co., 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

The decision regarding the amount of compensation under subdivision (24) of this section should be left to the sound discretion of the Industrial Commission. Its decision will not be overturned on appeal absent an abuse of discretion on its part. Little v. Penn Ventilator Co., 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

Amount of Award Is Within Commission’s Discretion. —

While the amount of compensation for most injuries under this section is determined according to a statutory formula, compensation for injuries under subdivision (24) appears to be within the discretion of the Commission, provided that the amount of the award does not exceed the $10,000 (now $20,000) ceiling. Little v. Penn Ventilator Co., 75 N.C. App. 92, 330 S.E.2d 276, 1985 N.C. App. LEXIS 3588 (1985), aff'd in part and rev'd in part, 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

Consideration of Earning Capacity. —

Although the courts have not explicitly stated that earning capacity can be considered in an award under subdivision (24) of this section, two cases, Shuler v. Talon Div. of Textron, 30 N.C. App. 570, 227 S.E.2d 627 (1976), overruled on other grounds, Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698 (1993) and Arrington v. Stone & Webster Eng’g Corp., 264 N.C. 38, 140 S.E.2d 759 (1965), support such a holding. Key v. McLean Trucking, 61 N.C. App. 143, 300 S.E.2d 280, 1983 N.C. App. LEXIS 2556 (1983).

An employee is not required to establish a diminution of wage earning capacity under subdivision (24) of this section, although it may be considered in setting the amount of the award. Little v. Penn Ventilator Co., 75 N.C. App. 92, 330 S.E.2d 276, 1985 N.C. App. LEXIS 3588 (1985), aff'd in part and rev'd in part, 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

Loss of Senses of Taste and Smell Is Compensable Under Subdivision (24). —

Under subdivision (24) of this section, an award of compensation for loss of sense of taste or smell would unquestionably be sustained, where from the circumstances it could be reasonably presumed that the worker suffered diminution of his future earning power by reason of such loss. Arrington v. Stone & Webster Eng'g Corp., 264 N.C. 38, 140 S.E.2d 759, 1965 N.C. LEXIS 1105 (1965).

The loss of sense of taste and smell is compensable as the loss of an important internal organ. Cloutier v. State, 57 N.C. App. 239, 291 S.E.2d 362, 1982 N.C. App. LEXIS 2646, cert. denied, 306 N.C. 555, 294 S.E.2d 222, 1982 N.C. LEXIS 1683 (1982).

Claimant who lost the senses of taste and smell was entitled to compensation for permanent damage to the olfactory organ and not for compensation for two separate compensable injuries. Bess v. Tyson Foods, Inc., 125 N.C. App. 698, 482 S.E.2d 26, 1997 N.C. App. LEXIS 220 (1997).

But Not Under Subdivision (21). —

Loss of the senses of taste and smell is not compensable under subdivision (21) of this section, which is applicable to head disfigurement. Arrington v. Stone & Webster Eng'g Corp., 264 N.C. 38, 140 S.E.2d 759, 1965 N.C. LEXIS 1105 (1965).

“Loss” as Used in Subdivision (24) Includes Loss of Use. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

Sinuses. —

Sinuses are important internal organs under subdivision (24) of this section. Cloutier v. State, 57 N.C. App. 239, 291 S.E.2d 362, 1982 N.C. App. LEXIS 2646, cert. denied, 306 N.C. 555, 294 S.E.2d 222, 1982 N.C. LEXIS 1683 (1982).

“Loss” as used in subdivision (24) includes loss of use. —

Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

Loss of Sense of Smell and Damage to Nerves and Muscles of Face. —

It is true that no provision of the Act specifies the payment of benefits due to the loss of a sense of smell or damages to the nerves and muscles of an employee’s face. However, benefits are awarded under subdivision (24) for loss of a permanent injury to important external or internal organs or parts of the body, and the Commission properly used subdivision (24) in awarding benefits. Proof of diminished wage-earning capacity is not required under subdivision (24). Stanley v. Gore Bros., 82 N.C. App. 511, 347 S.E.2d 49, 1986 N.C. App. LEXIS 2511 (1986).

Claim for compensation due to an alleged loss of the sense of smell and damage to the nerves and muscles in the right side of face was not barred by the passage of time and the doctrine of res judicata, where these symptoms did not manifest themselves immediately after the accident, and the first opinion and award filed in the matter covered only claimant’s loss of vision and the disfigurement of his face. Stanley v. Gore Bros., 82 N.C. App. 511, 347 S.E.2d 49, 1986 N.C. App. LEXIS 2511 (1986).

The following organs were important within the meaning of this section and the amounts awarded for each were proper and equitable: Pancreas $20,000.00; Lungs ($20,000 for each lung) $40,000.00; Abdominal wall $15,000.00; Omentum $10,000.00; Intestines $12,000.00; Stomach $5,000.00; Reproductive organs $15,000.00. Aderholt v. A.M. Castle Co., 137 N.C. App. 718, 529 S.E.2d 474, 2000 N.C. App. LEXIS 492, cert. denied, 352 N.C. 356, 544 S.E.2d 546, 2000 N.C. LEXIS 550 (2000).

Lungs. —

An award for damage to the lungs may be made under subdivision (24) of this section. But such an award, by the express terms of the statute, would be in lieu of all other compensation. Such award may also be based on G.S. 97-29, as has been done in many other reported cases involving byssinosis disability. West v. Bladenboro Cotton Mills, Inc., 62 N.C. App. 267, 302 S.E.2d 645, 1983 N.C. App. LEXIS 2850 (1983).

An award for partial loss of lung function falls within the scope of subdivision (24) of this section. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

There is no statutory justification for excluding loss of or permanent injury to the lungs resulting from occupational disease from the coverage of subdivision (24) of this section, and no statutory justification for making a specific finding of disability a condition precedent for recovery thereunder. Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

There was no abuse of discretion in awarding an employee $20,000 for each of his lungs under G.S. 97-31(24) caused by asbestos exposure because the North Carolina Industrial Commission deemed each lung an “important organ.” Childress v. Fluor Daniel. Inc., 162 N.C. App. 524, 590 S.E.2d 893, 2004 N.C. App. LEXIS 185 (2004).

Uterus. —

Where plaintiff was permanently deprived of her uterus, an important organ, due to accidental injury, award of $15,000 for permanent loss of her uterus was held to be a proper exercise of discretion by the Industrial Commission. Alva v. Charlotte Mecklenburg Hosp. Auth., 118 N.C. App. 76, 453 S.E.2d 871, 1995 N.C. App. LEXIS 86 (1995).

Bladder. —

Award of $11,000 for permanent damage to plaintiff’s bladder was proper where there was credible and competent evidence that plaintiff’s bladder, an important organ, was permanently damaged. Alva v. Charlotte Mecklenburg Hosp. Auth., 118 N.C. App. 76, 453 S.E.2d 871, 1995 N.C. App. LEXIS 86 (1995).

Spleen. —

The commission did not err in awarding plaintiff $20,000.00 for the loss of his spleen. The defendants incorrectly asserted that “the spleen does not serve as an ‘important’ organ” and that its “function to the human body is somewhat illusive;” and that the award of $20,000.00 was “excessive and constituted an abuse of discretion.” Aderholt v. A.M. Castle Co., 137 N.C. App. 718, 529 S.E.2d 474, 2000 N.C. App. LEXIS 492, cert. denied, 352 N.C. 356, 544 S.E.2d 546, 2000 N.C. LEXIS 550 (2000).

Head Injury. —

Employee was entitled to benefits for a two percent permanent disability rating to the employee’s head that occurred as a result of a work-related auto accident. The Industrial Commission’s made no finding to support its conclusion to deny the employee compensation for a permanent brain injury and the imposition of a two percent permanent partial disability rating relative to the employee’s post-concussion syndrome by the employee’s doctor meant the employee was entitled to compensation for that injury pursuant to G.S. 97-31(24). Cross v. Falk Integrated Techs., Inc., 190 N.C. App. 274, 661 S.E.2d 249, 2008 N.C. App. LEXIS 867 (2008).

Occupational Diseases. —

As to the applicability of subdivision (24) of this section to occupational diseases, see Cook v. Bladenboro Cotton Mills, Inc., 61 N.C. App. 562, 300 S.E.2d 852, 1983 N.C. App. LEXIS 2726 (1983).

The Legislature intended for this section to apply to occupational disease. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

The Legislature must have intended for occupational disease to be compensable under the schedule in this section or it would not have expressly provided that medical treatments be provided both in cases of disability and in cases of damage to organs. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

Remand for Findings as to Capacity for Other Employment. —

Where the Commission found that plaintiff had chronic obstructive pulmonary disease caused in part by her exposure to respirable cotton dust during her employment, but that her impairment was not sufficient to render plaintiff incapable of performing types of employment which did not require very strenuous activity or exposure to cotton dust, but the Commission’s findings did not address evidence that due to plaintiff ’s education, age and experience she was probably not capable of earning wages in any employment which did not require substantial physical exertion, the case would be remanded for appropriate findings and conclusions of plaintiff ’s capacity to earn wages in employment for which she might be qualified. Webb v. Pauline Knitting Indus., 78 N.C. App. 184, 336 S.E.2d 645, 1985 N.C. App. LEXIS 4248 (1985).

Remand for Findings as to Wage Earning Capacity. —

Where plaintiff suffered a permanent disability to her lungs, the Industrial Commission committed error in compensating her under this section, but failing to consider or make findings of fact as to whether her disability affected her wage earning capacity under either G.S. 97-29 or G.S. 97-30, as this prevented plaintiff from electing to recover under either G.S. 97-29 or G.S. 97-30 if she was so entitled. Strickland v. Burlington Indus., Inc., 87 N.C. App. 507, 361 S.E.2d 394, 1987 N.C. App. LEXIS 3208 (1987).

Remand for Determination of Whether Venous Thrombosis Is Injury to Legs or Other Important Organ. —

Medical testimony that there was a reasonable possibility that employee’s deep venous thrombosis resulted from an injury which the employee sustained at work was sufficient to support North Carolina Industrial Commission’s decision awarding workers’ compensation benefits, but the appellate court remanded the case to the Commission for further proceedings because the record did not establish that the Commission considered and rejected an award of benefits under G.S. 97-31(15) before it awarded benefits under G.S. 97-31(24). Holley v. ACTS, Inc., 152 N.C. App. 369, 567 S.E.2d 457, 2002 N.C. App. LEXIS 924 (2002), rev'd, 357 N.C. 228, 581 S.E.2d 750, 2003 N.C. LEXIS 606 (2003).

Denial of Claim Under Subdivision (24) Held Proper. —

Finding that worker had sustained no permanent injury to his kidney and thus was not entitled to compensation under subdivision (24) of this section was supported by doctor’s competent testimony that defendant’s renal difficulty had apparently cleared up and that the outlook for his kidney was excellent. Fowler v. B.E. & K. Constr., Inc., 92 N.C. App. 237, 373 S.E.2d 878, 1988 N.C. App. LEXIS 1021 (1988).

Given the lack of any objective testing, such as x-rays, CT scans, MRI and EEG tests, showing that the employee had any injury to her brain, combined with her active lifestyle, enrollment in college, and articulate and alert demeanor at the hearing, the Industrial Commission’s decision that she had not suffered an impairment to an important organ, entitling her to compensation under G.S. 97-31(24), was adequately supported. Russell v. Lab. Corp. of Am., 151 N.C. App. 63, 564 S.E.2d 634, 2002 N.C. App. LEXIS 644 (2002).

§ 97-31.1. Effective date of legislative changes in benefits.

Every act of the General Assembly that changes the benefits enumerated in this Chapter shall become law no later than June 1 and shall have an effective date of no earlier than January 1 of the year after which it is ratified.

History. 1981, c. 521, s. 3; 1995, c. 20, s. 11.

Editor’s Note.

Session Laws 1993 (Reg. Sess., 1994), c. 679, s. 10.1, “The Workers’ Compensation Reform Act of 1994,” provides: “ G.S. 97-31.1 does not apply to this act [c. 679, which amended the Workers’ Compensation Act.]”

Session Laws 1995, c. 20, s. 17 provided that sections 1 through 16 of this act would become effective only if the constitutional amendments proposed by Session Laws 1995, c. 5, ss. 1-2 were approved as provided by Session Laws 1995, c. 5, ss. 3-4, and if so approved, sections 1 through 16 would become effective with respect to bills and joint resolutions passed in either house of the General Assembly on or after January 1, 1997. The proposed constitutional amendments were approved.

Session Laws 2011-287, s. 23, provides: “Notwithstanding G.S. 97-31.1, this act is effective when it becomes law. Sections 4, 5, 6, 7, and 9 apply to claims pending on or after the effective date of this act. Sections 2, 3, 10, 11, 12, 13, 14, 15, and 20 apply to claims arising on or after the effective date of this act. Section 21 applies to rules adopted on or after the effective date of this act.” Session Laws 2011-287, which amended several sections in Chapter 97, became effective June 24, 2011.

§ 97-32. Refusal of injured employee to accept suitable employment as suspending compensation.

If an injured employee refuses suitable employment as defined by G.S. 97-2(22), the employee shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified. Any order issued by the Commission suspending compensation pursuant to G.S. 97-18.1 on the ground of an unjustified refusal of an offer of suitable employment shall specify what actions the employee should take to end the suspension and reinstate the compensation. Nothing in this Article prohibits an employer from contacting the employee directly about returning to suitable employment with contemporaneous notice to the employee’s counsel, if any.

History. 1929, c. 120, s. 32; 2011-287, s. 12.

Editor’s Note.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 12, which substituted “refuses suitable employment as defined by G.S. 97-2(22), the employee shall” for “refuses employment procured for him suitable to his capacity he shall” in the first sentence, and added the last two sentences, was applicable to claims arising on or after June 24, 2011.

Effect of Amendments.

Session Laws 2011-287, s. 12, effective June 24, 2011, and applicable to claims arising on or after that date, substituted “refuses suitable employment as defined by G.S. 97-2(22), the employee shall” for “refuses employment procured for him suitable to his capacity he shall” in the first sentence, and added the last two sentences.

Legal Periodicals.

For article, “Why Aren’t You Working?: Medlin with Proof of Disability Under the North Carolina Workers’ Compensation Act,” see 38 Campbell L. Rev. 211 (2016).

CASE NOTES

The purpose of this section is to guard against the possibility that an injured employee may refuse to work when, in fact, he is able to work and earn wages, and thus increase or attempt to increase the amount of his compensation. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

One purpose of this section is to prevent a partially disabled employee from refusing employment within the employee’s capacity in an effort to increase the amount of compensation payable to the employee. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

When an employee resigns in the face of imminent termination of his or her employment, the North Carolina Industrial Commission may conclude that the employee’s employment ended involuntarily; it is not, however, required to do so if it does not believe that the resignation was in fact forced by the employer’s termination decision. White v. Weyerhaeuser Co., 167 N.C. App. 658, 606 S.E.2d 389, 2005 N.C. App. LEXIS 5 (2005).

Justifiable Rejection of Employment Offer Shown. —

The post-injury water meter reader job offered by defendant to former police officer was not suitable to plaintiff’s capacity pursuant to this section and related statutes and case law; thus, plaintiff was justified in rejecting it. Dixon v. City of Durham, 128 N.C. App. 501, 495 S.E.2d 380, 1998 N.C. App. LEXIS 98 (1998).

Plaintiff was justified in refusing the employer’s offered wipe glaze job, which consisted of highly repetitive motion involving the hand and wrist and was in direct conflict with her doctor’s recommendation. Oliver v. Lane Co., 143 N.C. App. 167, 544 S.E.2d 606, 2001 N.C. App. LEXIS 220 (2001).

Commission properly found that maintenance worker position which employer offered employee, who could no longer drive a truck, was “make work” that did not exist in the marketplace and was not suitable employment for the employee, and that employee’s refusal thereof was justified and did not disqualify him from benefits. Moore v. Concrete Supply Co., 149 N.C. App. 381, 561 S.E.2d 315, 2002 N.C. App. LEXIS 195 (2002).

Considering the employee’s physical restrictions, which her doctor opined prevented her from working, and the vague description of the temporary, modified position her employer offered her, her rejection of the position was reasonable and did not preclude her from receiving wage compensation. Bailey v. Western Staff Servs., 151 N.C. App. 356, 566 S.E.2d 509, 2002 N.C. App. LEXIS 747 (2002).

Finding that a worker’s refusal to accept employment offered by the employer was justified was proper under circumstances in which, even though there was evidence that the worker was able to return to full-duty work status, the worker’s testimony that he was unable to do the work required because of pain was competent to support the finding. Byrd v. Ecofibers, Inc., 182 N.C. App. 728, 645 S.E.2d 80, 2007 N.C. App. LEXIS 784 (2007).

Unjustifiable Refusal of Employment. —

If an employer shows that the employee has unjustifiably refused employment procured for the employee that is suitable to the employee’s capacity and the evidence is accepted by the Industrial Commission, the employee is not entitled to any benefits pursuant to G.S. 97-29 or G.S. 97-30. Franklin v. Broyhill Furn. Indus., 123 N.C. App. 200, 472 S.E.2d 382, 1996 N.C. App. LEXIS 682, cert. denied, 344 N.C. 629, 477 S.E.2d 39, 1996 N.C. LEXIS 559 (1996).

The Commission properly concluded that the employment offered to plaintiff employee by defendant employer, following his release to return to work was “suitable” and was unjustifiably refused by plaintiff, although the employer did not offer plaintiff, who was robbed and shot while working as a night auditor, lodging worth $100.00 per week as he received prior to the shooting, and although the employee had since moved to California; plaintiff’s testimony regarding the job offer was centered on how he “felt” physically, not the location of the job, and the evidence he offered did not support his theory that he refused the offer because he was frightened to return to the job. Shah v. Howard Johnson, 140 N.C. App. 58, 535 S.E.2d 577, 2000 N.C. App. LEXIS 1089 (2000).

North Carolina Industrial Commission properly limited an employee’s award of temporary total disability benefits to the time that he reached maximum medical improvement, as he had unjustifiably refused a legitimate offer for suitable employment from the employer pursuant to G.S. 97-32; his claim that there was too great a distance between his home and the workplace was lacking in merit. Nobles v. Coastal Power & Elec., Inc., 207 N.C. App. 683, 701 S.E.2d 316, 2010 N.C. App. LEXIS 2024 (2010).

North Carolina Industrial Commission appropriately determined that an employee was not entitled to further benefits because her employment termination was voluntary, and the employer met its burden of showing that she unjustifiably refused suitable employment; the employee never contacted the employer during medical leave or in the more than 18 weeks following the expiration of medical leave, she was actively seeking alternate employment, she did not make a reasonable effort to return, and she was permitted to take short driving breaks. Keeton v. Circle K, 217 N.C. App. 332, 719 S.E.2d 244, 2011 N.C. App. LEXIS 2431 (2011).

When deciding whether an employee who sought salary continuation benefits refused suitable employment, it was error for the North Carolina Industrial Commission to apply a workers’ compensation analysis under G.S. 97-29 and G.S. 97-30 because the distinct governing standard was whether the employee refused to perform duties to which the employee was properly assigned, under G.S. 143-166.19. Yerby v. N.C. Dep't of Pub. Safety/Div. of Juvenile Justice, 232 N.C. App. 515, 754 S.E.2d 209, 2014 N.C. App. LEXIS 171 (2014).

Claimant unjustifiably refused an offer of suitable employment and was not entitled to temporary disability compensation for her neck injury after that date because the Full North Carolina Industrial Commission did not err by affording greater weight to the medical opinion of the licensed physical therapist who conducted the claimant’s functional capacity evaluation (FCE), than the medical opinion of the doctor who conducted the independent medical evaluation; and the pre-injury job offered was within the claimant’s work restrictions as her treating physicians believed that the work restrictions recommended in her FCE, if implemented, would allow her to work in her pre-injury position. Garrett v. Goodyear Tire & Rubber Co., 260 N.C. App. 155, 817 S.E.2d 842, 2018 N.C. App. LEXIS 643 (2018).

Proffered Employment Must Be Suitable. —

The plain language of this section requires that the proffered employment be suitable to the employee’s capacity; if not, it cannot be used to bar compensation for which an employee is otherwise entitled. McLean v. Eaton Corp., 125 N.C. App. 391, 481 S.E.2d 289, 1997 N.C. App. LEXIS 105 (1997).

Proper Standard Applied to Determination of Whether Employment Offer “Suitable.” —

For purposes of G.S. 97-32, the North Carolina Industrial Commission did not err by applying the generally-accepted definition of “suitable employment” in evaluating an employee’s right to reject a “light duty” position that was offered by the employer upon her return to work. Wynn v. United Health Services/Two Rivers Health - Trent Campus, 214 N.C. App. 69, 716 S.E.2d 373, 2011 N.C. App. LEXIS 1686 (2011).

Inapplicability of Section. —

Where an employee is properly determined to be totally and permanently disabled under G.S. 97-29, this section has no application. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

North Carolina Industrial Commission erroneously applied G.S. 97-32 because that provision only applied where an employer sought to discontinue disability payments, and here the employer had denied all benefits and the matter was in litigation; thus, even if the claimant had accepted the employer’s job, he was receiving no benefits that could have resumed. Plott v. Bojangle's Rests., Inc., 181 N.C. App. 61, 638 S.E.2d 571, 2007 N.C. App. LEXIS 88, rev'd, 361 N.C. 577, 652 S.E.2d 920, 2007 N.C. LEXIS 1006 (2007).

Constructive Refusal to Accept Suitable Employment. —

For misconduct that causes a claimant to be discharged from employment to amount to “constructive refusal” to accept suitable employment that renders him ineligible for worker’s compensation, the misconduct need not occur during working hours or at the workplace, and it need not amount to a crime, but it must have been conduct for which a nondisabled employee ordinarily would have been terminated. Williams v. Pee Dee Elec. Membership Corp., 130 N.C. App. 298, 502 S.E.2d 645, 1998 N.C. App. LEXIS 916 (1998).

If a terminated-for-misconduct employee fails to show by the greater weight of the evidence that his or her inability to find or perform comparable employment is due to work-related injuries, the employer is then freed of further benefit responsibilities. Under such circumstances, the employee would be held accountable for his or her misconduct, which would be deemed tantamount to a constructive refusal to perform suitable work duties and, as a consequence of such refusal, the employee would forfeit the right to benefits. McRae v. Toastmaster, Inc., 358 N.C. 488, 597 S.E.2d 695, 2004 N.C. LEXIS 656 (2004).

Industrial Commission erred by determining that plaintiff’s refusal to accept the job offered by defendant was unjustified without making additional findings regarding the impact plaintiff’s psychological injuries had on his wage-earning capacity. McLean v. Eaton Corp., 125 N.C. App. 391, 481 S.E.2d 289, 1997 N.C. App. LEXIS 105 (1997).

Workers’ compensation claimant did not refuse suitable employment by submitting his resignation upon the advice of union representatives, who told him that he was to be fired; the Commission found that the claimant’s resignation was involuntary, applied the Seagraves test, and found that the claimant was not terminated for misconduct or fault, unrelated to the compensable injury, for which a nondisabled employee ordinarily would have been terminated. White v. Weyerhaeuser Co., 167 N.C. App. 658, 606 S.E.2d 389, 2005 N.C. App. LEXIS 5 (2005).

No Compensation After Unjustifiable Refusal. —

Because the express terms of this section prohibit an employee from receiving any compensation during the continuance of his refusal to accept employment suitable to his capacity, plaintiff employee who was robbed and shot during his shift as a night auditor was not entitled to $66.67 per week (two-thirds of $100.00) for his loss of earnings after he unjustifiably rejected an offer to return to his position, which offer amounted to $100.00-worth-of-lodging less per week than what he had earned prior to the shooting. Shah v. Howard Johnson, 140 N.C. App. 58, 535 S.E.2d 577, 2000 N.C. App. LEXIS 1089 (2000).

The deputy commissioner rightly entered an order affirming the Form 24 application to stop temporary total disability payments to plaintiff where the defendant-employer presented evidence that plaintiff was offered a light duty position and unjustifiably refused the position and where the plaintiff-employee failed to support his claim of a continuing disability. Allen v. Roberts Elec. Contrs., 143 N.C. App. 55, 546 S.E.2d 133, 2001 N.C. App. LEXIS 216 (2001).

Industrial commission properly determined that an employee was not entitled to workers’ compensation benefits after the date of her termination, as the employee’s termination was justified under G.S. 97-32 based on the employee’s misconduct, as the employee had failed to perform a job to which the employee was assigned and was capable of performing. McRae v. Toastmaster, Inc., 158 N.C. App. 70, 579 S.E.2d 913, 2003 N.C. App. LEXIS 951 (2003), rev'd, 358 N.C. 488, 597 S.E.2d 695, 2004 N.C. LEXIS 656 (2004).

Full Commission of the North Carolina Industrial Commission terminated compensation because a claimant refused suitable employment without justification. Johnson v. Southern Tire Sales & Serv., 233 N.C. App. 659, 758 S.E.2d 19, 2014 N.C. App. LEXIS 403 (2014).

Employee Did Not Constructively Refuse Suitable Employment. —

Contrary to defendant employer’s contention, there was no evidence that plaintiff employee, who was injured while working as a firefighter, constructively refused suitable employment procured by the employer so as to render the employee ineligible for benefits pursuant to G.S. 97-32; the employee chose medical disability retirement rather than resignation or termination after the employee was deemed medically disqualified to perform the work of a firefighter, and there was no evidence that the employer ever offered the employee other suitable employment after the employee’s temporary light duty employment ended. Gordon v. City of Durham, 153 N.C. App. 782, 571 S.E.2d 48, 2002 N.C. App. LEXIS 1257 (2002).

North Carolina Industrial Commission’s finding that an injured employee did not constructively refuse suitable employment within the meaning of G.S. 97-32 when he refused to work without the use of a cane was affirmed; there was evidence that the work the employee was instructed to do did not fall within the restrictions placed on him and that he was physically unable to perform the job offered to him. Lowery v. Duke Univ., 167 N.C. App. 714, 609 S.E.2d 780, 2005 N.C. App. LEXIS 7 (2005).

Position an employer offered an employee was not “made work” because the North Carolina Industrial Commission’s finding that the employer had offered the same position to the general public was supported by competent evidence; the service writer/advisor position offered to the employee was a “real job” and was available in the competitive job market. Munns v. Precision Franchising, Inc., 196 N.C. App. 315, 674 S.E.2d 430, 2009 N.C. App. LEXIS 358 (2009).

Job Search. —

For purposes of G.S. 97-32, the North Carolina Industrial Commission did not err when it determined that an employee had made a reasonable job search, as it relied on the employee’s description of her search throughout her testimony. Wynn v. United Health Services/Two Rivers Health - Trent Campus, 214 N.C. App. 69, 716 S.E.2d 373, 2011 N.C. App. LEXIS 1686 (2011).

Findings Held Inadequate to Establish Disability. —

Employer need not show that the employee was specifically offered a job by some other employer in order to prove that the employee was capable of obtaining suitable employment, but instead, the crucial question is whether the employee can obtain a job; the testimony of a vocational counselor that identified approximately 12 jobs that were suitable for the employee and which detailed the employee’s failure to keep appointments and his balky behavior at the job interviews raised an issue of fact with respect to the compensability of the employee’s injury, and, thus, the industrial commission’s findings were inadequate to establish that the employee was disabled. Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 599 S.E.2d 508, 2004 N.C. LEXIS 915 (2004).

Industrial Commission Failed to Make Adequate Findings of Fact. —

North Carolina Industrial Commission’s conclusion that an employee refused suitable employment was not supported by adequate findings of fact because in its findings of fact, the Commission merely recited the evidence the employer submitted in its application to suspend the employee’s temporary total disability compensation and did not make a finding of the wages the employee would have earned as a service writer/advisor when that job was offered to him; the Commission did not compare the wages the employee would have earned in the new position with those he was earning at the time of injury, and without such comparison, the Commission could not determine the suitability of the offered employment. Munns v. Precision Franchising, Inc., 196 N.C. App. 315, 674 S.E.2d 430, 2009 N.C. App. LEXIS 358 (2009).

Whether an employee was justified in refusing a position his employer offered him on the ground that the employer failed to show that it was physically suitable was remanded to the North Carolina Industrial Commission for further findings of fact because the Commission’s opinion and award contained no findings addressing the employee’s ability to perform the position offered to him considering his age, education, physical limitations, vocational skills, and experience; the Commission’s findings of fact constituted recitations of the evidence and not findings of fact that supported the Commission’s conclusions as to suitability. Munns v. Precision Franchising, Inc., 196 N.C. App. 315, 674 S.E.2d 430, 2009 N.C. App. LEXIS 358 (2009).

Industrial Commission Properly Considered The Issues. —

North Carolina Industrial Commission properly considered the issue of an employee’s refusal of employment and made relevant findings of fact and conclusions of law because the issue was before both the special deputy commissioner and the deputy commissioner; in denying the employer’s application to terminate the employee’s disability benefits, the special deputy commissioner considered both the suitability of the employee’s prior employment and her failure to return to that employment, and in her review of the special deputy commissioner’s order, the deputy commissioner found that the position the employer offered the employee was suitable employment for the employee and that her refusal of the position was not justified. Keeton v. Circle K, 217 N.C. App. 332, 719 S.E.2d 244, 2011 N.C. App. LEXIS 2431 (2011).

Substantial Evidence. —

Employee, who was terminated after he injured his knee at work, was not entitled to additional compensation under G.S. 97-32 because competent evidence supported the North Carolina industrial commission’s findings and conclusion that the employee failed to establish disability due to physical restrictions caused by the employee’s knee injury as the employee was capable of doing sedentary work; moreover, the employee failed to show that the employee’s anxiety disorder and depression were causally related to compensable injury. Adams v. Frit Car, Inc., 185 N.C. App. 714, 649 S.E.2d 651, 2007 N.C. App. LEXIS 1946 (2007).

For purposes of G.S. 97-32, the North Carolina Industrial Commission had sufficient evidence for the presumption of an employee’s disability that arose from the fact that she obtained alternate employment at a lower wage rate than she had received during her pre-injury employment with the employer, as the employer did not successfully rebut the presumption. Wynn v. United Health Services/Two Rivers Health - Trent Campus, 214 N.C. App. 69, 716 S.E.2d 373, 2011 N.C. App. LEXIS 1686 (2011).

Application of Seagraves Test. —

Issue of whether the Seagraves test was properly applied in a case in which an employer denied an injured employee’s claim for workers’ compensation benefits on the grounds that the employee had been terminated for reasons unrelated to his injury was not resolved by the appellate court; although the test was appropriate if circumstances surrounding termination warranted preclusion or discontinuation of injury related benefits under G.S. 97-32, the commission failed to make the necessary findings or conclusions to explain why it applied Seagraves. Jones v. Modern Chevrolet, 194 N.C. App. 86, 671 S.E.2d 333, 2008 N.C. App. LEXIS 2459 (2008).

Proper Standard Applied. —

For purposes of G.S. 97-32, the North Carolina Industrial Commission did not err when it considered the disparity between an employee’s pre-injury wage rate and the compensation that she would have received had she accepted the light duty position offered to her by her employer. Wynn v. United Health Services/Two Rivers Health - Trent Campus, 214 N.C. App. 69, 716 S.E.2d 373, 2011 N.C. App. LEXIS 1686 (2011).

§ 97-32.1. Trial return to work.

Notwithstanding the provisions of G.S. 97-32, an employee may attempt a trial return to work for a period not to exceed nine months. During a trial return to work period, the employee shall be paid any compensation which may be owed for partial disability pursuant to G.S. 97-30. If the trial return to work is unsuccessful, the employee’s right to continuing compensation under G.S. 97-29 shall be unimpaired unless terminated or suspended thereafter pursuant to the provisions of this Article.

History. 1993 (Reg. Sess., 1994), c. 679, s. 4.1.

Legal Periodicals.

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

CASE NOTES

Presumption of Continuing Disability. —

The employer failed to rebut the presumption of continuing disability with medical evidence or with evidence that the claimant was capable of obtaining a suitable job in the competitive marketplace, where the claimant temporarily and unsuccessfully returned to work, the modified roller picker position offered to claimant was temporary, there was no evidence that this position was a real position that existed in the marketplace and was not “made” work, and the only medical evidence supported the claimant’s claims of shoulder pain. Stamey v. North Carolina Self-Insurance Guar. Ass'n, 131 N.C. App. 662, 507 S.E.2d 596, 1998 N.C. App. LEXIS 1443 (1998).

Right to Continuing Compensation. —

Where a trial return to work is unsuccessful, the employee’s right to continuing compensation under G.S. 97-29 is unimpaired unless terminated or suspended thereafter pursuant to the provisions of the Workers’ Compensation Act. Burchette v. E. Coast Millwork Distribs., Inc., 149 N.C. App. 802, 562 S.E.2d 459, 2002 N.C. App. LEXIS 302 (2002).

Employee may attempt a trial return to work for a period not to exceed nine months and, during a trial return to work period, the employee shall be paid any compensation that may be owed for partial disability pursuant to G.S. 97-30. If the trial return to work was unsuccessful, the employee’s right to continuing compensation under G.S. 97-29 shall be unimpaired unless terminated or suspended thereafter for other reasons. Richardson v. Maxim Healthcare/Allegis Group, 2007 N.C. App. LEXIS 2112 (N.C. Ct. App. Oct. 2, 2007).

Although an injured employee returned to work on a few occasions during the time period at issue, such intermittent and infrequent work days did not constitute a successful trial return to work. Richardson v. Maxim Healthcare/ Allegis Group, 188 N.C. App. 337, 657 S.E.2d 34, 2008 N.C. App. LEXIS 213, aff'd in part and rev'd in part, 362 N.C. 657, 669 S.E.2d 582, 2008 N.C. LEXIS 973 (2008).

Industrial Commission erred because it should have concluded that an employer was obligated to reinstate an employee’s compensation immediately; the employer failed to reinstate the employee’s temporary total benefits following its admission of the employee’s right to compensation and notice of her unsuccessful trial return to work. Bell v. Goodyear Tire & Rubber Co., 252 N.C. App. 268, 798 S.E.2d 143, 2017 N.C. App. LEXIS 176 (2017).

Return to Work Assertion Does Not Necessarily Raise Wage Earning Capacity Issue. —

Where defendants did not assert any other reason for termination of plaintiff’s benefits besides “return to work” on the Form 28T, the record revealed that the plaintiff denied that she ever attempted a “trial return to work” and that she, therefore, was not required to file a Form 28U, and it was undisputed that defendants did not file a Form 24 seeking to terminate plaintiff’s compensation on grounds other than plaintiff’s “return to work”, the only issue before the Full Commission was whether or not plaintiff had returned to work, warranting termination of benefits pursuant to G.S. 97-18.1(b); thus, it did not consider the issue of whether or not plaintiff had wage earning capacity and neither would the Court of Appeals. Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 526 S.E.2d 671, 2000 N.C. App. LEXIS 257 (2000).

Failure to Submit Properly Completed Form Held Not Reversible Error. —

Where Industrial Commission found, based on competent evidence in the record, that plaintiff’s return to work was “a failed return to work” due to his work-related compensable injury, defendant’s claim that plaintiff’s Form 28U was not signed by the appropriate party was valid, but the error was not reversible at that stage of the proceedings. Jenkins v. Public Serv. Co., 134 N.C. App. 405, 518 S.E.2d 6, 1999 N.C. App. LEXIS 805 (1999), rev'd in part, 351 N.C. 341, 524 S.E.2d 805, 2000 N.C. LEXIS 127 (2000).

§ 97-32.2. Vocational rehabilitation.

  1. In a compensable claim, the employer may engage vocational rehabilitation services at any point during a claim, regardless of whether the employee has reached maximum medical improvement to include, among other services, a one-time assessment of the employee’s vocational potential, except vocational rehabilitation services may not be required if the employee is receiving benefits pursuant to G.S. 97-29(c) or G.S. 97-29(d). If the employee (i) has not returned to work or (ii) has returned to work earning less than seventy-five percent (75%) of the employee’s average weekly wages and is receiving benefits pursuant to G.S. 97-30, the employee may request vocational rehabilitation services, including education and retraining in the North Carolina community college or university systems so long as the education and retraining are reasonably likely to substantially increase the employee’s wage-earning capacity following completion of the education or retraining program. Provided, however, the seventy-five percent (75%) threshold is for the purposes of qualification for vocational rehabilitation benefits only and shall not impact a decision as to whether a job is suitable per G.S. 97-2(22). The expense of vocational rehabilitation services provided pursuant to this section shall be borne by the employer in the same manner as medical compensation.
  2. Vocational rehabilitation services shall be provided by either a qualified or conditional rehabilitation professional approved by the Industrial Commission. Unless the parties mutually agree to a vocational rehabilitation professional, the employer may make the initial selection. At any point during the vocational rehabilitation process, either party may request that the Industrial Commission order a change of vocational rehabilitation professional for good cause.
  3. Vocational rehabilitation services shall include a vocational assessment and the formulation of an individualized written rehabilitation plan with the goal of substantially increasing the employee’s wage-earning capacity, and subject to the following provisions:
    1. When performing a vocational assessment, the vocational rehabilitation professional should evaluate the employee’s medical and vocational circumstances, the employee’s expectations and specific requests for vocational training, benefits expected from vocational services, and other information significant to the employee’s employment potential. The assessment should also involve a face-to-face interview between the employee and the vocational rehabilitation professional to identify the specific type and sequence of appropriate services. If, at any point during vocational rehabilitation services, the vocational rehabilitation professional determines that the employee will not benefit from vocational rehabilitation services, the employer may terminate said services unless the Commission orders otherwise.
    2. Following assessment, and after receiving input from the employee, the vocational rehabilitation professional shall draft an individualized written rehabilitation plan. The plan should be individually tailored to the employee based on the employee’s education, skills, experience, and aptitudes, with appropriate recommendations for vocational services, which may include appropriate retraining, education, or job placement. The plan may be changed or updated by mutual consent at any time during rehabilitation services. A written plan is not necessary if the vocational rehabilitation professional has been retained to perform a one-time assessment.
  4. Specific vocational rehabilitation services may include, but are not limited to, vocational assessment, vocational exploration, sheltered workshop or community supported employment training, counseling, job analysis, job modification, job development and placement, labor market survey, vocational or psychometric testing, analysis of transferable skills, work adjustment counseling, job seeking skills training, on-the-job training, or training or education through the North Carolina community college or university systems.
  5. Vocational rehabilitation services may be terminated by agreement of the parties or by order of the Commission.
  6. Job placement activities may commence after completion of an individualized written rehabilitation plan. Return-to-work options should be considered, with order of priority given to returning the employee to suitable employment with the current employer, returning the employee to suitable employment with a new employer, and, if appropriate, formal education or vocational training to prepare the employee for suitable employment with the current employer or a new employer.
  7. The refusal of the employee to accept or cooperate with vocational rehabilitation services when ordered by the Industrial Commission shall bar the employee from further compensation until such refusal ceases, and no compensation shall at any time be paid for the period of suspension, unless in the opinion of the Industrial Commission the circumstances justified the refusal. Any order issued by the Commission suspending compensation per G.S. 97-18.1 shall specify what action the employee should take to end the suspension and reinstate the compensation.

History. 2011-287, s. 13; 2012-135, s. 7.

Editor’s Note.

Session Laws 2011-287, s. 23 made this section effective June 24, 2011, and applicable to claims arising on or after that date.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2012-135, s. 9 made the amendments to subsection (a), adding the exception at the end of the first sentence, effective July 1, 2012, and applicable to claims arising on or after June 24, 2011, and provided, in part: “Notwithstanding G.S. 97-31.1, this act is effective when it becomes law [July 1, 2012].”

Effect of Amendments.

Session Laws 2012-135, s. 7, added the exception at the end of the first sentence of subsection (a). For effective date and applicability, see editor’s note.

§ 97-33. Prorating in event of earlier disability or injury.

If any employee is an epileptic, or has a permanent disability or has sustained a permanent injury in service in the United States Army or Navy, or in another employment other than that in which he received a subsequent permanent injury by accident, such as specified in G.S. 97-31, he shall be entitled to compensation only for the degree of disability which would have resulted from the later accident if the earlier disability or injury had not existed.

History. 1929, c. 120, s. 33; 1975, c. 832; 2011-183, s. 127(b).

Effect of Amendments.

Session Laws 2011-183, s. 127(b), effective June 20, 2011, substituted “United States Army or Navy” for “army or navy of the United States.”

Legal Periodicals.

For note discussing limitations on the apportionment of disabilities, see 54 N.C.L. Rev. 1123 (1976).

For comment on Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458 (1981), see 4 Campbell L. Rev. 107 (1981).

CASE NOTES

This section is designed to prevent double recoveries. Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876, 1975 N.C. App. LEXIS 1811 (1975), rev'd, 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976); Wilder v. Barbour Boat Works, 84 N.C. App. 188, 352 S.E.2d 690, 1987 N.C. App. LEXIS 2489 (1987).

Inapplicability of Section to Noncompensable Injury or Damage. —

Neither this section nor G.S. 97-35 were applicable where plaintiff received no compensation for his earlier injury, which arose out of a noncompensable automobile accident separate and apart from any employment. Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876, 1975 N.C. App. LEXIS 1811 (1975), rev'd, 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

When prior damage to an eye was not due to an accident, recovery would be allowed for the complete loss of sight, as this section is not applicable in instances of this sort. Schrum v. Catawba Upholstering Co., 214 N.C. 353, 199 S.E. 385, 1938 N.C. LEXIS 345 (1938).

Where plaintiff ’s condition stemmed neither from epilepsy nor from an injury received in the armed services or in the course of other employment, and where plaintiff had received no compensation for the injury, his case did not fall within the provisions of this section. Wilder v. Barbour Boat Works, 84 N.C. App. 188, 352 S.E.2d 690, 1987 N.C. App. LEXIS 2489 (1987).

Section Inapplicable. —

North Carolina Industrial Commission did not err in concluding that an employer was not entitled to a credit under the North Carolina Workers’ Compensation Act, G.S. 97-33, for payments an employee received pursuant to “clincher” settlement agreements for worker’s compensation claims with previous employers because the amounts paid in the employee’s prior clincher agreements could not be considered the equivalent of accelerated payments of compensation for total disability; because of the undifferentiated nature of the employee’s clincher settlement payments in prior claims, as well as the Commission’s unchallenged finding of fact that the employee’s injury resulted in total disability causally unrelated to his previous back injuries, G.S. 97-33 was inapplicable, and other than the fact that the employee settled prior claims for injuries and disability unrelated to the present claim, the record was void of any evidence that would support an apportionment pursuant to G.S. 97-33 of degrees of disability between the employee’s earlier injuries and the injury at issue. Freeman v. Rothrock, 202 N.C. App. 273, 689 S.E.2d 569, 2010 N.C. App. LEXIS 217 (2010).

Compensation for Separate and Distinct Injuries. —

Under this section, it was proper to compensate employee for a 20 percent disability of the back when he had previously been compensated by the same employer for a 15 percent disability due to a prior injury, where the second injury was separate and distinct from the first injury. Bailey v. Smoky Mt. Enters., Inc., 65 N.C. App. 134, 308 S.E.2d 489, 1983 N.C. App. LEXIS 3387 (1983).

When Apportionment Not Permitted. —

Apportionment is not permitted when an employee becomes totally and permanently disabled due to a compensable injury’s aggravation or acceleration of the employee’s nondisabling, pre-existing disease or infirmity. Errante v. Cumberland County Solid Waste Mgt., 106 N.C. App. 114, 415 S.E.2d 583, 1992 N.C. App. LEXIS 358 (1992).

An employee is also entitled to full compensation for total disability without apportionment when the nature of the employee’s total disability makes any attempt at apportionment between work-related and non-work-related causes speculative. Errante v. Cumberland County Solid Waste Mgt., 106 N.C. App. 114, 415 S.E.2d 583, 1992 N.C. App. LEXIS 358 (1992).

§ 97-34. Employee receiving an injury when being compensated for former injury.

If an employee receives an injury for which compensation is payable, while he is still receiving or entitled to compensation for a previous injury in the same employment, he shall not at the same time be entitled to compensation for both injuries, unless the later injury be a permanent injury such as specified in G.S. 97-31; but he shall be entitled to compensation for that injury and from the time of that injury which will cover the longest period and the largest amount payable under this Article.

History. 1929, c. 120, s. 34.

CASE NOTES

Restricted Application. —

Application of this section and G.S. 97-35 is restricted to those instances where the employee (1) receives an injury for which compensation is payable while he is still receiving or entitled to compensation for a previous injury in the same employment, or (2) receives a permanent injury specified in G.S. 97-31 after having sustained another permanent injury in the same employment. Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

Application When Lump Sum Benefits Paid. —

The correct interpretation of G.S. 97-34 is that a lump sum payment should be treated as if an employee received weekly payments for the applicable payment period covered by the lump sum in order to prevent double recovery. Farley v. N.C. Dep't of Labor, 146 N.C. App. 584, 553 S.E.2d 231, 2001 N.C. App. LEXIS 983 (2001).

Findings Regarding Weekly Compensation Rate Were Insufficient. —

Where the North Carolina Industrial Commission determined that plaintiff was disabled as the result of the effects of two separate compensable injuries and that plaintiff was entitled to temporary total disability benefits under G.S. 97-29(a), the Commission’s findings regarding plaintiff’s weekly compensation rate were insufficient to permit a proper application of the formula prescribed in G.S. 97-34 because the Commission did not determine whether plaintiff received an injury for which compensation was payable while being entitled to compensation for a previous injury in the same employment and, if so, which of the applicable compensation rates would cover the longest period and provide the largest amount payable. Thus, it was necessary to remand the case to the Commission for the entry of a new order containing adequate findings and conclusions. Helfrich v. Coca-Cola Bottling Co. Consol., 225 N.C. App. 701, 741 S.E.2d 408, 2013 N.C. App. LEXIS 221 (2013).

§ 97-35. How compensation paid for two injuries; employer liable only for subsequent injury.

If any employee receives a permanent injury as specified in G.S. 97-31 after having sustained another permanent injury in the same employment, he shall be entitled to compensation for both injuries, but the total compensation shall be paid by extending the period and not by increasing the amount of weekly compensation, and in no case exceeding 500 weeks.

If an employee has previously incurred permanent partial disability through the loss of a hand, arm, foot, leg, or eye, and by subsequent accident incurs total permanent disability through the loss of another member, the employer’s liability is for the subsequent injury only.

History. 1929, c. 120, s. 35.

Cross References.

As to additional payments to be made out of the Second Injury Fund in certain hardship cases, see G.S. 97-40.1.

Legal Periodicals.

For note discussing limitations on the apportionment of disabilities, see 54 N.C.L. Rev. 1123 (1976).

For comment on Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458 (1981), see 4 Campbell L. Rev. 107 (1981).

CASE NOTES

Restricted Application. —

Application of this section and G.S. 97-35 is restricted to those instances where the employee (1) receives an injury for which compensation is payable while he is still receiving or entitled to compensation for a previous injury in the same employment, or (2) receives a permanent injury specified in G.S. 97-31 after having sustained another permanent injury in the same employment. Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

Neither G.S. 97-33 nor this section were applicable where plaintiff received no compensation for his earlier injury, which arose out of a noncompensable automobile accident separate and apart from any employment. Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876, 1975 N.C. App. LEXIS 1811 (1975), rev'd, 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

When Apportionment Not Permitted. —

Apportionment is not permitted when an employee becomes totally and permanently disabled due to a compensable injury’s aggravation or acceleration of the employee’s nondisabling, pre-existing disease or infirmity. Errante v. Cumberland County Solid Waste Mgt., 106 N.C. App. 114, 415 S.E.2d 583, 1992 N.C. App. LEXIS 358 (1992).

An employee is also entitled to full compensation for total disability without apportionment when the nature of the employee’s total disability makes any attempt at apportionment between work-related and non-work-related causes speculative. Errante v. Cumberland County Solid Waste Mgt., 106 N.C. App. 114, 415 S.E.2d 583, 1992 N.C. App. LEXIS 358 (1992).

§ 97-36. Accidents taking place outside State; employees receiving compensation from another state.

Where an accident happens while the employee is employed elsewhere than in this State and the accident is one which would entitle him or his dependents or next of kin to compensation if it had happened in this State, then the employee or his dependents or next of kin shall be entitled to compensation (i) if the contract of employment was made in this State, (ii) if the employer’s principal place of business is in this State, or (iii) if the employee’s principal place of employment is within this State; provided, however, that if an employee or his dependents or next of kin shall receive compensation or damages under the laws of any other state nothing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided for in this Article.

History. 1929, c. 120, s. 36; 1963, c. 450, s. 2; 1967, c. 1229, s. 3; 1973, c. 1059; 1991, c. 284, s. 1.

Legal Periodicals.

For discussion of this section, see 8 N.C.L. Rev. 427 (1930).

For note on the application of full faith and credit to workers’ compensation statutes and awards, see 34 N.C.L. Rev. 501 (1956).

For case law survey on conflict of laws, see 43 N.C.L. Rev. 895 (1965).

For article, “Recognition of Foreign Judgments,” see 50 N.C.L. Rev. 21 (1971).

CASE NOTES

For case holding former G.S. 97-36 to be constitutional prior to the 1963 amendment thereto, see Reaves v. Earle-Chesterfield Mill Co., 216 N.C. 462, 5 S.E.2d 305, 1939 N.C. LEXIS 16 (1939).

Employee No Longer Required to Be Resident of State. —

The 1963 amendment to former G.S. 97-36 struck out the requirement that the employee should be a resident of this State. Rice v. Uwharrie Council Boy Scouts of Am., 263 N.C. 204, 139 S.E.2d 223, 1964 N.C. LEXIS 798 (1964).

The “last act” test employed under the long-arm statute and under the choice of laws doctrine is the appropriate test to be applied in determining whether the contract of employment was made in North Carolina. Thomas v. Overland Express, Inc., 101 N.C. App. 90, 398 S.E.2d 921, 1990 N.C. App. LEXIS 1221 (1990).

For an employment contract to be made in North Carolina such that the Industrial Commission would have jurisdiction over a workers’ compensation claim, the final act necessary to make a binding obligation must be done in North Carolina. Murray v. Ahlstrom Indus. Holdings, Inc., 131 N.C. App. 294, 506 S.E.2d 724, 1998 N.C. App. LEXIS 1325 (1998).

Last Act In Forming Contract Occurred Outside of State. —

North Carolina Industrial Commission lacked jurisdiction over workers’ compensation claims because the claimant’s employment was contingent upon the claimant’s submission to a drug test in Texas before the claimant could begin work so that the last act necessary to form a binding employment relationship occurred in Texas, even though the claimant was contacted in North Carolina and traveled to Texas for the job. Holmes v. Associated Pipe Line Contrs., Inc., 251 N.C. App. 742, 795 S.E.2d 671, 2017 N.C. App. LEXIS 52 (2017).

Plaintiff’s principal place of employment was within North Carolina where plaintiff was assigned to operate a tractor-trailer in an area consisting of twelve to thirteen southern states but no state, standing alone, had the same degree of significant contacts to plaintiff’s employment as North Carolina. Furthermore, the “Policies, Procedures and Agreement” form signed by plaintiff upon being hired was an invalid attempt to limit plaintiff’s rights to those enumerated under Arkansas workers’ compensation law as well as a violation of G.S. 97-6. Perkins v. Arkansas Trucking Servs., 351 N.C. 634, 528 S.E.2d 902, 2000 N.C. LEXIS 356 (2000).

Contract of Employment Formed in North Carolina. —

The Industrial Commission had jurisdiction over an employee’s claim, where the employee was injured in another state and the employer’s principal place of business was outside North Carolina, but the last act necessary for formation of the contract occurred in this State when the employer called the employee in North Carolina and offered the job at a specific hourly rate, the employee accepted the offer, and the employer responded that he was “hired.” Murray v. Ahlstrom Indus. Holdings, Inc., 131 N.C. App. 294, 506 S.E.2d 724, 1998 N.C. App. LEXIS 1325 (1998).

G.S. 97-36 conferred jurisdiction on the North Carolina Industrial Commission, even though a workers’ compensation claimant was injured in South Carolina, as the claimant’s contract for employment was created in North Carolina since: (1) the employer’s operations head made the final decision to hire the claimant in Massachusetts; (2) the operations head telephoned an employer’s representative in North Carolina, and informed the representative that the operations head had the claimant set up to work; (3) the employer offered the claimant a job when the representative in Raleigh, North Carolina telephoned the claimant at the claimant’s home in Durham, North Carolina; (4) the claimant reported to work in Raleigh, North Carolina and was dispatched to Roanoke, Virginia by the representative; and (5) the claimant’s acceptance of employment in North Carolina was the “last act” that created the contract for employment with the employer. Washington v. Traffic Markings, Inc., 182 N.C. App. 691, 643 S.E.2d 44, 2007 N.C. App. LEXIS 785 (2007).

Modification of Employment Contract Can Be Made Within North Carolina. —

North Carolina Industrial Commission erred in holding that modification of an existing contract did not fall within the scope of a contract “made” in the statute because a modification of an employment contract could be a proper basis to find a contract was “made” within North Carolina; the General Assembly crafted the statute with a full view that the phrase employment contract contemplated both contracts of hire as well as modifications of existing contracts, which are new agreements. Burley v. U.S. Foods, Inc., 233 N.C. App. 286, 756 S.E.2d 84, 2014 N.C. App. LEXIS 311 (2014), rev'd, 368 N.C. 315, 776 S.E.2d 832, 2015 N.C. LEXIS 929 (2015).

Statute does not apply to a contract initially made in another state and subsequently modified in North Carolina, and in this case, where the contract was formed in South Carolina and allegedly modified in North Carolina, the modification did not alter the state in which the contract was made; after being hired in South Carolina, plaintiff worked for the company until he was terminated following his injury, and the court declined to hold that his internal transfer of supervision, which allowed plaintiff to continue working in the same capacity throughout a merger, established a new employment contract. Burley v. U.S. Foods, Inc., 368 N.C. 315, 776 S.E.2d 832, 2015 N.C. LEXIS 929 (2015).

Commission did not have jurisdiction over a claim arising from a tractor-trailer driver’s out-of-state injury, where, although the trucking company which employed him had business contacts with North Carolina sufficiently substantial to meet minimum due process requirements, the company’s principal place of business was in Indiana. Thomas v. Overland Express, Inc., 101 N.C. App. 90, 398 S.E.2d 921, 1990 N.C. App. LEXIS 1221 (1990).

Industrial commission properly determined that it lacked jurisdiction to hear a truck driver’s workers’ compensation action, as pursuant to G.S. 97-36, Virginia, rather than North Carolina, was the driver’s principle place of employment, as the worker was hired in Virginia, was paid in Virginia, and made the majority of his deliveries in Virginia. Davis v. Great Coastal Express, 169 N.C. App. 607, 610 S.E.2d 276, 2005 N.C. App. LEXIS 689 (2005).

For the North Carolina Industrial Commission to have jurisdiction in this case, the worker’s contract had to have been made in North Carolina; the worker was required to complete a three-day orientation, a road test, a drug test, and a physical exam in Mississippi, a procedure extending beyond mostly paperwork, and the fact that the worker was paid for this period did not vitiate the fact that his employment was contingent on successful completion of the orientation and tests, and thus his last act of the employment contract took place in Mississippi and the Commission lacked jurisdiction. Taylor v. Howard Transp., Inc., 241 N.C. App. 165, 771 S.E.2d 835, 2015 N.C. App. LEXIS 379 (2015).

The Court of Appeals erred in applying the “any competent evidence” standard of review to the Industrial Commission’s jurisdictional determination under this section; the court should have made its own independent findings of jurisdictional fact. Perkins v. Arkansas Trucking Servs., 351 N.C. 634, 528 S.E.2d 902, 2000 N.C. LEXIS 356 (2000).

Commission Had Jurisdiction. —

Sufficient evidence existed to support the Industrial Commission’s conclusion that plaintiff/truck driver’s principal place of employment was within North Carolina and its conclusion that the North Carolina Industrial Commission had jurisdiction over claim between foreign corporation/employer and plaintiff, whose residence was in North Carolina, who conducted various aspects of his business including receipt of assignments, storage and maintenance of truck, receipt of paychecks, etc., in North Carolina, and who made 18-20% of his pick-up stops in North Carolina. Perkins v. Arkansas Trucking Servs., Inc., 134 N.C. App. 490, 518 S.E.2d 36, 1999 N.C. App. LEXIS 801 (1999), aff'd in part, modified, 351 N.C. 634, 528 S.E.2d 902, 2000 N.C. LEXIS 356 (2000). But see Hyde v. Chesney Glen Homeowners Ass'n, 137 N.C. App. 605, 529 S.E.2d 499, 2000 N.C. App. LEXIS 504, rev'd, 352 N.C. 665, 535 S.E.2d 355, 2000 N.C. LEXIS 749 (2000).

North Carolina Industrial Commission had subject matter jurisdiction over an employee’s claim for benefits because the employee accepted a new offer modifying his existing at-will employment agreement, and the final binding act occurred in North Carolina. Burley v. U.S. Foods, Inc., 233 N.C. App. 286, 756 S.E.2d 84, 2014 N.C. App. LEXIS 311 (2014), rev'd, 368 N.C. 315, 776 S.E.2d 832, 2015 N.C. LEXIS 929 (2015).

North Carolina Industrial Commission had jurisdiction over the employee’s claim under this section because at the time of the employee’s accident, the South Carolina employer was a special employer, the employee was a borrowed employee, and the North Carolina employer remained the employee’s general employer. Beal v. Coastal Carriers, Inc., 251 N.C. App. 1, 794 S.E.2d 882, 2016 N.C. App. LEXIS 1316 (2016).

§ 97-37. Where injured employee dies before total compensation is paid.

When an employee receives or is entitled to compensation under this Article for an injury covered by G.S. 97-31 and dies from any other cause than the injury for which he was entitled to compensation, payment of the unpaid balance of compensation shall be made: First, to the surviving whole dependents; second, to partial dependents, and, if no dependents, to the next of kin as defined in the Article; if there are no whole or partial dependents or next of kin as defined in the Article, then to the personal representative, in lieu of the compensation the employee would have been entitled to had he lived.

Provided, however, that if the death is due to a cause that is compensable under this Article, and the dependents of such employee are awarded compensation therefor, all right to unpaid compensation provided by this section shall cease and determine.

History. 1929, c. 120, s. 37; 1947, c. 823; 1971, c. 322.

Legal Periodicals.

For survey of 1980 tort law, see 59 N.C.L. Rev. 1239 (1981).

CASE NOTES

Recovery Where Employee Died After Filing Claim. —

Where a claimant dies after a claim has been filed, the claimant’s estate may recover all accrued but unpaid benefits, and all unaccrued benefits to which the employee would have been entitled had he lived are payable to decedent’s dependents pursuant to this section. Wilhite v. Liberty Veneer Co., 47 N.C. App. 434, 267 S.E.2d 566, 1980 N.C. App. LEXIS 3127 (1980), aff'd in part and rev'd in part, 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

Recovery Where Employee Died Without Filing Claim. —

Allowing a dependent widow of a deceased worker to recover that to which her husband would have been entitled is consistent with the statutory purpose of this section, and a widow’s claim will not be denied because her husband had not filed a worker’s compensation claim for disfigurement before he died. Wilhite v. Liberty Veneer Co., 47 N.C. App. 434, 267 S.E.2d 566, 1980 N.C. App. LEXIS 3127 (1980), aff'd in part and rev'd in part, 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

Basis for Award. —

The dependents of a deceased employee who suffered a serious bodily disfigurement due to an accident covered by the Workers’ Compensation Act but who died due to an unrelated cause were entitled to a post mortem award for serious bodily disfigurement based on the best possible medical estimate as to the probable residual disability that would have remained had the employee lived to complete his healing period, notwithstanding the fact that the employee had not filed a workers’ compensation claim for disfigurement before he died. Wilhite v. Liberty Veneer Co., 47 N.C. App. 434, 267 S.E.2d 566, 1980 N.C. App. LEXIS 3127 (1980), aff'd in part and rev'd in part, 303 N.C. 281, 278 S.E.2d 234, 1981 N.C. LEXIS 1103 (1981).

An award inadvertently entered by the Industrial Commission after the death of the claimant on appeal from the award is irregular, but not void, and the proceedings do not abate. Butts v. Montague Bros., 204 N.C. 389, 168 S.E. 215, 1933 N.C. LEXIS 416 (1933).

§ 97-38. Where death results proximately from compensable injury or occupational disease; dependents; burial expenses; compensation to aliens; election by partial dependents.

If death results proximately from a compensable injury or occupational disease and within six years thereafter, or within two years of the final determination of disability, whichever is later, the employer shall pay or cause to be paid, subject to the provisions of other sections of this Article, weekly payments of compensation equal to sixty-six and two-thirds percent (66 2/3%) of the average weekly wages of the deceased employee at the time of the accident, but not more than the amount established annually to be effective October 1 as provided in G.S. 97-29, nor less than thirty dollars ($30.00), per week, and burial expenses not exceeding ten thousand dollars ($10,000), to the person or persons entitled thereto as follows:

  1. Persons wholly dependent for support upon the earnings of the deceased employee at the time of the accident shall be entitled to receive the entire compensation payable share and share alike to the exclusion of all other persons. If there be only one person wholly dependent, then that person shall receive the entire compensation payable.
  2. If there is no person wholly dependent, then any person partially dependent for support upon the earnings of the deceased employee at the time of the accident shall be entitled to receive a weekly payment of compensation computed as hereinabove provided, but such weekly payment shall be the same proportion of the weekly compensation provided for a whole dependent as the amount annually contributed by the deceased employee to the support of such partial dependent bears to the annual earnings of the deceased at the time of the accident.
  3. If there is no person wholly dependent, and the person or all persons partially dependent is or are within the classes of persons defined as “next of kin” in G.S. 97-40, whether or not such persons or such classes of persons are of kin to the deceased employee in equal degree, and all so elect, he or they may take, share and share alike, the commuted value of the amount provided for whole dependents in (1) above instead of the proportional payment provided for partial dependents in (2) above; provided, that the election herein provided may be exercised on behalf of any infant partial dependent by a duly qualified guardian; provided, further, that the Industrial Commission may, in its discretion, permit a parent or person standing in loco parentis to such infant to exercise such option in its behalf, the award to be payable only to a duly qualified guardian except as in this Article otherwise provided; and provided, further, that if such election is exercised by or on behalf of more than one person, then they shall take the commuted amount in equal shares.When weekly payments have been made to an injured employee before his death, the compensation to dependents shall begin from the date of the last of such payments. Compensation payments due on account of death shall be paid for a period of 500 weeks from the date of the death of the employee; provided, however, after said 500-week period in case of a widow or widower who is unable to support herself or himself because of physical or mental disability as of the date of death of the employee, compensation payments shall continue during her or his lifetime or until remarriage and compensation payments due a dependent child shall be continued until such child reaches the age of 18.Compensation payable under this Article to aliens not residents (or about to become nonresidents) of the United States or Canada, shall be the same in amounts as provided for residents, except that dependents in any foreign country except Canada shall be limited to surviving spouse and child or children, or if there be no surviving spouse or child or children, to the surviving father or mother.

History. 1929, c. 120, s. 38; 1943, c. 163; c. 502, s. 5; 1947, c. 823; 1951, c. 70, s. 3; 1953, c. 53, s. 1; 1955, c. 1026, s. 8; 1957, c. 1217; 1963, c. 604, s. 3; 1967, c. 84, s. 4; 1969, c. 143, s. 4; 1971, c. 281, s. 3; 1973, c. 515, s. 4; c. 759, s. 4; c. 1308, ss. 3, 4; c. 1357, ss. 1, 2; 1977, c. 409; 1981, c. 276, s. 1; c. 378, s. 1; c. 379; 1983, c. 772, s. 1; 1987, c. 729, s. 9; 1997-301, s. 1; 2001-232, s. 1; 2011-287, s. 14.

Cross References.

As to division od death benefits among whole and partial dependents, see G.S. 97-39.

Editor’s Note.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 14, which substituted “ten thousand dollars ($10,000)” for “three thousand five hundred dollars ($3,500)” near the end of the introductory paragraph, and substituted “500 weeks” and “500-week period” for “400 weeks” and “400-week period,” respectively, in the second paragraph of subdivision (3), was applicable to claims arising on or after June 24, 2011.

Effect of Amendments.

Session Laws 2011-287, s. 14, effective June 24, 2011, and applicable to claims arising on or after that date, substituted “ten thousand dollars ($10,000)” for “three thousand five hundred dollars ($3,500)” near the end of the introductory paragraph; and substituted “500 weeks” and “500-week period” for “400 weeks” and “400-week period,” respectively, in the second paragraph of subdivision (3).

Legal Periodicals.

For discussion of this section, see 8 N.C.L. Rev. 427 (1930).

For comment on the 1943 amendment to this section, see 21 N.C.L. Rev. 384 (1943).

For brief comment on the 1953 amendment, which rewrote this section, see 31 N.C.L. Rev. 451 (1953).

For survey of 1977 workers’ compensation law, see 56 N.C.L. Rev. 1166 (1978).

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For note on occupational disease under workers’ compensation statutes, see 16 Wake Forest L. Rev. 288 (1980).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

For note, “Winstead v. Derreberry: Stepchildren and the Presumption of Dependence Under the North Carolina Workers’ Compensation Act,” see 64 N.C.L. Rev. 1548 (1986).

CASE NOTES

Analysis

I.In General

Editor’s Note. —

Many of the annotations under this section were decided prior to the 1987 amendment, which, inter alia, changed the time limit provisions in the first paragraph.

Constitutionality. —

The court would not consider the constitutionality of this section where the issue was not presented at the hearing before the full Commission. McPherson v. Henry Motor Sales Corp., 201 N.C. 303, 160 S.E. 283, 1931 N.C. LEXIS 225 (1931).

Court of Appeals of North Carolina holds that the time limitation in the fourth paragraph of G.S. 97-61.6 violates the Equal Protection Clauses of U.S. Const., Amend. XIV and N.C. Const., Art. I, § 19 under the rational basis test because the statute imposes an additional burden for recovery — a shorter time frame for death benefits claims — for asbestosis or silicosis, and no rational basis exists for treating such occupational diseases differently from other latent occupational diseases; as the claim by a deceased employee’s administratrix was within the applicable time limitation for other occupational diseases, under G.S. 97-38, the claim for death benefits was timely filed. Payne v. Charlotte Heating & Air Conditioning, 172 N.C. App. 496, 616 S.E.2d 356, 2005 N.C. App. LEXIS 1782 (2005).

This section classifies those persons eligible to receive, and determines the amount of, death benefits payable under the act to persons wholly or partially dependent upon the earnings of a deceased employee. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

Construction. —

Court does not believe the General Assembly intended the absurd result of excluding from any statute of limitations claims under the statute based upon injuries that had never been found to be compensable, simply because some different injury, not a proximate cause of the employee’s death, had been found compensable, but no final determination of disability for that injury had been made. Brown v. N.C. Dep't of Pub. Safety, 254 N.C. App. 374, 802 S.E.2d 776, 2017 N.C. App. LEXIS 559 (2017).

The express language of this section fixes the rights and liabilities at the time of the employee’s death, providing that where there is only one wholly dependent person at the time of decedent’s death, all of the death benefits be paid to that person. Allen v. Piedmond Transp. Servs., Inc., 116 N.C. App. 234, 447 S.E.2d 835, 1994 N.C. App. LEXIS 909 (1994).

“Disability”. —

The definition of the word “disability,” as it is defined in subdivision (9) of G.S. 97-2, must be read into this section in lieu of the word “disability” therein. Burton v. Peter W. Blum & Son, 270 N.C. 695, 155 S.E.2d 71, 1967 N.C. LEXIS 1407 (1967).

Per Se Timeliness. —

Court rejected plaintiff’s argument that, in the absence of a final determination of disability with respect to the decedent’s compensable back injury, plaintiff’s claim for death benefits based on the decedent’s hip injury, which was never determined to be compensable, was per se timely. Brown v. N.C. Dep't of Pub. Safety, 254 N.C. App. 374, 802 S.E.2d 776, 2017 N.C. App. LEXIS 559 (2017).

Impact on Right to Recover. —

Because death benefits claims fail to arise until the injured employee’s death, the rights of the beneficiaries become implicated after the injured employee’s death; thus, the employee’s actions or inactions related to his potential compensation claims had no impact on his daughter’s original right to recover pursuant to the statute. Brown v. N.C. Dep't of Pub. Safety, 254 N.C. App. 374, 802 S.E.2d 776, 2017 N.C. App. LEXIS 559 (2017).

Under the act “disability” refers not to physical infirmity but to a diminished capacity to earn money. Burton v. Peter W. Blum & Son, 270 N.C. 695, 155 S.E.2d 71, 1967 N.C. LEXIS 1407 (1967).

When Death Is Compensable. —

In order for a claimant to recover workers’ compensation benefits for death, he must prove that death resulted from an injury (1) by accident; (2) arising out of his employment; and (3) in the course of the employment. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582, 1988 N.C. LEXIS 375 (1988).

Compensable And Non-Compensable Injuries. —

Plaintiff was not entitled to use the decedent’s disability status from his compensable back injury to seek benefits for death resulting from the decedent’s denied hip injury; the commission did not err in denying plaintiff’s claim for death benefits under the statute. Brown v. N.C. Dep't of Pub. Safety, 254 N.C. App. 374, 802 S.E.2d 776, 2017 N.C. App. LEXIS 559 (2017).

“Final Determination of Disability.” —

Phrase “final determination of disability” is limited to the final determination of disability for the compensable injury that is specifically alleged to have proximately caused the employee’s death; the final determination of disability for a compensable injury cannot be made unless the compensability of such injury has already been established, and the statute contemplates a determination of disability with respect to the specific injury which forms the basis of the claim for death benefits. Brown v. N.C. Dep't of Pub. Safety, 254 N.C. App. 374, 802 S.E.2d 776, 2017 N.C. App. LEXIS 559 (2017).

To recover death benefits under the Workers Compensation Act, a claimant bears the burden of proving that the decedent sustained a fatal injury (1) by accident, (2) arising out of his employment, and (3) during the course of his employment. Westbrooks v. Bowes, 130 N.C. App. 517, 503 S.E.2d 409, 1998 N.C. App. LEXIS 1004 (1998).

North Carolina Industrial Commission properly concluded that a truck driver’s injury and death following a road rage incident with another driver, in which the other driver ran over the decedent when the decedent exited his vehicle to confront the other driver, resulted from an injury by accident arising out of and in the course of his employment. Dodson v. Dubose Steel, Inc., 159 N.C. App. 1, 582 S.E.2d 389, 2003 N.C. App. LEXIS 1419 (2003), rev'd, 358 N.C. 129, 591 S.E.2d 548, 2004 N.C. LEXIS 13 (2004).

Award of death benefits was appropriate because competent evidence, from a witness admitted as an expert in the fields of forensic pathology and medical examination, supported the North Carolina Industrial Commission determination that the decedent died of methadone toxicity as a direct result of the decedent’s methadone use for the decedent’s back injury, in substantial compliance with a doctor’s prescription, and as a proximate result of the decedent’s original compensable back injury. Shaw v. US Airways, Inc., 217 N.C. App. 539, 720 S.E.2d 688, 2011 N.C. App. LEXIS 2593 (2011).

Tolling. —

Nothing in case law suggests that failure to make a final determination of disability for a compensable injury that was not a proximate cause of an employee’s death tolls the statute of limitations. Brown v. N.C. Dep't of Pub. Safety, 254 N.C. App. 374, 802 S.E.2d 776, 2017 N.C. App. LEXIS 559 (2017).

When Disability or Death Resulting from Disease Is Compensable. —

Disability caused by, or death resulting from, a disease is compensable only when the disease is an occupational disease, or is aggravated or accelerated by causes and conditions characteristic of and peculiar to the claimant’s employment. Goodman v. Cone Mills Corp., 75 N.C. App. 493, 331 S.E.2d 261, 1985 N.C. App. LEXIS 3686 (1985).

The employer is required to pay compensation for the death of an employee only when the death results proximately from injury by accident arising out of and in the course of employment. Gilmore v. Hoke County Bd. of Educ., 222 N.C. 358, 23 S.E.2d 292, 1942 N.C. LEXIS 101 (1942).

The act authorizes the Industrial Commission to make an award of compensation on account of the death of an employee only in the event that death results proximately from the accident and within two years thereafter, or while total disability still continues and within six years after the accident. Burton v. Peter W. Blum & Son, 270 N.C. 695, 155 S.E.2d 71, 1967 N.C. LEXIS 1407 (1967) (decided prior to the 1983 amendment to this section) .

Competent evidence supported the North Carolina Industrial Commission’s finding that an employee’s death was proximately caused by the employee’s compensable occupational disease of diabetes because, although a doctor indicated that it was possible that the deceased employee died of complications from the employee’s upper respiratory infection, the doctor testified that it was “more likely than not” that the deceased employee’s diabetes caused the employees death. Kelly v. Duke Univ., 190 N.C. App. 733, 661 S.E.2d 745, 2008 N.C. App. LEXIS 1073 (2008).

Decedent’s death was compensable because the evidence supported each of the North Carolina Industrial Commission’s findings relating to causation as competent evidence, including medical testimony, showed that the decedent’s exposure to asbestos contributed to the decedent’s disease and that the occupational disease of asbestosis significantly contributed to the decedent’s death. Patton v. Sears Roebuck & Co., 239 N.C. App. 370, 768 S.E.2d 351, 2015 N.C. App. LEXIS 82 (2015).

This section contemplates only one accident leading to death when it states “the accident.” Death benefits accrue only if death occurs within the maximum statutorily set time after “the accident.” It would defy legislative intent to hold that subsequent changes in disability status arising from the same occupational disease created new “accidents,” thereby renewing the time limit for claiming benefits under G.S. 97-38. Joyner v. J.P. Stevens & Co., 71 N.C. App. 625, 322 S.E.2d 636, 1984 N.C. App. LEXIS 3918 (1984).

The rule limiting occupational disease victims to a single claim for purposes of the statute of limitations in G.S. 97-58(c) applies by analogy to allow occupational disease victims to claim only one “accident” under this section. Joyner v. J.P. Stevens & Co., 71 N.C. App. 625, 322 S.E.2d 636, 1984 N.C. App. LEXIS 3918 (1984).

Statute of Limitations. —

Statute of limitations for death benefits under G.S. 97-38 began to run on the date of a deceased employee’s disability from an occupational disease, which the North Carolina Industrial Commission found was the date that the employee became incapable of earning the wages that the employee was receiving at the time of the injury. Kelly v. Duke Univ., 190 N.C. App. 733, 661 S.E.2d 745, 2008 N.C. App. LEXIS 1073 (2008).

Because there was no determination of the decedent’s final determination of disability prior to the North Carolina Industrial Commission’s opinion and award determining that the decedent’s death was the proximate result of the decedent’s compensable injury, the claim by the decedent’s surviving spouse for death benefits was not untimely and was not barred by the statute of limitations under G.S. 97-38. Shaw v. US Airways, Inc., 217 N.C. App. 539, 720 S.E.2d 688, 2011 N.C. App. LEXIS 2593 (2011).

North Carolina Industrial Commission properly determined that a claim filed in 2009 for death benefits under G.S. 97-38 by the surviving children of a deceased employee was untimely because the Commission’s approval of a November 1999 settlement agreement between the employee and employer constituted a final determination of disability for purposes of the two-year limitations period in G.S. 97-38. Coffey v. Weyerhaeuser Co., 218 N.C. App. 297, 720 S.E.2d 879, 2012 N.C. App. LEXIS 57 (2012).

This section may sometimes have the effect of barring an otherwise valid and provable claim simply because the employee did not die within the requisite period of time. The remedy for any inequities arising from the statute, however, lies not with the courts but with the legislature. Joyner v. J.P. Stevens & Co., 71 N.C. App. 625, 322 S.E.2d 636, 1984 N.C. App. LEXIS 3918 (1984).

Continuing Total Disability Is Condition Precedent to Award for Death After Two Years. —

A continuing total disability from the time of the accident to the time of the death is a condition precedent to the making of an award of death benefits where the death occurred more than two years after the accident. Burton v. Peter W. Blum & Son, 270 N.C. 695, 155 S.E.2d 71, 1967 N.C. LEXIS 1407 (1967).

Relevant Inquiry. —

Relevant inquiry is whether the employee’s death occurred within two years of the final determination of disability. Brown v. N.C. Dep't of Pub. Safety, 254 N.C. App. 374, 802 S.E.2d 776, 2017 N.C. App. LEXIS 559 (2017).

An award of compensation, on account of a death occurring more than two years after the accident, is authorized only if there is evidence to support a finding that, from the accident to the death, the employee had a continuing incapacity, because of the injury, to earn the wages which he was receiving at the time of his accident. Burton v. Peter W. Blum & Son, 270 N.C. 695, 155 S.E.2d 71, 1967 N.C. LEXIS 1407 (1967).

Widow seeking death benefits under this section not collaterally estopped to litigate the issue of decedent’s total permanent disability on grounds that he had previously been found temporarily totally disabled, where she was not a party to the claim for her husband’s lifetime benefits, nor was she in privity with a party to that claim, and she was not in control of the prosecution of that claim and did not have a mutual interest in the same property rights, even though she continued to pursue decedent’s claim for lifetime benefits and subsequently withdrew the appeal of that claim. Goins v. Cone Mills Corp., 90 N.C. App. 90, 367 S.E.2d 335, 1988 N.C. App. LEXIS 376 (1988).

Joinder of Putative Beneficiaries Not Required for Disability Determination. —

North Carolina Industrial Commission’s final determination regarding an employee’s disability did not require joinder of all putative beneficiaries of a death benefits claim under G.S. 97-38, as the disability determination was made without regard to any possible claim of death benefits in the future. Pait v. Southeastern Gen. Hosp., 219 N.C. App. 403, 724 S.E.2d 618, 2012 N.C. App. LEXIS 389 (2012).

For case impliedly criticizing this section insofar as its application may sometimes bar an otherwise valid and provable claim simply because the employee did not die within the requisite period of time, see Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Death from Preexisting Heart Condition Aggravated by Injury. —

Findings to the effect that the employee suffered an injury arising out of and in the course of the employment, which injury aggravated a preexisting heart condition and caused death, would support an award for compensation and burial expenses. Wyatt v. Sharp, 239 N.C. 655, 80 S.E.2d 762, 1954 N.C. LEXIS 630 (1954).

Suicide Due to Derangement Caused by Pain and Suffering from Compensable Injury. —

If an employee receives an injury which is compensable under this Chapter and as a result of pain and suffering from this injury he becomes so deranged that he commits suicide, the death is compensable. Fayne v. Fieldcrest Mills, Inc., 54 N.C. App. 144, 282 S.E.2d 539, 1981 N.C. App. LEXIS 2779 (1981).

Maximum Weekly Benefit. —

The 1973 amendment to G.S. 97-29, governing the maximum weekly workers’ compensation benefit, applies to this section. Andrews v. Nu-Woods, Inc., 43 N.C. App. 591, 259 S.E.2d 306, 1979 N.C. App. LEXIS 3095 (1979), aff'd, 299 N.C. 723, 264 S.E.2d 99, 1980 N.C. LEXIS 990 (1980).

Calculation of Average Weekly Wage. —

North Carolina Industrial Commission erred in figuring that a decedent had average weekly wages of $807 based on his 1987 wages and in concluding that the maximum compensation rate of $308 for 1987 applied because although the proper year for determining his average weekly wages was 1987, G.S. 97-29 did not provide an unjust result but required that the maximum compensation rate for 2006 be used, as that was the year of the decedent’s diagnosis; the North Carolina Industrial Commission made the correct determination that to have a just and fair result it had to resort to using a decedent’s average weekly wages from his last year of employment with the employer, but the Commission erred in failing to explain why the first method of G.S. 97-2(5) would produce unjust results. Johnson v. Covil Corp., 212 N.C. App. 407, 711 S.E.2d 500, 2011 N.C. App. LEXIS 1047 (2011).

Statute in Effect at Time of Death Controls Award. —

Where an employee died of serum hepatitis, which was found to be a disease characteristic of and peculiar to his occupation of lab technician, the commission did not err in awarding compensation according to the statute in effect when the employee died rather than the statute in effect at the time he contracted the disease. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Date of “Accident” in Occupational Disease Case. —

Where employee died 15 months after he became totally disabled by serum hepatitis, the claim of deceased employee’s dependents for death benefits was not barred by this section providing compensation if death results from an accident within two years or, while total disability continues, within six years after the accident, since the date of the “accident” in cases involving occupational disease is treated as the date on which disablement occurs and not as the date on which employee contracted the disease. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Widow of an employee diagnosed with lung cancer was entitled to death benefits based on the last year of work, when the employee retired many years before the diagnosis for unrelated medical reasons, because (1) the lung cancer was an occupational disease, (2) the four other statutory methods for calculating average weekly wages were considered, (3) the employee was exposed to asbestos while employed by the employer, (4) the employee retired from the employer for a reason unrelated to any work injury, (5) after retirement the employee was diagnosed with lung cancer caused by the asbestos exposure, and (6) the employee died as a result of the lung cancer. Lipe v. Starr Davis Co., 237 N.C. App. 124, 767 S.E.2d 539, 2014 N.C. App. LEXIS 1127 (2014).

Calculation of Average Weekly Wages in Conjunction with Diagnosis Year. —

North Carolina Industrial Commission correctly determined that decedent’s average weekly wages for 1987 were $807 based on G.S. 97-2(5), but the Commission erred by failing to apply the average weekly wages in conjunction with G.S. 97-38 because the Commission failed to apply the 66 percent aspect of the statute to the average weekly wages of $807; upon applying the 66 percent, the compensation became $538, and because $ 538 was below the maximum compensation rate of $730 for 2006, the year a decedent was diagnosed, the decedent’s dependent was entitled to the full amount of $538 for 400 weeks. Johnson v. Covil Corp., 212 N.C. App. 407, 711 S.E.2d 500, 2011 N.C. App. LEXIS 1047 (2011).

Part-Time Employees. —

Appellate court reversed the North Carolina Industrial Commission’s award of workers’ compensation benefits in the amount of $129 per week to the widow of a part-time employee who died due to a work-related accident because the Commission had not identified the method it used to calculate the employee’s average weekly wage; on remand, the Commission could use the fifth method allowed by G.S. 97-2(5) for calculating the employee’s average weekly wage if it found that the second method allowed by G.S. 97-2(5) was unfair because of the employee’s part-time status. Boney v. Winn Dixie, Inc., 163 N.C. App. 330, 593 S.E.2d 93, 2004 N.C. App. LEXIS 371 (2004).

Attorney’s Fees Properly Taxed. —

North Carolina Industrial Commission did not abuse its discretion in taxing attorney’s fees under G.S. 97-88.1 against an employer as the employer did not have reasonable grounds for prosecuting its claim as it did not introduce any evidence that would have proven a change in condition for a workers’ compensation claimant; it was suspected that the employer was concerned about the claimant’s possible death and being liable for G.S. 97-38 benefits since the claimant had developed life threatening conditions after the claimant’s previous surgery. Meares v. Dana Corp., 193 N.C. App. 86, 666 S.E.2d 819, 2008 N.C. App. LEXIS 1753 (2008).

II.Dependents

Percentage of Survivors’ Benefits Fixed by Subdivision (1). —

Paragraph fixing the period of time for which benefits are to be paid as 400 weeks for the widow and for each minor child until he reaches age 18 is not intended to fix the percentage of survivors’ benefits; that is done by subdivision (1) of this section. Chinault v. Floyd S. Pike Elec. Contractors, 53 N.C. App. 604, 281 S.E.2d 460, 1981 N.C. App. LEXIS 2719 (1981), aff'd, 306 N.C. 286, 293 S.E.2d 147, 1982 N.C. LEXIS 1438 (1982).

Shares of Partial Dependents Fixed by Subdivisions (2) and (3). —

Subdivisions (2) and (3) of this section fix the share each survivor is to receive if there are no persons wholly dependent on decedent at the date of his death. Chinault v. Floyd S. Pike Elec. Contractors, 53 N.C. App. 604, 281 S.E.2d 460, 1981 N.C. App. LEXIS 2719 (1981), aff'd, 306 N.C. 286, 293 S.E.2d 147, 1982 N.C. LEXIS 1438 (1982).

Recipients’ Shares Fixed at Date of Death. —

General Assembly intended to fix each recipient’s share of death benefits at the date of decedent’s death. Chinault v. Floyd S. Pike Elec. Contractors, 53 N.C. App. 604, 281 S.E.2d 460, 1981 N.C. App. LEXIS 2719 (1981), aff'd, 306 N.C. 286, 293 S.E.2d 147, 1982 N.C. LEXIS 1438 (1982).

Effect of 18th Birthday of Minor Dependent. —

Decedent’s wife was not entitled to a reapportionment of death benefits upon her daughter’s 18th birthday. Friday v. Carolina Steel Corp., 139 N.C. App. 802, 534 S.E.2d 648, 2000 N.C. App. LEXIS 1029 (2000).

If there is a decrease in the dependent beneficiary pool during the 400 weeks following the employee’s death, there must be a corresponding reapportionment of the full award payable for that set period among the remaining eligible members of the pool. That is only situation in which there will be an increase in the amount of the individual shares paid to the dependents still partaking of the compensation fund. Deese v. Southern Lawn & Tree Expert Co., 306 N.C. 275, 293 S.E.2d 140, 1982 N.C. LEXIS 1457 (1982).

Section does not permit reapportionment of entire compensation award among eligible dependents after 400 weeks have elapsed. Deese v. Southern Lawn & Tree Expert Co., 306 N.C. 275, 293 S.E.2d 140, 1982 N.C. LEXIS 1457 (1982).

Death or Remarriage of Widow Before All Installments Paid. —

This section places no limitation by way of forfeiture on compensation receivable where a widow who has been awarded compensation for her husband’s death dies or remarries before all installments have been paid. Hill v. Cahoon, 252 N.C. 295, 113 S.E.2d 569, 1960 N.C. LEXIS 559 (1960).

Where a widow who has been properly awarded compensation as the sole dependent of her deceased husband dies before all the installments of compensation have been paid, the commuted value of such future installments is properly paid to her personal representative, and the next of kin of the deceased employee, who are not dependents, are not entitled thereto. Hill v. Cahoon, 252 N.C. 295, 113 S.E.2d 569, 1960 N.C. LEXIS 559 (1960).

Where an employee has lost his life in the course of his employment and thereafter an award has been made by the Industrial Commission to his widow, as his sole dependent, and within a few months after the award is made his widow dies intestate, her administrator is entitled to the benefits of the award as made to her. Queen v. Champion Fibre Co., 203 N.C. 94, 164 S.E. 752, 1932 N.C. LEXIS 312 (1932).

No Finding of Permanent Disability Required For Disabled Widow. —

The provision of this section for compensation for life or until remarriage for the disabled widow of an employee who dies under compensable circumstances does not on its face require a finding of permanent disability. Hendrick v. Southland Corp., 41 N.C. App. 431, 255 S.E.2d 198, 1979 N.C. App. LEXIS 2642, cert. denied, 298 N.C. 296, 259 S.E.2d 912, 1979 N.C. LEXIS 1580 (1979).

Duration of Payment of Compensation to Dependent Children Under Age 18. —

The provision of the second paragraph of this section, as amended, which relates to dependent children under the age of 18 years, should be read in conjunction with the introductory proviso. When so read, it means “as provided, however, after said 400-week period compensation payments due a dependent child shall be continued until such child reaches the age of 18.” Caldwell v. Marsh Realty Co., 32 N.C. App. 676, 233 S.E.2d 594, 1977 N.C. App. LEXIS 2037, cert. denied, 292 N.C. 728, 235 S.E.2d 782, 1977 N.C. LEXIS 1176 (1977).

Stepchildren must be substantially dependent upon the deceased employee. This result is derived from the wording of the various dependency tests employed by the act. Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E.2d 66, 1985 N.C. App. LEXIS 3185 (1985); Capps v. Standard Trucking Co., 77 N.C. App. 448, 335 S.E.2d 357, 1985 N.C. App. LEXIS 4075 (1985).

The substantial dependency standard is a question of fact to be determined under the facts of each case, the burden of proof being on the stepchild under the evidentiary standards normally employed in workers’ compensation cases. The factors to be considered are the actual amount and consistency of the support derived by the stepchild from (1) the deceased stepparent, (2) the natural parent married to the stepparent, (3) the estranged natural parent, whether such support is voluntary or required by law, (4) the income of the stepchild, and (5) any other funds regularly received for the support of the stepchild. Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E.2d 66, 1985 N.C. App. LEXIS 3185 (1985).

A stepchild must be factually “substantially” dependent upon the deceased in order to qualify as a child dependent on deceased under G.S. 97-39 and, therefore, be entitled to a share of death benefits under this section. Capps v. Standard Trucking Co., 77 N.C. App. 448, 335 S.E.2d 357, 1985 N.C. App. LEXIS 4075 (1985).

Courts determine substantial dependency of stepchildren for purposes of death benefits under G.S. 97-39 under the facts of each case by considering the amount and consistency of support a stepchild receives from: (1) the deceased stepparent; (2) the natural parent married to the stepparent; (3) the estranged natural parent, whether such support is voluntary or required by law; (4) the income of the stepchild; and (5) any other funds regularly received for the support of the stepchild; it was found that stepchildren were substantially dependent on a deceased employee where he financially supported their household, and thus, they were conclusively presumed to have been wholly dependent on him under G.S. 97-39 and were entitled to benefits under G.S. 97-38. Goodrich v. R.L. Dresser, Inc., 161 N.C. App. 394, 588 S.E.2d 511, 2003 N.C. App. LEXIS 2204 (2003).

Allocation of Compensation to Widow and Children Upheld. —

The Industrial Commission properly held that the entire compensation to which survivors, a widow and three minor children, were entitled should be divided into four equal parts, with the widow to receive weekly payments for 400 weeks, and each of the three minor children to receive only its share of weekly compensation beyond the 400-week period and until such child reached 18 years of age. Chinault v. Floyd S. Pike Elec. Contractors, 53 N.C. App. 604, 281 S.E.2d 460, 1981 N.C. App. LEXIS 2719 (1981), aff'd, 306 N.C. 286, 293 S.E.2d 147, 1982 N.C. LEXIS 1438 (1982).

Legal Adoption Not Finalized. —

Where adoption proceedings had begun but were not finalized, the minor plaintiff was not a child legally adopted prior to the injury of the employee. Lennon v. Cumberland County, 119 N.C. App. 319, 458 S.E.2d 240, 1995 N.C. App. LEXIS 466 (1995).

Total Dependency Shown. —

Where the evidence tended to show that the mother of the deceased employee lived with him, that he had paid the rent, bought groceries and supported her for a period of years, but that for two months prior to his death she did washing and nominal services for, and stayed with, an aged bedridden person and earned $5.75 per week thereby, which she deposited in a bank or used to buy small luxuries, the fact that the mother earned small amounts of money in temporary and casual employment did not indicate any dependable source of income other than that she received from her son and the conclusion of the Industrial Commission that she was totally dependent upon her son within the meaning of the Workers’ Compensation Act was sustained. Thomas v. Raleigh Gas Co., 218 N.C. 429, 11 S.E.2d 297, 1940 N.C. LEXIS 4 (1940).

Finding as to Dependency Binding on Appeal. —

While it may be admitted that in some instances the question of dependency may be a mixed question of fact and law, where the facts admitted or found by the Commission upon competent evidence support the conclusion of the Commission in regard thereto, its award is binding on the court. Thomas v. Raleigh Gas Co., 218 N.C. 429, 11 S.E.2d 297, 1940 N.C. LEXIS 4 (1940).

When Employee Has No Dependents. —

Where the Commission has found that the deceased employee left no one who was dependent upon him, wholly or partially, G.S. 97-40 determines the person or persons entitled to receive the death benefits provided in this act, but the amount payable to the person or persons entitled thereto is determined by this section, commuted to its present, lump sum value. Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296, 1971 N.C. LEXIS 891 (1971).

G.S. 97-40 determines the person or persons entitled to receive the death benefits in the absence of dependents, but the amount payable to the person or persons entitled thereto is determined by this section, commuted to its present, lump sum value. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

If the deceased employee leaves neither whole nor partial dependents, then G.S. 97-40 provides for the commutation and payment of compensation to the “next of kin” as therein defined. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

Proper Plaintiffs in Action for Failure to Procure Compensation Insurance. —

An action against insurance agents for breach of their agreement with an employer to procure compensation coverage for an employee may be maintained only by those who would have been entitled to payments had the policy been issued, and when it appears that the employee died as the result of injury received during the employment, and that the employee left a widow surviving him, such action may be maintained only by the widow; thus, an action instituted by the employee’s administrator and the employer, who advanced the insurance premium, must be dismissed. Crawford v. General Ins. & Realty Co., 266 N.C. 615, 146 S.E.2d 651, 1966 N.C. LEXIS 1396 (1966).

§ 97-39. Widow, widower, or child to be conclusively presumed to be dependent; other cases determined upon facts; division of death benefits among those wholly dependent; when division among partially dependent.

A widow, a widower and/or a child shall be conclusively presumed to be wholly dependent for support upon the deceased employee. In all other cases questions of dependency, in whole or in part shall be determined in accordance with the facts as the facts may be at the time of the accident, but no allowance shall be made for any payment made in lieu of board and lodging or services, and no compensation shall be allowed unless the dependency existed for a period of three months or more prior to the accident. If there is more than one person wholly dependent, the death benefit shall be divided among them, the persons partly dependent, if any, shall receive no part thereof. If there is no one wholly dependent, and more than one person partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency.

The widow, or widower and all children of deceased employees shall be conclusively presumed to be dependents of deceased and shall be entitled to receive the benefits of this Article for the full periods specified herein.

History. 1929, c. 120, s. 39.

Cross References.

For definition of terms “widow,” “widower,” and “child,” see G.S. 97-2.

As to dependents, see also G.S. 97-38.

Legal Periodicals.

As to determination of the extent of the dependency of partial dependents, see 8 N.C.L. Rev. 426 (1930).

For note, “Winstead v. Derreberry: Stepchildren and the Presumption of Dependence Under the North Carolina Workers’ Compensation Act,” see 64 N.C.L. Rev. 1548 (1986).

CASE NOTES

Only widows who come within the definition in subdivision (14) of G.S. 97-2 are entitled to the presumption provided by this section. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246, 1971 N.C. App. LEXIS 1601 (1971).

Presumption of Dependency. —

By statute, a widow is conclusively presumed to be wholly dependent for support upon the deceased employee, and shall receive benefits under the Workers’ Compensation Act. Rogers v. University Motor Inn, 103 N.C. App. 456, 405 S.E.2d 770, 1991 N.C. App. LEXIS 769 (1991).

The common-law wife of a deceased employee is not entitled to compensation under the provisions of this act. Reeves v. Parker-Graham-Sexton, Inc., 199 N.C. 236, 154 S.E. 66, 1930 N.C. LEXIS 95 (1930).

Widow Was Entitled To Support. —

By using the word “or” before the second of the three listed methods in which a person can qualify as a widow under G.S. 97-39, the General Assembly intended that a wife can qualify as a widow if she is actually dependent on decedent whether or not living with him, and in method three, she qualifies if she is living apart for justifiable cause or desertion, whether or not dependent; accordingly, where evidence in the record before the Industrial Commission showed that a widow was dependent on the deceased employee for support, that she was a responsible person and was competent with money, she should have been found to be his widow under G.S. 97-2(14) and granted benefits. Goodrich v. R.L. Dresser, Inc., 161 N.C. App. 394, 588 S.E.2d 511, 2003 N.C. App. LEXIS 2204 (2003).

There was some competent evidence to support the North Carolina Industrial Commission’s award of total disability benefits and death benefits, pursuant to G.S. 97-39, to an estate administratrix on behalf of her deceased husband, who had been an employee of the employer for a period of time, where it was determined that the employer was the place where the employee had his last injurious exposure to asbestos, pursuant to G.S. 97-57, and further, that he in fact had “asbestosis,” as that term was defined under G.S. 97-62; credibility determinations were within the province of the Commission, and not for the court to redetermine. Payne v. Charlotte Heating & Air Conditioning, 172 N.C. App. 496, 616 S.E.2d 356, 2005 N.C. App. LEXIS 1782 (2005).

The term “in all other cases,” in the connection in which it appears in this section, means in all cases other than those of widows, widowers, and children, claiming to be dependents of the deceased employee, dependency shall be determined in accordance with the facts as the facts may be at the time of the accident. Manifestly, a woman living in cohabitation with a man to whom she is not married is not within the purview of the term “in all other cases.” Fields v. Hollowell, 238 N.C. 614, 78 S.E.2d 740, 1953 N.C. LEXIS 600 (1953).

A woman who was living with an employee as his common-law wife at the time of his death and who was actually wholly dependent upon him for support for some years prior to his death by accident arising out of and in the course of his employment was not a dependent of the deceased employee within the purview of this section, and was not entitled to any part of the compensation payable under the provisions of the act. Fields v. Hollowell, 238 N.C. 614, 78 S.E.2d 740, 1953 N.C. LEXIS 600 (1953).

Wife separated by mutual agreement evidenced by legally executed separation agreement is not widow. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246, 1971 N.C. App. LEXIS 1601 (1971); Sloop v. Williams Exxon Serv., 24 N.C. App. 129, 210 S.E.2d 111, 1974 N.C. App. LEXIS 1950 (1974).

Surrender of Right to Support. —

There is no reason why a separated wife who has surrendered all right to look to the husband for support while he is living should, upon his death, receive benefits that are intended to replace in part the support which the husband was providing or should have been providing. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246, 1971 N.C. App. LEXIS 1601 (1971); Sloop v. Williams Exxon Serv., 24 N.C. App. 129, 210 S.E.2d 111, 1974 N.C. App. LEXIS 1950 (1974).

Spouse’s Adultery Does Not Create an Exception to Statutes. —

It is not within the authority of courts to create an exception to G.S. 97-2(14) and this section based upon adultery by a spouse. To find that the legislature intended such an exception, it must be apparent in the statute. Rogers v. University Motor Inn, 103 N.C. App. 456, 405 S.E.2d 770, 1991 N.C. App. LEXIS 769 (1991).

A wife’s adulterous affair did not bar her from qualifying as her husband’s widow under G.S. 97-2(14) or this section. Rogers v. University Motor Inn, 103 N.C. App. 456, 405 S.E.2d 770, 1991 N.C. App. LEXIS 769 (1991).

Divorce and Remarriage in Another State. —

On the conflict of laws question raised where there has been a divorce and remarriage in another state and a subsequent controversy develops as to who is the “widow,” see Rice v. Rice, 336 U.S. 674, 69 S. Ct. 751, 93 L. Ed. 957, 1949 U.S. LEXIS 2534 (1949); 28 N.C.L. Rev. 265, 286.

A second or subsequent marriage is presumed legal until the contrary is proved, and the burden of the issue is upon a plaintiff who attempts to establish a property right which is dependent upon the invalidity of such a marriage. Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871, 1945 N.C. LEXIS 285 (1945).

Illegitimate Child Acknowledged by Father. —

An illegitimate child born after the death of its father, who before his death had acknowledged his paternity of the child, is a dependent of its deceased father within the meaning of this section, and such child is entitled to share with the children of its deceased father who were born of his marriage to their mother, from whom their father had been divorced prior to his death, in compensation awarded under this act to his dependents. Lippard v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801, 1935 N.C. LEXIS 185 (1935).

Illegitimate Child Must Be Acknowledged. —

To qualify for survivor’s benefits under the act, an illegitimate child must be acknowledged in sufficient fashion by the father. Tucker v. City of Clinton, 120 N.C. App. 776, 463 S.E.2d 806, 1995 N.C. App. LEXIS 926 (1995).

Stepchildren must be substantially dependent upon the deceased employee. This result is derived from the wording of the various dependency tests employed by the act. Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E.2d 66, 1985 N.C. App. LEXIS 3185 (1985); Capps v. Standard Trucking Co., 77 N.C. App. 448, 335 S.E.2d 357, 1985 N.C. App. LEXIS 4075 (1985).

The substantial dependency standard is a question of fact to be determined under the facts of each case, the burden of proof being on the stepchild under the evidentiary standards normally employed in workers’ compensation cases. The factors to be considered are the actual amount and consistency of the support derived by the stepchild from (1) the deceased stepparent, (2) the natural parent married to the stepparent, (3) the estranged natural parent, whether such support is voluntary or required by law, (4) the income of the stepchild, and (5) any other funds regularly received for the support of the stepchild. Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E.2d 66, 1985 N.C. App. LEXIS 3185 (1985).

A stepchild must be factually “substantially” dependent upon the deceased in order to qualify as a child dependent on deceased under this section and, therefore, be entitled to a share of death benefits under G.S. 97-38. Capps v. Standard Trucking Co., 77 N.C. App. 448, 335 S.E.2d 357, 1985 N.C. App. LEXIS 4075 (1985).

Courts determine substantial dependency of stepchildren for purposes of death benefits under G.S. 97-39 under the facts of each case by considering the amount and consistency of support a stepchild receives from: (1) the deceased stepparent; (2) the natural parent married to the stepparent; (3) the estranged natural parent, whether such support is voluntary or required by law; (4) the income of the stepchild; and (5) any other funds regularly received for the support of the stepchild; it was found that stepchildren were substantially dependent on a deceased employee where he financially supported their household, and thus, they were conclusively presumed to have been wholly dependent on him under G.S. 97-39 and were entitled to benefits under G.S. 97-38. Goodrich v. R.L. Dresser, Inc., 161 N.C. App. 394, 588 S.E.2d 511, 2003 N.C. App. LEXIS 2204 (2003).

Children of employee’s common-law wife who were not the children of the employee were not entitled to share compensation with the employee’s legal widow and their children, even though they had been supported by the employee, since his act of maintenance was voluntary and was not a legal obligation. Wilson v. Utah Constr. Co., 243 N.C. 96, 89 S.E.2d 864, 1955 N.C. LEXIS 536 (1955).

A child born to employee’s common-law wife shortly after his death was not entitled to compensation where there was no evidence that employee had acknowledged the child. Wilson v. Utah Constr. Co., 243 N.C. 96, 89 S.E.2d 864, 1955 N.C. LEXIS 536 (1955).

Father Held Not a Dependent. —

Where deceased employee had lived at his father’s home, buying food and other supplies for the house from time to time, but when he was away from home, he made no contribution, the Commission’s finding that the father of deceased was not a dependent would be affirmed. Scott v. Auman, 209 N.C. 853, 184 S.E. 830, 1936 N.C. LEXIS 387 (1936).

§ 97-40. Commutation and payment of compensation in absence of dependents; “next of kin” defined; commutation and distribution of compensation to partially dependent next of kin; payment in absence of both dependents and next of kin.

Subject to the provisions of G.S. 97-38, if the deceased employee leaves neither whole nor partial dependents, then the compensation which would be payable under G.S. 97-38 to whole dependents shall be commuted to its present value and paid in a lump sum to the next of kin as herein defined. For purposes of this section and G.S. 97-38, “next of kin” shall include only child, father, mother, brother or sister of the deceased employee, including adult children or adult brothers or adult sisters of the deceased, but excluding a parent who has willfully abandoned the care and maintenance of his or her child and who has not resumed its care and maintenance at least one year prior to the first occurring of the majority or death of the child and continued its care and maintenance until its death or majority. For all such next of kin who are neither wholly nor partially dependent upon the deceased employee and who take under this section, the order of priority among them shall be governed by the general law applicable to the distribution of the personal estate of persons dying intestate. In the event of exclusion of a parent based on abandonment, the claim for compensation benefits shall be treated as though the abandoning parent had predeceased the employee. For all such next of kin who were also partially dependent on the deceased employee but who exercise the election provided for partial dependents by G.S. 97-38, the general law applicable to the distribution of the personal estate of persons dying intestate shall not apply and such person or persons upon the exercise of such election, shall be entitled, share and share alike, to the compensation provided in G.S. 97-38 for whole dependents commuted to its present value and paid in a lump sum.

If the deceased employee leaves neither whole dependents, partial dependents, nor next of kin as hereinabove defined, then no compensation shall be due or payable on account of the death of the deceased employee, except that the employer shall pay or cause to be paid the burial expenses of the deceased employee not exceeding ten thousand dollars ($10,000) to the person or persons entitled thereto.

History. 1929, c. 120, s. 40; 1931, c. 274, s. 5; c. 319; 1945, c. 766; 1953, c. 53, s. 2; c. 1135, s. 2; 1963, c. 604, s. 4; 1965, c. 419; 1967, c. 84, s. 5; 1971, c. 1179; 1981, c. 379; 1987, c. 729, s. 10; 2001-232, s. 3.1; 2011-287, s. 15.

Editor’s Note.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 15, which substituted “ten thousand dollars ($10,000)” for “three thousand five hundred dollars ($3,500)” near the end of the last paragraph, was applicable to claims arising on or after June 24, 2011.

Session Laws 2011-287, s. 23, effective June 24, 2011, provides: “Notwithstanding G.S. 97-31.1, this act is effective when it becomes law. Sections 4, 5, 6, 7, and 9 apply to claims pending on or after the effective date of this act. Sections 2, 3, 10, 11, 12, 13, 14, 15, and 20 apply to claims arising on or after the effective date of this act. Section 21 applies to rules adopted on or after the effective date of this act.” Session Laws 2011-287 amended several sections in Chapter 97.

Effect of Amendments.

Session Laws 2011-287, s. 15, effective June 24, 2011, and applicable to claims arising on or after that date, substituted “ten thousand dollars ($10,000)” for “three thousand five hundred dollars ($3,500)” near the end of the last paragraph.

Legal Periodicals.

For discussion of the original section, see 8 N.C.L. Rev. 427 (1930).

As to the 1931 amendments, see 9 N.C.L. Rev. 406 (1931).

CASE NOTES

Function of Section. —

Where the Commission has found that the deceased employee left no one who was dependent upon him, wholly or partially, this section determines the person or persons entitled to receive the death benefits provided in this act, but the amount payable to the person or persons entitled thereto is determined by G.S. 97-38, commuted to its present, lump sum value. Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296, 1971 N.C. LEXIS 891 (1971); Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

This Section Is Not Limited by G.S. 97-2(12). —

The doctrine of pari materia does not apply, and the provisions of this section should not be construed with the provisions of G.S. 97-2(12). Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

The imposition of the restrictions of dependency and age contained in G.S. 97-2(12) upon this section would result in a narrow and technical interpretation of the act. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

By the 1971 amendment, which includes adult children or adult brothers and adult sisters in the definition of “next of kin” contained in this section, the General Assembly evidenced its intent that the definition of “next of kin” should not be narrowly and strictly limited by the provisions of G.S. 97-2(12). Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

Removal of Requirements of Dependency, Age and Marital Status from Definition of “Next of Kin”. —

The General Assembly has shown a clear intent to remove the requirements of dependency, age and marital status from the definition of “next of kin” who are entitled to death benefits under this section. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

Married Siblings over 18 Are “Next of Kin”. —

Brothers and sisters who are 18 years of age or older and who are married are “next of kin” as defined in this section. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

Adult Illegitimate Children Were Not “Next of Kin”. —

Adult illegitimate children, who cannot show compliance with the requirements of G.S. 29-19 of the intestate succession act, are not “next of kin” as defined in this section. Brimley v. Logging, 93 N.C. App. 467, 378 S.E.2d 52, 1989 N.C. App. LEXIS 206 (1989).

Abandoning Parent Loses Share of Death Benefits of Child. —

Where the father wilfully abandoned the care and maintenance of the deceased during the latter’s minority, under G.S. 31A-2 the father loses all right to intestate succession in the distribution of the personal estate of the deceased child; consequently, he does not share in the death benefits for which the employer or its carrier is liable under G.S. 97-38. Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296, 1971 N.C. LEXIS 891 (1971).

Words “care and maintenance” were not to be read separately but instead combined to define a parent’s overall responsibilities; in order to rehabilitate, a parent had to resume the care and maintenance of the child, not just one or the other. Davis v. Trus Joist MacMillan, 148 N.C. App. 248, 558 S.E.2d 210, 2002 N.C. App. LEXIS 3 (2002).

Operative language in G.S. 31A-2, precluding an abandoning parent from inheriting from an abandoned child, is nearly identical to that in G.S. 97-40, precluding the receipt of workers’ compensation benefits by an abandoning parent due to the death of an abandoned child, as both statutes provide that a parent who has abandoned the “care and maintenance” of a child loses the right to receive a specified benefit upon the child’s death, and both provide an exception when the parent has resumed the “care and maintenance” of the child at least one year prior to the child’s death or majority. In re Estate of Lunsford, 359 N.C. 382, 610 S.E.2d 366, 2005 N.C. LEXIS 358 (2005).

Benefits do not become part of assets of estate of decedent. Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296, 1971 N.C. LEXIS 891 (1971).

Order of Priority for Benefits among Next of Kin. —

Where the deceased leaves surviving him a person or persons in two or more of these categories of relationship, the benefits are not distributed among all of such surviving “next of kin.” In that event, this section directs the Commission to “the general law applicable to the distribution of the personal estate of persons dying intestate” to determine “the order of priority” among these several persons. Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296, 1971 N.C. LEXIS 891 (1971).

The Commission is directed to the general law governing intestate succession simply because, for this purpose only, the general law of intestate succession is incorporated by reference into this section. Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296, 1971 N.C. LEXIS 891 (1971).

When the legislature, in former G.S. 28-173, provided that the proceeds of an action for wrongful death “shall be disposed of as provided in the Intestate Succession Act,” and when it provided in this section that the order of priority among claimants to death benefits payable under the act “shall be governed by the general law applicable to the distribution of the personal estate of persons dying intestate,” it had in mind the same law; i.e., the Intestate Succession Act as modified by Chapter 31A, entitled, “Acts Barring Property Rights.” Williford v. Williford, 288 N.C. 506, 219 S.E.2d 220, 1975 N.C. LEXIS 1017 (1975).

The meaning of an “order of priority” is that the person or persons in one category takes to the exclusion of the others. Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296, 1971 N.C. LEXIS 891 (1971).

Amount Payable Not Reduced Where Employee Leaves No Dependent. —

Where the deceased employee leaves no dependent, whole or partial, the amount payable is not reduced from the amount which would have been payable had the deceased employee left a person wholly dependent upon him, unless there is no person surviving who falls within the term “next of kin” as defined in this section. Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296, 1971 N.C. LEXIS 891 (1971); Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281, 1972 N.C. LEXIS 1057 (1972).

Only Future Payments Subject to Commutation or Reduction. —

By definition it is only those payments due in the future that are subject to commutation or reduction to a discounted present value. Strickland v. Carolina Classics Catfish, Inc., 127 N.C. App. 615, 492 S.E.2d 362, 1997 N.C. App. LEXIS 1132 (1997).

For cases decided prior to the 1963 amendment, which rewrote this section, see Jones' Adm'r v. E.H. Clement Co., 201 N.C. 768, 161 S.E. 403, 1931 N.C. LEXIS 90 (1931); Hunt v. State, 201 N.C. 37, 158 S.E. 703, 1931 N.C. LEXIS 174 (1931); Hamby v. Cobb, 214 N.C. 813, 1 S.E.2d 101, 1939 N.C. LEXIS 434 (1939); Parsons v. Swift & Co., 234 N.C. 580, 68 S.E.2d 296, 1951 N.C. LEXIS 531 (1951); Green v. Briley, 242 N.C. 196, 87 S.E.2d 213, 1955 N.C. LEXIS 487 (1955); Fields v. Hollowell, 238 N.C. 614, 78 S.E.2d 740, 1953 N.C. LEXIS 600 (1953).

§ 97-40.1. Second Injury Fund.

  1. There is hereby created a fund to be known as the “Second Injury Fund,” to be held and disbursed by the Industrial Commission as hereinafter provided.For the purpose of providing money for said fund the Industrial Commission may assess against the employer or its insurance carrier the payment of not to exceed two hundred fifty dollars ($250.00) for the loss, or loss of use, of each minor member in every case of a permanent partial disability where there is such loss, and shall assess not to exceed seven hundred fifty dollars ($750.00) for fifty percent (50%) or more loss or loss of use of each major member, defined as back, foot, leg, hand, arm, eye, or hearing.
  2. The Industrial Commission shall disburse moneys from the Second Injury Fund in unusual cases of second injuries as follows:
    1. To pay additional compensation in cases of second injuries referred to in G.S. 97-33; provided, however, that the original injury and the subsequent injury were each at least twenty percent (20%) of the entire member; and, provided further, that such additional compensation, when added to the compensation awarded under said section, shall not exceed the amount which would have been payable for both injuries had both been sustained in the subsequent accident.
    2. To pay additional compensation to an injured employee who has sustained permanent total disability in the manner referred to in the second paragraph of G.S. 97-35, which shall be in addition to the compensation awarded under said section; provided, however, that such additional compensation, when added to the compensation awarded under said section, shall not exceed the compensation for permanent total disability as provided for in G.S. 97-29.
    3. To pay compensation and medical expense in cases of permanent and total disability resulting from an injury to the brain or spinal cord in the manner and to the extent hereinafter provided.The additional compensation and treatment expenses herein provided for shall be paid out of the Second Injury Fund exclusively and only to the extent to which the assets of such fund shall permit.
  3. In addition to payments for the purposes hereinabove set forth, the Industrial Commission may, in its discretion, make payments from said fund for the following purposes and under the following conditions:
    1. In any case in which total and permanent disability due to paralysis or loss of mental capacity has resulted from an injury to the brain or spinal cord, the Industrial Commission may, in its discretion enter an award and pay compensation and reasonable and necessary medical, nursing, hospital, institutional, equipment, and other treatment expenses from the Second Injury Fund during the life of the injured employee in cases where the injury giving rise to such disability occurred prior to July 1, 1953, and the last payment of compensation has been made subsequent to January 1, 1941. Such compensation and medical expense shall be paid only from April 4, 1947, and after the employer’s liability for compensation and treatment expense has ended, and in every case in which the injury resulting in paralysis due to injury to the spinal cord occurred subsequent to April 4, 1947, and prior to July 1, 1953, the liability of the employer and his insurance carrier to pay compensation and medical expense during the life of the injured employee shall not be affected by this section.
    2. When compensation is allowed from the fund in any case under subdivision (1) of subsection (c), the Commission may in its discretion authorize payment of medical, nursing, hospital, equipment, and other treatment expenses incurred prior to the date compensation is allowed and after the employer’s liability has ended if funds are reasonably available in the Second Injury Fund for such purpose after paying claims in cases of second injuries as specified in G.S. 97-33 and 97-35. Should the fund be insufficient to pay both compensation and treatment expenses, then the said expenses may, in the discretion of the Commission, be paid first and compensation thereafter according to the reasonable availability of funds in the fund.

History. 1953, c. 1135, s. 2; 1957, c. 1396, s. 4; 1963, c. 450, s. 3; 1977, c. 457; 1991, c. 703, s. 11; 1993 (Reg. Sess., 1994), c. 679, s. 6.1.

Editor’s Note.

The word “section” at the end of subdivision (1) of subsection (c) appears in the printed act as “amendment.”

Legal Periodicals.

For note discussing limitations on the apportionment of disabilities, see 54 N.C.L. Rev. 1123 (1976).

For comment on Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458 (1981), see 4 Campbell L. Rev. 107 (1981).

§ 97-41. [Repealed]

Repealed by Session Laws 1973, c. 1308, s. 5.

§ 97-42. Deduction of payments.

Payments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of this Article were not due and payable when made, may, subject to the approval of the Commission be deducted from the amount to be paid as compensation. Provided, that in the case of disability such deductions shall be made by shortening the period during which compensation must be paid, and not by reducing the amount of the weekly payment. Unless otherwise provided by the plan, when payments are made to an injured employee pursuant to an employer-funded salary continuation, disability or other income replacement plan, the deduction shall be calculated from payments made by the employer in each week during which compensation was due and payable, without any carry-forward or carry-back of credit for amounts paid in excess of the compensation rate in any given week.

History. 1929, c. 120, s. 42; 1993 (Reg. Sess., 1994), c. 679, s. 3.7.

CASE NOTES

The laudable purpose of this section is to encourage voluntary payments to workers while their claims to compensation are being disputed and they are receiving no wages. Evans v. AT & T Technologies, 103 N.C. App. 45, 404 S.E.2d 183, 1991 N.C. App. LEXIS 576 (1991), rev'd, 332 N.C. 78, 418 S.E.2d 503, 1992 N.C. LEXIS 374 (1992).

The only authority for allowing an employer in this State any credit against workers’ compensation payments due an injured employee is this section. Evans v. AT & T Technologies, 103 N.C. App. 45, 404 S.E.2d 183, 1991 N.C. App. LEXIS 576 (1991), rev'd, 332 N.C. 78, 418 S.E.2d 503, 1992 N.C. LEXIS 374 (1992).

Scope of Commission’s Authority. —

The Industrial Commission only has the authority to disallow credit for the employer’s workers’ compensation payments to an employee so long as the payments did not exceed the amount determined by statute or by the Commission to compensate the employee for his injuries. Tucker v. Workable Co., 129 N.C. App. 695, 501 S.E.2d 360, 1998 N.C. App. LEXIS 779 (1998).

A deduction from the amount of the award to be paid is not required to be granted. The decision of whether to grant a credit is within the sound discretion of the Industrial Commission. Such decision to grant or deny the credit will not be disturbed in the absence of an abuse of discretion. Moretz v. Richards & Assocs., 74 N.C. App. 72, 327 S.E.2d 290, 1985 N.C. App. LEXIS 3357 (1985), modified, 316 N.C. 539, 342 S.E.2d 844, 1986 N.C. LEXIS 2158 (1986).

This section permits, but does not require, the Commission to deduct from a compensation award to an injured employee any payments made by the employer before the employee’s right to compensation under the terms of the Workers’ Compensation Act was established. Johnson v. IBM, Inc., 97 N.C. App. 493, 389 S.E.2d 121, 1990 N.C. App. LEXIS 165 (1990).

Deduction Granted in Case of Indefinite Period of Benefits. —

Where the employer and insurer paid workers’ compensation benefits to the employee while he was incarcerated to which the employee was not entitled, the employer and insurer were entitled to credit under G.S. 97-42; because the award was for an indefinite period, the employer and insurer were permitted to reduce the amount of the employee’s payments, as shortening the period of benefits was not possible because the employee’s benefits were to terminate pursuant to G.S. 97-30, G.S. 97-31 when the employee returned to work and there would be no opportunity to shorten the period of disability. Easton v. J.D. Denson Mowing, 173 N.C. App. 439, 620 S.E.2d 201, 2005 N.C. App. LEXIS 2014 (2005).

Less Than 100% Credit Was Within Commission’s Authority. —

Where the Commission’s award allowed the defendant credit for payments that they had already made through their private insurer less the plaintiff’s reasonable attorney’s fees calculated and based upon the amount of the entire worker’s compensation award, the award was authorized by the statute since all credit given by the Commission in these circumstances is “subject to the approval” of the Industrial Commission. Church v. Baxter Travenol Labs., Inc., 104 N.C. App. 411, 409 S.E.2d 715, 1991 N.C. App. LEXIS 1057 (1991).

The Industrial Commission acted within its discretion, pursuant to this section, in reducing defendants’ credit for payments made under a disability insurance policy fully funded by defendants by 25% to provide plaintiff’s counsel additional fees, although the record on appeal contained no copy of a fee award filed with the Commission as required by G.S. 97-90(c). Cole v. Triangle Brick, 136 N.C. App. 401, 524 S.E.2d 79, 2000 N.C. App. LEXIS 11 (2000).

Criteria Is Whether Payments Were “Due and Payable”. —

The analysis of whether an employer is entitled to credit under this section is limited to a determination of whether the payments for which the employer seeks credit were “due and payable” when made. Estes v. North Carolina State Univ., 89 N.C. App. 55, 365 S.E.2d 160, 1988 N.C. App. LEXIS 224 (1988).

Due and Payable Benefits Are Not Deductible. —

This section expressly provides that payments made by the employer which were “due and payable” when made are not deductible. Once the employer has accepted an injury as compensable, benefits are “due and payable.” Moretz v. Richards & Assocs., 316 N.C. 539, 342 S.E.2d 844, 1986 N.C. LEXIS 2158 (1986).

If payments are “due and payable when made” they may not be deducted from the amount to be paid employee as compensation; if they are not then due and payable the Commission has authority in its discretion to deduct them. Johnson v. IBM, Inc., 97 N.C. App. 493, 389 S.E.2d 121, 1990 N.C. App. LEXIS 165 (1990).

When an employer paid retirement disability benefits to an employee to whom it was paying workers’ compensation, these benefits were “due and payable” to the employee, so the employer was not entitled to a credit under G.S. 97-42, but might be entitled to an offset for them if they were found to have been paid pursuant to a wage-replacement program equivalent to workers’ compensation, and the employee was not separately entitled to them above his workers’ compensation payments. Rice v. City of Winston-Salem, 154 N.C. App. 680, 572 S.E.2d 794, 2002 N.C. App. LEXIS 1517 (2002).

As a carrier and employer accepted the employee’s claim as compensable and the employer initiated payment of partial benefits, the payments were considered “due and payable” under G.S. 97-42, and the carrier was not entitled to a credit for them. Smith v. First Choice Servs., 158 N.C. App. 244, 580 S.E.2d 743, 2003 N.C. App. LEXIS 1039 (2003).

Payments a professional football team made to an injured football player were payments that were due and payable prior to the player’s injury, so the North Carolina Industrial Commission proprerly denied the team a credit under G.S. 97-42 for those payments against a workers’ compensation award; however, because the Commission failed to make findings regarding whether one payment was due and payable when the injury occurred and because one of the payments was from an employee funded benefit plan, remand for findings on those payments was necessary. Smith v. Richardson Sports Ltd. Partners, 168 N.C. App. 410, 608 S.E.2d 342, 2005 N.C. App. LEXIS 348, superseded, sub. op., 172 N.C. App. 200, 616 S.E.2d 245, 2005 N.C. App. LEXIS 1440 (2005).

Employer and an insurance company could not seek a credit for a $47,059 payment to a professional football player because it was due and payable when made; the North Carolina Industrial Commission’s conclusion that the payment reflected the player’s earnings for playing in a football game the day before was supported by competent evidence, as the players were paid after the weekly football game. Smith v. Richardson Sports Ltd. Partners, 172 N.C. App. 200, 616 S.E.2d 245, 2005 N.C. App. LEXIS 1440 (2005).

Employer and an insurance company could not seek a credit for a $1 million roster bonus payment to a professional football player because it was due and payable when made, and the general manager’s testimony indicated that the roster bonus was neither paid as a result of the player’s workers’ compensation claim nor was it a part of a wage replacement plan for employees unable to work; rather, the player was contractually entitled to the bonus because the employer decided to place him on the roster, and the North Carolina Industrial Commission’s finding that the bonus should be classified as earnings was supported by competent evidence. Smith v. Richardson Sports Ltd. Partners, 172 N.C. App. 200, 616 S.E.2d 245, 2005 N.C. App. LEXIS 1440 (2005).

Employer and an insurance company could not seek a credit for payments made to a professional football player for mini-camps, workouts, and an appearance fee, as the payments were due and payable when made, and according to the player’s contract, he was obligated to participate in mini-camps, workouts, and to make appearances on behalf of the team; as the player’s payment history indicated, the payments were for participating in these activities, and the North Carolina Commission’s conclusion that these were post-injury earnings was supported by competent evidence. Smith v. Richardson Sports Ltd. Partners, 172 N.C. App. 200, 616 S.E.2d 245, 2005 N.C. App. LEXIS 1440 (2005).

Employer and an insurance company could not seek a credit for a $4.5 million signing bonus payment to a professional football player because it was due and payable when made; the player became entitled to the signing bonus upon signing his contract, which occurred pre-injury. Smith v. Richardson Sports Ltd. Partners, 172 N.C. App. 200, 616 S.E.2d 245, 2005 N.C. App. LEXIS 1440 (2005).

While the North Carolina Industrial Commission correctly determined that an employer was not entitled to credit for bonus and appearance fees paid to a professional athlete who suffered an injury during a game, as these payments were due and payable under the employee’s contract when made; furthermore, the Commission correctly found that the employee was entitled to 300 weeks of compensation. However, remand was necessary as to other payments made by the employer to determine whether the employer was entitled to credit regarding injury protection payments that were paid out of an employee-funded plan and injured reserve pay paid to the employee one year. Smith v. Richardson Sports Ltd., 2005 N.C. App. LEXIS 908.

Employer Should Not Be Denied Full Credit for Payments Under Private Benefit Plan. —

An employer who has paid an employee wage-replacement benefits under a private benefit plan at the time of that employee’s greatest need should not be penalized by being denied full credit for the amount paid as against the amount which was subsequently determined to be due the employee under the Workers’ Compensation Act; to do so would inevitably cause employers to be less generous, and the result would be that the employee would lose his or her full salary at the very moment he or she needs it most. Foster v. Western-Electric Co., 320 N.C. 113, 357 S.E.2d 670, 1987 N.C. LEXIS 2159 (1987) (expressing no opinion as to whether payments made to a claimant under a plan to which the claimant contributed would be within the purview of this section) .

In order for an employer to receive full credit for voluntary payments made to an injured employee, this section must be interpreted to mean that the amount of the deduction to which an employer, subject to the approval of the Commission, is entitled is the amount of the gross before-tax payments. Evans v. AT & T Technologies, Inc., 331 N.C. 78, 418 S.E.2d 503 (1992).

The ordinary meaning of the language of this section allows an employer, subject to Commission approval, to receive a full dollar-for-dollar credit for all such payments. Evans v. AT & T Technologies, Inc., 331 N.C. 78, 418 S.E.2d 503 (1992).

Payments a professional football team made to an injured football player were payments that were due and payable prior to the player’s injury, so the North Carolina Industrial Commission proprerly denied the team a credit under G.S. 97-42 for those payments against a workers’ compensation award; however, because the Commission failed to make findings regarding whether one payment was due and payable when the injury occurred and because one of the payments was from an employee funded benefit plan, remand for findings on those payments was necessary. Smith v. Richardson Sports Ltd. Partners, 168 N.C. App. 410, 608 S.E.2d 342, 2005 N.C. App. LEXIS 348, superseded, sub. op., 172 N.C. App. 200, 616 S.E.2d 245, 2005 N.C. App. LEXIS 1440 (2005).

North Carolina Industrial Commission erred in reducing a credit to an employer and its insurer by ordering additional payment of an injured employee’s attorney fees because the employer and the insurer were entitled to receive full credit, under G.S. 97-42, for all short-term disability payments they made to the employee under their short-term disability plan when there had not been a determination by the employer, the insurer, or the Commission when the payments were made that the employee’s injury was compensable. Strickland v. Martin Marietta Materials, 193 N.C. App. 718, 668 S.E.2d 633, 2008 N.C. App. LEXIS 2015 (2008).

The defendant employer was entitled to a credit for disability benefits where the disability compensation plan was entirely funded by the employer and no evidence indicated that the employee contributed to it. Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 532 S.E.2d 207, 2000 N.C. App. LEXIS 786 (2000).

There was no basis for denying first employer a credit for benefits overpaid to an employee where the employee’s disability was attributable to the exacerbation of his occupational disease, first contracted while working for the first employer, while working for a second employer. Shockley v. Cairn Studios, Ltd., 149 N.C. App. 961, 563 S.E.2d 207, 2002 N.C. App. LEXIS 363 (2002).

North Carolina Industrial Commission did not abuse its discretion by approving a credit to an employer for long-term disability benefits paid by the employer’s insurance carrier to the claimant because the payments were made pursuant to a plan that was fully-funded by the employer after the claimant’s short-term disability benefits terminated. The claimant’s buying additional insurance coverage, thus contributing to the plan, did not mean that the plan was no longer fully employer-funded. Seamon v. Ingersoll Rand, 238 N.C. App. 452, 767 S.E.2d 592, 2014 N.C. App. LEXIS 1394 (2014).

Limited Time Credit Was Not Abuse of Discretion. —

North Carolina Industrial Commission did not abuse its discretion by awarding a time credit of one week rather than a dollar-for-dollar credit for payments made to a former professional football player by his employer and its insurance carrier after the player was injured in the next to last game of the season because the player returned to professional football for one week in the next season and exhibited earning capacity comparable to his average weekly wage. Further, dollar-for-dollar credits were precluded by North Carolina law as a payment that the player received for the last game of the season that he missed was made by the player’s union under the terms of a collective bargaining agreement, and the agreement could not relieve the employer, in whole or in part, from its obligation to pay the player workers’ compensation. Swift v. Richardson Sports, Inc., 2005 N.C. App. LEXIS 725 (N.C. Ct. App. Apr. 5, 2005).

Employer was entitled to a dollar-for-dollar credit for amounts paid after football player’s injury under the terms of the NFL Collective Bargaining Agreement; the football player’s severance pay was earned and was not subject to a credit. Swift v. Richardson Sports, Ltd., 173 N.C. App. 134, 620 S.E.2d 533, 2005 N.C. App. LEXIS 1898 (2005).

Evidence Insufficient to Sustain Commission’s Decision That Municipal Employer Was Entitled to a Credit. —

Although evidence in the record supported the North Carolina Industrial Commission’s judgment that an employee’s cancer was accelerated by injuries the employee sustained in a work-related accident, and the appellate court affirmed the Commission’s decision to award temporary total disability benefits to the employee, the court remanded the case to the Commission for further proceedings because the record did not explain how the Commission determined the employee’s average weekly wage, a determination that was central to its award of benefits, and because there was conflicting evidence in the record which raised questions about the Commission’s findings that a city which employed the employee was entitled to a credit for long-term disability benefits it paid the employee, and that the employee was not entitled to an award of attorney’s fees. Cox v. City of Winston-Salem, 157 N.C. App. 228, 578 S.E.2d 669, 2003 N.C. App. LEXIS 535 (2003).

Credits for Payments Sent to Wrong Party. —

Employer, who failed to send every fourth award payment to injured employee’s counsel, as ordered by the North Carolina Industrial Commission, was not entitled to receive credit for payments sent instead to the injured employee. Thomas v. B.F. Goodrich, 144 N.C. App. 312, 550 S.E.2d 193, 2001 N.C. App. LEXIS 431 (2001).

Payments made by employer’s medical disability plan before it was determined that employee, who had previously received compensation for permanent partial disability, had become totally disabled, were not due and payable under the Workers’ Compensation Act “when made” and their deduction from the compensation awarded the employee for total permanent disability was authorized by this section. Johnson v. IBM, Inc., 97 N.C. App. 493, 389 S.E.2d 121, 1990 N.C. App. LEXIS 165 (1990).

An employer’s entitlement to a credit under this section is governed in the first instance by the determination of whether the payments for which the employer seeks credit were due and payable when made. Estes v. North Carolina State Univ., 102 N.C. App. 52, 401 S.E.2d 384, 1991 N.C. App. LEXIS 195 (1991).

Where defendant had not accepted claimant’s injury as compensable under workers’ compensation at the time the payments were made, nor had there been a determination of compensability by the Industrial Commission, the employer should be awarded a credit for these payments under this section. Lowe v. BE & K Constr. Co., 121 N.C. App. 570, 468 S.E.2d 396, 1996 N.C. App. LEXIS 121 (1996).

Employer and insurance carrier were entitled to a credit for benefits paid to the employee as a result of the employee’s work-related motor vehicle accident for benefits paid after the date that the employee could no longer show that the employee was disabled. The Industrial Commission had the authority pursuant to G.S. 97-42 to grant such a credit from the time that the employee was no longer able to demonstrate that the accident caused impaired earning capacity, which was about nine months after the accident occurred. Cross v. Falk Integrated Techs., Inc., 190 N.C. App. 274, 661 S.E.2d 249, 2008 N.C. App. LEXIS 867 (2008).

Employer Entitled to Dollar-for-Dollar Credit. —

Decision to award a dollar-for-dollar credit of $35,294 to an employer for an injury grievance settlement received by the employee, a professional football player, was upheld on appeal as supported by competent evidence because the player’s contract modified the provisions of G.S. 97-42 and allowed for such a credit and plainly stated that the credit shall be the amount of the payment made under the contract; because the player’s plan provided for a credit based upon the payment itself, pursuant to G.S. 97-42, the credit was not based upon the number of weeks for which the player was paid, but rather the employer was entitled to a credit for the $35,294 settlement paid to the player on a dollar-for-dollar basis. Renfro v. Richardson Sports, Ltd. Partners, 172 N.C. App. 176, 616 S.E.2d 317, 2005 N.C. App. LEXIS 1435 (2005).

Carrier Not Entitled to Credit. —

G.S. 97-42 does not provide for the insurance carrier to receive a credit for payments made by the employer. Smith v. First Choice Servs., 158 N.C. App. 244, 580 S.E.2d 743, 2003 N.C. App. LEXIS 1039 (2003).

Credit Denied to a Self-Insured City for Disability Retirement Payments. —

North Carolina Industrial Commission’s decision to deny a city credit for disability retirement payments that were made to an injured city employee from a public employee benefits program was not an abuse of discretion under G.S. 97-42 because the city and the employee jointly contributed to the plan, and competent evidence, in the form of testimony as to the funding of the disability benefits plan, existed to support the Commission’s findings of fact and conclusions of law. Cox v. City of Winston-Salem, 171 N.C. App. 112, 613 S.E.2d 746, 2005 N.C. App. LEXIS 1161 (2005).

Employer was not entitled to use accumulated sick and vacation leave to offset its obligations as determined by the Industrial Commission. Under G.S. 97-6 and G.S. 97-7, employers, including the State, are prohibited from providing benefits in lieu of paying workers’ compensation. Estes v. North Carolina State Univ., 102 N.C. App. 52, 401 S.E.2d 384, 1991 N.C. App. LEXIS 195 (1991).

Where injured employees had the option of taking accumulated sick and vacation leave, or any portion of either, and then go on workers’ compensation leave and begin drawing workers’ compensation, this option did not operate as a wage-replacement program tantamount to workers’ compensation. The Industrial Commission erred in concluding as a matter of law that the payments were not due and payable under the Workers’ Compensation Act when paid for purposes of a setoff or credit pursuant to this section. Estes v. North Carolina State Univ., 102 N.C. App. 52, 401 S.E.2d 384, 1991 N.C. App. LEXIS 195 (1991).

Severance Payments Made to Terminated Employee Not Deductible. —

North Carolina Industrial Commission’s decision to credit an employer for severance payments made to a terminated employee was reversed and remanded, because: (1) the employee’s severance pay was an earned benefit of a contractual nature, which was due and payable when received; and (2) the employee’s severance pay was not compensation for his disability. Meares v. Dana Corporation/Wix Div., 172 N.C. App. 291, 615 S.E.2d 912, 2005 N.C. App. LEXIS 1433 (2005).

Defendants Held Not Entitled to Deduction. —

Where temporary total disability payments for stress-induced depression resulting from injury were to begin approximately six months after the final payment on the scheduled award for permanent partial disability, the defendants would not be given credit on award for temporary total disability for compensation previously awarded under G.S. 97-31(15). Hill v. Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1, 1986 N.C. App. LEXIS 2021 (1986), aff'd in part, vacated in part, 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Where employer and carrier accepted plaintiff ’s injury as compensable, and initiated the payment of benefits, those payments were due and payable and were not deductible under the provisions of this section, so long as the payments did not exceed the amount determined by statute or by the Commission to compensate plaintiff for his injuries. Moretz v. Richards & Assocs., 316 N.C. 539, 342 S.E.2d 844, 1986 N.C. LEXIS 2158 (1986).

Defendant insurer was not entitled to a credit under this section, where the deputy commissioner’s opinion required another defendant insurer to pay “at least fifty percent of the compensation due” and rendered such payment “due and payable” before the $3,500.00 was paid to plaintiff. Royce v. Rushco Food Stores, Inc., 139 N.C. App. 322, 533 S.E.2d 284, 2000 N.C. App. LEXIS 898 (2000).

Employer was not entitled to a credit against the workers’ compensation that employer was obligated to pay an employee for royalty income employee received from another source. Jenkins v. Piedmont Aviation Servs., 147 N.C. App. 419, 557 S.E.2d 104, 2001 N.C. App. LEXIS 1192 (2001).

North Carolina Industrial Commission erred in offsetting an employee’s workers’ compensation award by the amount of wages an employer already paid to him while he was working in an unsuitable part-time position because the Commission mission found that the work the employee was performing for the employer was unsuitable, but it did not find that the payments made to the employee for that work were tantamount to workers’ compensation, that the payments were a wage-replacement benefit equivalent to workers’ compensation, or that they were meant to compensate him for his disability, and the Commission could not simply total the amounts the employer paid to determine whether those amounts equaled or exceeded the workers’ compensation to which the employee was entitled; during the period in which the employee was working in the unsuitable part-time job and not receiving total disability compensation, he was required to use up vacation or sick leave, but such benefits could not be used to offset unpaid workers’ compensation benefits. Clayton v. Mini Data Forms, Inc., 199 N.C. App. 410, 681 S.E.2d 544, 2009 N.C. App. LEXIS 1485 (2009).

Credit Properly Denied. —

Industrial Commission properly granted indemnity payments to plaintiff, because G.S. 97-42 gave the Commission discretion to deny a credit to defendants for an overpayment of benefits, and the sanction imposed under G.S. 97-18 was reasonable based on defendants’ failure to comply with the statute, as defendants admitted and accepted plaintiff’s right to compensation and failed to notify the Commission. Bennett v. Sheraton Grand, 186 N.C. App. 250, 650 S.E.2d 660, 2007 N.C. App. LEXIS 2083 (2007).

Credit Properly Awarded. —

Industrial Commission properly addressed and adjudicated the accident-and-sickness credit issue, and competent evidence supported the dispositive findings of fact, which supported the Commission’s conclusion defendants were entitled to the accident-and-sickness credit and its award of that credit. Haulcy v. Goodyear Tire & Rubber Co., 259 N.C. App. 791, 817 S.E.2d 121, 2018 N.C. App. LEXIS 582 (2018).

“Fringe Benefit” Rationale No Longer Appropriate. —

The “fringe benefit” rationale followed by the court in Ashe v. Barnes, 255 N.C. 310, 121 S.E.2d 549 (1961), in determining the issue of credit under this section is no longer the appropriate basis for decision in view of Foster v. Western-Electric Co., 320 N.C. 113, 357 S.E.2d 670 (1987). Estes v. North Carolina State Univ., 89 N.C. App. 55, 365 S.E.2d 160, 1988 N.C. App. LEXIS 224 (1988).

Credit Held “Week-by-Week”. —

In paying plaintiff employee workers’ compensation awarded, the credit due to the defendant employer for the payments it made to plaintiff while she was unable to work and her right to workers’ compensation was being contested was a “week-by-week” credit, not “dollar-for-dollar.” Evans v. AT & T Technologies, 103 N.C. App. 45, 404 S.E.2d 183, 1991 N.C. App. LEXIS 576 (1991), rev'd, 332 N.C. 78, 418 S.E.2d 503, 1992 N.C. LEXIS 374 (1992).

Credits against worker’s compensation that a professional football team was entitled to for payments the team made to one of its professional football players after the player sustained a football related injury were properly ordered on a time basis by reducing the number of weeks of compensation the player received rather than a dollar-for-dollar reduction of the weekly amount the player would receive in workers’ compensation. Smith v. Richardson Sports Ltd. Partners, 168 N.C. App. 410, 608 S.E.2d 342, 2005 N.C. App. LEXIS 348, superseded, sub. op., 172 N.C. App. 200, 616 S.E.2d 245, 2005 N.C. App. LEXIS 1440 (2005).

Offsetting Sickness and Disability Plan Payments Against Compensation Authorized. —

Since the wage payments under employee Sickness and Disability Plan belonged to claimant, using them to offset employer’s obligations to pay her compensation for other weeks is not authorized by G.S. 97-42 and would be confiscatory if it was. But though the wage payments were hers, offsetting them against compensation awarded her for the same weeks is authorized for two reasons: First, no compensation is due claimant for the weeks that her wages were paid because disability under the Workers’ Compensation Act is based upon decreased earnings, and she had sustained no wage loss; and second, the claimant cannot collect workers’ compensation for the weeks that her wages were paid because of the policy against employees receiving duplicating payments at the employers’ expense. Evans v. AT & T Technologies, 103 N.C. App. 45, 404 S.E.2d 183, 1991 N.C. App. LEXIS 576 (1991), rev'd, 332 N.C. 78, 418 S.E.2d 503, 1992 N.C. LEXIS 374 (1992).

Failure to Determine the Amount of the Credit When Sufficient Evidence to do so Was Presented. —

North Carolina Industrial Commission erred in failing to determine the amount of credit owed by a worker to a self-insured employer and administering agency pursuant to G.S. 97-42, as there was sufficient evidence to determine the amount owed, and the worker faced a potential double liability for the credit and a subrogation requirement under a disability policy. Moore v. Fed. Express, 162 N.C. App. 292, 590 S.E.2d 461, 2004 N.C. App. LEXIS 127 (2004).

§ 97-42.1. Credit for unemployment benefits.

If an injured employee has received unemployment benefits under the Employment Security Law for any week with respect to which he is entitled to workers’ compensation benefits for temporary total or permanent and total disability, the employment benefits paid for such weeks may be deducted from the award to be paid as compensation. If an injured employee has received unemployment benefits for any week with respect to which he is entitled to workers’ compensation benefits for partial disability as provided in G.S. 97-30, the unemployment benefits paid for such weeks may be deducted from the award to be paid only to the extent that the sum of the unemployment benefits and workers’ compensation payable for such week exceeds two-thirds of the injured employee’s average weekly wages as determined by the Commission in accordance with G.S. 97-2(5). Benefits payable under G.S. 97-31 for permanent partial disability or other permanent injury shall not be subject to reduction because of the receipt of unemployment benefits.

History. 1985, c. 616, s. 1.

§ 97-43. Commission may prescribe monthly or quarterly payments.

The Industrial Commission, upon application of either party, may, in its discretion, having regard to the welfare of the employee and the convenience of the employer, authorize compensation to be paid monthly or quarterly instead of weekly.

History. 1929, c. 120, s. 43.

§ 97-44. Lump sums.

Whenever any weekly payment has been continued for not less than six weeks, the liability therefor may, in unusual cases, where the Industrial Commission deems it to be to the best interest of the employee or his dependents, or where it will prevent undue hardships on the employer or his insurance carrier, without prejudicing the interests of the employee or his dependents, be redeemed, in whole or in part, by the payment by the employer of a lump sum which shall be fixed by the Commission, but in no case to exceed the uncommuted value of the future installments which may be due under this Article. The Commission, however, in its discretion, may at any time in the case of a minor who has received permanently disabling injuries either partial or total provide that he be compensated, in whole or in part, by the payment of a lump sum, the amount of which shall be fixed by the Commission, but in no case to exceed the uncommuted value of the future installments which may be due under this Article.

History. 1929, c. 120, s. 44; 1963, c. 450, s. 4; 1975, c. 255.

Legal Periodicals.

For discussion of this section, see 8 N.C.L. Rev. 427 (1930).

CASE NOTES

Lump Sum Payable Only in Unusual Cases. —

The general statutory scheme for periodic payment of income benefits can be changed to a lump sum payment only in unusual cases and when the commissioner deems it to be in the best interest of the employee or his dependents. Harris v. Lee Paving Co., 47 N.C. App. 348, 267 S.E.2d 381, 1980 N.C. App. LEXIS 3072 (1980).

The maximum amount of the lump sum under this section is not its commuted value or its commutable value but rather its uncommuted value. Harris v. Lee Paving Co., 47 N.C. App. 348, 267 S.E.2d 381, 1980 N.C. App. LEXIS 3072 (1980).

§ 97-45. Reducing to judgment outstanding liability of insurance carriers withdrawing from State.

Upon the withdrawal of any insurance carrier from doing business in the State that has any outstanding liability under the Workers’ Compensation Act, the Insurance Commissioner shall immediately notify the North Carolina Industrial Commission, and thereupon the said North Carolina Industrial Commission shall issue an award against said insurance carrier and commute the installments due the injured employee or employees, and immediately have said award docketed in the superior court of the county in which the claimant resides, and the said North Carolina Industrial Commission shall then cause suit to be brought on said judgment in the state of the residence of any such insurance carrier, and the proceeds from said judgment after deducting the cost, if any, of the proceeding, shall be turned over to the injured employee, or employees, taking from such employee, or employees, the proper receipt in satisfaction of his claim.

History. 1933, c. 474; 1979, c. 714, s. 2.

§ 97-46. Lump sum payments to trustee; receipt to discharge employer.

Whenever the Industrial Commission deems it expedient any lump sum, subject to the provisions of G.S. 97-44, shall be paid by the employer to some suitable person or corporation appointed by the superior court in the county wherein the accident occurred, as trustee, to administer the same for the benefit of the person entitled thereto, in the manner provided by the Commission. The receipt of such trustee for the amount as paid shall discharge the employer or anyone else who is liable therefor.

History. 1929, c. 120, s. 45.

§ 97-47. Change of condition; modification of award.

Upon its own motion or upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this Article, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys paid but no such review shall be made after two years from the date of the last payment of compensation pursuant to an award under this Article, except that in cases in which only medical or other treatment bills are paid, no such review shall be made after 12 months from the date of the last payment of bills for medical or other treatment, paid pursuant to this Article.

History. 1929, c. 120, s. 46; 1931, c. 274, s. 6; 1947, c. 823; 1973, c. 1060, s. 2.

Legal Periodicals.

For note on the range of compensable consequences of a work-related injury, see 49 N.C.L. Rev. 583 (1971).

For survey of 1976 case law on workers’ compensation, see 55 N.C.L. Rev. 1116 (1977).

For Survey of Developments in North Carolina Law (1992), see 71 N.C.L. Rev. 1893 (1993).

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For note, “The Fairness Requirement for a Workers’ Compensation Agreement — The Effect of Vernon v. Steven L. Mabe Builders,” see 17 Campbell L. Rev. 521 (1995).

CASE NOTES

Analysis

I.In General

This section cannot apply unless there has been a previous award of the Commission. Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777, 1953 N.C. LEXIS 704 (1953).

The Industrial Commission’s authority under this statute is limited to review of prior awards, and the statute is inapplicable in instances where there has been no previous final award. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971). See also, Pratt v. Central Upholstery Co., 252 N.C. 716, 115 S.E.2d 27, 1960 N.C. LEXIS 444 (1960).

This section has no application except where it is made to appear that a previous award was made by the Industrial Commission. Where the record on appeal to the superior court from an award of the Industrial Commission does not disclose a previous award made to claimant, defendant’s contention that the award appealed from cannot be sustained in the absence of a finding of change of condition is untenable. Penland v. Bird Coal Co., 246 N.C. 26, 97 S.E.2d 432, 1957 N.C. LEXIS 359 (1957).

The Industrial Commission’s authority under this section is limited to the review of prior awards; thus the statute is inapplicable unless there has been a previous final award. Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 354 S.E.2d 477, 1987 N.C. LEXIS 1935 (1987).

The “award” referred to in this section, which the Industrial Commission may not review after two years from the date of the last payment of compensation thereunder, is a final award, and this section does not apply to an interlocutory award. Beard v. Blumenthal Jewish Home, 87 N.C. App. 58, 359 S.E.2d 261, 1987 N.C. App. LEXIS 2962 (1987).

This section establishes conditions under which otherwise final disability evaluations can be reviewed and revised when changes occur; it does not establish either a procedure or a limitations period for processing unresolved claims for permanent disability. Beard v. Blumenthal Jewish Home, 87 N.C. App. 58, 359 S.E.2d 261, 1987 N.C. App. LEXIS 2962 (1987).

And it does not apply if the Commission has no jurisdiction of the claim. Hart v. Thomasville Motors, Inc., 244 N.C. 84, 92 S.E.2d 673, 1956 N.C. LEXIS 662 (1956).

Continuing Jurisdiction. —

It was the purpose of the General Assembly that the Industrial Commission should have a continuing jurisdiction of all proceedings begun before the Commission for compensation in accordance with its terms. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Implicit in the authority accorded the Commission to order additional compensation under this section and further medical treatment is the requirement that the supplemental compensation and future treatment be directly related to the original compensable injury. Peeler v. Piedmont Elastic, Inc., 132 N.C. App. 713, 514 S.E.2d 108, 1999 N.C. App. LEXIS 266 (1999).

Proceeding Is Pending Until All Disabilities Are Considered. —

Until all of an injured employee’s compensable injuries and disabilities have been considered and adjudicated by the Commission, the proceeding pends for the purpose of evaluation, absent laches or some statutory time limitation. Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965).

Absent Previous Award, Jurisdiction Is Retained by Commission. —

In cases where there has been no previous final award, jurisdiction is retained by and remains in the Industrial Commission pending a termination of the case by final award, and no statute runs against a litigant while his case is pending in court. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

This section is inapplicable in cases in which there has been no previous final award. In such cases, jurisdiction remains in the Commission pending termination of the case by a final award. Hill v. Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1, 1986 N.C. App. LEXIS 2021 (1986), aff'd in part, vacated in part, 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Section Not Applicable to Claims for Medical Expenses. —

This section does not apply to an employee’s right to claim medical payments under the Workers’ Compensation Act. Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698, 1993 N.C. LEXIS 219 (1993).

Nothing in the language of G.S. 97-25 implies that the “change of condition” requirement of this section applies to any request by an employee for the payment of his medical expenses by his employer. Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698, 1993 N.C. LEXIS 219 (1993).

The Commission must concern itself with the claimant’s level of disability as it exists prior to and at the time of hearing. If a change occurs in the future rendering plaintiff capable of earning some wages, the statute affords defendants a remedy. Carothers v. Ti-Caro, 83 N.C. App. 301, 350 S.E.2d 95, 1986 N.C. App. LEXIS 2695 (1986).

Consideration of Expert Opinion. —

In a worker’s compensation claimant’s appeal from the order of the North Carolina Industrial Commission, finding that the claimant had not sustained a change of condition under G.S. 97-47, the court rejected the claimant’s contention that the Commission improperly disregarded the expert opinions of her vocational expert by not mentioning the expert’s report in its opinion and award. The expert did not testify either at the hearing or by deposition; instead, his report was merely used by the claimant’s treating physicians in forming their deposition testimony and opinions, and as a result, it was not necessary for the Commission to make further findings regarding the documents used during the depositions. Hunt v. N.C. State Univ., 194 N.C. App. 662, 670 S.E.2d 309, 2009 N.C. App. LEXIS 35 (2009).

The proper procedure to end, diminish or increase a compensation award previously issued is a motion to the Industrial Commission under this section. Hill v. Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1, 1986 N.C. App. LEXIS 2021 (1986), aff'd in part, vacated in part, 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Where plaintiff’s initial compensation award for temporary total disabilities was determined by agreement prior to the time plaintiff became fully aware of the extent of his injuries, and plaintiff’s initial claim was closed upon the filing of Form 28B, the proper procedure for presenting plaintiff’s claim for his alleged permanent disabilities was through the statutorily prescribed procedure for compensation for substantial change of condition. Chisholm v. Diamond Condominium Constr. Co., 83 N.C. App. 14, 348 S.E.2d 596, 1986 N.C. App. LEXIS 2634 (1986).

Where the Industrial Commission established an administrative procedure which allowed and condoned the termination of compensation by an employer and the employer’s insurance carrier by the mere filing of an Industrial Commission created form (Form 24) notifying the Commission and the employee that compensation was being terminated, the Commission exceeded its authority. Martin v. Piedmont Asphalt & Paving Co., 113 N.C. App. 121, 437 S.E.2d 696, 1993 N.C. App. LEXIS 1309 (1993), vacated, 337 N.C. 785, 448 S.E.2d 380, 1994 N.C. LEXIS 575 (1994).

Power of Commission to Grant Rehearing. —

The Industrial Commission has the power, in a proper case, and in accordance with its rules and regulations, to grant a rehearing of a proceeding pending before it, and in which it has made an award, on the ground of newly discovered evidence. Owens v. Standard Mineral Co., 10 N.C. App. 84, 177 S.E.2d 775, 1970 N.C. App. LEXIS 1192 (1970), cert. denied, 277 N.C. 726, 178 S.E.2d 831, 1971 N.C. LEXIS 1077 (1971).

The Effect of Litigation of Earning Capacity on Review of Form 26 Agreement. —

Where plaintiff’s earning capacity was actually litigated and necessary to the outcome of his hearing under this section, the Industrial Commission was bound by that finding in determining if a Form 26 agreement was fair and just; therefore, its finding that the agreement was “improvidently approved” on the grounds that plaintiff had no earning capacity, thus qualifying him for benefits under G.S. 97-29, would be reversed. Lewis v. Craven Reg'l Med. Ctr., 134 N.C. App. 438, 518 S.E.2d 1, 1999 N.C. App. LEXIS 804 (1999), aff'd, 352 N.C. 668, 535 S.E.2d 33, 2000 N.C. LEXIS 750 (2000).

The fact that evidence claimed as the basis of a motion to open a compensation award was not newly discovered and might have been offered at the original hearing in the exercise of due diligence and that counsel, through inadvertence, failed to present a ground upon which compensation might have been allowed did not prevent the Industrial Commission from granting such a motion. Owens v. Standard Mineral Co., 10 N.C. App. 84, 177 S.E.2d 775, 1970 N.C. App. LEXIS 1192 (1970), cert. denied, 277 N.C. 726, 178 S.E.2d 831, 1971 N.C. LEXIS 1077 (1971).

The Commission has the power to order a rehearing on the basis of newly discovered evidence. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Reopening Award Where Change Would Necessitate Award in Different Category. —

The fact that the change necessitates making an award in an entirely different category, as when an original award was one of temporary benefits for time loss and the award on reopening would be for total permanent disability, is no obstacle to reopening. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

Discretion of Commission over Motion for Rehearing. —

Ordinarily, a motion for further hearing on the grounds of introducing additional or newly discovered evidence rests in the sound discretion of the Industrial Commission, but this principle is not applicable where the Commission declines to consider such a motion under a misapprehension of applicable principles of law. Owens v. Standard Mineral Co., 10 N.C. App. 84, 177 S.E.2d 775, 1970 N.C. App. LEXIS 1192 (1970), cert. denied, 277 N.C. 726, 178 S.E.2d 831, 1971 N.C. LEXIS 1077 (1971).

Improper Denial of Rehearing. —

An employee’s application for a rehearing on the ground that he has additional evidence to establish his claim of disability by silicosis is improperly dismissed by the Industrial Commission, where (1) the employee’s application is timely made and (2) the Commission acted under a misapprehension of the law in denying the application. Owens v. Standard Mineral Co., 10 N.C. App. 84, 177 S.E.2d 775, 1970 N.C. App. LEXIS 1192 (1970), cert. denied, 277 N.C. 726, 178 S.E.2d 831, 1971 N.C. LEXIS 1077 (1971).

Power to Set Aside Judgment. —

The Industrial Commission has inherent power analogous to that conferred on courts by G.S. 1A-1, Rule 60(b)(6), in the exercise of supervision over its own judgments to set aside a former judgment when the paramount interest in achieving a just and proper determination of a workers’ compensation claim requires it. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Because the power to set aside a former judgment is vital to the proper functioning of the judiciary, the Legislature impliedly vested such power in the Commission in conjunction with the judicial power which the Legislature granted it to administer the Workers’ Compensation Act. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

The Industrial Commission possesses such judicial power as is necessary to administer the Workers’ Compensation Act. The Commission’s judicial power includes the power to set aside a former judgment on the grounds of mutual mistake, misrepresentation, or fraud. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

As to application seeking modification of settlement agreement, see Morgan v. Town of Norwood, 211 N.C. 600, 191 S.E. 345, 1937 N.C. LEXIS 157 (1937).

Agreement to pay compensation, when approved by the Commission, is the equivalent of an award. White v. Shoup Boat Corp., 261 N.C. 495, 135 S.E.2d 216, 1964 N.C. LEXIS 515 (1964); Gantt v. Hickory Motor Sales, Inc., 8 N.C. App. 559, 174 S.E.2d 624, 1970 N.C. App. LEXIS 1611 (1970); Watkins v. Central Motor Lines, 10 N.C. App. 486, 179 S.E.2d 130, 1971 N.C. App. LEXIS 1655, rev'd, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

A validly executed Industrial Commission Form 21 agreement (“Agreement for Compensation for Disability”) constitutes an “award” under the North Carolina Workers’ Compensation Act. Apple v. Guilford County, 84 N.C. App. 679, 353 S.E.2d 641, 1987 N.C. App. LEXIS 2549, rev'd, 321 N.C. 98, 361 S.E.2d 588, 1987 N.C. LEXIS 2498 (1987).

A closing receipt purports to be a final settlement and indicates that no further compensation will be paid unless a request for a hearing for a change of condition is timely made. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

Award Retaining Jurisdiction in Commission for Future Adjustments. —

Claimant, following a back injury, returned to the same employer and was paid the same wages as before his injury although he was doing lighter work. The award of the Commission found as a fact that claimant was being paid wages “in lieu of compensation” and retained jurisdiction for 300 weeks from the date of injury so that future adjustments might be made in compensation payable should employee suffer any wage loss due to his injury within that period. The Supreme Court affirmed this action, saying that the Commission did not exceed its authority in thus retaining jurisdiction to protect the employee against imposition by the employer. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 1943 N.C. LEXIS 246 (1943), limited, Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

There is nothing in the act that contemplates or authorizes an anticipatory finding by the Commission that a physical impairment may develop into a compensable disability. Neither does the act vest in the Commission the power to retain jurisdiction of a claim, after compensation has been awarded, merely because some physical impairment suffered by the claimant may, at some time in the future, cause a loss of wages. The Commission is concerned with conditions existing prior to and at the time of the hearing. If such conditions change in the future, to the detriment of the claimant, this section affords the claimant a remedy and fixes the time within which he must seek it. Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438, 1951 N.C. LEXIS 322 (1951).

Claimant suffered multiple injuries in a wreck. After hearing, the Commission found as a fact that he had suffered 20 percent permanent partial disability. However, it also found that he was suffering no wage loss as a result of injury at the time of hearing. It did not appear that he was being paid wages in lieu of compensation. On the further finding that the physical impairment might cause loss of wages in the future, the Commission attempted to retain jurisdiction during 300 weeks from the date of injury. This was held to be error by the Supreme Court. Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438, 1951 N.C. LEXIS 322 (1951).

A change of theory in the application for review in the superior court from that pursued before the hearing commissioner and the full commission is not permissible. McGinnis v. Old Fort Finishing Plant, 253 N.C. 493, 117 S.E.2d 490, 1960 N.C. LEXIS 696 (1960).

Failure to Appeal from Adverse Finding Bars Claim for Change of Condition. —

A plaintiff who failed to appeal from the Industrial Commission’s finding that there was no causal relation between the immobility in his right leg and an accident arising out of his employment was barred from asserting a subsequent claim for change of condition with respect to the right leg. West v. J.P. Stevens Co., 12 N.C. App. 456, 183 S.E.2d 876, 1971 N.C. App. LEXIS 1383 (1971).

Avenue of Review Where Appeal Not Taken. —

Where the plaintiff did not perfect an appeal from the Industrial Commission’s order denying her claim for workers’ compensation based upon an accident which arose out of and in the course of her employment, she was not entitled to a hearing de novo, and the only avenue of review open to her was an application for review based on a change of condition pursuant to the provisions of this section. Smith v. Carolina Footware, Inc., 50 N.C. App. 460, 274 S.E.2d 386, 1981 N.C. App. LEXIS 2135 (1981).

Review by Court of Appeals. —

Conclusions of law, including whether there has been a change of condition pursuant to this section, are reviewable de novo by the Court of Appeals. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 491 S.E.2d 678, 1997 N.C. App. LEXIS 1056 (1997).

II.Change of Condition

The language of this section is clear. White v. Shoup Boat Corp., 261 N.C. 495, 135 S.E.2d 216, 1964 N.C. LEXIS 515 (1964).

And Provides Only Basis for Altering Final Award. —

There is no basis for altering a final award of compensation, other than that provided by this section. Watkins v. Central Motor Lines, 10 N.C. App. 486, 179 S.E.2d 130, 1971 N.C. App. LEXIS 1655, rev'd, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

Commission May Alter Compensation Only upon a “Change in Condition”. —

The Industrial Commission is given authority to review an award and to end, diminish or increase the compensation previously awarded only when there has been a “change in condition” of the claimant, as provided in this section. Murray v. Nebel Knitting Co., 214 N.C. 437, 199 S.E. 609, 1938 N.C. LEXIS 370 (1938).

When an award had been entered for total disability for a certain length of time, and for partial disability thereafter for a total of 30 weeks under G.S. 97-30, the Industrial Commission could not, upon a review of the award on claimant’s application prior to the payment of the last installment of the award, increase the award of compensation to that allowed for total disability under G.S. 97-29, upon its finding that claimant was unable to earn any appreciable sum by his labor, when the Commission also found that at the time of the review of the award claimant’s condition was unchanged and that he was at that time only 50 percent disabled. Murray v. Nebel Knitting Co., 214 N.C. 437, 199 S.E. 609, 1938 N.C. LEXIS 370 (1938).

North Carolina Industrial Commission erred by awarding a workers’ compensation claimant additional disability compensation as the claimant did not prove the claimant had sustained a change of condition under G.S. 97-47, and the only way an award could be modified under G.S. 97-29 was if the claimant showed a change in condition. Ward v. Floors Perfect, 183 N.C. App. 541, 645 S.E.2d 109, 2007 N.C. App. LEXIS 1179 (2007), rev'd, 362 N.C. 280, 658 S.E.2d 656, 2008 N.C. LEXIS 332 (2008).

The Commission was not required to give weight to potentially damaging evidence elicited by the cross-examination of plaintiff’s doctor regarding the etiology of fibromyalgia, nor did it fail to give proper weight to the opinion testimony of another doctor who indicated that plaintiff’s current complaints were “not causally related to [her] prior compensable injury.” Young v. Hickory Bus. Furniture, 137 N.C. App. 51, 527 S.E.2d 344, 2000 N.C. App. LEXIS 263, rev'd, 353 N.C. 227, 538 S.E.2d 912, 2000 N.C. LEXIS 901 (2000).

A change of condition under this section is a substantial change in physical capacity to earn wages, occurring after a final award of compensation, different from that existing when the award was made. Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 508 S.E.2d 831, 1998 N.C. App. LEXIS 1445 (1998).

A change in physical capacity to earn wages alone is sufficient to support an award of additional compensation for change of condition. Dinkins v. Federal Paper Bd. Co., 120 N.C. App. 192, 461 S.E.2d 909, 1995 N.C. App. LEXIS 784 (1995).

The primary factor in determining if a change of condition has occurred is whether the employee’s physical capacity to earn wages has been affected. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 491 S.E.2d 678, 1997 N.C. App. LEXIS 1056 (1997).

A change in condition can consist of either a change in the claimant’s physical condition that impacts his earning capacity, a change in the claimant’s earning capacity even though claimant’s physical condition remains unchanged, or a change in the degree of disability even though claimant’s physical condition remains unchanged. Blair v. American Television & Communications Corp., 124 N.C. App. 420, 477 S.E.2d 190, 1996 N.C. App. LEXIS 1073 (1996).

No “Change of Condition” Requirement for Claims for Medical Expenses. —

The complete absence of an express or implied reference in G.S. 97-25 to any “change of condition” requirement, in addition to that statute’s clear language permitting the Industrial Commission to review medical treatment an employee is receiving and order further treatment at any time if an employee requests such a review, indicated that the legislature did not intend for an injured employee to make any showing of a change in condition before his employer would be required to pay for further medical services or treatment needed as a result of his compensable injury. Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698, 1993 N.C. LEXIS 219 (1993).

It was not the intent of the legislature to require an injured employee to make any showing of a change in condition before his employer would be required to pay further medical services or treatment needed as a result of his compensable injury. Poe v. Raleigh/Durham Airport Auth., 121 N.C. App. 117, 464 S.E.2d 689, 1995 N.C. App. LEXIS 1038 (1995).

Compensation Does Not Include Medical Expenses. —

Because “compensation” does not include the payment of medical expenses, this provision does not affect the Commission’s grant or denial of an employee’s request for payments of those expenses. The Commission’s authority for requiring an employer to pay the medical expenses of an injured employee is established by the terms of G.S. 97-25. Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698, 1993 N.C. LEXIS 219 (1993).

“Change of condition” refers to a substantial change, after a final award of compensation, of the injured employee’s physical capacity to earn and, in some cases, of his earnings. Swaney v. George Newton Constr. Co., 5 N.C. App. 520, 169 S.E.2d 90, 1969 N.C. App. LEXIS 1390 (1969); Gaddy v. Kern, 32 N.C. App. 671, 233 S.E.2d 609, 1977 N.C. App. LEXIS 2036 (1977); Edwards v. Smith & Sons, 49 N.C. App. 191, 270 S.E.2d 569, 1980 N.C. App. LEXIS 3345 (1980); Haponski v. Constructor's Inc., 87 N.C. App. 95, 360 S.E.2d 109, 1987 N.C. App. LEXIS 3078 (1987).

Workers’ compensation claimant failed to prove that the claimant had suffered a change in condition under G.S. 97-47, as the claimant’s physician stated that any incapacity for work the claimant had was of the same kind and character as the claimant had at the time of the original hearing; a continued incapacity of the same kind and character and for the same injury was not a change of condition. Ward v. Floors Perfect, 183 N.C. App. 541, 645 S.E.2d 109, 2007 N.C. App. LEXIS 1179 (2007), rev'd, 362 N.C. 280, 658 S.E.2d 656, 2008 N.C. LEXIS 332 (2008).

A change of condition means an actual change and not a mere change of opinion with respect to a preexisting condition. West v. J.P. Stevens Co., 12 N.C. App. 456, 183 S.E.2d 876, 1971 N.C. App. LEXIS 1383 (1971); Gaddy v. Kern, 32 N.C. App. 671, 233 S.E.2d 609, 1977 N.C. App. LEXIS 2036 (1977); Edwards v. Smith & Sons, 49 N.C. App. 191, 270 S.E.2d 569, 1980 N.C. App. LEXIS 3345 (1980).

Change in Physical Capacity to Earn Wages Alone. —

Where plaintiff was unable to find another job, due to his severe physical restrictions, coupled with his vocational and educational limits, because the record was rife with testimony that plaintiff suffered a compensable work-related injury which caused damage to the lumbar region of plaintiff’s back, and Industrial Commission was able to determine that subsequent accident caused a “temporary flare-up” of plaintiff’s pre-existing injury, it followed that plaintiff’s change in wage earning capacity must have been a result of that same pre-existing injury; the Commission’s findings and conclusions to the contrary were unsupported by the evidence and were therefore reversed. Poe v. Raleigh/Durham Airport Auth., 121 N.C. App. 117, 464 S.E.2d 689, 1995 N.C. App. LEXIS 1038 (1995).

Change of condition refers to conditions different from those existent when the award was made, and a continued incapacity of the same kind and character and for the same injury is not a change of condition; the change must be actual, and not a mere change of opinion with respect to the pre-existing condition. Haponski v. Constructor's Inc., 87 N.C. App. 95, 360 S.E.2d 109, 1987 N.C. App. LEXIS 3078 (1987).

In determining if a change of condition has occurred, entitling an employee to additional compensation under this section, the primary factor is a change in condition affecting the employee’s physical capacity to earn wages. Lucas v. Bunn Mfg. Co., 90 N.C. App. 401, 368 S.E.2d 386, 1988 N.C. App. LEXIS 536 (1988).

Change of Physician’s Opinion. —

A mere change of doctor’s opinion with respect to claimant’s preexisting condition does not constitute a change of condition required by this section. Shuler v. Talon Div. of Textron, 30 N.C. App. 570, 227 S.E.2d 627, 1976 N.C. App. LEXIS 2305 (1976), overruled, Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698, 1993 N.C. LEXIS 219 (1993).

Physician’s change of opinion with respect to the degree of permanent partial disability is not evidence of a change in condition within the meaning of this section if it is based solely on his reconsidering the contents of the patient’s medical record as of the date of his first opinion. If, however, the physician examines his patient subsequent to the date of his first opinion and in the interim the patient’s physical condition has deteriorated, then a change of opinion with respect to the degree of permanent partial disability is evidence of a change in condition for purposes of this section. McLean v. Roadway Express, Inc., 307 N.C. 99, 296 S.E.2d 456, 1982 N.C. LEXIS 1598 (1982).

Change of condition not shown where the only evidence that plaintiff presented to show a change of condition was the change of one doctor’s opinion. Allen v. Roberts Elec. Contrs., 143 N.C. App. 55, 546 S.E.2d 133, 2001 N.C. App. LEXIS 216 (2001).

Difference of Opinion. —

Plaintiff did not experience a change of condition where one physician gave him a 15% disability rating, which he accepted, and a second physician gave him a 30% disability rating, where the second physician commented that the discrepancy was a difference of opinion. Crump v. Independence Nissan, 112 N.C. App. 587, 436 S.E.2d 589, 1993 N.C. App. LEXIS 1208 (1993).

Proof Not Limited to Testimony of Original Physician. —

Applicant need not limit proof of a change in condition to the testimony of a physician who had examined the plaintiff before and after the change in condition; such physician may be unavailable for testifying during a later hearing for greater benefits, and furthermore, the Commission, not the testifying physician, makes the crucial comparison of conditions. Styron v. Duke Univ. Hosp., 96 N.C. App. 356, 385 S.E.2d 519, 1989 N.C. App. LEXIS 1002 (1989).

New Findings on Additional Evidence. —

Under this section, the Commission is not bound by prior orders when considering an alleged change of condition; rather, the Commission may make new findings based on the additional evidence presented. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 491 S.E.2d 678, 1997 N.C. App. LEXIS 1056 (1997).

A change in the degree of permanent disability is a change in condition. West v. J.P. Stevens Co., 12 N.C. App. 456, 183 S.E.2d 876, 1971 N.C. App. LEXIS 1383 (1971); McLean v. Roadway Express, Inc., 307 N.C. 99, 296 S.E.2d 456, 1982 N.C. LEXIS 1598 (1982).

Change from Partial to Total Disability. —

When the Commission finds on one occasion that a person is permanently partially disabled and on a later occasion finds, based on additional evidence, that the person is totally disabled, this supports a finding of a change in condition. Harmon v. Public Serv. of N.C. Inc., 81 N.C. App. 482, 344 S.E.2d 285, 1986 N.C. App. LEXIS 2301 (1986).

Changes of condition occurring during the healing period and prior to the time of maximum recovery and the permanent disability, if any, found to exist at the end of the period of healing are not changes of condition within the meaning of this section. Pratt v. Central Upholstery Co., 252 N.C. 716, 115 S.E.2d 27, 1960 N.C. LEXIS 444 (1960).

North Carolina Industrial Commission’s finding that a workers’ compensation claimant was not at maximum medical improvement and had not experienced a change in condition under G.S. 97-47 for all of the claimant’s injury-related impairments was supported by the testimony of an expert that the claimant had the same degenerative arthritic condition in the claimant’s left knee that the claimant had in the claimant’s right knee prior to the claimant’s compensable injury, and that it could not be said that the claimant was at maximum medical improvement for the claimant’s left knee because the claimant still had an arthritic knee; the Commission’s findings supported the denial of an employer’s request for a ruling that the claimant was permanently disabled. Meares v. Dana Corp., 193 N.C. App. 86, 666 S.E.2d 819, 2008 N.C. App. LEXIS 1753 (2008).

Change of Condition Attributed to Pre-existing Condition. —

Where a North Carolina Industrial Commission finding that plaintiff’s worsening lumbar spine condition was directly related to his original back condition and not caused by a work related accident was supported by competent evidence, the Commission did not err in denying plaintiff’s claim for additional compensation and medical treatment. Pittman v. Thomas & Howard, 122 N.C. App. 124, 468 S.E.2d 283, 1996 N.C. App. LEXIS 220 (1996).

The claimant failed to prove a change in condition, where the medical evidence supported the Industrial Commission’s finding that her tightened Achilles tendon was caused by the progressive nature of her pre-existing cerebral palsy, rather than an aggravation of a work-related injury. Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 508 S.E.2d 831, 1998 N.C. App. LEXIS 1445 (1998).

Increase in Earning Power as Change of Condition. —

Claimant had been awarded compensation for general partial disability and thereafter had obtained a job paying practically as much as he made at the time of the accident. It was held that the claimant had undergone a change of condition, as the basis of disability under the act is loss of earning power. Smith v. Swift & Co., 212 N.C. 608, 194 S.E. 106, 1937 N.C. LEXIS 380 (1937).

Awareness of Continuing Medical Attention Not Inconsistent with Change of Condition. —

A claim for permanent partial disability may involve a “change in condition” within the purview of this section, notwithstanding the fact that the Industrial Commission and the defendants were aware, at the time when the closing receipt was signed, that plaintiff was still undergoing treatment for his injury, because none of the parties realized that plaintiff ’s injury might result in permanent disability. Mere awareness of continuing medical attention is not inconsistent with the eventual prospect of complete recovery. Watkins v. Central Motor Lines, 10 N.C. App. 486, 179 S.E.2d 130, 1971 N.C. App. LEXIS 1655, rev'd, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

Where the harmful consequences of an injury are initially unknown when the amount of compensation to be paid is determined by agreement, but subsequently develops, the amount of compensation to which the employee is entitled can be redetermined within the statutory period for reopening. This is a “change in condition” as the term is used in this section. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971); Hand ex rel. Hand v. Fieldcrest Mills, Inc., 85 N.C. App. 372, 355 S.E.2d 141, 1987 N.C. App. LEXIS 2613 (1987).

Inability to Work Not a Change of Condition Where Claimant Has Same Disability. —

Where plaintiff had been receiving compensation for over 275 weeks for permanent partial disability and then offered, as a basis for claiming total disability, proof that he had not been able to do any work, it was held that there had been no change of condition, since the claimant had the same disability he had at the time of his first rating. Murray v. Nebel Knitting Co., 214 N.C. 437, 199 S.E. 609, 1938 N.C. LEXIS 370 (1938).

Depression Caused by Compensated Injury. —

Where the claimant’s doctor testified that the claimant’s depression was caused by his compensated injury three years earlier and that this depression adversely affected his capacity to work, the claimant established a significant change of condition under this section, and she was entitled to compensation for total incapacity under G.S. 97-29. Haponski v. Constructor's Inc., 87 N.C. App. 95, 360 S.E.2d 109, 1987 N.C. App. LEXIS 3078 (1987).

Evidence Insufficient to Show Depression Caused a Change in Circumstances. —

While two doctors testified that plaintiff was depressed because of his injury, there was no evidence that this depression prevented plaintiff from working, which is essential in order to show a change of condition under this section. Jones v. Candler Mobile Village, 118 N.C. App. 719, 457 S.E.2d 315, 1995 N.C. App. LEXIS 385 (1995).

As to serious bodily disfigurement, see Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109, 1951 N.C. LEXIS 545 (1951).

Burden of Proof. —

The burden is on the party seeking the modification to prove the existence of the new condition and that it is causally related to the injury that is the basis of the award the party seeks to modify. Blair v. American Television & Communications Corp., 124 N.C. App. 420, 477 S.E.2d 190, 1996 N.C. App. LEXIS 1073 (1996).

The burden is on the party seeking the modification to prove the existence of the new condition and that it is causally related to the injury that is the basis of the award the party seeks to modify; an employee satisfies this burden by producing medical evidence showing he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 491 S.E.2d 678, 1997 N.C. App. LEXIS 1056 (1997).

Decision Reversed Where There Was No Notice to Employer. —

North Carolina Industrial Commission’s decision that a workers’ compensation claimant had sustained a change in condition was reversed as an employer did not have notice that the Commission would address a change in condition or the claimant’s inability to comply with a mandated work schedule as the Commission had concluded that evidence that the claimant’s condition had worsened was not relevant. Branch v. Carolina Shoe Co., 172 N.C. App. 511, 616 S.E.2d 378, 2005 N.C. App. LEXIS 1802 (2005).

Heart Attacks. —

Where claimant’s condition changed from temporary total disability following a heart attack to total and permanent disability following a third heart attack, this was a change in condition within the meaning of this section. Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 354 S.E.2d 477, 1987 N.C. LEXIS 1935 (1987).

Spread of Blood Poisoning. —

After payments for a time under an approved agreement, claimant applied on January 6, 1936, for compensation payable in a lump sum. This was granted, and paid on February 24, 1936. On January 5, 1937, he applied for a reopening of the case on the ground that blood poisoning had spread and created a change of condition and that he was then suffering from Buerger’s disease due to the injury. The hearing commissioner’s finding that there had been a change of condition and that the application was in time was affirmed. Knight v. Ford Body Co., 214 N.C. 7, 197 S.E. 563, 1938 N.C. LEXIS 243 (1938).

Formation of Scar Tissue Not Change in Condition. —

Where plaintiff’s condition remained essentially unchanged since his award, and the intensifying of plaintiff’s physical problems was due to the scar tissue that infiltrated the area where the operation had been done, plaintiff’s continued incapacity was therefore of the same kind and character as his incapacity at the time of the award, and was not a change of condition within the meaning of this section. Sawyer v. Ferebee & Son, 78 N.C. App. 212, 336 S.E.2d 643, 1985 N.C. App. LEXIS 4249 (1985).

Question of Fact and Question of Law. —

Whether there has been a change of condition is a question of fact; whether the facts found amount to a change of condition is a question of law. West v. J.P. Stevens Co., 12 N.C. App. 456, 183 S.E.2d 876, 1971 N.C. App. LEXIS 1383 (1971).

Conclusive Effect of Commissioner’s Finding as to Change of Condition. —

Where there is ample evidence to support a finding of a change in claimant’s condition as contemplated by this section, and evidence which would support a contrary finding, the finding of the Industrial Commission from the conflicting evidence is conclusive. Knight v. Ford Body Co., 214 N.C. 7, 197 S.E. 563, 1938 N.C. LEXIS 243 (1938).

By this section the Industrial Commission is given authority to review an award and to increase the compensation theretofore awarded when there has been a change of condition of the claimant, and when the evidence supports a finding of change of claimant’s condition, the finding of the Commission is conclusive. Baldwin v. Amazon Cotton Mills, 253 N.C. 740, 117 S.E.2d 718, 1961 N.C. LEXIS 431 (1961).

Where the Commission finds a fact in one hearing and evidence in a subsequent hearing shows that such finding was not correct, this will support a finding of a different fact which supports a finding of a change in condition. Hubbard v. Burlington Indus., 76 N.C. App. 313, 332 S.E.2d 746, 1985 N.C. App. LEXIS 3861 (1985).

Physician who did not examine plaintiff from December 1980 until September 1981, the date of the original award, would be unable to testify as to plaintiff’s amount of disability at the time of the award, and thus his testimony would be incompetent as to whether plaintiff had suffered a change of condition since that time. Sawyer v. Ferebee & Son, 78 N.C. App. 212, 336 S.E.2d 643, 1985 N.C. App. LEXIS 4249 (1985).

Commission’s Finding Review able. —

Whether the facts as found by the Commission amount to a change of condition pursuant to this section is a question of law and thus properly reviewable by the Supreme Court. Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 354 S.E.2d 477, 1987 N.C. LEXIS 1935 (1987).

Award Subject to Modification If Substantial Change Occurs. —

Though an earlier agreement approved by the Industrial Commission became in effect a final award, since it determined the extent of plaintiff’s permanent disability and left no other issue for determination, the award was nevertheless subject to modification if a substantial change of condition had occurred. Lucas v. Bunn Mfg. Co., 90 N.C. App. 401, 368 S.E.2d 386, 1988 N.C. App. LEXIS 536 (1988).

An injured employee’s disability rating need not change in order for the court to conclude that she has suffered a substantial change of condition under this section where the evidence indicated that her physical condition changed so as to impact her wage-earning capacity and several doctors testified that her condition had substantially worsened. Young v. Hickory Bus. Furniture, 137 N.C. App. 51, 527 S.E.2d 344, 2000 N.C. App. LEXIS 263, rev'd, 353 N.C. 227, 538 S.E.2d 912, 2000 N.C. LEXIS 901 (2000).

Effect of Pain Suffered by Person Shown to be Substantial Change in Condition. —

While the physical and symptomatic changes that employee suffered — increases in the intensity and frequency of pain and muscle spasms and a decrease in the movement of the back muscles — may not appear to be great when considered by themselves and measured in the abstract, their effect upon the plaintiff was very profound, because they changed her from a person capable of working and earning wages five days a week to one incapable of working at all or earning anything, and thus commission’s finding that employee had undergone a substantial change in condition would be affirmed. Lucas v. Bunn Mfg. Co., 90 N.C. App. 401, 368 S.E.2d 386, 1988 N.C. App. LEXIS 536 (1988).

Modification of Award Upheld. —

Plaintiff, who received temporary total disability benefits under G.S. 97-29 for a compensable heart attack in April, 1979, was properly awarded permanent partial disability under G.S. 97-30 on his application under this section for modification of the prior award following three additional heart attacks, where the Commission found that he had been permanently and totally disabled since June, 1981, partially as a result of his compensable heart attack in 1979. Weaver v. Swedish Imports Maintenance, Inc., 80 N.C. App. 432, 343 S.E.2d 205, 1986 N.C. App. LEXIS 2200 (1986), aff'd in part and rev'd in part, 319 N.C. 243, 354 S.E.2d 477, 1987 N.C. LEXIS 1935 (1987).

Where evidence before Industrial Commission showed that the continuous pain stemming from plaintiff’s injury eventually rendered her totally incapable of earning any wages, this evidence was sufficient to justify the commission’s finding and conclusion that a substantial change in plaintiff’s back condition had occurred since the initial award. East v. Baby Diaper Servs., Inc., 119 N.C. App. 147, 457 S.E.2d 737, 1995 N.C. App. LEXIS 415 (1995).

Commission did not err in awarding additional medical compensation to a claimant based on a change of condition under G.S. 97-47 on the grounds that she failed to obtain preauthorization before obtaining significant medical treatment; although G.S. 97-25.3 allowed preauthorization, it did not require it and there was no showing that defendants actually required preauthorization. Moreover, defendants could not have imposed a preauthorization requirement as they denied liability for the claimant’s treatment on the grounds that there was no causal connection between that compensable injury and the medical treatment at issue. Perry v. CKE Rests., Inc., 187 N.C. App. 759, 654 S.E.2d 33, 2007 N.C. App. LEXIS 2532 (2007).

Evidence Held Sufficient. —

Plaintiff met her burden of establishing a causal connection between the fibromyalgia and her compensable injury in terms of “reasonable medical probability.” Young v. Hickory Bus. Furniture, 137 N.C. App. 51, 527 S.E.2d 344, 2000 N.C. App. LEXIS 263, rev'd, 353 N.C. 227, 538 S.E.2d 912, 2000 N.C. LEXIS 901 (2000).

Assertion of injured employee who had previously received an award of benefits and medical expenses that she was wholly incapable of employment was not sufficient evidence to meet her burden of showing a substantial change in condition at her rehearing because her opinion was contrary to the unanimous and unchanged medical evidence that she was capable of performing light duty work, and because her testimony about her physical restrictions was virtually identical to that of the prior hearing at which she had been awarded benefits and medical expenses. Shingleton v. Kobacker Group, 148 N.C. App. 667, 559 S.E.2d 277, 2002 N.C. App. LEXIS 52 (2002).

Record supported Industrial Commission’s decision that the employee’s current unemployment was not related to prior compensable injury where employee had returned to employment without restrictions after his injury and, subsequently, certified that he was able to work. Pomeroy v. Tanner Masonry, 151 N.C. App. 171, 565 S.E.2d 209, 2002 N.C. App. LEXIS 709 (2002).

Employer Precluded from Showing Change in Condition. —

Where evidence of a change of condition, specifically, a substantial change in physical capacity to earn wages, occurring after a final award of compensation, predated the decision of the full Industrial Commission, the employee was precluded from introducing it at a subsequent hearing under G.S. 97-47. Hunt v. N.C. State Univ., 159 N.C. App. 111, 582 S.E.2d 380, 2003 N.C. App. LEXIS 1425 (2003).

Where the North Carolina Industrial Commission invalidated a Form 26 agreement because no medical documentation was submitted, it was not obliged under G.S. 97-91 to determine whether the claimant had undergone a G.S. 97-47 change of condition. Clawson v. Phil Cline Trucking, Inc., 168 N.C. App. 108, 606 S.E.2d 715, 2005 N.C. App. LEXIS 152 (2005).

No Change of Condition Found. —

North Carolina Industrial Commission did not err in finding that a worker’s compensation claimant had not sustained a change of condition under G.S. 97-47 as the depositions of the claimant’s expert physicians did not indicate that the claimant had developed a new condition but, instead, seemed to indicate that the claimant had been permanently and totally disabled since before the Commission’s initial opinion concluding that the claimant was permanently disabled. Even when the responses indicated that the claimant had developed a new condition, the testimony indicated that the new condition was not necessarily causally related to the injury but, instead, due to the claimant’s retirement and sedentary lifestyle. Hunt v. N.C. State Univ., 194 N.C. App. 662, 670 S.E.2d 309, 2009 N.C. App. LEXIS 35 (2009).

III.Time Limitations

This section is a statute of limitations which requires an employee to apply for additional compensation on the grounds of a change in condition within two years of the date on which the last compensation was paid. Apple v. Guilford County, 321 N.C. 98, 361 S.E.2d 588, 1987 N.C. LEXIS 2498 (1987).

This section merely fixes a date after which the claim is barred. Ammons v. Z.A. Sneeden's Sons, 257 N.C. 785, 127 S.E.2d 575, 1962 N.C. LEXIS 613 (1962).

Equitable doctrine of laches did not bar an employee’s claim for underpaid indemnity compensation because (1) both G.S. 97-25.1 and G.S. 97-47 supplied remedies at law to bar claims where there was a delay, so an equitable remedy was unavailable, and (2) the fact that the limitations period had not run to bar recovery of underpaid compensation did not make the doctrine of laches available. Lewis v. Transit Mgmt. of Charlotte, 250 N.C. App. 619, 792 S.E.2d 890, 2016 N.C. App. LEXIS 1241 (2016).

The time limitation is not jurisdictional; this section merely provides a plea in bar which may be asserted by the employer. Watkins v. Central Motor Lines, 10 N.C. App. 486, 179 S.E.2d 130, 1971 N.C. App. LEXIS 1655, rev'd, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

The two year limitation of this section is not jurisdictional; it merely provides a defense which the employer may assert. Pennington v. Flame Refractories, Inc., 53 N.C. App. 584, 281 S.E.2d 463 (1981). In accord with second paragraph in the main volume. See Cook v. Southern Bonded, Inc., 82 N.C. App. 277, 346 S.E.2d 168, 1986 N.C. App. LEXIS 2424 (1986).

Time limit in this section has been construed to be a statute of limitations and not a condition precedent to jurisdiction. Weston v. Sears Roebuck & Co., 65 N.C. App. 309, 309 S.E.2d 273, 1983 N.C. App. LEXIS 3462 (1983).

But Is a Technical Legal Defense. —

The lapse of time, when properly pleaded, is a technical legal defense. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

The two-year time limitation in this section is a statute of limitations, a technical legal defense which may be asserted by the employer. Hand ex rel. Hand v. Fieldcrest Mills, Inc., 85 N.C. App. 372, 355 S.E.2d 141, 1987 N.C. App. LEXIS 2613 (1987).

Which Is Waived If Not Pleaded. —

Under general principles of civil procedure, the statute of limitations is a technical defense, and must be timely pleaded or it is deemed waived. There is no reason why this same rule should not apply to cases arising under this section. Gragg v. W.M. Harris & Son, 54 N.C. App. 607, 284 S.E.2d 183, 1981 N.C. App. LEXIS 2925 (1981).

The time limitation in this section is a nonjurisdictional limit and a technical, legal defense. Sound public policy and the fair, effective disposition of contested workers’ compensation claims require that if the time limitation of this section is to be available as a defense to claims based upon a change of condition, such defense must be asserted prior to hearing on the merits; if not so asserted, it must be deemed to have been waived. Gragg v. W.M. Harris & Son, 54 N.C. App. 607, 284 S.E.2d 183, 1981 N.C. App. LEXIS 2925 (1981).

When Time for Filing Claim for Change of Condition Begins to Run. —

For purposes of this section, the statutory one-year period for filing a claim for a change of condition begins at the time final payment is accepted, not when I.C. Form 28B is filed. Nonetheless, the Commission must be given the opportunity to determine whether a payment labeled “final” is or should be, in fact, the final payment. After this determination is made, the Commission accepts and approves a copy of Form 28B. Hill v. Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1, 1986 N.C. App. LEXIS 2021 (1986), aff'd in part, vacated in part, 319 N.C. 167, 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Plaintiff employee’s claim for additional compensation filed with the Commission on April 3, 1996, was untimely because the limitations period began to run when plaintiff received her last payment of compensation in early March, 1994, regardless of whether she received a copy of Form 28B. Hunter v. Perquimans County Bd. of Educ., 139 N.C. App. 352, 533 S.E.2d 562, 2000 N.C. App. LEXIS 902, cert. denied, 352 N.C. 674, 545 S.E.2d 424, 2000 N.C. LEXIS 805 (2000).

Estoppel to Rely on Delay. —

Delay for more than one year (now two years) may be asserted as a plea in bar, but the party interposing and relying on it may be estopped to assert it by inequitable conduct. Ammons v. Z.A. Sneeden's Sons, 257 N.C. 785, 127 S.E.2d 575, 1962 N.C. LEXIS 613 (1962); Belfield v. Weyerhaeuser Co., 77 N.C. App. 332, 335 S.E.2d 44, 1985 N.C. App. LEXIS 4074 (1985).

Equity will deny the right to assert the defense of lapse of time when delay has been induced by acts, representations, or conduct, the repudiation of which would amount to a breach of good faith. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

When the request for a review of an award for changed conditions was not made until more than 12 months (now two years) after delivery and acceptance of a check in final payment, review of the award was barred, but the employer and his insurance carrier, by their conduct, might have been estopped to plead the lapse of time. Willis v. J.M. Davis Indus., Inc., 280 N.C. 709, 186 S.E.2d 913, 1972 N.C. LEXIS 1296 (1972).

Tolling of the statute may result from the honest but entirely erroneous expression of opinion as to some significant legal fact. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

Case Still Pending Under G.S. 97-25. —

Where employee’s refusal to cooperate with employer’s physician resulted in litigation, the plaintiff’s claim for further compensation, filed 2 years after her last compensation check, was not time-barred because her claim was not a change-of-condition case under this section, but a case still pending under G.S. 97-25, and defendants’ filing of a Form 28B had no effect on employee’s right to further compensation. Scurlock v. Durham County Gen. Hosp., 136 N.C. App. 144, 523 S.E.2d 439, 1999 N.C. App. LEXIS 1299 (1999).

Purpose of the two year limitation is to protect the employer against claims too old to be successfully investigated and defended. Pennington v. Flame Refractories, Inc., 53 N.C. App. 584, 281 S.E.2d 463, 1981 N.C. App. LEXIS 2720 (1981).

Running of Time Limitation. —

The limitation of this section begins to run when the employee is notified and the last payment of compensation pursuant to an agreement is made, and after one year (now two years) forecloses plaintiff ’s claim if there was a “change in condition” as contemplated by this section, and if defendants are not estopped to invoke the limitation. Watkins v. Central Motor Lines, 10 N.C. App. 486, 179 S.E.2d 130, 1971 N.C. App. LEXIS 1655, rev'd, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

If the previous award directed the payment of both compensation and medical expense, then the injured employee would have one year (now two years) from the last payment of compensation pursuant to the award in which to file a claim for further compensation upon an alleged change of condition. If the award directed the payment of medical bills only, then the injured employee would have one year from the date on which the last payment for medical treatment was made in which to file a claim for further compensation upon an alleged change of condition. Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777, 1953 N.C. LEXIS 704 (1953). See also, Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109, 1948 N.C. LEXIS 254 (1948).

Because a claimant for workers’ compensation benefits requested additional compensation based on a change of condition more than two years after the final payment of compensation, the claimant was time-barred from receiving such compensation. Johnson v. Southern Tire Sales & Serv., 233 N.C. App. 659, 758 S.E.2d 19, 2014 N.C. App. LEXIS 403 (2014).

When Time Limitation Begins to Run. —

Under this section, the time limitation commences to run from the date on which employee received the last payment of compensation, not from the date on which he received a Form 28B. Cook v. Southern Bonded, Inc., 82 N.C. App. 277, 346 S.E.2d 168, 1986 N.C. App. LEXIS 2424 (1986).

The time limitation of this section does not commence to run upon the dismissal of an appeal. Cook v. Southern Bonded, Inc., 82 N.C. App. 277, 346 S.E.2d 168, 1986 N.C. App. LEXIS 2424 (1986).

Two-year time limit of this section begins to run upon receipt and acceptance of the last compensation check, not when the injury constituting a change of condition is first diagnosed. Hand ex rel. Hand v. Fieldcrest Mills, Inc., 85 N.C. App. 372, 355 S.E.2d 141, 1987 N.C. App. LEXIS 2613 (1987).

Form 60 Payments Were not Final Payments Causing Statute of Limitations to Begin. —

Employee’s claim for additional indemnity compensation was not time barred under G.S. 97-47, as the Form 60 payments did not resolve the extent of the employee’s permanent disability and thus, at most, were an interlocutory award resolving the issue of compensability, but not the nature and extent of any disability. Perez v. Am. Airlines/AMR Corp., 174 N.C. App. 128, 620 S.E.2d 288, 2005 N.C. App. LEXIS 2304 (2005).

The exception clause added at the end of this section by the 1947 amendment has no relation to the filing of original claims for compensation or the time within which such claims are to be filed. It relates exclusively to the time within which an employee may file a petition for a review of an award theretofore made, and the time limit within which the review may be had is tolled by the payment of medical bills, if at all, only when such payments are made under the mandate of an award duly entered by the Commission. Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777, 1953 N.C. LEXIS 704 (1953).

Effect of Plaintiff ’s Signature on Closing Receipt. —

The limitation would have begun to run when notice of the last payment of compensation under an agreement was given plaintiff, with or without plaintiff ’s signature on a closing receipt. Watkins v. Central Motor Lines, 10 N.C. App. 486, 179 S.E.2d 130, 1971 N.C. App. LEXIS 1655, rev'd, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

The execution, filing and forwarding to plaintiff of I.C. Form 28B, which by its terms gave notice to plaintiff that his case was closed and that he had one year (now two years) in which to notify the Commission, in writing, that he claimed further benefits, in fact closed plaintiff’s case and terminated his claim for injuries arising out of his accident. Plaintiff ’s signature was not a necessary element for the proper execution of the form. Chisholm v. Diamond Condominium Constr. Co., 83 N.C. App. 14, 348 S.E.2d 596, 1986 N.C. App. LEXIS 2634 (1986).

Date of Last Payment. —

The last payment of compensation within the meaning of this section is the date the last check was delivered to and accepted by the employee, and not the date the check was paid by the drawee bank. Paris v. Carolina Bldrs. Corp., 244 N.C. 35, 92 S.E.2d 405, 1956 N.C. LEXIS 637 (1956); Baldwin v. Amazon Cotton Mills, 253 N.C. 740, 117 S.E.2d 718, 1961 N.C. LEXIS 431 (1961).

An employee cannot be allowed 12 months (now two years) in which to request a review from the last date on which the compensation would have been due had he not elected to accept payment of the award in a lump sum. Paris v. Carolina Bldrs. Corp., 244 N.C. 35, 92 S.E.2d 405, 1956 N.C. LEXIS 637 (1956).

The last payment of compensation within the meaning of this section is the date the last check was delivered to and accepted by the employee. Cook v. Southern Bonded, Inc., 82 N.C. App. 277, 346 S.E.2d 168, 1986 N.C. App. LEXIS 2424 (1986).

Employee timely filed her claim for additional benefits because the employer last provided medical compensation for the employee’s injury when it tendered payment to a medical company; the services the medical company provided constitute “rehabilitative services” because its role as an administrative intermediary was necessary to ensure the employee received the appropriate treatment in order to effect a cure or give relief for her compensable back injury. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54, 2014 N.C. App. LEXIS 299 (2014).

Notice Must Be Given to Employee and to Commission. —

The law requires only that the injured employee be given notice of the time limitation, and that the Industrial Commission be given notice that the final payment of compensation has been made. Watkins v. Central Motor Lines, 10 N.C. App. 486, 179 S.E.2d 130, 1971 N.C. App. LEXIS 1655, rev'd, 279 N.C. 132, 181 S.E.2d 588, 1971 N.C. LEXIS 758 (1971).

Failure to Furnish Form 28B Estops Employer from Pleading Lapse of Time. —

Under the Commission’s Rule XI(5), an employer must execute Form 28B and furnish a copy to a claimant with his last compensation check. A failure to furnish a copy will estop the employer from pleading the lapse of time in bar of a claim asserted for additional compensation on the grounds of a change in condition. Sides v. G.B. Weaver & Sons Elec. Co., 12 N.C. App. 312, 183 S.E.2d 308, 1971 N.C. App. LEXIS 1351 (1971).

But Furnishing Copy Late Does Not Estop Employer from Asserting Limitation. —

Failure of the employer or the insurance carrier to furnish a copy of Industrial Commission Form 28B to an employee with his last compensation payment as required by former Industrial Commission Rule XI(5) did not estop them from asserting the time limitation of this section as a defense to employee’s claim for additional compensation for change of condition; consequently, employee’s claim filed more than one year (now two years) after receipt of his last compensation payment was barred notwithstanding it was filed within a year of his receipt of Form 28B from the carrier. Willis v. J.M. Davis Indus., Inc., 280 N.C. 709, 186 S.E.2d 913, 1972 N.C. LEXIS 1296 (1972).

To allow an employee’s claim for additional compensation for the reason that such claim was made within 12 months (now two years) from the time he was furnished a copy of Form 28B would be contrary to the express provisions of this section. Willis v. J.M. Davis Indus., Inc., 280 N.C. 709, 186 S.E.2d 913, 1972 N.C. LEXIS 1296 (1972).

As Limitation Does Not Run from Receipt of Form. —

The time limitation within which an employer can claim additional compensation commences to run from the date on which he receives the last payment of compensation and not from the time he receives Form 28B. Willis v. J.M. Davis Indus., Inc., 280 N.C. 709, 186 S.E.2d 913, 1972 N.C. LEXIS 1296 (1972).

The statement, “If the carrier failed to comply with the rule by giving employee notice of the limited time within which he could claim additional compensation, it failed to put the statute of limitations in operation,” found in White v. Shoup Boat Corp., 261 N.C. 495, 135 S.E.2d 216 (1964), is an inaccurate expression of the law and is disapproved. Willis v. J.M. Davis Indus., Inc., 280 N.C. 709, 186 S.E.2d 913, 1972 N.C. LEXIS 1296 (1972).

The importance of Form 28B with respect to starting the running of the statutory period under this section is that this form serves as explicit notice to a claimant that if further benefits are claimed the Commission must be notified in writing within one year (now two years) from the date of receipt of claimant’s last compensation check. Sides v. G.B. Weaver & Sons Elec. Co., 12 N.C. App. 312, 183 S.E.2d 308, 1971 N.C. App. LEXIS 1351 (1971).

Timely Notice to Employer of Recurrence of Disability. —

Where plaintiff contended that she notified defendant of a recurrence of disability within a year (now two years) after receipt of the last payment of compensation, but she filed no claim with the Commission until after a year (now two years) had elapsed, her rights were barred. Lee v. Rose's 5-10-25 Cent Stores, 205 N.C. 310, 171 S.E. 87, 1933 N.C. LEXIS 540 (1933).

Letter Held Timely. —

Letter based on change in condition, mailed to the Industrial Commission, held timely. Pennington v. Flame Refractories, Inc., 53 N.C. App. 584, 281 S.E.2d 463, 1981 N.C. App. LEXIS 2720 (1981).

Additional Notice of Accident as Sufficient Notice of Claim to Further Benefits. —

Plaintiff’s act of filing an additional notice of accident, I.C. Form 18, claiming that he was still experiencing impairments in his lower back and right leg as a result of his accident, while not specifically alleging any change in condition or any permanent injuries, was sufficient to give the Commission the requisite written notice of plaintiff’s claim to further benefits. Chisholm v. Diamond Condominium Constr. Co., 83 N.C. App. 14, 348 S.E.2d 596, 1986 N.C. App. LEXIS 2634 (1986).

A Form 18 received prior to final payment would be taken as mere completion of the paper work required of the employee in connection with the filing of the initial claim and would not be adequate to signal a further claim based on change of condition. In order to achieve this purpose, a Form 18 filed prior to receipt of final payment would have to contain an express request for review based upon change of condition. Apple v. Guilford County, 321 N.C. 98, 361 S.E.2d 588, 1987 N.C. LEXIS 2498 (1987).

Filing a Form 18 after receipt of final payment may satisfy the requirements of this section because receipt of a Form 18 by the employer and the carrier after they have made what they deem to be final payment may serve to notify them that the employee wishes to reopen the case. Apple v. Guilford County, 321 N.C. 98, 361 S.E.2d 588, 1987 N.C. LEXIS 2498 (1987).

Employer and insurance carrier are entitled to treat final payment under a Form 21 agreement as closing the proceeding, absent timely notice that an employee seeks further compensation due to change of condition. Apple v. Guilford County, 321 N.C. 98, 361 S.E.2d 588, 1987 N.C. LEXIS 2498 (1987).

As to limitation as to minor employees, see Lineberry v. Town of Mebane, 219 N.C. 257, 13 S.E.2d 429, 1941 N.C. LEXIS 303 (1941).

Form 28B Held Without Effect on Previously Filed Application for Review. —

While an Industrial Commission Form 28B (“Report of Compensation of Disability”), when sent together with the employee’s last compensation payment, ordinarily closes the employee’s case, it has no effect on an application for review which has previously been filed with the Commission. Apple v. Guilford County, 84 N.C. App. 679, 353 S.E.2d 641, 1987 N.C. App. LEXIS 2549, rev'd, 321 N.C. 98, 361 S.E.2d 588, 1987 N.C. LEXIS 2498 (1987).

Time Period of Change Required. —

Where the Industrial Commission found that plaintiff was unable to work for a period of time, yet there was no finding as to the time period during which plaintiff experienced this change a remand was needed since the commission’s findings were not sufficient to determine the rights of the parties. Dinkins v. Federal Paper Bd. Co., 120 N.C. App. 192, 461 S.E.2d 909, 1995 N.C. App. LEXIS 784 (1995).

§ 97-47.1. Payment without prejudice; limitations period.

When the employer has paid compensation without prejudice but timely contested liability as provided in G.S. 97-18(d), the right, if any, to further indemnity compensation and medical compensation shall terminate two years after the employer’s last payment of medical or indemnity compensation, whichever last occurs, unless the employee files with the Commission a claim for further compensation prior to the expiration of this period.

History. 1993 (Reg. Sess., 1994), c. 679, s. 3.5.

Editor’s Note.

Subsection (d) of G.S. 97-18, referred to above, was redesignated as subsection (f).

§ 97-48. Receipts relieving employer; payment to minors; when payment of claims to dependents subsequent in right discharges employer.

  1. Whenever payment of compensation is made to a widow or widower for her or his use, or for her or his use and the use of the child or children, the written receipt thereof of such widow or widower shall acquit the employer: Provided, however, that in order to protect the interests of minors or incompetents the Industrial Commission may at its discretion change the terms of any award with respect to whom compensation for the benefit of such minors or incompetents shall be paid.
  2. Whenever payment is made to any person 18 years of age or over, the written receipt of such person shall acquit the employer.
  3. Payment of death benefits by an employer in good faith to a dependent subsequent in right to another or other dependents shall protect and discharge the employer, unless and until such dependent or dependents prior in right shall have given notice of his or their claims. In case the employer is in doubt as to the respective rights of rival claimants, he may apply to the Industrial Commission to decide between them.
  4. A minor employee under the age of 18 years may sign agreements and receipts for payments of compensation for temporary total disability, and such agreements and receipts executed by such minor shall acquit the employer. Where the injury results in a permanent disability and the sum to be paid does not exceed five hundred dollars ($500.00) the minor employee may execute agreements and sign receipts and such agreements and receipts shall acquit the employer; provided, that when deemed necessary the Commission may require the signature of a parent or person standing in place of a parent.

History. 1929, c. 120, s. 47; 1931, c. 274, s. 7; 1945, c. 766.

CASE NOTES

Payment in Good Faith Discharges Employer. —

Payment of award of compensation to employee’s mother was in good faith and discharged the employer, where investigation by employer’s carrier prior to hearing revealed that employee’s mother and brother were next of kin, and mother and brother testified to the same effect at the hearing, and the Commission judicially determined that mother was entitled to all benefits, notwithstanding the fact that thereafter it was discovered that deceased left surviving a wife in another county. Green v. Briley, 242 N.C. 196, 87 S.E.2d 213, 1955 N.C. LEXIS 487 (1955).

Appointment of Person to Receive Minor’s Death Benefits. —

A clerk of Superior Court may not appoint a “general guardian” for a minor if a natural guardian, such as a biological mother, exists; however, a clerk of Superior Court may appoint some other person to receive death benefits on behalf of minor. Valles de Portillo v. D.H. Griffin Wrecking Co., 134 N.C. App. 714, 518 S.E.2d 555, 1999 N.C. App. LEXIS 904 (1999).

§ 97-49. Benefits of mentally incompetent or minor employees under 18 may be paid to a trustee, etc.

If an injured employee is mentally incompetent or is under 18 years of age at the time when any right or privilege accrues to him under this Article, his guardian, trustee or committee may in his behalf claim and exercise such right or privilege.

History. 1929, c. 120, s. 48.

CASE NOTES

Declaration of Common-Law Rule. —

This section is a mere declaration of the common-law rule. Lineberry v. Town of Mebane, 219 N.C. 257, 13 S.E.2d 429, 1941 N.C. LEXIS 303 (1941).

§ 97-50. Limitation as against minors or mentally incompetent.

No limitation of time provided in this Article for the giving of notice or making claim under this Article shall run against any person who is mentally incompetent, or a minor dependent, as long as he has no guardian, trustee, or committee.

History. 1929, c. 120, s. 49.

CASE NOTES

Application of Section. —

This section is applicable only to the mentally incompetent and the minor dependent. Lineberry v. Town of Mebane, 219 N.C. 257, 13 S.E.2d 429, 1941 N.C. LEXIS 303 (1941).

Minor Not Barred by Failure to Give Notice of Claim. —

A minor dependent under 18 years of age and who is without guardian, trustee or committee, is not barred during such disability by failure to give notice of claim for compensation as required by G.S. 97-22 et seq. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957).

Evidence Supported Commission’s Finding of Competency. —

Where there was evidence which would support a finding that plaintiff was incompetent during the relevant period, but there was also evidence which supported the commission’s finding of fact that plaintiff was not incompetent, including evidence that plaintiff performed her job, which required physical and mental dexterity, in a satisfactory manner, understood her pay scale and contested the amount when she thought it was too low, the commission’s finding was conclusive. Hand ex rel. Hand v. Fieldcrest Mills, Inc., 85 N.C. App. 372, 355 S.E.2d 141, 1987 N.C. App. LEXIS 2613 (1987).

§ 97-51. Joint employment; liabilities.

Whenever an employee, for whose injury or death compensation is payable under this Article, shall at the time of the injury be in joint service of two or more employers subject to this Article, such employers shall contribute to the payment of such compensation in proportion to their wages liability to such employee; provided, however, that nothing in this section shall prevent any reasonable arrangement between such employers for a different distribution as between themselves of the ultimate burden of compensation.

History. 1929, c. 120, s. 50.

CASE NOTES

Test for Determining if Lent Employee Entered Employment Relationship with Special Employer. —

Because of the statutory requirement that the employment be under an “appointment or contract of hire,” the first question which must be answered in determining whether a lent employee has entered into an employment relationship with a special employer for Workers’ Compensation Act purposes is: Did he make a contract of hire with the special employer? If this question cannot be answered “yes,” the investigation is closed, and this must necessarily be so, since the employee loses certain rights along with those he gains when he strikes up a new employment relation. Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, 1974 N.C. App. LEXIS 1841, cert. denied, 285 N.C. 589, 206 S.E.2d 862, 1974 N.C. LEXIS 1020 (1974).

Lent employee must consent to new relationship. Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, 1974 N.C. App. LEXIS 1841, cert. denied, 285 N.C. 589, 206 S.E.2d 862, 1974 N.C. LEXIS 1020 (1974).

Consent may be implied from the lent employee’s acceptance of the special employer’s control and direction. But what seems on the surface to be such acceptance may actually be only a continued obedience of the general employer’s commands. Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, 1974 N.C. App. LEXIS 1841, cert. denied, 285 N.C. 589, 206 S.E.2d 862, 1974 N.C. LEXIS 1020 (1974).

Basis for Consent Requirement in Lent Employee Cases. —

The necessity for the lent employee’s consent to a new employment relation stems from the statutory requirement of “contract of hire.” Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, 1974 N.C. App. LEXIS 1841, cert. denied, 285 N.C. 589, 206 S.E.2d 862, 1974 N.C. LEXIS 1020 (1974).

The only presumption in lent employee cases is the continuance of the general employment, which is taken for granted as the beginning point of any lent employee problem. Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, 1974 N.C. App. LEXIS 1841, cert. denied, 285 N.C. 589, 206 S.E.2d 862, 1974 N.C. LEXIS 1020 (1974).

To overcome this presumption, it is not unreasonable to insist upon a clear demonstration that a new temporary employer has been substituted for the old, which demonstration should include a showing that a contract was made between the special employer and the employee, proof that the work being done was essentially that of the special employer, and proof that the special employer assumed the right to control the details of the work; failing this, the general employer should remain liable. Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, 1974 N.C. App. LEXIS 1841, cert. denied, 285 N.C. 589, 206 S.E.2d 862, 1974 N.C. LEXIS 1020 (1974).

Conflict of Interest Is Between Two Employers. —

What gives the lent employee cases their special character is the fact that they begin, not with an unknown relation, but with an existing employment relation. The conflict of interest becomes one not between employer and employee (who is assured of recovering from someone) but between two employers and their insurance carriers. Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, 1974 N.C. App. LEXIS 1841, cert. denied, 285 N.C. 589, 206 S.E.2d 862, 1974 N.C. LEXIS 1020 (1974).

Employment Held Not Joint. —

Deceased was employed as teacher and coach by the defendant school district. The State Board of Equalization paid part of his salary as teacher, while the school district paid the remainder of his salary both for teaching and for coaching. Deceased was killed while in performance of his duties as coach. It was held that deceased was an employee of the defendant school district but not of the State Board of Equalization since that body had no voice in his election or power over his actions. Perdue v. State Bd. of Equalization, 205 N.C. 730, 172 S.E. 396, 1934 N.C. LEXIS 51 (1934).

Contract Between Owner and Lessee of Truck Not Binding on Employee-Driver. —

Deceased employee was a truck driver for X, who leased the truck to other haulers. While hauling goods for a lessee of the truck, and under his full control, deceased met his death. The lease contract between X and his lessee provided that X should carry compensation insurance upon the truck driver. It was held that this contract could not be binding upon the employee-driver, as he was not a party to it. Recovery of compensation was allowed against lessee for the death of the employee. The court left open the question of liability of X to the lessee. Roth v. McCord, 232 N.C. 678, 62 S.E.2d 64, 1950 N.C. LEXIS 619 (1950).

§ 97-52. Occupational disease made compensable; “accident” defined.

Disablement or death of an employee resulting from an occupational disease described in G.S. 97-53 shall be treated as the happening of an injury by accident within the meaning of the North Carolina Workers’ Compensation Act and the procedure and practice and compensation and other benefits provided by said act shall apply in all such cases except as hereinafter otherwise provided. The word “accident,” as used in the Workers’ Compensation Act, shall not be construed to mean a series of events in employment, of a similar or like nature, occurring regularly, continuously or at frequent intervals in the course of such employment, over extended periods of time, whether such events may or may not be attributable to fault of the employer and disease attributable to such causes shall be compensable only if culminating in an occupational disease mentioned in and compensable under this Article: Provided, however, no compensation shall be payable for asbestosis and/or silicosis as hereinafter defined if the employee, at the time of entering into the employment of the employer by whom compensation would otherwise be payable, falsely represented himself in writing as not having previously been disabled or laid off because of asbestosis or silicosis.

History. 1935, c. 123; 1979, c. 714, s. 2.

Legal Periodicals.

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For comment on injury by accident in workers’ compensation, see 59 N.C.L. Rev. 175 (1980).

For note on occupational disease under workers’ compensation statute, see 16 Wake Forest L. Rev. 288 (1980).

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

For discussion of occupational disease compensation in light of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 370 (1983), see 62 N.C.L. Rev. 573 (1984).

For note discussing proof of causation requirement in occupational disease cases, in light of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983), see 7 Campbell L. Rev. 99 (1984).

For note, “Caulder v. Waverly Mills: Expanding the Definition of an Occupational Disease Under the Last Injurious Exposure Rule,” see 64 N.C.L. Rev. 1566 (1986).

For comment, “A Proposal to Reform the North Carolina Workers’ Compensation Act to Address Mental-Mental Claims,” see 32 Wake Forest L. Rev. 193 (1997).

For comment on the reality of work-related stress, see 20 Campbell L. Rev. 321 (1998).

CASE NOTES

Editor’s Note. —

For additional cases regarding compensability of occupational disease, see the case notes under G.S. 97-53.

Purpose of this Section and G.S. 97-53. —

Any scheme or plan for the payment of compensation to disabled employees should include those diseases or abnormal conditions of human beings the causative origin of which is occupational in nature. To meet this need the legislature adopted this section and G.S. 97-53. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

The purpose of this section and G.S. 97-53 was to compensate employees for occupational disease as defined in the Act. Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502, 1985 N.C. App. LEXIS 4171 (1985).

The purpose of this section is to enable a worker to recover for disability caused by occupational disease under G.S. 97-29. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

Relation to Other Statutes. —

In two workers’ compensation cases relating to exposure to asbestos, employees did not have “covered claims” because their last injurious exposure to asbestos occurred before an insolvent employer was a member of the North Carolina Self-Insurance Security Association. The appellate court could not interpret a workers’ compensation statute in a manner contrary to its plain and unambiguous language, even if this interpretation barred recovery by the employees, who had no other recourse due to the employer’s bankruptcy. Ketchie v. Fieldcrest Cannon, Inc., 243 N.C. App. 324, 777 S.E.2d 129, 2015 N.C. App. LEXIS 808 (2015).

Exclusivity of Rights and Remedies. —

The rights and remedies of an employee under the Workers’ Compensation Act exclude all other rights and remedies, and an employee bound by the act may not maintain an action at common law against the employer and his foreman to recover for injuries caused by an occupational disease not enumerated in this section and G.S. 97-53, even though the disease is the result of negligence. Murphy v. American Enka Corp., 213 N.C. 218, 195 S.E. 536, 1938 N.C. LEXIS 51 (1938).

Common-Law Action Where Employer Has Rejected Act. —

If an employee contracts an occupational disease while working for an employer who has rejected the act, recovery may be had in an action at common law upon a showing of negligence. Bame v. Palmer Stone Works, 232 N.C. 267, 59 S.E.2d 812, 1950 N.C. LEXIS 499 (1950).

Injury by Accident and Occupational Disease Distinguished. —

An injury by accident, as that term is ordinarily understood, is distinguished from an occupational disease in that the former rises from a definite event, the time and place of which can be fixed, while the latter develops gradually over a long period of time. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

When a deputy commissioner stated, after a hearing, that she would treat the claimant’s claim as one for an occupational disease, the employer’s due process rights were not violated because an injury resulting from an occupational disease was to be treated as the happening of an injury by accident and the claimant was not required to make an election between a theory based on injury by accident or injury by occupational disease. Handy v. PPG Indus., 154 N.C. App. 311, 571 S.E.2d 853, 2002 N.C. App. LEXIS 1442 (2002).

Injury by Accident to Nurse Due to Understaffed Hospital. —

North Carolina Industrial Commission’s findings of fact, which were supported by competent evidence from the testimony of the injured nurse and another nurse, supported its conclusion of law that the injured nurse sustained an injury by accident arising out of and in the course of her employment at a hospital; the nurse testified that she hurt her left arm while repositioning a patient by herself at the hospital because the hospital was understaffed, and the nurse had to stand closer to the patient and to the bed and exert more force because she performed the act by herself. Legette v. Scotland Mem'l Hosp., 181 N.C. App. 437, 640 S.E.2d 744, 2007 N.C. App. LEXIS 361 (2007).

Limitation on meaning of “accident,” etc. simply prevents claims for maladies that are neither occupational in nature nor arise from an event definite in time and place. Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502, 1985 N.C. App. LEXIS 4171 (1985).

An accident must result from an event, and multiple events, or stressors, occurring over a period of time, allegedly resulting in an acute cardiac incident, do not constitute an “accident;” consequently, attorney senior partner could not recover workers’s compensation. Lovekin v. Lovekin & Ingle, 140 N.C. App. 244, 535 S.E.2d 610, 2000 N.C. App. LEXIS 1108 (2000).

Words “disablement or death” in this section merely describe a condition that must occur before recovery may be had under G.S. 97-29. They do not predicate recovery under G.S. 97-31 upon disability. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

Disability Defined. —

Disability is defined as incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment; this definition applies to occupational diseases. Hilliard v. Apex Cabinet Co., 54 N.C. App. 173, 282 S.E.2d 828, 1981 N.C. App. LEXIS 2782 (1981), rev'd, 305 N.C. 593, 290 S.E.2d 682, 1982 N.C. LEXIS 1331 (1982).

This Chapter does not guarantee that benefits will be paid whenever an employee is injured or suffers from an occupational disease; it is not designed to be health or accident insurance. Hilliard v. Apex Cabinet Co., 54 N.C. App. 173, 282 S.E.2d 828, 1981 N.C. App. LEXIS 2782 (1981), rev'd, 305 N.C. 593, 290 S.E.2d 682, 1982 N.C. LEXIS 1331 (1982).

When Injury From Occupational Disease Is Compensable. —

The current version of subdivision (13) of G.S. 97-53 applies to all claims for disablement in which the disability occurs after the effective date of the subdivision as amended, i.e., July 1, 1971, since under this section injury resulting from occupational disease is compensable only when it leads to disablement, and until that time the employee has no cause of action and the employer has no liability. Wood v. J.P. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692, 1979 N.C. LEXIS 1269 (1979).

Benefits are paid only when, due to occupational disease or injury, employee is incapable of earning the same wages he earned at the time of contracting the disease or receiving the injury, at his same job or any other employment. Hilliard v. Apex Cabinet Co., 54 N.C. App. 173, 282 S.E.2d 828, 1981 N.C. App. LEXIS 2782 (1981), rev'd, 305 N.C. 593, 290 S.E.2d 682, 1982 N.C. LEXIS 1331 (1982).

Disease Must Be Incident to or Result of Employment. —

An award for an occupational disease cannot be sanctioned unless it be shown that the disease was incident to or the result of the particular employment in which the worker was engaged. Duncan v. City of Charlotte, 234 N.C. 86, 66 S.E.2d 22, 1951 N.C. LEXIS 404 (1951).

If a disease is not a natural result of a particular employment, but is produced by some extrinsic or independent agency, it is in no real sense an occupational disease, and ordinarily may not be imputed to the occupation or employment. Duncan v. City of Charlotte, 234 N.C. 86, 66 S.E.2d 22, 1951 N.C. LEXIS 404 (1951).

Disability resulting from a disease is compensable when the disease is aggravated or accelerated by causes and conditions characteristic of and peculiar to claimant’s employment. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982).

Based on state supreme court precedent, an employee’s claim for worker’s compensation benefits due to an occupational disease was properly denied because while he was more likely at an increased risk of developing an aggravation of his arthritic condition as a parking lot attendant, he failed to show that his employment placed him at a greater risk for contracting the condition. Thomas v. McLaurin Parking Co., 181 N.C. App. 545, 640 S.E.2d 779, 2007 N.C. App. LEXIS 249 (2007).

If a disease is not disabling apart from aggravation by occupational conditions, the employer must compensate the employee for the entire resulting disability. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982).

Other Gradually Developing Conditions Not Compensable. —

This section precludes claims for conditions that develop gradually but do not fall into the category of occupational disease. Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502, 1985 N.C. App. LEXIS 4171 (1985).

Showing That Activity Did Not Previously Cause Pain Insufficient. —

It is insufficient as a matter of law to show only that in the past a regular activity caused no pain and that the same activity now causes pain; there must be a specific fortuitous event, rather than a gradual build-up of pain, in order to show injury by accident. Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502, 1985 N.C. App. LEXIS 4171 (1985).

Employees who suffer due to personal sensitivities are not entitled to workers’ compensation benefits, absent a finding that the disability is due to an occupational disease. Hilliard v. Apex Cabinet Co., 54 N.C. App. 173, 282 S.E.2d 828, 1981 N.C. App. LEXIS 2782 (1981), rev'd, 305 N.C. 593, 290 S.E.2d 682, 1982 N.C. LEXIS 1331 (1982).

Employee’s suicide caused by occupational disease is compensable under the Workers’ Compensation Act. This is so because this section makes it clear that the death of an employee resulting from an occupational disease shall be treated as the happening of an injury by accident. Harvey v. Raleigh Police Dep't, 85 N.C. App. 540, 355 S.E.2d 147, 1987 N.C. App. LEXIS 2599 (1987).

Only Diseases Mentioned in § 97-53 Are Compensable. —

Disablement or death resulting from any “series of events” in employment shall be treated as the happening of an injury by accident compensable under the act when and only when such series of events culminates in one of the occupational diseases mentioned in G.S. 97-53. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693 (1951). But see now subdivision (13) of G.S. 97-53 .

Disease Resulting from Accident. —

This section, providing that only the occupational diseases specified in this Article shall be compensable, relates only to occupational diseases, which are those resulting from long and continued exposure to risks and conditions inherent and usual in the nature of the employment, and does not preclude compensation for a disease not inherent in or incident to the nature of the employment when it results from an accident arising out of and in the course of the employment. MacRae v. Unemployment Comp. Comm'n, 217 N.C. 769, 9 S.E.2d 595, 1940 N.C. LEXIS 344 (1940). See also, Blassingame v. Southern Asbestos Co., 217 N.C. 223, 7 S.E.2d 478, 1940 N.C. LEXIS 209 (1940).

Claimant Must Prove Causation. —

A claimant’s right to compensation for an occupational disease under G.S. 97-53(13) and this section depends upon proper proof of causation, and the burden of proving each and every element of compensability is upon the plaintiff. Moore v. J.P. Stevens & Co., 47 N.C. App. 744, 269 S.E.2d 159, 1980 N.C. App. LEXIS 3210 (1980).

Claimant must show that diminution in earning capacity is due to occupational disease or injury; it is not enough merely to show a diminution in wages earned subsequent to the affliction or injury. Hilliard v. Apex Cabinet Co., 54 N.C. App. 173, 282 S.E.2d 828, 1981 N.C. App. LEXIS 2782 (1981), rev'd, 305 N.C. 593, 290 S.E.2d 682, 1982 N.C. LEXIS 1331 (1982).

Disability Need Not Be Shown to Recover Under G.S. 97-31. —

The obvious intent of the Legislature in enacting this section was to permit and not restrict recovery for occupational diseases. This section, therefore, does not require that disability be shown as a condition to recovery under the schedule for occupational disease in G.S. 97-31. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

G.S. 97-38 contemplates only one accident leading to death when it states “the accident.” Death benefits accrue only if death occurs within the maximum statutorily set time after “the accident.” It would defy legislative intent to hold that subsequent changes in disability status arising from the same occupational disease created new “accidents,” thereby renewing the time limit for claiming benefits under G.S. 97-38. Joyner v. J.P. Stevens & Co., 71 N.C. App. 625, 322 S.E.2d 636, 1984 N.C. App. LEXIS 3918 (1984).

Date of “Accident” in Occupational Disease Cases. —

Where employee died 15 months after he became totally disabled by serum hepatitis, the claim of deceased employee’s dependents for death benefits was not barred by G.S. 97-38 providing compensation if death results from an accident within two years or, while total disability continues, within six years after the accident, since the date of the “accident” in cases involving occupational disease is treated as the date on which disablement occurs and not as the date on which employee contracted the disease. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

The date when plaintiff became disabled due to byssinosis is deemed to be the date upon which she sustained an injury by accident. Taylor v. J.P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144, 1980 N.C. LEXIS 1032 (1980).

Date on Which Disease “Originates” Is Irrelevant. —

As it is the event of disability which triggers entitlement to compensation and not the date of the last injurious exposure, the date on which a plaintiff ’s occupational disease “originated” has no relevance to his claim. Taylor v. Cone Mills Corp., 56 N.C. App. 291, 289 S.E.2d 60, 1982 N.C. App. LEXIS 2401, rev'd, 306 N.C. 314, 293 S.E.2d 189, 1982 N.C. LEXIS 1453 (1982).

Industrial Commission did not err in concluding that plaintiff had not contracted an occupational disease while employed in defendant’s textile mill, where the evidence tended to show that plaintiff suffered from chronic bronchitis and had evidence of mild obstructive lung disease, aggravated by exposure to cotton dust, but such infirmities would not interfere with any work except the most strenuous kind, so that plaintiff therefore did not suffer any disablement which would entitle him to compensation. Mills v. J.P. Stevens & Co., 53 N.C. App. 341, 280 S.E.2d 802, 1981 N.C. App. LEXIS 2608, cert. denied, 304 N.C. 196, 285 S.E.2d 100, 1981 N.C. LEXIS 1443 (1981).

Degenerative disc condition which is not shown to be “characteristic of and peculiar to” plaintiff ’s employment is not an occupational disease, and there can be no compensation without a connection between the disease and the employment. Griffitts v. Thomasville Furn. Co., 65 N.C. App. 369, 309 S.E.2d 277, 1983 N.C. App. LEXIS 3463 (1983).

Chronic Obstructive Pulmonary Disease. —

An employee who suffers from chronic obstructive pulmonary disease is entitled to findings of fact and conclusions of law that said disease is an occupational disease pursuant to G.S. 97-53(13) if it is shown by competent evidence that occupational exposure to a hazard known to cause the disease, such as cotton dust, significantly contributed to the causation or development of the disease. Swink v. Cone Mills, Inc., 65 N.C. App. 397, 309 S.E.2d 271, 1983 N.C. App. LEXIS 3461 (1983).

Byssinosis is an occupational disease under G.S. 97-53(13) and is compensable under this section. Donnell v. Cone Mills Corp., 60 N.C. App. 338, 299 S.E.2d 436, 1983 N.C. App. LEXIS 2463 (1983).

Byssinosis, as a component of chronic obstructive pulmonary disease, is a compensable occupational disease. Peoples v. Cone Mills Corp., 69 N.C. App. 263, 317 S.E.2d 120, 1984 N.C. App. LEXIS 3503 (1984), modified, 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Special Provisions Relating to Asbestosis and Silicosis. —

When the special provisions of the occupational disease amendment relating to asbestosis and silicosis were read in their entirety, it was apparent that they were designed to effect these objects: (1) to prevent the employment of unaffected persons peculiarly susceptible to asbestosis or silicosis in industries with dust hazards; (2) to secure compensation to those workers affected with asbestosis or silicosis, whose principal need is compensation; and (3) to provide compulsory changes of occupations for those workers affected by asbestosis or silicosis, whose primary need is removal to employments without dust hazards. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797, 1948 N.C. LEXIS 324 (1948).

The clear intent of G.S. 97-61.6 to provide compensation for death occurring within 350 weeks from the date of last exposure to silicosis if the employee was at the time of death receiving compensation for disablement due to silicosis, even though the death does not result from silicosis, must be given effect notwithstanding subdivisions (6) and (10) of G.S. 97-2 and this section, since the specific provisions relating to silicosis, which were enacted because of the peculiar course of the disease, must be construed as an exception to the general tenor of the Workers’ Compensation Act to provide compensation for death only if it results from an accident arising out of and in the course of the employment. Davis v. North Carolina Granite Corp., 259 N.C. 672, 131 S.E.2d 335, 1963 N.C. LEXIS 603 (1963).

Remand for Findings as to Capacity for Other Employment. —

Where the Commission found that plaintiff had chronic obstructive pulmonary disease caused in part by her exposure to respirable cotton dust during her employment, but that her impairment was not sufficient to render plaintiff incapable of performing types of employment which did not require very strenuous activity or exposure to cotton dust, but the Commission’s findings did not address evidence that due to plaintiff’s education, age and experience she was probably not capable of earning wages in any employment which did not require substantial physical exertion, the case would be remanded for appropriate findings and conclusions of plaintiff’s capacity to earn wages in employment for which she might be qualified. Webb v. Pauline Knitting Indus., 78 N.C. App. 184, 336 S.E.2d 645, 1985 N.C. App. LEXIS 4248 (1985).

Effect of Retirement. —

Because disability measures an employee’s present ability to earn wages, and is unrelated to a decision to withdraw from the labor force by retirement, the Commission may not deny disability benefits because the claimant retired, where there is evidence of diminished earning capacity caused by an occupational disease. Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70, 1986 N.C. App. LEXIS 2676 (1986).

Report Under G.S. 97-92(a). —

G.S. 97-92(a) requires an employer to report any injury by accident if it keeps the employee from work for more than one day. Presumably this would include notice of an occupational disease which is considered an injury by accident. Knight v. Cannon Mills Co., 82 N.C. App. 453, 347 S.E.2d 832, 1986 N.C. App. LEXIS 2520 (1986).

A claimant’s post-injury earning capacity is the determinative factor in assessing disability. Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 403 S.E.2d 548, 1991 N.C. App. LEXIS 498 (1991).

Burden on Claimant to Prove Unsuitability Due to Peculiar Characteristics. —

The burden of proof rests upon the claimant to prove the existence of his disability and its extent, and relevant to these issues is evidence that the claimant may be unsuited for particular employment due to characteristics peculiar to him. Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 403 S.E.2d 548, 1991 N.C. App. LEXIS 498 (1991).

§ 97-53. (See editor’s note on condition precedent) Occupational diseases enumerated; when due to exposure to chemicals.

The following diseases and conditions only shall be deemed to be occupational diseases within the meaning of this Article:

  1. Anthrax.
  2. Arsenic poisoning.
  3. Brass poisoning.
  4. Zinc poisoning.
  5. Manganese poisoning.
  6. Lead poisoning. Provided the employee shall have been exposed to the hazard of lead poisoning for at least 30 days in the preceding 12 months’ period; and, provided further, only the employer in whose employment such employee was last injuriously exposed shall be liable.
  7. Mercury poisoning.
  8. Phosphorus poisoning.
  9. Poisoning by carbon bisulphide, menthanol, naphtha or volatile halogenated hydrocarbons.
  10. Chrome ulceration.
  11. Compressed-air illness.
  12. Poisoning by benzol, or by nitro and amido derivatives of benzol (dinitrolbenzol, anilin, and others).
  13. Any disease, other than hearing loss covered in another subdivision of this section, which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.
  14. Epitheliomatous cancer or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil, or paraffin, or any compound, product, or residue of any of these substances.
  15. Radium poisoning or disability or death due to radioactive properties of substances or to roentgen rays, X rays or exposure to any other source of radiation; provided, however, that the disease under this subdivision shall be deemed to have occurred on the date that disability or death shall occur by reason of such disease.
  16. Blisters due to use of tools or appliances in the employment.
  17. Bursitis due to intermittent pressure in the employment.
  18. Miner’s nystagmus.
  19. Bone felon due to constant or intermittent pressure in employment.
  20. Synovitis, caused by trauma in employment.
  21. Tenosynovitis, caused by trauma in employment.
  22. Carbon monoxide poisoning.
  23. Poisoning by sulphuric, hydrochloric or hydrofluoric acid.
  24. Asbestosis.
  25. Silicosis.
  26. Psittacosis.
  27. Undulant fever.
  28. Loss of hearing caused by harmful noise in the employment. The following rules shall be applicable in determining eligibility for compensation and the period during which compensation shall be payable:
    1. The term “harmful noise” means sound in employment capable of producing occupational loss of hearing as hereinafter defined. Sound of an intensity of less than 90 decibels, A scale, shall be deemed incapable of producing occupational loss of hearing as defined in this section.
    2. “Occupational loss of hearing” shall mean a permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise in employment. Except in instances of preexisting loss of hearing due to disease, trauma, or congenital deafness in one ear, no compensation shall be payable under this subdivision unless prolonged exposure to harmful noise in employment has caused loss of hearing in both ears as hereinafter provided.
    3. No compensation benefits shall be payable for temporary total or temporary partial disability under this subdivision and there shall be no award for tinnitus or a psychogenic hearing loss.
    4. An employer shall become liable for the entire occupational hearing loss to which his employment has contributed, but if previous deafness is established by a hearing test or other competent evidence, whether or not the employee was exposed to harmful noise within six months preceding such test, the employer shall not be liable for previous loss so established, nor shall he be liable for any loss for which compensation has previously been paid or awarded and the employer shall be liable only for the difference between the percent of occupational hearing loss determined as of the date of disability as herein defined and the percentage of loss established by the preemployment and audiometric examination excluding, in any event, hearing losses arising from nonoccupational causes.
    5. In the evaluation of occupational hearing loss, only the hearing levels at the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second shall be considered. Hearing losses for frequencies below 500 and above 3,000 cycles per second are not to be considered as constituting compensable hearing disability.
    6. The employer liable for the compensation in this section shall be the employer in whose employment the employee was last exposed to harmful noise in North Carolina during a period of 90 working days or parts thereof, and an exposure during a period of less than 90 working days or parts thereof shall be held not to be an injurious exposure; provided, however, that in the event an insurance carrier has been on the risk for a period of time during which an employee has been injuriously exposed to harmful noise, and if after insurance carrier goes off the risk said employee has been further exposed to harmful noise, although not exposed for 90 working days or parts thereof so as to constitute an injurious exposure, such carrier shall, nevertheless, be liable.
    7. The percentage of hearing loss shall be calculated as the average, in decibels, of the thresholds of hearing for the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second. Pure tone air conduction audiometric instruments, properly calibrated according to accepted national standards such as American Standards Association, Inc., (ASA), International Standards Organization (ISO), or American National Standards Institute, Inc., (ANSI), shall be used for measuring hearing loss. If more than one audiogram is taken, the audiogram having the lowest threshold will be used to calculate occupational hearing loss. If the losses of hearing average 15 decibels (26 db if ANSI or ISO) or less in the four frequencies, such losses of hearing shall not constitute any compensable hearing disability. If the losses of hearing average 82 decibels (93 db if ANSI or ISO) or more in the four frequencies, then the same shall constitute and be total or one hundred percent (100%) compensable hearing loss. In measuring hearing impairment, the lowest measured losses in each of the four frequencies shall be added together and divided by four to determine the average decibel loss. For each decibel of loss exceeding 15 decibels (26 db if ANSI or ISO) an allowance of one and one-half percent (11/2%) shall be made up to the maximum of one hundred percent (100%) which is reached at 82 decibels (93 db if ANSI or ISO). In determining the binaural percentage of loss, the percentage of impairment in the better ear shall be multiplied by five. The resulting figure shall be added to the percentage of impairment in the poorer ear, and the sum of the two divided by six. The final percentage shall represent the binaural hearing impairment.
    8. There shall be payable for total occupational loss of hearing in both ears 150 weeks of compensation, and for partial occupational loss of hearing in both ears such proportion of these periods of payment as such partial loss bears to total loss.
    9. No claim for compensation for occupational hearing loss shall be filed until after six months have elapsed since exposure to harmful noise with the last employer. The last day of such exposure shall be the date of disability. The regular use of employer-provided protective devices capable of preventing loss of hearing from the particular harmful noise where the employee works shall constitute removal from exposure to such particular harmful noise.
    10. No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid. The North Carolina Industrial Commission may order the employer to provide the employee with an original hearing aid if it will materially improve the employee’s ability to hear.
    11. No compensation benefits shall be payable for the loss of hearing caused by harmful noise after October 1, 1971, if employee fails to regularly utilize employer-provided protection device or devices, capable of preventing loss of hearing from the particular harmful noise where the employee works.
  29. (See editor’s note on condition precedent)  Infection with smallpox, infection with vaccinia, or any adverse medical reaction when the infection or adverse reaction is due to the employee receiving in employment vaccination against smallpox incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)), or when the infection or adverse medical reaction is due to the employee being exposed to another employee vaccinated as described in this subdivision.

Occupational diseases caused by chemicals shall be deemed to be due to exposure of an employee to the chemicals herein mentioned only when as a part of the employment such employee is exposed to such chemicals in such form and quantity, and used with such frequency as to cause the occupational disease mentioned in connection with such chemicals.

History. 1935, c. 123; 1949, c. 1078; 1953, c. 1112; 1955, c. 1026, s. 10; 1957, c. 1396, s. 6; 1963, c. 553, s. 1; c. 965; 1971, c. 547, s. 1; c. 1108, s. 1; 1973, c. 760, ss. 1, 2; 1975, c. 718, s. 4; 1987, c. 729, ss. 11, 12; 1991, c. 703, s. 10; 2003-169, s. 2.

Condition Precedent to Recovery Under this Act.

Session Laws 2003-169, s. 7, provides: “In the event that federal regulatory or statutory provisions providing compensation and benefits to persons for infection with smallpox, infection with vaccinia, or any adverse medical reaction incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)) are adopted, a condition precedent to recovery under this act shall be that the person claiming compensation and benefits under this act shall first seek compensation and benefits under the federal provisions, with those provisions constituting primary coverage and the person then being entitled to compensation and benefits under this act not exceeding a total recovery under the federal provisions and this act equal to the amount available under the applicable provisions of this act.”

Editor’s Note.

Session Laws 2003-169, s. 8, is a severability clause.

Session Laws 2003-169, s. 9, provides that the amendment to this section by s. 2 of the act is effective June 12, 2003, and applicable to claims arising from infection or adverse medical reactions related to smallpox vaccinations incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002)(to be codified at 42 U.S.C. § 233(p)) whether the infection or adverse medical reactions occurred before, on, or after June 12, 2003.

Legal Periodicals.

For brief comment on the 1949 amendment, see 27 N.C.L. Rev. 495 (1949).

For comment discussing workers’ compensation and infectious disease in the context of Booker v. Duke Medical Center, 32 N.C. App. 185, 231 S.E.2d 187 (1977), see 9 N.C. Cent. L.J. 124 (1977).

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For note on occupational disease under workers’ compensation statute, see 16 Wake Forest L. Rev. 288 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1032 (1981).

For comment on Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458 (1981), see 4 Campbell L. Rev. 107 (1981).

For note on Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458 (1981), see 18 Wake Forest L. Rev. 801 (1982).

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

For comment discussing dual causation of occupational disease in light of Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983), see 19 Wake Forest L. Rev. 1137 (1983).

For discussion of occupational disease compensation in light of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 370 (1983), see 62 N.C.L. Rev. 573 (1984).

For note discussing proof of causation requirement in occupational disease cases, in light of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983), see 7 Campbell L. Rev. 99 (1984).

For note, “Caulder v. Waverly Mills: Expanding the Definition of an Occupational Disease Under the Last Injurious Exposure Rule,” see 64 N.C.L. Rev. 1566 (1986).

For comment, “A Proposal to Reform the North Carolina Workers’ Compensation Act to Address Mental-Mental Claims,” see 32 Wake Forest L. Rev. 193 (1997).

For comment on the reality of work-related stress, see 20 Campbell L. Rev. 321 (1998).

For article, “Why Aren’t You Working?: Medlin with Proof of Disability Under the North Carolina Workers’ Compensation Act,” see 38 Campbell L. Rev. 211 (2016).

CASE NOTES

Analysis

I.In General

Editor’s Note. —

For additional cases regarding compensability of occupational disease, see the case notes under G.S. 97-52.

1949 Amendment Held Unconstitutional. —

Former subdivision (26), which was added to this section by Session Laws 1949, c. 1078, and which purported to make certain forms of heart disease compensable occupational diseases when suffered by firemen, was unconstitutional, since it sought to confer upon firemen a special privilege not accorded to other municipal employees, nor to employees in private industry, and created for firemen substantial financial benefits, to be paid from the public treasury under the guise of workers’ compensation benefits, without establishing an occupational disease as the usual incident or result of the particular employment. Duncan v. City of Charlotte, 234 N.C. 86, 66 S.E.2d 22, 1951 N.C. LEXIS 404 (1951) (commented on in 30 N.C.L. Rev. 98 (1951). See also) Davis v. City of Winston-Salem, 234 N.C. 95, 66 S.E.2d 28, 1951 N.C. LEXIS 405 (1951).

Legislative Intent. —

The clear intent of the General Assembly in enacting the current version of this section was to bring North Carolina in line with the vast majority of states by providing comprehensive coverage for occupational diseases. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

The purpose of G.S. 97-52 and this section was to compensate employees for occupational disease as defined in the Act. Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502, 1985 N.C. App. LEXIS 4171 (1985).

Technical Words to Be Accorded Their Technical Connotations. —

In designating those diseases and conditions which are to be deemed occupational in origin and compensable under the act, the legislature, for the most part, used technical terms. Anthrax, bursitis, asbestosis, silicosis, nystagmus, synovitis, tenosynovitis are technical words. In construing the act, the court must accord them their technical connotations. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

Common-Law Actions Excluded as to Certain Occupational Diseases. —

In dealing with certain unscheduled occupational diseases, the Supreme Court has held common-law actions to be excluded by the act; but in these cases the condition admittedly and allegedly arose out of the employment. Barber v. Minges, 223 N.C. 213, 25 S.E.2d 837, 1943 N.C. LEXIS 244 (1943).

But Employee May Bring Common-Law Action Against Employer Who Has Rejected Act. —

Where silicosis is contracted by an employee whose employer has rejected the act, the employee may recover in an action at common law upon a showing of negligence, but the doctrine of res ipsa loquitur is not applicable. Bame v. Palmer Stone Works, 232 N.C. 267, 59 S.E.2d 812, 1950 N.C. LEXIS 499 (1950).

Effect of Last Sentence. —

The last sentence of this section is intended to limit compensable diseases to those that are actually caused by on-the-job exposure to hazardous substances, rather than to limit the number of diseases that are compensable. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186, 1988 N.C. App. LEXIS 76 (1988).

“Occupational Disease” Defined. —

The legislature, in listing those diseases which are to be deemed occupational in character, was fully aware of the meaning of the term “occupational disease.” Indeed, it in effect defined the term in G.S. 97-52 as a diseased condition caused by a series of events, of a similar or like nature, occurring regularly or at frequent intervals over an extended period of time, in employment. The term has likewise been defined as a diseased condition arising gradually from the character of the employee’s work. These are the accepted definitions of the term. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

A disease, contracted in the usual and ordinary course of events, which from the common experience of humanity is known to be incidental to a particular employment, is an occupational disease. Morrow v. Memorial Mission Hosp., 21 N.C. App. 299, 204 S.E.2d 543, 1974 N.C. App. LEXIS 1785 (1974).

An “occupational disease” suffered by a servant or an employee, if it means anything as distinguished from a disease caused or super-induced by an actionable wrong or injury, is neither more nor less than a disease which is the usual incident or result of the particular employment in which the worker is engaged, as distinguished from one which is caused or brought about by the employer’s failure in his duty to furnish him a safe place to work. Morrow v. Memorial Mission Hosp., 21 N.C. App. 299, 204 S.E.2d 543, 1974 N.C. App. LEXIS 1785 (1974).

There was no evidence that the employee’s nervous breakdown was (1) characteristic of and peculiar to the employee’s employment; (2) not an ordinary disease to which the public was exposed; or (3) that there was a causal connection between the disease and the employee’s employment; thus, the industrial commission properly denied the employee’s workers’ compensation claim. Pitillo v. N.C. Dep't of Envtl. Health & Natural Res., 151 N.C. App. 641, 566 S.E.2d 807, 2002 N.C. App. LEXIS 882 (2002).

When Illness Is Compensable. —

An illness is compensable under this section, whether mentioned specifically in the statute or falling within the general definition in subdivision (13) of this section, only if it also comes within well understood definitions of the term “occupational diseases.” Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Only those occupational diseases specifically designated are compensable under the act. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760, 1950 N.C. LEXIS 478 (1950) (decided prior to the first 1971 amendment which rewrote subdivision (13)) .

Only those diseases and conditions enumerated in this section are occupational diseases within the meaning of the act. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186, 1988 N.C. App. LEXIS 76 (1988).

Unless Due to Specified Causes and Conditions. —

The clear language of this section provides that for any disease other than those specifically named to be deemed an “occupational disease,” it must be proven to be due to causes and conditions as specified in the section. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101, 1981 N.C. LEXIS 1336 (1981).

Or Aggravated or Accelerated by Conditions Peculiar to Employment. —

Disability resulting from a disease is compensable when the disease is aggravated or accelerated by causes and conditions characteristic of and peculiar to claimant’s employment. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982).

If a disease is not disabling apart from aggravation by occupational conditions, the employer must compensate the employee for the entire resulting disability. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982).

Disability caused by, or death resulting from, a disease is compensable only when the disease is an occupational disease, or is aggravated or accelerated by causes and conditions characteristic of and peculiar to the claimant’s employment. Goodman v. Cone Mills Corp., 75 N.C. App. 493, 331 S.E.2d 261, 1985 N.C. App. LEXIS 3686 (1985).

Circumstances Showing Connection Between Disease and Occupation. —

In the case of occupational diseases, proof of a causal connection between the disease and the employee’s occupation must of necessity be based on circumstantial evidence. Among the circumstances which may be considered are the following: (1) The extent of exposure to the disease or disease-causing agents during employment; (2) the extent of exposure outside employment; and (3) absence of the disease prior to the work-related exposure, as shown by the employee’s medical history. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979); Hansel v. Sherman Textiles, 49 N.C. App. 1, 270 S.E.2d 585, 1980 N.C. App. LEXIS 3328 (1980), rev'd, 304 N.C. 44, 283 S.E.2d 101, 1981 N.C. LEXIS 1336 (1981).

Qualifying Disease Is Compensable Even if It Is Also an “Injury by Accident”. —

If an employee contracts an infectious disease as a result of his employment and it falls within either the schedule of diseases set out in the statute or the general definition of “occupational disease” in subdivision (13), it should be treated as a compensable event regardless of the fact that it might also qualify as an “injury by accident” under G.S. 97-2(6). Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Denial of compensation may be predicated upon failure of claimant to prove any element of compensability under this section. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101, 1981 N.C. LEXIS 1336 (1981).

Expert Testimony. —

Conflicting expert testimony on the question of whether the deceased employee died as a result of an occupational disease, caused by exposure to benzol poisoning, arising out of and in the course of his employment, was sufficient to sustain the Commission’s award of compensation to the employee’s dependent. Tindall v. American Furn. Co., 216 N.C. 306, 4 S.E.2d 894, 1939 N.C. LEXIS 153 (1939).

While the construction of a statute is ultimately a question of law for the courts, expert opinion testimony as to the meaning of technical terms used in a statute is clearly competent. Expert testimony may be received as an aid to proper interpretation if the statute or rule uses technical terms which are not generally understood or is ambiguous or indefinite. Taylor v. Cone Mills Corp., 306 N.C. 314, 293 S.E.2d 189, 1982 N.C. LEXIS 1453 (1982).

Duty of Commission. —

In determining whether a given illness falls within a definition set out in this section, it is the duty of the Commission to consider all of the competent evidence, make definitive findings, draw its conclusions of law from these findings, and enter the appropriate award. Harrell v. J.P. Stevens & Co., 45 N.C. App. 197, 262 S.E.2d 830, 1980 N.C. App. LEXIS 2631, cert. denied, 300 N.C. 196, 269 S.E.2d 623, 1980 N.C. LEXIS 1552 (1980).

Appellate Review Limited. —

Review of Industrial Commission decisions is limited to a determination of whether there was competent evidence before the Commission to support its findings and whether such findings support its legal conclusions; the Court of Appeals cannot substitute its judgment for that of the Commission. Findings of fact, when supported by competent evidence, are conclusive on appeal. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

Evaluation of Evidence. —

In making its findings, the Commission’s function is to weigh and evaluate the entire evidence and determine as best it can where the truth lies. Harrell v. J.P. Stevens & Co., 45 N.C. App. 197, 262 S.E.2d 830, 1980 N.C. App. LEXIS 2631, cert. denied, 300 N.C. 196, 269 S.E.2d 623, 1980 N.C. LEXIS 1552 (1980).

Proof of Inability to Earn. —

Plaintiffs may prove they were incapable after injury of earning the same wages they had earned before injury in any other employment in one of four ways: (1) the production of medical evidence that they are physically or mentally, as consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that they are capable of some work, but have, after a reasonable effort been unsuccessful in their effort to obtain employment; (3) the production of evidence that they are capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, or lack of education, to seek other employment; or (4) the production of evidence that they have obtained other employment at a wage less than that earned prior to the injury. Grantham v. R.G. Barry Corp., 115 N.C. App. 293, 444 S.E.2d 659, 1994 N.C. App. LEXIS 623 (1994).

Award for Total Disability Not Authorized Where 40 to 50 Percent Not Occupational in Origin. —

The Industrial Commission does not have authority to award compensation for total disability when 40 to 50 percent of claimant’s disablement is not occupational in origin and was not aggravated or accelerated by any occupational disease. Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458, 1981 N.C. LEXIS 1337 (1981).

Award for Partial Disability Upheld. —

Where evidence supported the Industrial Commission’s conclusion that claimant was totally disabled and that 55 percent of her disability was due to an occupational disease and 45 percent of her disability was due to other physical infirmities, it was not error for the Commission to award claimant compensation for a 55 percent partial disability rather than for total disability. Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458, 1981 N.C. LEXIS 1337 (1981).

Finding of Total Disability Proper. —

Evidence that plaintiff, age 58, had a fifth grade education and had no training to do any work other than textile work; that prior to his employment in textile mills, plaintiff had no lung disease or breathing difficulties; that during his employment he developed respiratory problems; that plaintiff was diagnosed as having byssinosis; and that he was 50 percent to 70 percent disabled and was totally disabled to perform his former textile employment was evidence supporting the Commission’s findings and conclusion that plaintiff was totally disabled due to an occupational disease. Anderson v. A.M. Smyre Mfg. Co., 54 N.C. App. 337, 283 S.E.2d 433, 1981 N.C. App. LEXIS 2841 (1981).

Evidence Insufficient. —

When a claimant alleged that the claimant’s close proximity to high energy machinery at the claimant’s workplace exposed the claimant to radiation that contributed to the development of the claimant’s brain cancer, the North Carolina Industrial Commission properly considered all of the evidence, made findings of fact that were supported by competent evidence, appropriately accepted evidence of causation, and correctly found that the claim was not compensable as the claimant failed to show that the claimant’s condition was caused by exposure to radiation. File v. Norandal USA, Inc., 232 N.C. App. 397, 754 S.E.2d 202, 2014 N.C. App. LEXIS 181 (2014).

II.Subdivision (13)

The 1963 amendment of subdivision (13) of this section to include infections or inflammations of “any other internal or external organ or organs of the body” applied only to cases in which the last exposure in an occupation subject to the hazards of such disease occurred on or after July 1, 1963. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

The 1971 amendment to subdivision (13) of this section broadened its coverage to include a wider range of conditions susceptible to interpretation of being occupational diseases within the meaning of the act. Carawan v. Carolina Tel. & Tel. Co., 79 N.C. App. 703, 340 S.E.2d 506, 1986 N.C. App. LEXIS 2119 (1986).

When Disease Is Compensable Under Subdivision (13). —

A disease is compensable under subdivision (13) of this section where neither the chemical causing the disease nor the disease itself is mentioned in the statute. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186, 1988 N.C. App. LEXIS 76 (1988).

The 1971 amendment of subdivision (13) of this section to its present form, which defines occupational disease, applies to all cases originating on and after July 1, 1971. Unlike the 1963 amendment, it was not limited to cases in which the “last exposure” to disease occurred after its effective date, but to cases “originating” after such date. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

The current (1971) version of subdivision (13) of this section applies to all claims for disablement in which the disability occurs after the statute’s effective date, July 1, 1971. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Jurisdiction Over Claim. —

Employee’s workers’ compensation claim, alleging an occupational disease due to exposure to a chemical during his employment, was properly within the jurisdiction of the North Carolina Industrial Commission, as the fact that the employee had not yet received competent medical advice on the issue of causation did not detract from the Commission’s jurisdiction over the matter. Lentz v. Phil's Toy Store, 228 N.C. App. 416, 747 S.E.2d 127, 2013 N.C. App. LEXIS 839 (2013).

Time of Disablement. —

Given plaintiff ’s allegation that she was disabled after the effective date of the present version of subdivision (13), it was incumbent upon the Commission to determine when plaintiff became disabled before it decided which law applied to her claim. Where the Commission heard no evidence on this point and made no factual determination as to the date of disablement, the case would be remanded for a determination of that issue. Wood v. J.P. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692, 1979 N.C. LEXIS 1269 (1979).

Time of disablement for the purpose of deciding which version of the Workers’ Compensation Act to apply runs from the date the claimant was incapable of working due to a later diagnosed occupational disease. Taylor v. J.P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144, 1980 N.C. LEXIS 1032 (1980).

Subdivision (13) Intended to Define “Occupational Disease”. —

Except for those diseases specifically named in the statute, the legislature intended the present version of subdivision (13) to define the term “occupational disease.” To the extent that this statute conflicts with prior judicial definitions of the term “occupational disease,” the older definitions must give way. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

What Constitutes Occupational Disease. —

Under subdivision (13) of this section, any disease is an occupational disease if it is due to causes and conditions peculiarly characteristic of the worker’s particular trade, occupation or employment, and if the disease is not one that the general public, outside of the particular employment, stands an equal risk of contracting. The statute contains no other conditions and excludes no particular diseases, including the ordinary diseases of life. Thomason v. Fiber Indus., 78 N.C. App. 159, 336 S.E.2d 632, 1985 N.C. App. LEXIS 4254 (1985).

A disease is an occupational disease compensable under this section if claimant’s employment exposed him to a greater risk of contracting this disease than members of the public generally and such exposure significantly contributed to, or was a significant causal factor in, the disease’s development. Perry v. Burlington Indus., Inc., 80 N.C. App. 650, 343 S.E.2d 215, 1986 N.C. App. LEXIS 2234 (1986).

Competent evidence supported the Industrial Commission’s conclusion that a workers’ compensation claimant did not prove he developed an occupational disease due to conditions characteristic of his employment because his hyperactive airways disease was caused by his personal, unusual sensitivity to small amounts of certain chemicals. Nix v. Collins & Aikman, Co., 151 N.C. App. 438, 566 S.E.2d 176, 2002 N.C. App. LEXIS 751 (2002).

Employee who was exposed to toxic chemicals in the course of his employment spray-painting automobiles showed his exposure to workplace chemicals caused or significantly contributed to his lung disease, as he showed: (1) the disease was characteristic of persons engaged in his occupation; (2) the disease was not an ordinary disease of life to which the general public was equally exposed with those engaged in his occupation, as his employment exposed him to the chemicals to a greater extent than the exposure experienced by the general public and the agent to which he had a greater exposure was the cause of his disease; and (3) there was a causal connection between the disease and his employment. Matthews v. City of Raleigh, 160 N.C. App. 597, 586 S.E.2d 829, 2003 N.C. App. LEXIS 1928 (2003).

For an occupational disease to be compensable under subdivision (13) of this section, two conditions must be met: (1) It must be due to causes and conditions characteristic and peculiar to the employment; and (2) the particular employment conditions must place the worker at greater risk than the general public of contracting the disease. Fann v. Burlington Indus., 59 N.C. App. 512, 296 S.E.2d 819, 1982 N.C. App. LEXIS 3138 (1982).

To prove the existence of a compensable “occupational disease” under this section: (1) the disease must be characteristic of a trade or occupation; (2) the disease must not be an ordinary disease of life to which the public is equally exposed outside of the employment; and (3) there must be proof of causation, i.e., proof of a causal connection between the disease and the employment. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101, 1981 N.C. LEXIS 1336 (1981); Perry v. Burlington Indus., Inc., 80 N.C. App. 650, 343 S.E.2d 215, 1986 N.C. App. LEXIS 2234 (1986).

What Plaintiff Must Show Under Subdivision (13). —

Plaintiff must show, in order to be entitled to compensation for disablement resulting from an occupational disease covered by subdivision (13) of this section: (1) that her disablement results from an occupational disease encompassed by this section, i.e., an occupational disease due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, as distinguished from an ordinary disease of life to which the general public is equally exposed outside of the employment; and (2) the extent of the disablement resulting from said occupational disease, i.e., whether she is totally or partially disabled as a result of the disease. Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458, 1981 N.C. LEXIS 1337 (1981).

The Supreme Court has rejected the requirement that an employee quantify the degree of exposure to the harmful agent during his employment. Any evaluation of the workplace for the agent in question after claimant’s departure would not quantify claimant’s exposure, but would merely “guessimate” it. Since the degree of exposure does not need to be measured during claimant’s employment, it should not need to be quantified in findings of fact, either. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

Three elements are necessary to show the existence of a compensable occupational disease under this section: (1) the disease must be characteristic of persons engaged in a particular trade or occupation in which the plaintiff is engaged; (2) the disease must not be an ordinary disease of life to which the public is equally exposed; and (3) there must be a causal connection between the disease and the plaintiff’s employment. Jarvis v. Food Lion, Inc., 134 N.C. App. 363, 517 S.E.2d 388, 1999 N.C. App. LEXIS 761 (1999).

Competent evidence supported the industrial commission’s finding that (1) while the nature of the claimant’s work as a secretary and graphic artist did not place her at greater risk for contracting mesothelioma, the requirement that she work in a building with higher-than-normal asbestos levels did; (2) mesothelioma was not an ordinary disease of life to which the public was exposed equally as the claimant; (3) there was a causal connection between mesothelioma and the claimant’s employment; and (4) the claimant sustained a compensable occupational disease as a result of her employment, pursuant to G.S. 97-53(13). Robbins v. Wake County Bd. of Educ., 151 N.C. App. 518, 566 S.E.2d 139, 2002 N.C. App. LEXIS 762 (2002).

While an employee’s toxic encephalopathy was not listed as an occupational disease in G.S. 97-53, he sufficiently showed, under G.S. 97-53(13) that: (1) the disease was characteristic of persons engaged in his occupation of spray-painting automobiles; (2) the disease was not an ordinary disease of life to which the general public was equally exposed with those engaged in his occupation; and (3) there was a causal connection between the disease and his employment. Matthews v. City of Raleigh, 160 N.C. App. 597, 586 S.E.2d 829, 2003 N.C. App. LEXIS 1928 (2003).

Industrial Commission’s conclusion that the worker had not satisfied her burden of showing that her job exposed her to an increased risk of developing fibromyalgia was well supported where there was insufficient evidence to prove the worker’s job placed her at an increased risk of developing the occupational disease and the job did not cause her condition. James v. Perdue Farms, Inc., 160 N.C. App. 560, 586 S.E.2d 557, 2003 N.C. App. LEXIS 1831 (2003).

The substance to which plaintiff was last injuriously exposed need not be in a substance known to cause the disease. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

When Disease Is “Characteristic” of Profession. —

To be compensable under subdivision (13) of this section, a disease must, inter alia, be “characteristic of and peculiar to a particular trade, occupation or employment.” A disease is “characteristic” of a profession when there is a recognizable link between the nature of the job and an increased risk of contracting the disease in question. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979); Humphries v. Cone Mills Corp., 52 N.C. App. 612, 279 S.E.2d 56, 1981 N.C. App. LEXIS 2470 (1981); Anderson v. A.M. Smyre Mfg. Co., 54 N.C. App. 337, 283 S.E.2d 433, 1981 N.C. App. LEXIS 2841 (1981).

Under subdivision (13), a disease is “characteristic” of a profession when there is a recognizable link between the nature of the job and an increased risk of contracting the disease in question. Keller v. City of Wilmington Police Dep't, 65 N.C. App. 675, 309 S.E.2d 543, 1983 N.C. App. LEXIS 3525 (1983).

Where the injured party’s expert and the employer’s expert disagreed as to whether the injured party had carpal tunnel syndrome and whether it was caused by the work performed by the injured party for the employer as was required under G.S. 97-53(13), the testimony of the injured party’s expert was entitled to greater weight than the testimony of the employer’s expert; the injured party’s expert was the injured party’s treating physician, while the employer’s expert was retained by the employer and did not treat the injured party. Currence v. Sarah Lee Intimates/Bali, 2002 N.C. App. LEXIS 2090 (N.C. Ct. App. May 21, 2002).

“Peculiar to the occupation,” as used in subdivision (13) of this section, means that the conditions of the employment must result in a hazard which distinguishes it in character from the general run of occupations and is in excess of that attending employment in general. Keller v. City of Wilmington Police Dep't, 65 N.C. App. 675, 309 S.E.2d 543, 1983 N.C. App. LEXIS 3525 (1983).

Proof of Causation Is Essential. —

In order for an occupational disease which develops over a long period of time to be compensable under subdivision (13) of this section, it must be proved that it was caused by the plaintiff ’s employment. Brown v. J.P. Stevens & Co., 49 N.C. App. 118, 270 S.E.2d 602, 1980 N.C. App. LEXIS 3332 (1980).

Proof of a causal connection between the disease and the employee’s occupation is an essential element in proving the existence of a compensable occupational disease within the meaning of this section. Hansel v. Sherman Textiles, 49 N.C. App. 1, 270 S.E.2d 585, 1980 N.C. App. LEXIS 3328 (1980), rev'd, 304 N.C. 44, 283 S.E.2d 101, 1981 N.C. LEXIS 1336 (1981).

There must be a proof of causation between the injury and the employment. Keller v. City of Wilmington Police Dep't, 65 N.C. App. 675, 309 S.E.2d 543, 1983 N.C. App. LEXIS 3525 (1983).

Plaintiff did not meet the burden of showing a causal connection between her back injury and her employment with defendant. Thompson v. Tyson Foods, Inc., 119 N.C. App. 411, 458 S.E.2d 746, 1995 N.C. App. LEXIS 474 (1995).

Workers’ compensation claimant did not meet her burden of proving that her job demonstrating household cleaning products placed her at a greater risk than the general public of developing carpal tunnel syndrome, in spite of a medical opinion that it did, because that opinion was based on her description of what the job entailed, and the opinion changed when based on a different description supported by evidence before the Commission; thus the Commission’s conclusion that the job did not place her at greater risk was supported by competent evidence and was binding on the reviewing court. Hobbs v. Clean Control Corp., 154 N.C. App. 433, 571 S.E.2d 860, 2002 N.C. App. LEXIS 1441 (2002).

Causation Not Proven. —

Workers’ compensation claimant did not establish causation under G.S. 97-53(13) where her doctor testified that her condition could have come from her employment, but that he did not know, because the claimant failed to provide him with sufficient information as to her job duties. Faison v. Allen Canning Co., 163 N.C. App. 755, 594 S.E.2d 446, 2004 N.C. App. LEXIS 573 (2004).

Employee was denied temporary total disability benefits for her alleged occupational disease, chemical sensitivity, under G.S. 91-53(13), where the experts opined that the employee had a heightened peculiar sensitivity to chemicals and that her personal sensitivity predated any exposure she alleged caused condition, and any expert opinion supporting the employee’s position was based on mere speculation or possibility. Hayes v. Tractor Supply Co., 170 N.C. App. 405, 612 S.E.2d 399, 2005 N.C. App. LEXIS 1003 (2005).

In an occupational disease case under G.S. 97-53(13), the North Carolina Industrial Commission did not err in denying an employee’s claim for workers’ compensation benefits because the employee failed to prove a causal relationship between the employee’s employment and the Lyme disease. Kashino v. Carolina Veterinary Specialists Med. Servs., 186 N.C. App. 418, 650 S.E.2d 839, 2007 N.C. App. LEXIS 2205 (2007).

Although the employee’s synovitis resulted from a tear to the employee’s ligament, the tear was not caused by the employee’s employment and, thus, was not compensable. Furthermore, the employee’s elbow injury was not compensable because the employee presented no evidence that the employee was exposed to an increased risk of developing ulnar neuropathy in the employee’s job to a far greater degree and in a wholly different manner than was the general public. Lanier v. Eddie Romanelle's, 192 N.C. App. 166, 664 S.E.2d 609, 2008 N.C. App. LEXIS 1552 (2008).

If a disease is produced by some extrinsic or independent agency, it may not be imputed to the occupation or the employment. Moore v. J.P. Stevens & Co., 47 N.C. App. 744, 269 S.E.2d 159, 1980 N.C. App. LEXIS 3210 (1980).

But Employment Need Not Be Exclusive Cause of Disease. —

Subdivision (13) in no way requires that the conditions of employment be the exclusive cause of the disease in order to be compensable. Humphries v. Cone Mills Corp., 52 N.C. App. 612, 279 S.E.2d 56, 1981 N.C. App. LEXIS 2470 (1981).

The disease need not be one which originates exclusively from the particular kind of employment in which the employee is engaged, but rather, employment must result in a hazard which distinguishes it in character from the general run of occupations. Humphries v. Cone Mills Corp., 52 N.C. App. 612, 279 S.E.2d 56, 1981 N.C. App. LEXIS 2470 (1981).

The hazards of employment do not have to be the sole cause of a worker’s injury in order for the worker to receive compensation for the full extent of his incapacity for work caused by the injury. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359, 1983 N.C. LEXIS 1129 (1983).

Where the accident and resultant injury arise out of both the idiopathic condition of the worker and the hazards incident to the employment, the employer is liable. But not so where the idiopathic condition is the sole cause of the injury. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359, 1983 N.C. LEXIS 1129 (1983).

Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983) expressly replaced the former standard of actual causation with a liberalized standard of causation, whereby exposure to cotton dust need only be a significant causative or contributing factor in the disease’s development. Calloway v. Mills, 78 N.C. App. 702, 338 S.E.2d 548, 1986 N.C. App. LEXIS 1998 (1986).

Fact that on cross-examination physician testified that plaintiff’s cigarette smoking was probably a more significant contributing factor than his occupation did not compel the conclusion that plaintiff did not have a compensable occupational disease. So long as the employment significantly contributed to, or was a significant causal factor in, the disease’s development, an occupational disease is compensable under this section. Perry v. Burlington Indus., Inc., 80 N.C. App. 650, 343 S.E.2d 215, 1986 N.C. App. LEXIS 2234 (1986).

The claimant’s rotator cuff injury was compensable, even if her second job aggravated the injury, where the shoulder pains began two years before she began cleaning houses in addition to her regular job as a reclaim operator, and this subsection does not require that the conditions of employment be the exclusive cause of the occupational disease. Garren v. P.H. Glatfelter Co., 131 N.C. App. 93, 504 S.E.2d 810, 1998 N.C. App. LEXIS 1231 (1998).

Disease Need Not Be Unique to the Particular Occupation. —

To satisfy the first and second elements of subdivision (13) of this section, it is not necessary that the disease originate exclusively from or be unique to the particular trade or occupation in question. All ordinary diseases of life are not excluded from the statute’s coverage. Only those ordinary diseases of life to which the general public is exposed equally with workers in the particular trade or occupation are excluded. Thus, the first two elements are satisfied if, as a matter of fact, the employment exposed the worker to a greater risk of contracting the disease than the public generally. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359, 1983 N.C. LEXIS 1129 (1983).

Factual inquiry should be whether occupational exposure was such significant factor in the disease’s development that without it the disease would not have developed to such an extent that it caused the physical disability which resulted in claimant’s incapacity for work. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359, 1983 N.C. LEXIS 1129 (1983); Collins v. Mills, 85 N.C. App. 243, 354 S.E.2d 245, 1987 N.C. App. LEXIS 2563 (1987).

Causal Connection May Be Established by Circumstantial Evidence. —

In occupational disease cases, the causal connection between the disease and the employee’s occupation must of necessity be based upon circumstantial evidence. Lumley v. Dancy Constr. Co., 79 N.C. App. 114, 339 S.E.2d 9, 1986 N.C. App. LEXIS 2028 (1986).

Circumstantial evidence of the causal connection between the occupation and the disease is sufficient. Medical opinions given may be based either on personal knowledge or observation or on information supplied him by others, including the patient. Absolute medical certainty is not required. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

The right to compensation for a disease caused in part by occupational factors and in part by nonoccupational factors depends on proving: (1) that the occupation in question exposed the worker to a greater risk of contracting the disease than members of the public generally, and (2) that the worker’s exposure significantly contributed to or was a significant causal factor in the disease’s development. Mills v. Mills, 68 N.C. App. 151, 314 S.E.2d 833, 1984 N.C. App. LEXIS 3201 (1984); Gay v. J.P. Stevens & Co., 79 N.C. App. 324, 339 S.E.2d 490, 1986 N.C. App. LEXIS 2072 (1986).

Ordinary Disease of Life. —

If the medical evidence tends to show that plaintiff suffers from an ordinary disease of life to which the general public is equally exposed, which is not proven to be due to causes and conditions which are characteristic of and peculiar to any particular trade, occupation or employment and which is not aggravated or accelerated by an occupational disease, the claim is not compensable. Thompson v. Burlington Indus., 59 N.C. App. 539, 297 S.E.2d 122, 1982 N.C. App. LEXIS 3137 (1982), cert. denied, 307 N.C. 582, 299 S.E.2d 650, 1983 N.C. LEXIS 1208 (1983).

Disease Caused by Vaccination Required as Condition of Employment. —

Award of worker’s compensation benefits was proper for an employee’s occupational disease based on side effects suffered by the employee as the result of a vaccine that was required for employment under circumstances in which, inter alia, an expert testified that the vaccine was approved for research only, and 15 to 17 percent of those who received the booster experienced systemic side effects; the expert also testified that persons who took the vaccine because of their employment were at an increased risk for systemic side effects as opposed to the general public, which was competent evidence to support the finding that the employee was placed at an increased risk over persons in the general population for her symptoms by virtue of her employment. There was also competent evidence that the employee’s ongoing symptoms were causally related to her employment. Kai-Ling Fu v. UNC Chapel Hill, 188 N.C. App. 610, 655 S.E.2d 907, 2008 N.C. App. LEXIS 201 (2008).

Exposure to Environmental Irritants. —

Where an employee is exposed in his workplace to environmental irritants which in fact hasten the onset of a disabling condition which did not previously exist, such aggravation is tantamount to causation for purposes of subdivision (13) of this section, and the resulting disability is an occupational disease thereunder. Walston v. Burlington Indus., 49 N.C. App. 301, 271 S.E.2d 516, 1980 N.C. App. LEXIS 3403 (1980), rev'd, 304 N.C. 670, 285 S.E.2d 822, 1982 N.C. LEXIS 1239 (1982).

Commission Was Not Required to Make Two Separate Findings Regarding Aggravation of Disease. —

The terms “significantly contributing to” and “aggravated,” regarding exposure to a substance and its effect on a claimant’s health, are interchangeable. Therefore, where the Industrial Commission had determined that plaintiff’s exposure to cotton dust did not significantly contribute to his disease, it was tantamount to a finding that his disease was not aggravated by his exposure to cotton dust. It was not necessary for the Commission to make two separate findings. Wilkins v. J.P. Stevens & Co., 100 N.C. App. 742, 398 S.E.2d 66, 1990 N.C. App. LEXIS 1157 (1990), aff'd, 333 N.C. 449, 426 S.E.2d 675, 1993 N.C. LEXIS 88 (1993).

Commission Must Determine Significance of Exposure. —

Ultimately, the Commission must determine whether the occupational exposure was such a significant factor in the disease’s development that without it the disease would not have developed to such an extent that it caused the physical disability which resulted in claimant’s incapacity for work. Gay v. J.P. Stevens & Co., 79 N.C. App. 324, 339 S.E.2d 490, 1986 N.C. App. LEXIS 2072 (1986); Perry v. Burlington Indus., Inc., 80 N.C. App. 650, 343 S.E.2d 215, 1986 N.C. App. LEXIS 2234 (1986).

Factors in Determining Significance of Exposure. —

In determining the role occupational exposure played in development of disease, the Commission may consider, in addition to expert medical testimony, factual circumstances which bear on the question of causation. Thus, the Commission may consider (1) the nature and extent of claimant’s occupational exposure, (2) the presence or absence of other nonwork-related exposures and components which contributed to the disease’s development, and (3) correlations between claimant’s work history and the development of the disease. Gay v. J.P. Stevens & Co., 79 N.C. App. 324, 339 S.E.2d 490 (1986). In accord with the main volume. See Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

Award Where Occupational and Nonoccupational Disease Cannot Be Apportioned. —

Where medical evidence would not permit any reasonable apportionment of claimant’s disability between occupational and nonoccupational disease, claimant would be entitled to an award for her entire disability if her occupational disease was a substantial and material factor in bringing about that disability. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985) (remanding to the Commission for a determination of the issue) .

Mixed Question of Law and Fact. —

Whether a given illness falls within the general definition set out in subdivision (13) presents a mixed question of fact and law. The Commission must determine first the nature of the disease from which the plaintiff is suffering, that is, its characteristics, symptoms and manifestations. Ordinarily, such findings will be based on expert medical testimony. Having made appropriate findings of fact, the next question the Commission must answer is whether or not the illness which plaintiff has contracted falls within the definition set out in the statute. This latter judgment requires a conclusion of law. Wood v. J.P. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692, 1979 N.C. LEXIS 1269 (1979); Harrell v. J.P. Stevens & Co., 45 N.C. App. 197, 262 S.E.2d 830, 1980 N.C. App. LEXIS 2631, cert. denied, 300 N.C. 196, 269 S.E.2d 623, 1980 N.C. LEXIS 1552 (1980).

Whether a given illness falls within the general definitions set out in subdivision (13) of this section presents a mixed question of fact and law. Taylor v. J.P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144, 1980 N.C. LEXIS 1032 (1980); Taylor v. Cone Mills Corp., 306 N.C. 314, 293 S.E.2d 189, 1982 N.C. LEXIS 1453 (1982).

Explicit Findings Required. —

Where the Commission awards compensation for disablement due to an occupational disease encompassed by subdivision (13), the opinion an award must contain explicit findings as to the characteristics, symptoms and manifestations of the disease from which the plaintiff suffers, as well as a conclusion of law as to whether the disease falls within the statutory provision. Moore v. J.P. Stevens & Co., 47 N.C. App. 744, 269 S.E.2d 159, cert. denied, 301 N.C. 401, 274 S.E.2d 226 (1980); Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101 (1981). In accord with the main volume. See Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

Occupational Disease Found. —

Competent evidence supported the finding that a textile mill employee’s work environment significantly contributed to the development of her asthma to the extent that it disabled her, where a medical expert testified that exposure “more likely than not” contributed to the worsening of her asthma, and another doctor testified that the employee’s asthma was severe enough to prevent her from working. Locklear v. Stedman Corporation/Sara Lee Knit Prods., 131 N.C. App. 389, 508 S.E.2d 795, 1998 N.C. App. LEXIS 1451 (1998).

Testimony of a licensed physical therapist and the treating physician were based upon competent evidence and was predicated on accurate impressions of a workers’ compensation claimant’s job duties and activities; thus, the claimant met the claimant’s burden of showing the claimant’s carpal tunnel syndrome was an occupational disease under G.S. 97-53(13). Newnam v. New Hanover Reg'l Med. Ctr., 212 N.C. App. 271, 711 S.E.2d 194, 2011 N.C. App. LEXIS 1050 (2011).

Claimant sustained a compensable occupational disease because the claimant’s job duties placed the claimant at an increased risk of developing the medical condition as compared to members of the general public not so employed, the claimant’s condition was not an ordinary disease of life to which the public was equally exposed, and the claimant’s history of using the claimant’s hands while at work to dislodge the parts from assembled units caused the claimant’s bilateral peripheral vascular disorder condition. Seamon v. Ingersoll Rand, 238 N.C. App. 452, 767 S.E.2d 592, 2014 N.C. App. LEXIS 1394 (2014).

Occupational Disease Not Found. —

Evidence was insufficient to support a finding that plaintiff had a compensable occupational disease, where none of plaintiff’s co-workers testified that they had consulted a physician and had been diagnosed with fibromyalgia, although they testified that they experienced similar symptoms as plaintiff, and none of the medical witnesses expressed an opinion as to whether plaintiff’s employment or occupation subjected her to a greater risk of contracting the disease. Norris v. Drexel Heritage Furnishings, Inc., 139 N.C. App. 620, 534 S.E.2d 259, 2000 N.C. App. LEXIS 994 (2000), cert. denied, 353 N.C. 378, 547 S.E.2d 15, 2001 N.C. LEXIS 116 (2001).

The Supreme Court of North Carolina reversed an award of compensation and instead adopted the dissenting opinion in Woody v. Thomasville Upholstery, Inc., 146 N.C. App. 187, 552 S.E.2d 202 (2001), that the evidence and the Industrial Commission’s findings did not support the Commission’s conclusions that plaintiff’s employment exposed her to a greater risk of contracting depression and fibromyalgia than the public generally and that her depression and fibromyalgia were therefore compensable occupational diseases. Although plaintiff suffered from depression and fibromyalgia after being placed in the unfortunate position of working for an abusive supervisor, such conditions can occur with any employee in any industry or profession, or in similar abusive relationships outside the workplace, and cannot be construed as ‘characteristic of and peculiar to‘ her particular employment, and were therefore non-compensable. Woody v. Thomasville Upholstery, Inc., 355 N.C. 483, 562 S.E.2d 422, 2002 N.C. LEXIS 423 (2002).

Industrial commission properly denied a nurse’s claim for compensation for an alleged occupational disease pursuant to G.S. 97-53(13); the nurse’s constant exposure to the death of patients was not a significant factor in the development of the nurse’s depression, and thus presented insufficient evidence to demonstrate that the workplace stressors contributing to the development of her depression were causes and conditions characteristic of and peculiar to her position as a registered nurse. Lewis v. Duke Univ., 163 N.C. App. 408, 594 S.E.2d 100, 2004 N.C. App. LEXIS 412 (2004).

North Carolina Industrial Commission did not err in concluding that an employee failed to show that he was suffering from an occupational disease because the employee presented no evidence, and the Commission made no findings to support a conclusion, that the employee’s depression was due to causes and conditions characteristic of and peculiar to his employment in the aircraft section of his employer. Bursell v. N.C. Indus. Comm'n I.C. No. 177846, 172 N.C. App. 73, 616 S.E.2d 342, 2005 N.C. App. LEXIS 1427 (2005).

North Carolina Industrial Commission properly denied an employee’s application for workers’ compensation benefits because the employee failed to meet her burden of showing that her employment as a sixth-grade teacher placed her at an increased risk of developing anxiety disorder; thus, the employee failed to establish that her condition was an occupational disease pursuant to G.S. 97-53(13), as the employee’s position did not expose her to unusual and stressful conditions, and her employer did not require her to perform any extraordinary tasks. Hassell v. Onslow County Bd. of Educ., 182 N.C. App. 1, 641 S.E.2d 324, 2007 N.C. App. LEXIS 487 (2007), aff'd, 362 N.C. 299, 661 S.E.2d 709, 2008 N.C. LEXIS 498 (2008).

Unless there is a proper finding that plaintiff suffers from an occupational disease, the analysis required by Morrison v. Burlinton Indus., 304 N.C. 1, 282 S.E.2d 458 (1981) and Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101 (1981) is inappropriate. Lumpkins v. Mills, 56 N.C. App. 653, 289 S.E.2d 848, 1982 N.C. App. LEXIS 2459 (1982).

Claimant Has Burden of Proof. —

A claimant’s right to compensation for an occupational disease under subdivision (13) of this section and G.S. 97-52 depends upon proper proof of causation, and the burden of proving each and every element of compensability is upon the plaintiff. Moore v. J.P. Stevens & Co., 47 N.C. App. 744, 269 S.E.2d 159, 1980 N.C. App. LEXIS 3210 (1980).

The claimant carries the burden of proving the existence of a compensable claim. Gay v. J.P. Stevens & Co., 79 N.C. App. 324, 339 S.E.2d 490, 1986 N.C. App. LEXIS 2072 (1986).

Claimant has the burden of proof, but if the occupational exposure in question is such that it augments the disease process to any degree, however slight, the employer is liable. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

Respiratory surfaces of the lungs are “external contact surfaces” of the body as contemplated by subdivision (13) of this section as it existed prior to the 1971 amendment. Taylor v. Cone Mills Corp., 306 N.C. 314, 293 S.E.2d 189, 1982 N.C. LEXIS 1453 (1982).

Evidence offered was sufficient to support the Industrial Commission’s findings that a spontaneous tear of the rotator cuff was an occupational disease within the meaning of subsection (13) of this section. Gibbs v. Leggett & Platt, Inc., 112 N.C. App. 103, 434 S.E.2d 653, 1993 N.C. App. LEXIS 1022 (1993).

Causal Relationship Between Disease and Inability to Work. —

Evidence that a claimant’s environmental restriction (caused by an occupational disease) significantly limits the scope of potential employment in his or her usual vocation, when combined with other factors such as a lack of training in any other vocation, is competent to establish a causal nexus between the occupational disease and the partial or total inability to earn wages in the same or any other employment. Preslar v. Cannon Mills Co., 80 N.C. App. 610, 343 S.E.2d 209, 1986 N.C. App. LEXIS 2236 (1986).

Individual who retired from job in which he had 47 years of experience at age 70, and subsequently attempted to return to work but could not obtain comparable employment, was entitled to partial disability compensation based on the difference between his present and former wages, in view of environmental restriction, caused by his occupational disease (COPD), which combined with other factors to limit the scope of his potential employment. Preslar v. Cannon Mills Co., 80 N.C. App. 610, 343 S.E.2d 209, 1986 N.C. App. LEXIS 2236 (1986).

Wrongful Death Claim Barred. —

Wrongful death complaint alleging that defendant, decedent’s employer, negligently required decedent to perform tasks which exposed decedent to known carcinogens, thereby causing decedent’s cancer of the bladder and resulting death, came within the language of subdivision (13) of this section and was barred by the Workers’ Compensation Act. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186, 1988 N.C. App. LEXIS 76 (1988).

Evidence Sufficient. —

The employee met her burden in showing that her employment caused or was a significant contributing factor to her rotator cuff tear, where she showed that her work as a reclaim operator required her to perform the repetitive activities involving her shoulders of removing, replacing, and stacking bobbins, and her medical witness testified that the work could have been a significant factor in causing the injury. Garren v. P.H. Glatfelter Co., 131 N.C. App. 93, 504 S.E.2d 810, 1998 N.C. App. LEXIS 1231 (1998).

III.Particular Diseases

Asthma. —

Because a claimant failed to establish that his employment exposed him to a greater risk of contracting asthma than the public generally, the Industrial Commission properly denied his claim for workers’ compensation benefits. Briggs v. Debbie's Staffing, Inc., 258 N.C. App. 207, 812 S.E.2d 706, 2018 N.C. App. LEXIS 217 (2018).

Degenerative disc condition which is not shown to be “characteristic of and peculiar to” plaintiff ’s employment is not an occupational disease, and there can be no compensation without a connection between the disease and the employment. Griffitts v. Thomasville Furn. Co., 65 N.C. App. 369, 309 S.E.2d 277, 1983 N.C. App. LEXIS 3463 (1983).

Evidence Insufficient. —

Court agreed with Industrial Commission that plaintiff failed to demonstrate that her carpal tunnel syndrome was an occupational disease “which was characteristic of and peculiar to her employment” within the meaning of this section. Jarvis v. Food Lion, Inc., 134 N.C. App. 363, 517 S.E.2d 388, 1999 N.C. App. LEXIS 761 (1999).

Finding that employee’s ulnar neuropathy and cervical spine condition were compensable occupational diseases was reversed because the employee failed to establish that employment as a bus driver placed the employee at a greater risk of contracted either condition than the general public; statements by the employee’s doctor were insufficient to establish the necessary causal relationship for the employee’s conditions to be compensable as occupational diseases. Chambers v. Transit Mgmt., 360 N.C. 609, 636 S.E.2d 553, 2006 N.C. LEXIS 1195 (2006).

Court could not determine from the record evidence whether an employee earned wages in any employment between June 28, 2006 and December 7, 2007, and, if so, whether her injury prevented her from earning any wages or prevented her from earning the same wages as before her injury. Temporary total disability award had to be reversed and remanded for consideration of whether the employee (1) was incapable after her injury of earning the same wages she had earned before her injury in the same employment, (2) was incapable after her injury of earning the same wages she had earned before her injury in any other employment, and (3) whether her incapacity was caused by her injury. Biggerstaff v. Petsmart, Inc., 196 N.C. App. 261, 674 S.E.2d 757, 2009 N.C. App. LEXIS 365 (2009).

Denial of workers’ compensation benefits was proper pursuant to G.S. 97-53(13) because the employees were required to show that they were exposed to sufficient quantities of toxic or pathogenic substances during their employment to cause the symptoms from which they suffered, and they failed to do so. Huffman v. Moore County, 208 N.C. App. 471, 704 S.E.2d 17, 2010 N.C. App. LEXIS 2449 (2010).

Heart Disease. —

Heart disease is not an occupational disease. West v. North Carolina Dep't of Conservation & Dev., 229 N.C. 232, 49 S.E.2d 398, 1948 N.C. LEXIS 452 (1948); Duncan v. City of Charlotte, 234 N.C. 86, 66 S.E.2d 22, 1951 N.C. LEXIS 404 (1951).

Infectious hepatitis is not listed in this section. Smith v. Memorial Mission Hosp., 21 N.C. App. 380, 204 S.E.2d 546, 1974 N.C. App. LEXIS 1809 (1974).

Evidence presented was insufficient to show that infectious hepatitis was a disease which was characteristic of and peculiar to the occupation of a master mechanic acting, sometimes as a plumber, in the course of his employment for a hospital. Morrow v. Memorial Mission Hosp., 21 N.C. App. 299, 204 S.E.2d 543, 1974 N.C. App. LEXIS 1785 (1974); Smith v. Memorial Mission Hosp., 21 N.C. App. 380, 204 S.E.2d 546, 1974 N.C. App. LEXIS 1809 (1974).

Serum Hepatitis. —

Because serum hepatitis is not expressly mentioned in the schedule of diseases contained in this section, it is a compensable injury only if it falls within the general definition set out in subdivision (13). Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Hepatitis C Virus. —

Habilitation aide presented no evidence that she was exposed to the hepatitis C virus at work as the aide relied on alleged blood-to-blood exposure with residents at the facility as sufficient proof of causation; however, exposure to blood, standing alone, was not sufficient evidence of exposure to the hepatitis C virus as proof of exposure to the disease or disease-causing agents during employment was required and uninfected blood could not be characterized as a disease-causing agent. Poole v. Tammy Lynn Ctr., 151 N.C. App. 668, 566 S.E.2d 839, 2002 N.C. App. LEXIS 902 (2002).

Industrial commission properly denied a claim for workers’ compensation benefits pursuant to G.S. 97-53(13); testimony by an expert on infectious diseases was sufficient to support the finding that a worker’s hepatitis C was not caused by work-related contact with sewage. Carroll v. Town of Ayden, 160 N.C. App. 637, 586 S.E.2d 822, 2003 N.C. App. LEXIS 1927 (2003), aff'd, 359 N.C. 66, 602 S.E.2d 674, 2004 N.C. LEXIS 1122 (2004).

Dermatitis resulting from contact with gloves made of commercial rubber held not an occupational disease compensable under the act. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760, 1950 N.C. LEXIS 478 (1950).

Skin Condition Caused by Sensitivity to Chemicals Used in Work. —

A hair stylist was not entitled to disability compensation payments where her skin condition, caused by her sensitivity to chemicals used in her work, had completely cleared up within one month of her terminating employment. While it might be true that her skin disease could recur if she returned to her previous job, there was no evidence of any continuing disability as a result of a disease contracted in the course of employment. She was not entitled to compensation for her susceptibility to the skin disease. Sebastian v. Mona Watkins Hair Styling, 40 N.C. App. 30, 251 S.E.2d 872, 1979 N.C. App. LEXIS 2583, cert. denied, 297 N.C. 301, 254 S.E.2d 921, 1979 N.C. LEXIS 1314 (1979).

Calcification of Tendons and Ligaments. —

Where, in a hearing before the Industrial Commission, the critical issue raised by the evidence was whether the calcification of tendons and ligaments in plaintiff ’s shoulders, resulting in a 10 percent permanent partial disability to both arms, was an occupational disease within the meaning of subdivision (13), this issue engendered two distinct findings of fact which had to be made: (1) an explicit description of plaintiff ’s duties in performing her occupation, and (2) a determination of whether such duties caused the calcification and resulting disability to either or both of plaintiff ’s arms. Cannady v. Gold Kist, 43 N.C. App. 482, 259 S.E.2d 342, 1979 N.C. App. LEXIS 3118 (1979).

Tenosynovitis Caused by Trauma in Employment. —

Synovitis is the inflammation of a synovial membrane and tenosynovitis or tendosynovitis is the inflammation of a synovial membrane which forms the protective sheath that encloses the tendon. It is sometimes used to denote the inflammation of both the sheath and the tendon. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

The causative origin of tenosynovitis is either infection or trauma. The clause “caused by trauma in employment” was used by the legislature to modify the word “tenosynovitis” so as to include the occupational and exclude the infectious type, i.e., to include the traumatic and exclude the idiopathic. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

In using the modifying phrase, “caused by trauma in employment,” the legislature necessarily meant a series of events in employment occurring regularly, or at frequent intervals, over an extended period of time, and culminating in the condition technically known as tenosynovitis. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

A single blow on the arm might bruise the extensor tendons to such an extent as to cause temporary tenosynovitis. The resulting condition would be properly termed an injury by accident caused by trauma. But it would not constitute an occupational disease, for an occupational disease is a diseased or morbid condition which develops gradually, and is produced by a series of events in employment occurring over a period of time. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

Tenosynovitis attributable to repeated strain or stress on the extensor tendons of claimant’s arms incident to the performance of the duties of his employment is “caused by trauma in employment” and is an occupational disease compensable under the provisions of this section, since “trauma” in its technical sense is not limited to injuries resulting from external force or violence. Henry v. A.C. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693, 1951 N.C. LEXIS 428 (1951).

Torn Rotator Cuff. —

Industrial Commission properly determined that a worker suffered a compensable occupations disease as defined by G.S. 97-53; the evidence indicated that the worker’s employment as a cameraman predisposed him to a greater risk for rotator cuff and shoulder problems than the general public, as his work involved much overhead lifting and body contortion in order to get proper camera angles. Flynn v. EPSG Mgmt. Servs., 171 N.C. App. 353, 614 S.E.2d 460, 2005 N.C. App. LEXIS 1208 (2005).

Asbestosis. —

North Carolina Industrial Commission did not err in denying benefits for asbestosis and lung cancer where there was competent evidence in the record to support the Commission’s findings regarding the employee’s last injurious exposure to asbestos, and where the Commission applied the correct legal standard in evaluating both claims; the evidence supported a reasonable inference that the employee was exposed to asbestos for at least 30 days or parts thereof within seven consecutive months while working for a different employer, and the employee’s last injurious exposure to the hazards of asbestosis occurred with the different employer. Hatcher v. Daniel Int'l Corp., 153 N.C. App. 776, 571 S.E.2d 20, 2002 N.C. App. LEXIS 1261 (2002).

Industrial Commission did not place an impermissible burden of establishing the amount of exposure to asbestos on the claimants because consideration of the form of asbestos, the quantity of asbestos exposure, and the frequency of exposure was appropriate in determining whether asbestos exposure at the factory was a significant causal factor in the development of the claimants’ alleged asbestos. Therefore, the Commission’s ultimate finding that the greater weight of the evidence showed that the claimants were not exposed to airborne asbestos in such form and quantity and with such frequency as to cause asbestosis did not show that the Commission placed an impermissible burden on claimants. Hinson v. Cont'l Tire the Ams., 267 N.C. App. 144, 832 S.E.2d 519, 2019 N.C. App. LEXIS 730 (2019).

Industrial Commission did not err by relying on air sampling or non-medical evidence that there was not sufficient exposure to asbestos at the factory to contribute to or cause an asbestos-related disease, and the results of the lung tissue analyses of the deceased claimants were direct evidence that none had asbestosis and was circumstantial evidence supporting the Commission’s determination that the claimants had failed to prove a causal connection between asbestosis and employment at the factory. Hinson v. Cont'l Tire the Ams., 267 N.C. App. 144, 832 S.E.2d 519, 2019 N.C. App. LEXIS 730 (2019).

Competent evidence supported the Industrial Commission’s determination that the claimant failed to prove a causal connection between his employment at the factory and his alleged asbestosis because the claimant did not challenge the finding that the post-mortem pathological study of the claimant’s lung tissue revealed no pathological evidence of asbestosis, multiple doctors stated that the claimant’s x-rays did not show evidence of pleural abnormalities or asbestosis, the claimant’s treating physician told him to inform his attorney that the abnormal x-ray was due to pneumonia, and even though the claimant testified that he never smoked medical records and his pathology results indicated he had a remote smoking history. Hinson v. Cont'l Tire the Ams., 267 N.C. App. 144, 832 S.E.2d 519, 2019 N.C. App. LEXIS 730 (2019).

Silicosis is an inflammatory disease of the lungs due to the inhalation of particles of silicon dioxide. It is incurable and is one of the most disabling occupational diseases because it makes the lungs susceptible to other infection, particularly tuberculosis. According to the textbook writers, it has been definitely determined that the removal of a man who has silicosis from silica exposure, does not stop the progress of the disease at once, but that fibrotic changes continue to develop for another one or two years. Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 69 S.E.2d 707, 1952 N.C. LEXIS 390 (1952).

Byssinosis. —

The Commission erred in assuming that byssinosis is an irritation of the pulmonary air passages without hearing evidence and making findings of fact as to the nature of claimant’s illness, which is required of the Commission in determining whether a given illness falls within the general definition set out in subdivision (13). The causes and development of byssinosis, and the structural and functional changes produced by the diseases, are still the subject of scientific debate, and the Supreme Court has never before considered a case involving byssinosis. Under these circumstances, judicial notice as to the essential characteristics of the disease is inappropriate. Wood v. J.P. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692, 1979 N.C. LEXIS 1269 (1979).

Despite evidence that plaintiff had smoked three-fourths of a pack of cigarettes daily for 30 years, the medical evidence and plaintiff ’s own testimony was sufficient to find him permanently disabled under this section from byssinosis caused by the conditions of his employment in the weave room of a textile plant. Humphries v. Cone Mills Corp., 52 N.C. App. 612, 279 S.E.2d 56, 1981 N.C. App. LEXIS 2470 (1981).

Byssinosis, as a component of chronic obstructive pulmonary disease, is a compensable occupational disease. Peoples v. Cone Mills Corp., 69 N.C. App. 263, 317 S.E.2d 120, 1984 N.C. App. LEXIS 3503 (1984), modified, 316 N.C. 426, 342 S.E.2d 798, 1986 N.C. LEXIS 2162 (1986).

Apportionment between causal factors is no longer the standard for disability compensation in cases involving exposure to cotton dust. Gibson v. Little Cotton Mfg. Co., 73 N.C. App. 143, 325 S.E.2d 698, 1985 N.C. App. LEXIS 3183 (1985).

Evidence held sufficient to support the finding that plaintiff was partially incapable of engaging in gainful employment by byssinosis and chronic obstructive lung disease as a result of 29 years of smoking and exposure to cotton dust, and that his occupational disease, combined with his age, limited education and work experience, limited his ability to earn wages. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Chronic Obstructive Pulmonary Disease. —

To hold that the inhalation of cotton dust must be the sole cause of chronic obstructive lung disease before this disease can be considered occupational establishes too harsh a principle from the standpoint of the worker and the purposes and policies of the Workers’ Compensation Act. This act should be liberally construed so that the benefits under the act will not be denied by narrow, technical or strict interpretation. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359, 1983 N.C. LEXIS 1129 (1983).

Chronic obstructive lung disease may be an occupational disease provided the occupation in question exposed the worker to a greater risk of contracting this disease than members of the public generally, and provided the worker’s exposure to cotton dust significantly contributed to, or was a significant causal factor in, the disease’s development. This is so even if other non-work related factors also made significant contributions or were significant causal factors. Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 304 S.E.2d 215 (1983), rehearing denied, 311 S.E.2d 590 (N.C. 1984). In accord with second paragraph in the main volume. See McHargue v. Burlington Indus., 78 N.C. App. 324, 337 S.E.2d 584, 1985 N.C. App. LEXIS 4311 (1985); 302 N.C. 183, 273 S.E.2d 705 (1981).

An employee who suffers from chronic obstructive pulmonary disease is entitled to findings of fact and conclusions of law that said disease in an occupational disease pursuant to subdivision (13) of this section, if it is shown by competent evidence that occupational exposure to a hazard known to cause the disease, such as cotton dust, significantly contributed to the causation or development of the disease. Swink v. Cone Mills, Inc., 65 N.C. App. 397, 309 S.E.2d 271, 1983 N.C. App. LEXIS 3461 (1983).

A claimant is not required to establish work-related byssinosis as a causal element of his or her chronic obstructive pulmonary disease in order to prove the existence of an occupational disease within the meaning of subdivision (13) of this section. Rather, he or she needs only to establish the existence of chronic obstructive pulmonary disease and to establish that exposure to cotton dust in the work environment significantly contributed to or was a significant causal factor in the development of the disease. Clark v. American & Efird Mills, 66 N.C. App. 624, 311 S.E.2d 624, 1984 N.C. App. LEXIS 2923 (1984), aff'd, 312 N.C. 616, 323 S.E.2d 920, 1985 N.C. LEXIS 2214 (1985).

Where plaintiff established the existence of chronic obstructive pulmonary disease with chronic bronchitis as the only element thereof, in order to conclude that plaintiff did not have an occupational disease within the meaning of subdivision (13) of this section the Commission would have to make findings, supported by competent record evidence, that plaintiff ’s exposure to cotton dust was neither a significant contribution to nor a significant causal factor in the development of her disease. Clark v. American & Efird Mills, 66 N.C. App. 624, 311 S.E.2d 624, 1984 N.C. App. LEXIS 2923 (1984), aff'd, 312 N.C. 616, 323 S.E.2d 920, 1985 N.C. LEXIS 2214 (1985).

Although the Industrial Commission made no findings regarding the significance of plaintiff ’s exposure to cotton dust in relation to the development of his lung disease, an award of workers’ compensation would nevertheless be proper if the evidence supported a conclusion that occupational exposure was a significant contributing or causal factor in the development of plaintiff ’s lung disease. Mills v. Mills, 68 N.C. App. 151, 314 S.E.2d 833, 1984 N.C. App. LEXIS 3201 (1984).

The following legal standard determines whether a claimant suffering from chronic obstructive lung disease has a compensable occupational disease under subdivision (13): The occupation in question must have exposed the worker to a greater risk of contracting this disease than members of the public generally, and provided the worker’s exposure to cotton dust significantly contributed to, or was a significant causal factor in, the disease’s development. This is so even if other non-work related factors also make significant contributions, or were significant causal factors. Gibson v. Little Cotton Mfg. Co., 73 N.C. App. 143, 325 S.E.2d 698, 1985 N.C. App. LEXIS 3183 (1985).

Chronic obstructive lung disease may be an occupational disease provided that the worker’s exposure to substances peculiar to the occupation in question significantly contributed to, or was a significant causal factor in, the development of the disease. Goodman v. Cone Mills Corp., 75 N.C. App. 493, 331 S.E.2d 261, 1985 N.C. App. LEXIS 3686 (1985).

In determining whether exposure to an occupational substance significantly contributed to, or was a significant causal factor in, chronic obstructive lung disease, the Commission may consider medical testimony as well as other factual circumstances in the case, including the extent of the worker’s exposure to the substance, the extent of non-occupational but contributing factors, and the manner of development of the disease as it relates to the claimant’s work history. Goodman v. Cone Mills Corp., 75 N.C. App. 493, 331 S.E.2d 261, 1985 N.C. App. LEXIS 3686 (1985).

Where a medical doctor, a specialist in pulmonary medicine, testified, and the Commission found, that the claimant’s chronic obstructive lung disease was not caused, in whole or in part, by exposure to an occupational substance (i.e., cotton dust), but was due instead, to cigarette smoking, upon such a finding, the Commission was required to conclude that the claimant’s disease was not an occupational disease. Goodman v. Cone Mills Corp., 75 N.C. App. 493, 331 S.E.2d 261, 1985 N.C. App. LEXIS 3686 (1985).

Doctor’s testimony that the sulfuric acid fumes inhaled by plaintiff in his employment as a “battery buster” were a respiratory irritant, along with testimony that plaintiff often inhaled those fumes, was sufficient to establish a causal relationship with plaintiff’s obstructive lung disease. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, 1986 N.C. App. LEXIS 2117, aff'd, 318 N.C. 410, 348 S.E.2d 595, 1986 N.C. LEXIS 2662 (1986).

Employee in his late fifties whose formal education ended after the first grade, and who could not read, write or sign his name; did not know his date of birth; had a long history of cigarette smoking; worked on and off in the textile industry until March, 1981; and had chronic obstructive pulmonary disease, was not entitled to benefits, as he failed to prove extent of exposure to cotton dust and causation. Knight v. Cannon Mills Co., 82 N.C. App. 453, 347 S.E.2d 832, 1986 N.C. App. LEXIS 2520 (1986).

Chronic obstructive pulmonary disease may be an occupational disease if (i) the occupation in question exposed the worker to a greater risk of contracting the disease than that faced by members of the public generally and (ii) the worker’s exposure to cotton dust significantly contributed to or was a significant causal factor in the disease’s development, even if other non-work-related factors also make significant contributions, or were significant causal factors. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359, 1983 N.C. LEXIS 1129 (1983); Collins v. Mills, 85 N.C. App. 243, 354 S.E.2d 245, 1987 N.C. App. LEXIS 2563 (1987).

Testimony of physician that considering plaintiff’s history of cigarette smoking, his ability to perform work today would be the same had plaintiff worked on a farm rather than in the textile industry, supported the commission’s conclusion that plaintiff’s exposure to cotton dust was not a significant factor in the cause of plaintiff’s chronic obstructive lung disease. Collins v. Mills, 85 N.C. App. 243, 354 S.E.2d 245, 1987 N.C. App. LEXIS 2563 (1987).

When Byssinosis and Chronic Obstructive Pulmonary Disease Are “Occupational” Under Subdivision (13). —

Byssinosis and chronic obstructive pulmonary disease are not among the prima facie occupational diseases listed in this section. Therefore, to be “occupational” under the catch-all provision of subdivision (13), the plaintiff’s disease must be characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged, and not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation, and there must be a causal connection between the disease and the claimant’s employment. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Evidence held sufficient to support the finding that plaintiff was partially incapable of engaging in gainful employment by byssinosis and chronic obstructive lung disease as a result of 29 years of smoking and exposure to cotton dust, and that his occupational disease, combined with his age, limited education and work experience, limited his ability to earn wages. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Obstruction caused by chronic obstructive lung disease need not be apportioned between occupational and nonoccupational causes; a claimant may recover the entire disability resulting from such obstruction, so long as the occupation-related cause was a significant causal factor in the disease’s development. Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 336 S.E.2d 47, 1985 N.C. LEXIS 1981 (1985).

Progression of chronic obstructive lung disease is not the test of compensability; rather, the test is whether the occupational exposure significantly contributed to the disabling disease’s development. Neal v. Leslie Fay, Inc., 78 N.C. App. 117, 336 S.E.2d 628, 1985 N.C. App. LEXIS 4255 (1985).

Lung Disease Partially Caused by Occupational Exposure. —

In determining chronic obstructive lung disabilities which are caused in part by occupational exposure to cotton dust and in part by some other cause or causes unrelated to the employment, the following rule applies: When exposure to cotton dust is an insignificant causal factor in, or does not significantly contribute to, the development of the disabling lung disease, it is not an occupational disease within the purview of subdivision (13) of this section and no compensation is due therefor; but when the exposure to cotton dust significantly contributes to, or is a significant causal factor in, the development of a disabling lung disease it is an occupational disease and compensation for the full extent of the disability is due. Neal v. Leslie Fay, Inc., 78 N.C. App. 117, 336 S.E.2d 628, 1985 N.C. App. LEXIS 4255 (1985).

Findings as to Cause of Lung Disease. —

It was not enough for the Commission to say that claimant’s lung disease was “not caused by” exposure to cotton dust in her employment, where the Commission did not, however, make any findings on the issue of “significant contribution.” McHargue v. Burlington Indus., 78 N.C. App. 324, 337 S.E.2d 584, 1985 N.C. App. LEXIS 4311 (1985).

Tuberculosis. —

Plaintiff failed to show correlation between his work as a janitor and the development of tuberculosis, with the exception of his exposure to a coemployee with the disease, or that the nature of a janitorial job increased a person’s risk of developing tuberculosis, for tuberculosis to be found to be an occupational disease under subdivision (13). Higgs v. Southeastern Cleaning Serv., 122 N.C. App. 456, 470 S.E.2d 337, 1996 N.C. App. LEXIS 439, cert. dismissed, 344 N.C. 436, 476 S.E.2d 116, 1996 N.C. LEXIS 643 (1996).

Chronic Bronchitis Caused by Pneumonia. —

Finding of the Commission that employee who worked in the cotton textile industry had chronic bronchitis caused by nonwork-related pneumonia would be upheld. Clark v. American & Efird Mills, 82 N.C. App. 192, 346 S.E.2d 155, 1986 N.C. App. LEXIS 2450 (1986).

Costochondritis. —

Evidence tending to show that the disabling inflammation of the cartilaginous tissues between plaintiff’s sternum and ribs was caused by her constant lifting of 50 pound cakes of yarn, as her employment required; that the causes and conditions of her inflammation were peculiarly characteristic of her employment; and that her work placed her at a greater risk of contracting the inflammatory disease process than the public at large, few of whom regularly and repeatedly lift anything weighing 50 pounds, was support enough for the Commission’s conclusion that plaintiff’s disabling costochondritis was an occupational disease under subdivision (13). Thomason v. Fiber Indus., 78 N.C. App. 159, 336 S.E.2d 632, 1985 N.C. App. LEXIS 4254 (1985).

Pesticide Allergy. —

Although chlorpyrifos (Dursban), to which plaintiff was allergic, is not listed in this section, the evidence permitted the Commission to find and conclude that the form and quantity of her exposure to chlorpyrifos, due to repeated treatment of the workplace by the employer, caused her to contract a compensable occupational disease. Carawan v. Carolina Tel. & Tel. Co., 79 N.C. App. 703, 340 S.E.2d 506, 1986 N.C. App. LEXIS 2119 (1986).

Scarring of Ulnar Arteries. —

Evidence held to support the Commission’s finding that adventitial scarring of the ulnar arteries was peculiar to the occupation of carpenter’s helper, which trade involves repetitive trauma to the palm area of the hand. Lumley v. Dancy Constr. Co., 79 N.C. App. 114, 339 S.E.2d 9, 1986 N.C. App. LEXIS 2028 (1986).

Insect Sting. —

Where plaintiff failed to show that he was at an increased risk of being stung than a member of the general public, the sting was not an accident or an injury arising out of the employment. Minter v. Osborne Co., 127 N.C. App. 134, 487 S.E.2d 835, 1997 N.C. App. LEXIS 790 (1997).

Suicide. —

Commission’s finding that police officer’s death by suicide was not due to a compensable disease within the meaning of subdivision (13) was not supported by findings of fact where the commission failed to determine whether he had a dysthymic disorder (depression) as testified to by expert, and made no findings adequate to support a conclusion that if he had a dysthymic disorder, it was not an occupational disease. Harvey v. Raleigh Police Dep't, 85 N.C. App. 540, 355 S.E.2d 147, 1987 N.C. App. LEXIS 2599 (1987).

Stress. —

There was sufficient evidence to support the findings of the full commission that plaintiff suffered occupational stress as a result of her employment as a police officer and was entitled to workers’ compensation benefits. Pulley v. City of Durham, 121 N.C. App. 688, 468 S.E.2d 506, 1996 N.C. App. LEXIS 139 (1996).

Non-Hodgkin’s Lymphoma. —

The Industrial Commission’s finding that a deceased firefighter’s non-Hodgkin’s lymphoma was a compensable occupational disease was not supported by competent evidence, where it was not shown that the disease was characteristic of persons engaged in firefighting, or that it was not an ordinary disease of life to which the public generally is equally exposed, or that there was a causal connection between the disease and firefighting. Beaver v. City of Salisbury, 130 N.C. App. 417, 502 S.E.2d 885, 1998 N.C. App. LEXIS 951 (1998).

Carpal Tunnel Syndrome. —

Where plaintiff’s doctors failed to testify that her employment as a typist was a significant contributing factor to the development of her carpal tunnel syndrome, the Industrial Commission correctly found that plaintiff was not entitled to benefits. Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 524 S.E.2d 368, 2000 N.C. App. LEXIS 5 (2000).

Employee did not prove the presence of a compensable occupational disease under G.S. 97-53(13), as the employee’s job was high impact/low repetition which could not cause carpal tunnel syndrome, and did not place the employee at a greater risk for developing carpal tunnel syndrome than the general public. Futrell v. Resinall Corp., 151 N.C. App. 456, 566 S.E.2d 181, 2002 N.C. App. LEXIS 779 (2002), aff'd, 357 N.C. 158, 579 S.E.2d 269, 2003 N.C. LEXIS 421 (2003).

Industrial commission properly awarded workers’ compensation disability and medical benefits for bilateral carpal tunnel syndrome pursuant to G.S. 97-57, as testimony by treating physicians showed that the work placed the worker at increased risk for the injury, and thus the carpal tunnel syndrome qualified as an occupational disease pursuant to G.S. 97-53(13). Jarrett v. McCreary Modern, Inc., 167 N.C. App. 234, 605 S.E.2d 197, 2004 N.C. App. LEXIS 2175 (2004).

Employee, who worked as a custodial maintenance worker for 15 years, was properly awarded temporary total disability benefits for bilateral carpal tunnel syndrome (CTS) because, inter alia, there was sufficient evidence that the employee’s CTS was a compensable occupational disease since there was evidence that the employment exposed the employee to an increased risk of developing bilateral CTS as opposed to members of the general public not so exposed. Johnson v. City of Winston-Salem, 188 N.C. App. 383, 656 S.E.2d 608, 2008 N.C. App. LEXIS 209, aff'd, 362 N.C. 676, 669 S.E.2d 319, 2008 N.C. LEXIS 989 (2008).

In a workers’ compensation case, an employer and an insurance company argued unsuccessfully that an employee’s carpal tunnel syndrome was not a compensable occupational disease. While carpal tunnel syndrome was not a medical condition listed in G.S. 97-53 as a medical condition which was automatically deemed to be an occupational disease, the North Carolina Industrial Commission’s conclusion that the employee had sufficiently demonstrated that her carpal tunnel syndrome was an occupational disease was supported by competent evidence in the record and was therefore binding on appeal. Evans v. Conwood LLC, 199 N.C. App. 480, 681 S.E.2d 833, 2009 N.C. App. LEXIS 1489 (2009).

Coccidioidomycosis. —

Although coccidioidomycosis is not one of the occupational diseases listed in G.S. 97-53, truck driver was entitled to worker’s compensation benefits because the disease was one that the general public was not at risk of exposure to since it was limited to a specific geographic region, and the truck driver would not have contracted the disease but for the driver’s work, which required the driver to drive through an area of the southwest infested by dust-borne mold or fungus. Pressley v. Southwestern Freight Lines, 144 N.C. App. 342, 551 S.E.2d 118, 2001 N.C. App. LEXIS 438 (2001).

Post-Traumatic Stress Disorder. —

Record supported the North Carolina Industrial Commission’s decision that a nurse who worked at a behavioral center suffered post-traumatic stress disorder due to job-related stress to which the general public was not exposed, and that she met the criteria for workers’ compensation benefits. Smith-Price v. Charter Pines Behavioral Ctr., 160 N.C. App. 161, 584 S.E.2d 881, 2003 N.C. App. LEXIS 1737 (2003).

Firefighter’s post-traumatic stress disorder, depression, and other psychological conditions did not develop and were not aggravated by causes and conditions characteristic of and peculiar to his employment as a firefighter. Failing an employment test and perceiving demotion were not uncommon circumstances in the workplace. Clark v. City of Asheville, 161 N.C. App. 717, 589 S.E.2d 384, 2003 N.C. App. LEXIS 2259 (2003).

General Anxiety Disorder. —

Where an employee worked as a teacher and sought workers’ compensation benefits, arguing that the employee’s generalized anxiety disorder (GAD) was an occupational disease caused by a hostile and abusive classroom environment, the North Carolina Industrial Commission properly concluded that the employee’s GAD was not an occupational disease because, although it was inappropriate to imply that the employee’s fault played a role in determining compensability, the employee failed to prove either that the employee’s work increased the risk of GAD or significantly contributed to it, and the Commission did not ignore the testimony of the employee’s expert. Hassell v. Onslow County Bd. of Educ., 362 N.C. 299, 661 S.E.2d 709, 2008 N.C. LEXIS 498 (2008).

IV.Hearing Loss

Compensability of Hearing Loss Existing Prior to October 1, 1971. —

Nothing in Session Laws 1971, c. 1108, s. 3, which added subdivision (28) of this section, or in subdivision (28) itself, expressly mandates that hearing loss existing prior to October 1, 1971, is not compensable, as long as the last injurious exposure occurred after that date. Clark v. Burlington Indus., Inc., 78 N.C. App. 695, 338 S.E.2d 553, 1986 N.C. App. LEXIS 2006, cert. denied, 316 N.C. 375, 342 S.E.2d 892, 1986 N.C. LEXIS 2073 (1986).

If plaintiff, who suffered an occupational hearing loss while employed with defendant, could show any augmentation of his condition, however slight, proximately resulting from his employment with defendant and occurring after October 1, 1971, then defendant could properly and constitutionally be liable for the entire disability. Clark v. Burlington Indus., Inc., 78 N.C. App. 695, 338 S.E.2d 553, 1986 N.C. App. LEXIS 2006, cert. denied, 316 N.C. 375, 342 S.E.2d 892, 1986 N.C. LEXIS 2073 (1986).

Augmentation of Hearing Loss after October 1, 1971. —

Defendant employer may be held liable for plaintiff’s entire disability if plaintiff could show any augmentation of his occupational hearing loss, however slight, proximately resulting from his employment with defendant and occurring after October 1, 1971. Preslar v. Cannon Mills Co., 81 N.C. App. 276, 344 S.E.2d 141, 1986 N.C. App. LEXIS 2256 (1986).

The Commission erred in awarding plaintiff compensation for the 10% difference between his hearing loss established in 1984 and his hearing loss established prior to October 1, 1971, the effective date of subdivision (28) of this section, rather than awarding him compensation for the entire occupational hearing loss of 48.5% to which his employment contributed. Preslar v. Cannon Mills Co., 81 N.C. App. 276, 344 S.E.2d 141, 1986 N.C. App. LEXIS 2256 (1986).

A construction of subdivision (28) which defeats its purpose would be irrational and will not be adopted by the Supreme Court. McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795, 1983 N.C. LEXIS 1298 (1983).

In order to obtain an award of workers’ compensation for loss of hearing under subdivision (28), plaintiff must prove that he suffered a loss of hearing in both ears which was caused by harmful noise in his work environment. Price v. Broyhill Furn., 90 N.C. App. 224, 368 S.E.2d 1, 1988 N.C. App. LEXIS 440 (1988).

Plaintiff was entitled to compensation according to his wages at the time of last exposure, since plaintiff had met the burden of proof for that period of time; expert medical testimony clearly indicated that during this time, in which plaintiff was exposed to noise above 90 decibels in immediate proximity without the benefit of protective headgear, plaintiff’s pattern and degree of hearing loss correlated to the kind of noise to which he was exposed. Sellers v. Lithium Corp., 94 N.C. App. 575, 380 S.E.2d 526, 1989 N.C. App. LEXIS 548 (1989).

The 90 decibel limit in this section is the ambient noise level. Clark v. Burlington Indus., Inc., 78 N.C. App. 695, 338 S.E.2d 553, 1986 N.C. App. LEXIS 2006, cert. denied, 316 N.C. 375, 342 S.E.2d 892, 1986 N.C. LEXIS 2073 (1986).

No presumption arises under subdivision (28) if the noise intensity level is 90 decibels or greater. Claimant must still prove a loss of hearing caused by harmful noise in the employment. McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795, 1983 N.C. LEXIS 1298 (1983).

Burden of Proof. —

To establish a prima facie case under subdivision (28) of this section, a plaintiff must prove: (1) loss of hearing in both ears which was (2) caused by harmful noise in his work environment. Upon so doing, the burden of proof shifts to the employer. If the employer then proves that the sound which caused plaintiff ’s hearing loss was of an intensity of less than 90 decibels, plaintiff cannot recover. McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795, 1983 N.C. LEXIS 1298 (1983).

Employee’s hearing loss in her left ear was not found to be an occupational disease under G.S. 97-53(28) because the employee failed to establish a causal link between her hearing loss and the alleged workplace exposure to noise; two doctors testified that, given the employee’s greater loss of hearing in lower frequencies, her hearing loss was not likely due to noise exposure. Strezinski v. City of Greensboro, 187 N.C. App. 703, 654 S.E.2d 263, 2007 N.C. App. LEXIS 2562 (2007).

Burden to prove that noise level was under 90 decibels exists only when the defendant seeks to establish an affirmative defense under paragraph (28)a. Price v. Broyhill Furn., 90 N.C. App. 224, 368 S.E.2d 1, 1988 N.C. App. LEXIS 440 (1988).

Employee Need Not Measure Noise Level. —

It is unreasonable to assume that the legislature intended an employee to bear the burden of making noise-level measurements during his employment in order to lay the groundwork for a workers’ compensation claim. Such an interpretation of subdivision (28) would make it virtually impossible for an employee to successfully bring suit for compensation for a hearing loss, due to the difficulty he would encounter in attempting to make measurements of sound on his employer’s premises. McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795, 1983 N.C. LEXIS 1298 (1983).

Intensity Less Than 90 Decibels Is Affirmative Defense. —

In seeking to recover workers’ compensation for occupational loss of hearing, an employee does not have the burden of proving as part of his prima facie case that the workplace sound which caused his hearing loss was of intensity of 90 decibels, A scale, or more. Rather, proof that the sound causing plaintiff ’s injury was of intensity less than 90 decibels is an affirmative defense available to the employer. McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795, 1983 N.C. LEXIS 1298 (1983).

Ninety decibels is generally considered a threshold of safe noise under federal and state occupational health and safety standards. Under such noise standards, many employers are required to maintain a continuing effective hearing conservation program for employees exposed to occupational noise level of 85 decibels or more. McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795, 1983 N.C. LEXIS 1298 (1983).

Effect of Regular Use of Protective Devices. —

The last sentence of subdivision (28)i of this section means that regular use of protective devices constitutes removal from exposure only for purposes of triggering the statutory six-month waiting period established by the first sentence of paragraph (28)i. Clark v. Burlington Indus., Inc., 78 N.C. App. 695, 338 S.E.2d 553, 1986 N.C. App. LEXIS 2006, cert. denied, 316 N.C. 375, 342 S.E.2d 892, 1986 N.C. LEXIS 2073 (1986).

The providing of protective devices does not establish any absolute bar to claims for hearing loss, and the Commission erred in so interpreting subdivision (28)i of this section. Clark v. Burlington Indus., Inc., 78 N.C. App. 695, 338 S.E.2d 553, 1986 N.C. App. LEXIS 2006, cert. denied, 316 N.C. 375, 342 S.E.2d 892, 1986 N.C. LEXIS 2073 (1986).

Noise to Be Measured in Workplace and Not Inside Protective Device. —

North Carolina industrial noise monitoring requirements require noise to be measured in the workplace. Contentions that compliance with the 90 decibel standard should be measured inside the hearing protective device worn by the employee, rather than in the workplace itself, have been rejected. Clark v. Burlington Indus., Inc., 78 N.C. App. 695, 338 S.E.2d 553, 1986 N.C. App. LEXIS 2006, cert. denied, 316 N.C. 375, 342 S.E.2d 892, 1986 N.C. LEXIS 2073 (1986).

§ 97-54. “Disablement” defined.

The term “disablement” as used in this Article as applied to cases of asbestosis and silicosis means the event of becoming actually incapacitated because of asbestosis or silicosis to earn, in the same or any other employment, the wages which the employee was receiving at the time of his last injurious exposure to asbestosis or silicosis; but in all other cases of occupational disease “disablement” shall be equivalent to “disability” as defined in G.S. 97-2(9).

History. 1935, c. 123; 1955, c. 525, s. 1.

Legal Periodicals.

For discussion of occupational disease compensation in light of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 370 (1983), see 62 N.C.L. Rev. 573 (1984).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under this section as it stood before the 1955 amendment.

G.S. 97-61.5 was held in conflict with this section and former G.S. 97-58(a), thereby establishing an exception. This exception made the diagnosis of asbestosis or silicosis the same as disablement. The disease must therefore have developed within two years of the last exposure. Roberts v. Southeastern Magnesia & Asbestos Co., 61 N.C. App. 706, 301 S.E.2d 742, 1983 N.C. App. LEXIS 2747 (1983) (decided prior to 1987 amendment to G.S. 97-58, which repealed subsection (a)) .

“Any other employment” construed. —

This section clearly states that disablement begins when a claimant is incapacitated because of asbestosis or silicosis from earning in the same or any other employment the wages he earned at the time of his last injurious exposure to silicosis or asbestosis. It simply does not require that “any other employment” be a “dusty” trade. Martin v. Petroleum Tank Serv., 65 N.C. App. 565, 309 S.E.2d 536, 1983 N.C. App. LEXIS 3528 (1983), cert. denied, 310 N.C. 477, 312 S.E.2d 885, 1984 N.C. LEXIS 1644 (1984).

In ascertaining the right to compensation in cases involving occupational diseases such as silicosis, the Industrial Commission must ordinarily determine (1) whether the plaintiff in fact has an occupational disease, (2) whether, and to what extent, the plaintiff is disabled within the meaning of this section, and (3) to what degree any such disability is caused by the occupational disease. Pitman v. Feldspar Corp., 87 N.C. App. 208, 360 S.E.2d 696, 1987 N.C. App. LEXIS 3121 (1987).

Silicosis and Asbestosis Disablement as Inability to Work Near Dust. —

Unlike disablement from other occupational diseases, disablement from silicosis and asbestosis is measured from the time a claimant can no longer work at dusty trades, not from the time he can no longer work at any job. Taylor v. J.P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144, 1980 N.C. LEXIS 1032 (1980).

Two-prong test is used to determine when running of claim period is triggered: (1) the time at which employee is disabled within the meaning of this section by his inability to work, and (2) the time at which employee is informed of his disease by competent medical authority. Martin v. Petroleum Tank Serv., 65 N.C. App. 565, 309 S.E.2d 536, 1983 N.C. App. LEXIS 3528 (1983), cert. denied, 310 N.C. 477, 312 S.E.2d 885, 1984 N.C. LEXIS 1644 (1984).

Disability Refers to Diminished Capacity to Earn Money. —

Under the act, disability refers not to physical infirmity but to a diminished capacity to earn money. Mabe v. North Carolina Granite Corp., 15 N.C. App. 253, 189 S.E.2d 804, 1972 N.C. App. LEXIS 1892 (1972).

But Earning Capacity Must Be That of Particular Plaintiff. —

With respect to disability, the question is what effect has the disease had upon the earning capacity of this particular plaintiff; not what effect a like physical impairment would have upon an employee of average age and intelligence. Mabe v. North Carolina Granite Corp., 15 N.C. App. 253, 189 S.E.2d 804, 1972 N.C. App. LEXIS 1892 (1972).

Where the plaintiff is fully incapacitated because of silicosis to earn wages through work at hard labor, which is the only work he is qualified to do by reason of his age and education, the plaintiff is totally incapacitated because of silicosis to earn, in the same or any other employment, the wages he was earning at the time of his last injurious exposure. Mabe v. North Carolina Granite Corp., 15 N.C. App. 253, 189 S.E.2d 804, 1972 N.C. App. LEXIS 1892 (1972).

When Disablement Deemed to Have Occurred. —

The time when disablement is deemed to have occurred depends upon the factual situation under consideration. Fetner v. Rocky Mount Marble & Granite Works, 251 N.C. 296, 111 S.E.2d 324, 1959 N.C. LEXIS 572 (1959).

An employee does not contract or develop asbestosis or silicosis in a few weeks or months. These diseases develop as the result of exposure for many years to asbestos dust or dust of silica. Both diseases, according to the textbook writers, are incurable and usually result in total permanent disability. Therefore, it would seem that the victims of these incurable occupational diseases constitute a legitimate burden on the industries in which they were exposed to the hazards that produced their disablement. Such was the intent of the legislature. Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426, 1952 N.C. LEXIS 419 (1952).

When Plaintiff First Learned of Disease Irrelevant to When Disability Began. —

Plaintiff did not become disabled within the meaning of the Workers’ Compensation Act until June 3, 1982, when he was forced to stop work of any kind because of his occupational disease. Because plaintiff was able to earn the wages he had always received until that date, the arguments as to when plaintiff was first informed of the nature and work-related cause of his disease were irrelevant. Thus his claim, filed on February 2, 1983, was timely. Underwood v. Cone Mills Corp., 78 N.C. App. 155, 336 S.E.2d 634, 1985 N.C. App. LEXIS 4253 (1985).

The fact that a worker performed his duties with regularity until the date he was dismissed because he was affected with silicosis does not require a finding that he was not disabled at that time as defined by this section. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797, 1948 N.C. LEXIS 324 (1948).

Medical Testimony Necessary to Establish “Disablement”. —

Evidence tending to establish “disablement,” as that term is used in the statute in reference to silicosis, must be supported by medical testimony, and the finding of the competent medical authority must be to the effect that disablement occurred within two years from the last exposure. Huskins v. United Feldspar Corp., 241 N.C. 128, 84 S.E.2d 645, 1954 N.C. LEXIS 565 (1954).

Disablement from Asbestosis or Silicosis. —

Employee becoming disabled by asbestosis or silicosis within the terms of the specific definition embodied in G.S. 97-54, and who was no longer employed by the employer and had not been “removed” by the employer as required by G.S. 97-61.5(b), was entitled to be considered for ordinary compensation measured by the general provisions of the North Carolina Workmen’s Compensation Act and not G.S. 97-61.5(b). Abernathy v. Sandoz Chems./Clariant Corp., 151 N.C. App. 252, 565 S.E.2d 218, 2002 N.C. App. LEXIS 724, cert. denied, 356 N.C. 432, 572 S.E.2d 421, 2002 N.C. LEXIS 1220 (2002).

Disablement from asbestosis under G.S. 97-54 was defined as the event of becoming actually incapacitated because of asbestosis to earn, in the same or any other employment, the wages that the employee was receiving at the time of his last injurious exposure to asbestos. Abernathy v. Sandoz Chems./Clariant Corp., 151 N.C. App. 252, 565 S.E.2d 218, 2002 N.C. App. LEXIS 724, cert. denied, 356 N.C. 432, 572 S.E.2d 421, 2002 N.C. LEXIS 1220 (2002).

Industrial Commission did not err by relying on air sampling or non-medical evidence that there was not sufficient exposure to asbestos at the factory to contribute to or cause an asbestos-related disease, and the results of the lung tissue analyses of the deceased claimants were direct evidence that none had asbestosis and was circumstantial evidence supporting the Commission’s determination that the claimants had failed to prove a causal connection between asbestosis and employment at the factory. Hinson v. Cont'l Tire the Ams., 267 N.C. App. 144, 832 S.E.2d 519, 2019 N.C. App. LEXIS 730 (2019).

Competent evidence supported the Industrial Commission’s determination that the claimant failed to prove a causal connection between his employment at the factory and his alleged asbestosis because the claimant did not challenge the finding that the post-mortem pathological study of the claimant’s lung tissue revealed no pathological evidence of asbestosis, multiple doctors stated that the claimant’s x-rays did not show evidence of pleural abnormalities or asbestosis, the claimant’s treating physician told him to inform his attorney that the abnormal x-ray was due to pneumonia, and even though the claimant testified that he never smoked medical records and his pathology results indicated he had a remote smoking history. Hinson v. Cont'l Tire the Ams., 267 N.C. App. 144, 832 S.E.2d 519, 2019 N.C. App. LEXIS 730 (2019).

Industrial Commission did not place an impermissible burden of establishing the amount of exposure to asbestos on the claimants because consideration of the form of asbestos, the quantity of asbestos exposure, and the frequency of exposure was appropriate in determining whether asbestos exposure at the factory was a significant causal factor in the development of the claimants’ alleged asbestos. Therefore, the Commission’s ultimate finding that the greater weight of the evidence showed that the claimants were not exposed to airborne asbestos in such form and quantity and with such frequency as to cause asbestosis did not show that the Commission placed an impermissible burden on claimants. Hinson v. Cont'l Tire the Ams., 267 N.C. App. 144, 832 S.E.2d 519, 2019 N.C. App. LEXIS 730 (2019).

Evidence of Disability from Silicosis. —

Due to the nature of silicosis, it is essential to establish the presence of the disease by competent medical authority. But where it has been established that a person who has been exposed to free silica dust has developed silicosis to the extent that it may be disabling, testimony other than that of a medical expert may be admitted and considered in determining when such person actually became disabled or disabled to work. Certainly, a victim of silicosis is competent to testify to his lessened capacity to work, his shortness of breath, and the effect that physical exertion has upon him, all of which are normal symptoms of silicosis. Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 69 S.E.2d 707, 1952 N.C. LEXIS 390 (1952).

Evidence of Disability from Byssinosis and Chronic Obstructive Lung Disease. —

Evidence held sufficient to support the finding that plaintiff was partially incapable of engaging in gainful employment by byssinosis and chronic obstructive lung disease as a result of 29 years of smoking and exposure to cotton dust, and that his occupational disease, combined with his age, limited education and work experience, limited his ability to earn wages. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374, 1986 N.C. LEXIS 2779 (1986).

Finding that plaintiff has not been able to work since leaving his employment and that plaintiff is totally disabled, taken together with additional findings regarding plaintiff’s age, limited education, work experience, worsened physical condition and inability to exert himself, support a conclusion that plaintiff is unable to earn wages at any job, and are minimally sufficient to support a conclusion of disability. Pitman v. Feldspar Corp., 87 N.C. App. 208, 360 S.E.2d 696, 1987 N.C. App. LEXIS 3121 (1987).

Evidence that plaintiff could do “light work” if no silica dust were involved was insufficient to support a finding that he was not disabled from doing “ordinary work,” since the two terms are not synonymous in the realm of manual labor. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797, 1948 N.C. LEXIS 324 (1948).

Claimant Unable to Earn Wages in Any Job for Which Qualified Is Totally, Not Partially, Disabled. —

The Commission erred as a matter of law by awarding claimant compensation for partial disability when it found as fact that plaintiff was incapable of earning wages in any employment for which plaintiff was qualified. Based on the Commission’s findings, plaintiff was totally disabled within the meaning of G.S. 97-29. Carothers v. Ti-Caro, 83 N.C. App. 301, 350 S.E.2d 95, 1986 N.C. App. LEXIS 2695 (1986).

Where a plaintiff, due to an occupational disease, is fully incapacitated to earn wages at employment which is the only work he is qualified to do by reason of such factors as age and education, he is totally incapacitated. Carothers v. Ti-Caro, 83 N.C. App. 301, 350 S.E.2d 95, 1986 N.C. App. LEXIS 2695 (1986).

Evidence held sufficient to show claimant disabled. Autrey v. Victor Mica Co., 234 N.C. 400, 67 S.E.2d 383, 1951 N.C. LEXIS 486 (1951); Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 69 S.E.2d 707, 1952 N.C. LEXIS 390 (1952). See also Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797, 1948 N.C. LEXIS 324 (1948).

Employee’s estate was entitled to permanent and total disability benefits under G.S. 97-29 and G.S. 97-54 because: (1) testimony by a physician appointed by the industrial commission supported the commission’s finding of fact that the employee suffered from asbestosis as a result of his employment with the employer as an asbestos tile installer; (2) the employee’s medical course continued as the appointed physician had predicted that it would based on his diagnosis; and (3) the employee suffered from breathing problems as a result of asbestosis that severely impaired his daily activities and rendered him unable to perform gainful employment. Estate of Gainey v. S. Flooring & Acoustical Co., 184 N.C. App. 497, 646 S.E.2d 604, 2007 N.C. App. LEXIS 1468 (2007).

Evidence Held Sufficient to Show that Injurious Exposure Occurred during Course of Employment. —

Where the record disclosed that plaintiff did not continue earning wages after 1969, her unsuccessful attempts to work during the years 1969 to 1980, when considered in conjunction with the medical evidence, merely demonstrated her total incapacity to earn wages; thus the commission’s determination that plaintiff’s last injurious exposure to the hazards of her occupational disease occurred while she was employed in 1968, and its order that employer and its carrier in 1968 pay her an award under the provisions of G.S. 97-29 in effect on October 1, 1968, would be affirmed. Gregory v. Sadie Cotton Mills, Inc., 90 N.C. App. 433, 368 S.E.2d 650, 1988 N.C. App. LEXIS 556 (1988).

Six Day Leave of Absence Incompensable. —

Plaintiff’s six day leave-of-absence was incompensable under the Act for disability compensation. Howard v. Square-D Co., 128 N.C. App. 303, 494 S.E.2d 606, 1998 N.C. App. LEXIS 11 (1998).

Evidence held insufficient to show disablement occurring within two years from last exposure. Huskins v. United Feldspar Corp., 241 N.C. 128, 84 S.E.2d 645, 1954 N.C. LEXIS 565 (1954).

As to criterion of disability in cases of asbestosis and silicosis prior to the 1955 amendment. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797, 1948 N.C. LEXIS 324 (1948); Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 69 S.E.2d 707, 1952 N.C. LEXIS 390 (1952); Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426, 1952 N.C. LEXIS 419 (1952); Brinkley v. United Feldspar & Minerals Corp., 246 N.C. 17, 97 S.E.2d 419, 1957 N.C. LEXIS 356 (1957).

§ 97-55. “Disability” defined.

The term “disability” as used in this Article means the state of being incapacitated as the term is used in defining “disablement” in G.S. 97-54.

History. 1935, c. 123.

Legal Periodicals.

For discussion of occupational disease compensation in light of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 370 (1983), see 62 N.C.L. Rev. 573 (1984).

§ 97-56. Limitation on compensable diseases.

The provisions of this Article shall apply only to cases of occupational disease in which the last exposure in an occupation subject to the hazards of such diseases occurred on or after March 26, 1935.

History. 1935, c. 123.

§ 97-57. Employer liable.

In any case where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, which was on the risk when the employee was so last exposed under such employer, shall be liable.

For the purpose of this section when an employee has been exposed to the hazards of asbestosis or silicosis for as much as 30 working days, or parts thereof, within seven consecutive calendar months, such exposure shall be deemed injurious but any less exposure shall not be deemed injurious; provided, however, that in the event an insurance carrier has been on the risk for a period of time during which an employee has been injuriously exposed to the hazards of asbestosis or silicosis, and if after insurance carrier goes off the risk said employee is further exposed to the hazards of asbestosis or silicosis, although not so exposed for a period of 30 days or parts thereof so as to constitute a further injurious exposure, such carrier shall, nevertheless, be liable.

History. 1935, c. 123; 1945, c. 762; 1957, c. 1396, s. 7.

Legal Periodicals.

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

For note, “Caulder v. Waverly Mills: Expanding the Definition of an Occupational Disease Under the Last Injurious Exposure Rule,” see 64 N.C.L. Rev. 1566 (1986).

CASE NOTES

The purpose of this section is to determine whether there has been sufficient exposure to the hazards of asbestosis during a particular period of employment to hold the employer during that period liable. By contrast, the purpose of former G.S. 97-58(a) was to limit the time in which an employer was liable for a compensable exposure. Long v. North Carolina Finishing Co., 82 N.C. App. 568, 346 S.E.2d 669, 1986 N.C. App. LEXIS 2516 (1986).

Function of Section. —

The rule under this section, assigning liability to the employer where the employee was last injuriously exposed, serves to eliminate the need for complex and expensive litigation of the issue of relative contribution by each of several employments to a plaintiff ’s occupational disease. The possibility that some employers may bear a disproportionate share of the total liability for occupational disease is a problem for the legislature, not the courts, to consider. Frady v. Groves Thread/General Accident Ins. Co., 56 N.C. App. 61, 286 S.E.2d 844, 1982 N.C. App. LEXIS 2319 (1982), aff'd, 312 N.C. 316, 321 S.E.2d 835, 1984 N.C. LEXIS 1804 (1984).

This section does not provide for partnership in responsibility, and has nothing to say as to the length of the last employment or the degree of injury which the deleterious exposure must inflict to merit compensation. It takes the breakdown practically where it occurs — with the last injurious exposure. Haynes v. Feldspar Producing Co., 222 N.C. 163, 22 S.E.2d 275, 1942 N.C. LEXIS 56 (1942).

And Negates Comparative Responsibility of Successive Employers and Insurance Carriers. —

Any suggestion of comparative responsibility as between successive employers and their respective carriers, or as between successive carriers for the same employer, is dispelled by the plain language of this section. The liability is upon the employer and carrier on the risk when the employee was “last injuriously exposed” to the hazards of silicosis, as that expression is here defined. Stewart v. Duncan, 239 N.C. 640, 80 S.E.2d 764, 1954 N.C. LEXIS 631 (1954).

Presumption Created by G.S. 97-57. —

G.S. 97-57 creates an irrebuttable legal presumption that the last thirty days of work is the period of last injurious exposure. Thus, “an exposure which proximately augmented the disease to any extent, however slight” is deemed the last injurious exposure. Barber v. Babcock & Wilcox Constr. Co., 101 N.C. App. 564, 400 S.E.2d 735, 1991 N.C. App. LEXIS 80 (1991).

Plaintiff does not have to establish that the conditions of his employment with the defendant caused or significantly contributed to his disease. He need only show that: (1) he has an occupational disease and (2) he was “last injuriously exposed to the hazards of such disease” in the defendant’s employment. Barber v. Babcock & Wilcox Constr. Co., 101 N.C. App. 564, 400 S.E.2d 735, 1991 N.C. App. LEXIS 80 (1991).

Plaintiff satisfied his burden of proof and was entitled to workers’ compensation benefits where there was an irrebuttable legal presumption that the last thirty days of work subjecting the plaintiff to the hazards of asbestos is the period of last injurious exposure and the Industrial Commission held that plaintiff was exposed to the inhalation during the 48 days he worked for last employer, the defendant. Barber v. Babcock & Wilcox Constr. Co., 101 N.C. App. 564, 400 S.E.2d 735, 1991 N.C. App. LEXIS 80 (1991).

The Commission erred in requiring plaintiff to prove that her last employment was the cause of her occupational disease, as this section assesses liability to the employer in whose employment the employee was last injuriously exposed, however minimal the exposure, to the hazards of the occupational disease. Rutledge v. Tultex Corp., 56 N.C. App. 345, 289 S.E.2d 72, 1982 N.C. App. LEXIS 2425 (1982), aff'd in part and rev'd in part, 308 N.C. 85, 301 S.E.2d 359, 1983 N.C. LEXIS 1129 (1983).

“Hazard”. —

The term “hazard” should be given its common and ordinary meaning, since there is nothing to indicate that the legislature intended it to have some other meaning and it has not acquired some technical meaning. Caulder v. Mills, 314 N.C. 70, 331 S.E.2d 646, 1985 N.C. LEXIS 1707 (1985).

By the phrase “hazards of the disease,” as used in this section, the legislature intended to include more than substances which are capable in themselves of producing an occupational disease. Caulder v. Mills, 314 N.C. 70, 331 S.E.2d 646, 1985 N.C. LEXIS 1707 (1985).

In order for a substance to be a “hazard” of an occupational disease within the meaning of this section, it must be a substance peculiar to the workplace. By this it is meant that the substance is one to which the worker has a greater exposure on the job than does the public generally, either because of the nature of the substance itself or because the concentrations of the substance in the workplace are greater than concentrations to which the public generally is exposed. Caulder v. Mills, 314 N.C. 70, 331 S.E.2d 646, 1985 N.C. LEXIS 1707 (1985).

A condition peculiar to the workplace which accelerates the progress of an occupational disease to such an extent that the disease finally causes the worker’s incapacity to work constitutes a source of danger and difficulty to that worker and increases the possibility of that worker’s ultimate loss. It constitutes, therefore, a hazard of the disease as the term “hazard” is commonly used. Caulder v. Mills, 314 N.C. 70, 331 S.E.2d 646, 1985 N.C. LEXIS 1707 (1985).

Dust as Substance Peculiar to Workplace. —

Dust arising from the processing of synthetic fibers in textile plants is a substance to which, because of its nature, workers in those plants have a greater exposure than does the public generally. It is, therefore, a substance peculiar to the workplace. Caulder v. Mills, 314 N.C. 70, 331 S.E.2d 646, 1985 N.C. LEXIS 1707 (1985).

Effect of Preexisting Condition. —

An employer must take his employee as he finds him, and will be liable for the full extent of the employee’s compensable injury even where a preexisting condition substantially contributes to the degree of the injury. Frady v. Groves Thread/General Accident Ins. Co., 56 N.C. App. 61, 286 S.E.2d 844, 1982 N.C. App. LEXIS 2319 (1982), aff'd, 312 N.C. 316, 321 S.E.2d 835, 1984 N.C. LEXIS 1804 (1984).

The statutory term “last injuriously exposed” means an exposure which proximately augmented the disease to any extent, however slight. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359, 1983 N.C. LEXIS 1129 (1983).

Liability of Employer in Whose Employment Employee Was Last Injuriously Exposed. —

In compensable cases of occupational diseases, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease is liable. This section does not require an independent showing of a significant contribution to the occupational disease. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, aff’d, 318 N.C. 410, 348 S.E.2d 595 (1986). In accord with Anderson v. Gulistan Carpet, Inc., 144 N.C. App. 661, 550 S.E.2d 237, 2001 N.C. App. LEXIS 575 (2001).

Where plaintiff’s doctor testified that she had negative Tinel’s and Phalen’s signs immediately after her resignation from her job but positive bilateral Tinel’s and Phalen’s signs 15 months after her resignation and after holding various other jobs, the Industrial Commission did not err in finding that she was last “injuriously exposed” to carpal tunnel syndrome while working with her subsequent employers. Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 524 S.E.2d 368, 2000 N.C. App. LEXIS 5 (2000).

North Carolina Industrial Commission did not err in denying benefits for asbestosis and lung cancer where there was competent evidence in the record to support the Commission’s findings regarding the employee’s last injurious exposure to asbestos, and where the Commission applied the correct legal standard in evaluating both claims; the evidence supported a reasonable inference that the employee was exposed to asbestos for at least 30 days or parts thereof within seven consecutive months while working for a different employer, and the employee’s last injurious exposure to the hazards of asbestosis occurred with the different employer. Hatcher v. Daniel Int'l Corp., 153 N.C. App. 776, 571 S.E.2d 20, 2002 N.C. App. LEXIS 1261 (2002).

There was some competent evidence to support the North Carolina Industrial Commission’s award of total disability benefits and death benefits, pursuant to G.S. 97-39, to an estate administratrix on behalf of her deceased husband, who had been an employee of the employer for a period of time, where it was determined that the employer was the place where the employee had his last injurious exposure to asbestos, pursuant to G.S. 97-57, and further, that he in fact had “asbestosis,” as that term was defined under G.S. 97-62; credibility determinations were within the province of the Commission, and not for the court to redetermine. Payne v. Charlotte Heating & Air Conditioning, 172 N.C. App. 496, 616 S.E.2d 356, 2005 N.C. App. LEXIS 1782 (2005).

Finding that a workers’ compensation claimant was last injuriously exposed to asbestos for 30 days in 1997 for G.S. 97-57 purposes while the insurer was the carrier was not supported where: (1) the claimant denied working at the plant in 1997; (2) the job logs did not prove that the claimant was working at the plant during 1997, and he was not paid for travel expenses; and (3) the fact that the claimant might have worked on the plant project, although in the shop, did not support the finding that the claimant was exposed to asbestos for 30 days in 1997. Mauldin v. A.C. Corp., 217 N.C. App. 36, 719 S.E.2d 110, 2011 N.C. App. LEXIS 2336 (2011), rev'd in part, 366 N.C. 140, 727 S.E.2d 874, 2012 N.C. LEXIS 415 (2012).

Last Injurious Exposure Can Be Quantitatively Slight. —

Exposure to a substance which can cause an occupational disease can be a last injurious exposure to the hazards of such disease under this section even if the exposure in question is so slight quantitatively that it could not in itself have produced the disease. Caulder v. Mills, 314 N.C. 70, 331 S.E.2d 646, 1985 N.C. LEXIS 1707 (1985).

If the occupational exposure in question is such that it augments the disease process to any degree, however slight, the employer is liable. Gay v. J.P. Stevens & Co., 79 N.C. App. 324, 339 S.E.2d 490, 1986 N.C. App. LEXIS 2072 (1986).

“Last injuriously exposed” means an exposure which proximately augmented the disease to any extent, however slight. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, 1986 N.C. App. LEXIS 2117, aff'd, 318 N.C. 410, 348 S.E.2d 595, 1986 N.C. LEXIS 2662 (1986).

Substance Need Not Be Known to Cause Disease. —

In addition, the substance to which plaintiff was last injuriously exposed need not be a substance known to cause the disease. Gay v. J.P. Stevens & Co., 79 N.C. App. 324, 339 S.E.2d 490, 1986 N.C. App. LEXIS 2072 (1986).

Finding of Last Injurious Exposure Held Not Inconsistent with Other Findings. —

Where an employee’s exposure to dust at his last employer’s plants, including the last plant at which he worked, contributed to his pulmonary symptoms and was harmful to him, and his last injurious exposure to the hazards of his lung disease occurred while he was employed by his last employer, the Commission’s finding that dust from the synthetic fibers present at his last employer’s plants was not known to cause chronic obstructive lung disease did not preclude a conclusion that exposure to it constituted a last injurious exposure to the hazards of the disease. Caulder v. Mills, 314 N.C. 70, 331 S.E.2d 646, 1985 N.C. LEXIS 1707 (1985).

In chronic obstructive lung disease cases, the last injurious exposure to “the hazards of such disease” is not necessarily limited to cotton dust; it can be to other conditions that enhance or augment the disease process and the worker’s condition to any extent. Neal v. Leslie Fay, Inc., 78 N.C. App. 117, 336 S.E.2d 628, 1985 N.C. App. LEXIS 4255 (1985).

It is not necessary that the last injurious exposure to the hazards of chronic obstructive lung disease either caused or significantly contributed to the occupational disease; it is enough if the exposure augmented the disease to any extent whatever. Neal v. Leslie Fay, Inc., 78 N.C. App. 117, 336 S.E.2d 628, 1985 N.C. App. LEXIS 4255 (1985).

Subsequent Employment. —

In the absence of evidence that an employee was exposed to a hazardous material at subsequent employers, the burden shifts to the employer to produce some evidence of a subsequent exposure. Before the Industrial Commission can find that an employee was exposed to a hazardous condition at some subsequent employment, the record must include some evidence of exposure in that employment. Penegar v. UPS, 259 N.C. App. 308, 815 S.E.2d 391, 2018 N.C. App. LEXIS 435 (2018).

Most Recent Employer Found Liable for Pre-existing Condition. —

A textile mill employee’s second employer was liable for her asthma, where there was medical testimony that employee’s exposure at the second employer’s mill likely augmented her illness, however slight, such that employee was last injuriously exposed to the hazards of her disease at the second employer’s mill. Locklear v. Stedman Corporation/Sara Lee Knit Prods., 131 N.C. App. 389, 508 S.E.2d 795, 1998 N.C. App. LEXIS 1451 (1998).

It is not necessary that claimant show that the conditions of employment caused or significantly contributed to occupational disease. She need only show: (1) That she has a compensable occupational disease and (2) that she was “last injuriously exposed to the hazards of such disease” in defendant’s employment. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359, 1983 N.C. LEXIS 1129 (1983).

Portion of Disability Due to Industrial Disease Not Chargeable to Age and Education. —

Where an industrial disease renders an employee actually incapacitated to earn any wages, the employer may not ask that a portion of the disability be charged to employee’s advanced age and poor learning on the ground that if it were not for these factors he might still retain some earning capacity. Anderson v. A.M. Smyre Mfg. Co., 54 N.C. App. 337, 283 S.E.2d 433, 1981 N.C. App. LEXIS 2841 (1981).

Liability of Insurance Carrier. —

The carrier of the insurance during the employee’s last 30-day period of exposure to the hazards of an occupational disease is solely liable for compensation allowed for total disability from the occupational disease. This result is not affected by the fact that prior to the time such insurance company became the carrier, medical examinations had disclosed that the employee was suffering with the disease, or that the Industrial Commission had advised him as to the compensation and rehabilitation provisions of the act, but had, in the exercise of its discretion, failed to order him to quit the occupation pursuant to former G.S. 97-61. Bye v. Interstate Granite Co., 230 N.C. 334, 53 S.E.2d 274, 1949 N.C. LEXIS 640 (1949).

Where compensation insurer carried risk for employer from 1947 through Jan. 31, 1953, and employer did not carry insurance from Feb. 1, 1953 through Feb. 19, 1953, insurer was liable for at least a pro rata part of award based on finding that employee became disabled by silicosis on Feb. 19, 1953, the last date on which the employee was remuneratively employed by the employer. Mayberry v. Oakboro Granite & Marble Co., 243 N.C. 281, 90 S.E.2d 511, 1955 N.C. LEXIS 583 (1955) (decided under this section as it stood before the 1957 amendment).

Before the 1957 amendment, which added the proviso to the second paragraph of this section, where an employee became disabled from asbestosis while working for a single employer, but different insurers were on the risk during the employee’s last 30 days’ exposure to the hazards of the disease, the carrier last on the risk, even though it was on the risk for only the last five days on which the employee worked, was solely liable for the award under a provision of the policy contracts that each policy should apply only to injury by disease of which the last day of the last exposure occurred during the policy period. Hartsell v. Thermoid Co., 249 N.C. 527, 107 S.E.2d 115, 1959 N.C. LEXIS 396 (1959).

Where there are two companies and, presumably, two insurance carriers, or one company and two insurance carriers, the carrier on the risk when the employee is last injuriously exposed is the liable party. Jones v. Beaunit Corp., 72 N.C. App. 351, 324 S.E.2d 624, 1985 N.C. App. LEXIS 3051 (1985).

Insurance carrier bore the burden of proving that its lost insurance policy, which otherwise would have covered an employee under G.S. 97-57, excluded the employee’s claim based on a last injurious exposure to asbestos in North Carolina; additionally, coverage was properly found to exist under the policy because the North Carolina Industrial Commission’s determination that the insurance carrier was the carrier on the risk was supported by competent evidence. Vaughan v. Carolina Indus. Insulation, 183 N.C. App. 25, 643 S.E.2d 613, 2007 N.C. App. LEXIS 842 (2007).

Full Commission of the North Carolina Industrial Commission did not err in finding that an employer’s insurer was liable for an employee’s occupational disease because competent evidence supported the Commission’s finding of fact that under G.S. 97-57, the employee’s last injurious exposure to the conditions of her job with the employer that caused or augmented her occupational disease was after April 1, 2005, when the insurer came on the risk for the employer; therefore, the insurer was liable for the occupational disease beginning April 1, 2005. Mann v. Technibilt, Inc., 193 N.C. App. 193, 666 S.E.2d 851, 2008 N.C. App. LEXIS 1748 (2008).

Insurer was liable to cover a workers’ compensation claim arising from a psychological disability because, although the employee had initially taken a temporary leave of absence prior to the effective date of coverage under the policy, she was exposed to hazards of her occupational disease throughout her employment until the date when she was unable to continue working in any capacity, and thus the last injurious exposure as defined in G.S. 97-57 occurred within the policy period. City of Durham v. Safety Nat'l Cas. Corp., 196 N.C. App. 761, 675 S.E.2d 393, 2009 N.C. App. LEXIS 522 (2009).

Application of definition of “injurious exposure” in the first clause of the second paragraph of this section to the hazards of asbestosis is limited, by the express language of the statute, to determining liability under this section. Long v. North Carolina Finishing Co., 82 N.C. App. 568, 346 S.E.2d 669, 1986 N.C. App. LEXIS 2516 (1986).

Exposure Requirement of This Section Not Read into Former G.S. 97-58(a). —

Logically there was no reason to read the exposure requirements of this section into former G.S. 97-58(a), and the Court of Appeals would decline to do so. Long v. North Carolina Finishing Co., 82 N.C. App. 568, 346 S.E.2d 669, 1986 N.C. App. LEXIS 2516 (1986).

A claimant need not provide scientific proof of his exposure to asbestos for purposes of this section; plaintiff presented substantial other evidence of his repeated exposure to asbestos during his employment with defendant-employer to justify his compensation. Austin v. Continental General Tire, 141 N.C. App. 397, 540 S.E.2d 824, 2000 N.C. App. LEXIS 1415 (2000), rev'd, 354 N.C. 344, 553 S.E.2d 680, 2001 N.C. LEXIS 1091 (2001).

A claimant need not introduce scientific evidence to prove his exposure to asbestos for the purposes of this section; testimony of plaintiff, two co-workers, a defense witness and three medical experts was, therefore, sufficient to support the Commission’s finding that plaintiff was exposed to asbestos. Clark v. ITT Grinnell Indus. Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369, 2000 N.C. App. LEXIS 1416 (2000).

Findings Required to Support Award for Silicosis. —

To support an award to one suffering from silicosis, the Industrial Commission must find, inter alia, that the employee had been exposed to the hazards of silicosis for the period provided by this section, and that the employee’s work in the State must have exposed him to the inhalation of silica dust for the further period prescribed by G.S. 97-63. Pitman v. Carpenter, 247 N.C. 63, 100 S.E.2d 231, 1957 N.C. LEXIS 540 (1957); Woodell v. Starr Davis Co., 77 N.C. App. 352, 335 S.E.2d 48, 1985 N.C. App. LEXIS 4073 (1985).

This section creates an irrebuttable presumption, of law. The last day of work was the date of disablement and the last 30 days of work was the period of last injurious exposure. The Commission could not arbitrarily select any 30 days of employment, other than the last 30 days, within the seven months’ period for convenience or protection of any of the parties, even if there was some evidence which may be construed to support such selection. Fetner v. Rocky Mount Marble & Granite Works, 251 N.C. 296, 111 S.E.2d 324, 1959 N.C. LEXIS 572 (1959).

Where Employee Was Advised That He Had Silicosis before Expiration of 30-Day Period. —

Where the evidence supported findings of the Industrial Commission that an employee suffering disability from silicosis was last injuriously exposed to the hazards of the disease for 30 working days within seven consecutive calendar months while in the employment of defendant, this section placed liability therefor upon such employer and his insurance carrier during that period, and the mere fact that the employee was advised that he had silicosis prior to the expiration of this 30-day period but continued for a short time to perform his same work was insufficient, standing alone, to sustain the insurance carrier’s contention that his employment after the discovery of the disease was in bad faith so as to make the loss fall upon it. Stewart v. Duncan, 239 N.C. 640, 80 S.E.2d 764, 1954 N.C. LEXIS 631 (1954).

Where the evidence showed that decedent’s last possible exposure occurred in February, 1975, he was required to meet the statutory time limitations between February 1965, and February 1975. Exposure which occurred prior to 1964 could not be used to calculate his level of exposure since it occurred over 10 years prior to the last exposure. Gosney v. Golden Belt Mfg., 89 N.C. App. 670, 366 S.E.2d 873, 1988 N.C. App. LEXIS 358 (1988) (upholding Commission’s finding that plaintiff failed to show the length of exposure to asbestos required by this section and G.S. 97-63) .

Carpal Tunnel Syndrome. —

Industrial commission properly awarded workers’ compensation disability and medical benefits for bilateral carpal tunnel syndrome pursuant to G.S. 97-57, as testimony by treating physicians showed that the work placed the worker at increased risk for the injury, and thus the carpal tunnel syndrome qualified as an occupational disease pursuant to G.S. 97-53(13). Jarrett v. McCreary Modern, Inc., 167 N.C. App. 234, 605 S.E.2d 197, 2004 N.C. App. LEXIS 2175 (2004).

In a workers’ compensation case involving carpal tunnel syndrome, an employer and an insurance company argued unsuccessfully that the North Carolina Industrial Commission (Commission) erred in finding that the workers’ last injurious exposure occurred after the employer became self-insured. The employer became self-insured on June 2, 2006, and the Commission’s finding that the worker’s last injurious exposure occurred on August 9, 2006 was supported by competent evidence in the record and was therefore binding on appeal. Evans v. Conwood LLC, 199 N.C. App. 480, 681 S.E.2d 833, 2009 N.C. App. LEXIS 1489 (2009).

Laryngeal Cancer. —

North Carolina Industrial Commission erred in finding that an insurer was liable for a workers’ compensation claimant’s laryngeal cancer under G.S. 97-57 as a general finding that the claimant’s laryngeal cancer was caused by his exposure to asbestos during his employment did not show that the claimant’s exposure during 1997 proximately augmented his laryngeal cancer. Mauldin v. A.C. Corp., 217 N.C. App. 36, 719 S.E.2d 110, 2011 N.C. App. LEXIS 2336 (2011), rev'd in part, 366 N.C. 140, 727 S.E.2d 874, 2012 N.C. LEXIS 415 (2012).

Exposure to Asbestos. —

Decedent’s death was compensable because the testimony of a co-worker, coupled with other competent testimony, showed that the decedent was exposed to asbestos, while working for the decedent’s employer as a service technician in the repair, installation, and maintenance of home heating, ventilation, and air conditioning units, for at least thirty days within six consecutive months. Patton v. Sears Roebuck & Co., 239 N.C. App. 370, 768 S.E.2d 351, 2015 N.C. App. LEXIS 82 (2015).

Industrial Commission did not err in finding that an employee’s last injurious exposure to asbestos, which contributed to his development of an occupational disease, occurred during the thirty years he worked for his primary lifetime employer, based on the testimony of his former coworkers and medical experts, and in the absence of any evidence that he was exposed to asbestos at any subsequent job. Penegar v. UPS, 259 N.C. App. 308, 815 S.E.2d 391, 2018 N.C. App. LEXIS 435 (2018).

Competent evidence supported the Industrial Commission’s determination that the claimant failed to prove a causal connection between his employment at the factory and his alleged asbestosis because the claimant did not challenge the finding that the post-mortem pathological study of the claimant’s lung tissue revealed no pathological evidence of asbestosis, multiple doctors stated that the claimant’s x-rays did not show evidence of pleural abnormalities or asbestosis, the claimant’s treating physician told him to inform his attorney that the abnormal x-ray was due to pneumonia, and even though the claimant testified that he never smoked medical records and his pathology results indicated he had a remote smoking history. Hinson v. Cont'l Tire the Ams., 267 N.C. App. 144, 832 S.E.2d 519, 2019 N.C. App. LEXIS 730 (2019).

Industrial Commission did not err by relying on air sampling or non-medical evidence that there was not sufficient exposure to asbestos at the factory to contribute to or cause an asbestos-related disease, and the results of the lung tissue analyses of the deceased claimants were direct evidence that none had asbestosis and was circumstantial evidence supporting the Commission’s determination that the claimants had failed to prove a causal connection between asbestosis and employment at the factory. Hinson v. Cont'l Tire the Ams., 267 N.C. App. 144, 832 S.E.2d 519, 2019 N.C. App. LEXIS 730 (2019).

Industrial Commission did not place an impermissible burden of establishing the amount of exposure to asbestos on the claimants because consideration of the form of asbestos, the quantity of asbestos exposure, and the frequency of exposure was appropriate in determining whether asbestos exposure at the factory was a significant causal factor in the development of the claimants’ alleged asbestos. Therefore, the Commission’s ultimate finding that the greater weight of the evidence showed that the claimants were not exposed to airborne asbestos in such form and quantity and with such frequency as to cause asbestosis did not show that the Commission placed an impermissible burden on claimants. Hinson v. Cont'l Tire the Ams., 267 N.C. App. 144, 832 S.E.2d 519, 2019 N.C. App. LEXIS 730 (2019).

§ 97-58. Time limit for filing claims.

  1. Repealed by Session Laws 1987, c. 729, s. 13.
  2. The report and notice to the employer as required by G.S. 97-22 shall apply in all cases of occupational disease except in case of asbestosis, silicosis, or lead poisoning. The time of notice of an occupational disease shall run from the date that the employee has been advised by competent medical authority that he has same.
  3. The right to compensation for occupational disease shall be barred unless a claim be filed with the Industrial Commission within two years after death, disability, or disablement as the case may be. Provided, however, that the right to compensation for radiation injury, disability or death shall be barred unless a claim is filed within two years after the date upon which the employee first suffered incapacity from the exposure to radiation and either knew or in the exercise of reasonable diligence should have known that the occupational disease was caused by his present or prior employment.

History. 1935, c. 123; 1945, c. 762; 1955, c. 525, s. 6; 1963, c. 553, s. 2; 1973, c. 1060, s. 3; 1981, c. 734, s. 1; 1987, c. 729, s. 13.

Legal Periodicals.

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For note, “Wilder v. Amatex Corp.: A First Step Toward Ameliorating the Effect of Statutes of Repose on Plaintiffs with Delayed Manifestation Diseases,” see 64 N.C.L. Rev. 416 (1986).

For note, “Caulder v. Waverly Mills: Expanding the Definition of an Occupational Disease Under the Last Injurious Exposure Rule,” see 64 N.C.L. Rev. 1566 (1986).

CASE NOTES

Analysis

I.In General

Editor’s Note. —

Most of the cases below were decided prior to the 1987 amendment repealing subsection (a), which had set certain restrictions on claims relating to asbestosis and lead poisoning.

Former subsection (a) and subsections (b) and (c) were construed in pari materia and to ascertain the true legislative intent. Duncan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410, 1951 N.C. LEXIS 313 (1951), overruled, Taylor v. J. P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144, 1980 N.C. LEXIS 1032 (1980).

Subsections (b) and (c) must be construed in pari materia. Underwood v. Cone Mills Corp., 78 N.C. App. 155, 336 S.E.2d 634, 1985 N.C. App. LEXIS 4253 (1985).

When subsections (b) and (c) of this section are interpreted in pari materia, they require an employee who seeks to recover for disability resulting from an occupational disease to give notice or file a claim within two years of the time when he is first informed by competent medical authority of the nature and work-related cause of the disease. Lawson v. Cone Mills Corp., 68 N.C. App. 402, 315 S.E.2d 103, 1984 N.C. App. LEXIS 3323 (1984).

As to the inapplicability of the last exposure rule to diseases other than silicosis and asbestosis, see Taylor v. J.P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144, 1980 N.C. LEXIS 1032 (1980).

Failure to obtain approval for payments of medical expenses does not raise an estoppel claim. Knight v. Cannon Mills Co., 82 N.C. App. 453, 347 S.E.2d 832, 1986 N.C. App. LEXIS 2520 (1986).

What Findings of Fact Are Conclusive on Review. —

Except as to questions of jurisdiction, findings of fact by the Industrial Commission are conclusive on appeal when supported by competent evidence even though there is evidence to support contrary findings. Findings of jurisdictional fact by the Industrial Commission, however, are not conclusive upon appeal, even though supported by evidence in the record. Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 304 S.E.2d 215, 1983 N.C. LEXIS 1301 (1983).

Review of Jurisdictional Findings. —

Findings of the Industrial Commission that employee received notice from competent medical authority that she had an occupational disease on June 25, 1977 at an occupational respiratory problem screening clinic and that her claim, filed on July 11, 1980, was barred by the two-year statute of limitations in this section were jurisdictional findings of fact fully reviewable by the Court of Appeals. Dawkins v. Mills, 74 N.C. App. 712, 329 S.E.2d 688, 1985 N.C. App. LEXIS 3555 (1985).

When a defendant employer challenges the jurisdiction of the Industrial Commission, any reviewing court, including the Supreme Court, has the duty to make its own independent findings of jurisdictional facts from its consideration of the entire record. Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 304 S.E.2d 215, 1983 N.C. LEXIS 1301 (1983).

For decision under former statute relating to notice of death from occupational disease, see Blassingame v. Southern Asbestos Co., 217 N.C. 223, 7 S.E.2d 478, 1940 N.C. LEXIS 209 (1940).

II.Asbestosis, Silicosis and Lead Poisoning

Editor’s Note. —

Most of the cases below were decided prior to the 1987 amendment deleting subsection (a), which had set certain restrictions on claims relating to asbestosis and lead poisoning.

Applicability of 1981 Amendment to Former Subsection (a). —

The Commission erred in failing to apply the provisions of former subsection (a) of this section, as amended effective July 1, 1981, where plaintiff’s decedent died on December 11, 1981, and plaintiff’s claim was filed on January 8, 1982. As the amended version of subsection (a) was in effect at the time plaintiff’s right to compensation arose, viz., the time of decedent’s death, the amended version could constitutionally apply to plaintiff’s claim. Long v. North Carolina Finishing Co., 82 N.C. App. 568, 346 S.E.2d 669, 1986 N.C. App. LEXIS 2516 (1986).

Purpose of G.S. 97-57 and Former Subsection (a) of This Section Compared. —

The purpose of G.S. 97-57 is to determine whether there has been sufficient exposure to the hazards of asbestosis during a particular period of employment to hold the employer during that period liable. By contrast, the purpose of former subsection (a) of this section was to limit the time in which an employer was liable for a compensable exposure. Long v. North Carolina Finishing Co., 82 N.C. App. 568, 346 S.E.2d 669, 1986 N.C. App. LEXIS 2516 (1986).

Exposure Requirement of G.S. 97-57 Not Read into Former Subsection (a) of This Section. —

Logically there was no reason to read the exposure requirements of G.S. 97-57 into former subsection (a) of this section, and the Court of Appeals would decline to do so. Long v. North Carolina Finishing Co., 82 N.C. App. 568, 346 S.E.2d 669, 1986 N.C. App. LEXIS 2516 (1986).

G.S. 97-61.5 is in conflict within G.S. 97-54 and this section, thereby establishing an exception. This exception makes the diagnosis of asbestosis or silicosis the same as disablement. The disease must therefore have developed within two years of the last exposure. Roberts v. Southeastern Magnesia & Asbestos Co., 61 N.C. App. 706, 301 S.E.2d 742, 1983 N.C. App. LEXIS 2747 (1983).

In this section the legislature recognized that silicosis is a progressive disease, and provided that an employer might be held liable for compensation for silicosis if disablement resulted at any time within two years after the last exposure to the disease. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797, 1948 N.C. LEXIS 324 (1948).

Disablement Dates from Time Claimant Was Advised He Had Disease. —

By enacting this section, the legislature intended to authorize the filing of a claim for asbestosis, silicosis or lead poisoning where disablement occurs within two years after the last exposure to such disease; and, although disablement may have existed from the time the employee quit work, such disablement, for the purpose of notice and claim for compensation, should date from the time the employee was notified by competent medical authority that he had such disease. Autrey v. Victor Mica Co., 234 N.C. 400, 67 S.E.2d 383, 1951 N.C. LEXIS 486 (1951); Duncan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410, 1951 N.C. LEXIS 313 (1951), overruled, Taylor v. J. P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144, 1980 N.C. LEXIS 1032 (1980).

Due to the peculiar nature of the disease, the slow process of its development, the similarity of its symptoms to those of other diseases which affect the lungs and for other reasons, a worker, whatever his actual physical condition may be, is not charged with notice that he has silicosis until and unless he is so advised by competent medical authority, and the time within which he must file his claim for compensation begins to run from the date he is so advised. Huskins v. United Feldspar Corp., 241 N.C. 128, 84 S.E.2d 645, 1954 N.C. LEXIS 565 (1954).

Advising an employee, who has been exposed to free silica dust, that his examination reveals “evidence of dust disease” is not sufficient to put him on notice that he has silicosis. Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 69 S.E.2d 707, 1952 N.C. LEXIS 390 (1952).

Where disablement from silicosis occurs, as defined in G.S. 97-54, and notice of claim is filed in accord with the provisions contained in this section, the claimant need not be advised by competent medical authority that he has silicosis within two years from the date of his last exposure. Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 69 S.E.2d 707, 1952 N.C. LEXIS 390 (1952).

The reason for allowing two years from the date of the last exposure to silica dust in which to determine actual disability from silicosis is that silicosis is a progressive disease, and the lung changes continue to develop for one or two years after removal of the worker from the silica hazard. Brinkley v. United Feldspar & Minerals Corp., 246 N.C. 17, 97 S.E.2d 419, 1957 N.C. LEXIS 356 (1957).

Incapacity Not Resulting Within Two Years of Last Exposure. —

Claimant was removed from the hazard of silica dust before becoming incapacitated within the meaning of G.S. 97-54. He was thereafter employed by the same employer for five years at the same wage at employment free from the hazard of silica dust. It was held that his retirement from such other occupation at the end of five years could not have been caused by incapacity from silicosis resulting within two years of the last exposure to silica dust, and compensation therefor could not be sustained. Brinkley v. United Feldspar & Minerals Corp., 246 N.C. 17, 97 S.E.2d 419, 1957 N.C. LEXIS 356 (1957).

Competency of Evidence Other Than Expert Medical Testimony. —

While it is essential to establish the presence of silicosis or asbestosis by competent medical authority, evidence other than expert medical testimony is competent on the question of whether claimant is disabled and whether such disablement occurred within two years from date of last exposure. Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 69 S.E.2d 707, 1952 N.C. LEXIS 390 (1952).

III.Report and Notice

The purpose of the notice of injury requirement is two-fold. It allows the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury, and it facilitates the earliest possible investigation of the circumstances surrounding the injury. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Report and Notice to Employer Under G.S. 97-22. —

The employee is not required to give any notice pursuant to the provisions of G.S. 97-22 to the employer in case of asbestosis, silicosis and lead poisoning. In all other cases of occupational disease, the time for giving the notice pursuant to G.S. 97-22 is extended to 30 days after the employee has been advised by competent medical authority that he is suffering from an occupational disease, and the one-year period (now two years) within which he may file his claim dates from receipt of such advice. Duncan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410, 1951 N.C. LEXIS 313 (1951), overruled, Taylor v. J. P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144, 1980 N.C. LEXIS 1032 (1980).

Reading subsection (b) of this section in conjunction with G.S. 97-22, a claim for compensation under the act is barred if the employer is not notified within 30 days of the date on which the claimant is informed of the diagnosis, unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Waiver of Notice Issue Where Not Raised. —

An employer who fails to raise the issue of notice at the hearing before the compensation board may not raise it on appeal. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

Employer’s failure to notify the Commission pursuant to subsection (a) of G.S. 97-92 does not raise an estoppel claim. Knight v. Cannon Mills Co., 82 N.C. App. 453, 347 S.E.2d 832, 1986 N.C. App. LEXIS 2520 (1986).

In an action brought by the dependents of an employee who died of hepatitis in order to recover death benefits, the employer waived its right to notice of the employee’s disease where it failed to raise that issue at the hearing before the Industrial Commission; moreover, under the circumstances of the case it was unrealistic to assume that the employer did not immediately receive notice of the diagnosis of the employee’s disease, where the employee continued to work in the same laboratory in which he contracted the disease, and where his duties were changed after he “suffered” the disease, so that he no longer handled blood. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

IV.Filing of Claims

The two-year time limit for filing claims under subsection (c) is a condition precedent with which claimants must comply in order to confer jurisdiction on the Industrial Commission to hear the claim. Poythress v. J.P. Stevens & Co., 54 N.C. App. 376, 283 S.E.2d 573, 1981 N.C. App. LEXIS 2842 (1981); Clary v. A.M. Smyre Mfg. Co., 61 N.C. App. 254, 300 S.E.2d 704, 1983 N.C. App. LEXIS 2637 (1983); Lawson v. Cone Mills Corp., 68 N.C. App. 402, 315 S.E.2d 103, 1984 N.C. App. LEXIS 3323 (1984); Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 304 S.E.2d 215, 1983 N.C. LEXIS 1301 (1983); Dawkins v. Mills, 74 N.C. App. 712, 329 S.E.2d 688, 1985 N.C. App. LEXIS 3555 (1985).

Subsection (c) of this section does not establish a defense to a claim for workers’ compensation, but is a condition precedent with which claimants must comply in order to confer jurisdiction on the Industrial Commission to hear the claim. Clary v. A.M. Smyre Mfg. Co., 61 N.C. App. 254, 300 S.E.2d 704, 1983 N.C. App. LEXIS 2637 (1983).

Two year statute of limitation is a condition precedent with which a plaintiff must comply in order to confer jurisdiction on the Industrial Commission. Underwood v. Cone Mills Corp., 78 N.C. App. 155, 336 S.E.2d 634, 1985 N.C. App. LEXIS 4253 (1985).

The burden is on plaintiff to establish that the claim was timely filed, and a failure to do so creates a jurisdictional bar to the claim. Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 304 S.E.2d 215, 1983 N.C. LEXIS 1301 (1983).

When Two-Year Limit Begins to Run. —

Two factors trigger the onset of the two-year period in the case of an occupational disease. Time begins running when an employee has suffered: (1) injury from an occupational disease which (2) renders the employee incapable of earning the wages the employee was receiving at the time of the incapacity by injury. Taylor v. J.P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144, 1980 N.C. LEXIS 1032 (1980).

The two-year period within which claims for benefits for an occupational disease must be filed under subsection (c) of this section begins running when an employee has suffered injury from an occupational disease which renders the employee incapable of earning the wages the employee was receiving at the time of the incapacity by such injury, and the employee is informed by competent medical authority of the nature and work-related cause of the disease. Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 304 S.E.2d 215, 1983 N.C. LEXIS 1301 (1983); Dawkins v. Mills, 74 N.C. App. 712, 329 S.E.2d 688, 1985 N.C. App. LEXIS 3555 (1985).

The two year period within which claims for benefits for an occupational disease must be filed begins running when an employee has suffered injury from an occupational disease which renders the employee incapable of earning, at any job, the wages the employee was receiving at the time of the incapacity, and the employee is informed by competent medical authority of the nature and work-related cause of the disease. Underwood v. Cone Mills Corp., 78 N.C. App. 155, 336 S.E.2d 634, 1985 N.C. App. LEXIS 4253 (1985).

Though the two-year time limit for timely filing is a jurisdictional requisite, without which the Commission may not consider a workers’ compensation claim, the time does not begin to run against occupational disease claims until the employee is informed by competent medical authority of the nature and work-related cause of the disease. McCubbins v. Fieldcrest Mills, Inc., 79 N.C. App. 409, 339 S.E.2d 497, 1986 N.C. App. LEXIS 2063 (1986).

Two conditions must be met in order to start the two-year statute of limitations running against a claimant: (1) The employee must have suffered an occupational disease which renders the employee incapable of earning, at any job, the wages the employee was receiving at the time of the incapacity, and (2) the employee has been informed by competent medical authority of the nature and work-related cause of the disease. Rutledge v. Stroh Cos., 105 N.C. App. 307, 412 S.E.2d 901, 1992 N.C. App. LEXIS 55 (1992).

The two-year period within which claims for occupational disease must be filed begins running when an employee suffers injury which renders the employee incapable of earning, at any job, the wages the employee was receiving at the time of the incapacity, and the employee is informed by medical authority of the nature and work-related cause of the disease. Howard v. Square-D Co., 128 N.C. App. 303, 494 S.E.2d 606, 1998 N.C. App. LEXIS 11 (1998).

The two-year time limitation for filing claims does not begin to run anew when employee’s condition changes from permanent partial disability to permanent total disability. Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 304 S.E.2d 215, 1983 N.C. LEXIS 1301 (1983).

Had the legislature intended that only total permanent disability or disablement trigger the two-year limitation on claims or that a change in an employee’s condition from permanent partial disability to permanent total disability would begin the two-year limitation period anew, the legislature would have said so in plain language. Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 304 S.E.2d 215, 1983 N.C. LEXIS 1301 (1983).

Two-Year Time Limitation Runs from Date When Employee Receives Clear Information That His Disease Is Work-Related. —

The plaintiff, who was disabled as of September 20, 1992, but was not advised by a competent medical authority that his disease was a result of his occupation until April 1994, notified his employer of his occupational disease within the requisite two-year period when he filed his Form 18 claim on January 24, 1994; the doctors testified that they had shared suspicions with each other of a causal relationship between plaintiff’s work and health, but no testimony was offered that any of those doctors informed the plaintiff that his job was causing his disease. Terrell v. Terminix Servs., 142 N.C. App. 305, 542 S.E.2d 332, 2001 N.C. App. LEXIS 91 (2001).

Claimant, a firefighter, timely filed a claim for compensation due to the claimant’s post-traumatic stress disorder (PTSD) diagnosis because, despite any self-reporting by the claimant of PTSD symptoms or PTSD, the claimant timely filed the claim after the claimant was informed by competent medical authority of the nature and work-related cause of the trauma-related PTSD. The PTSD for which the claimant sought compensation also was distinct in cause, more severe in nature, and remote in time from any PTSD the claimant may have suffered earlier. Rimmer v. Town of Chapel Hill, 869 S.E.2d 746, 2022- NCCOA-57, 2022 N.C. App. LEXIS 78 (Ct. App. 2022).

Employer’s Reliance upon Subsection (c) Not Estopped by Omission Under G.S. 97-92(a). —

The prescribed penalty against an employer for the neglectful omission to report to the Industrial Commission an employee’s absence under G.S. 97-92(a) is not the tolling of a “statute of limitation” or a bar, either through estoppel or waiver, to reliance upon subsection (c) of this section. Poythress v. J.P. Stevens & Co., 54 N.C. App. 376, 283 S.E.2d 573, 1981 N.C. App. LEXIS 2842 (1981).

The dependents’ claim for compensation would not be barred by the employee’s failure to file within the statutory period where the dependents were not parties to the proceeding brought by the employee. Booker v. Duke Medical Ctr., 297 N.C. 458, 256 S.E.2d 189, 1979 N.C. LEXIS 1402 (1979).

The employee is required to file but a single claim, and the amount of compensation payable is predicated on the extent of the disability resulting from the accident or occupational disease. Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 304 S.E.2d 215, 1983 N.C. LEXIS 1301 (1983).

Jurisdiction Over Claim Despite No Competent Medical Evidence. —

Employee’s workers’ compensation claim, alleging an occupational disease due to exposure to a chemical during his employment, was properly within the jurisdiction of the North Carolina Industrial Commission, as the fact that the employee had not yet received competent medical advice on the issue of causation did not detract from the Commission’s jurisdiction over the matter. Lentz v. Phil's Toy Store, 228 N.C. App. 416, 747 S.E.2d 127, 2013 N.C. App. LEXIS 839 (2013).

Hearing Loss Claim Filed Under This Section. —

Where, although plaintiff’s original awareness of hearing loss was precipitated by a single event, medical testimony indicated that the resulting disability was caused by repeated exposure to heightened levels of noise prior to 1974, the claim did not need to meet the requirements of G.S. 97-22 which is for injury by accident claims; plaintiff’s claim was one for compensation for occupational disease and plaintiff had met the necessary filing requirements set forth in this section. Sellers v. Lithium Corp., 94 N.C. App. 575, 380 S.E.2d 526, 1989 N.C. App. LEXIS 548 (1989).

Carpal Tunnel Claim. —

Plaintiffs claim was timely filed even though she was diagnosed with carpal tunnel syndrome and was unable to work for 6 days over two years before the claim was filed because she returned to work and continued to work for approximately 16 months more before she finally incurred a compensable period of disability. Howard v. Square-D Co., 128 N.C. App. 303, 494 S.E.2d 606, 1998 N.C. App. LEXIS 11 (1998).

V.Knowledge of Employee

When Time Limitations Begin to Run. —

With reference to occupational diseases, the time within which an employee must give notice or file claim begins to run when the employee is first informed by competent medical authority of the nature and work-related cause of the disease. Taylor v. J.P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144, 1980 N.C. LEXIS 1032 (1980); McCall v. Cone Mills Corp., 61 N.C. App. 118, 300 S.E.2d 245, 1983 N.C. App. LEXIS 2557 (1983); Clary v. A.M. Smyre Mfg. Co., 61 N.C. App. 254, 300 S.E.2d 704, 1983 N.C. App. LEXIS 2637 (1983).

Claimant, a firefighter, timely filed a claim for compensation due to the claimant’s post-traumatic stress disorder (PTSD) diagnosis because, despite any self-reporting by the claimant of PTSD symptoms or PTSD, the claimant timely filed the claim after the claimant was informed by competent medical authority of the nature and work-related cause of the trauma-related PTSD. The PTSD for which the claimant sought compensation also was distinct in cause, more severe in nature, and remote in time from any PTSD the claimant may have suffered earlier. Rimmer v. Town of Chapel Hill, 869 S.E.2d 746, 2022- NCCOA-57, 2022 N.C. App. LEXIS 78 (Ct. App. 2022).

An employee must be informed clearly, simply and directly that he has an occupational disease and that the illness is work-related to trigger the running of the two-year period set forth in this section. Lawson v. Cone Mills Corp., 68 N.C. App. 402, 315 S.E.2d 103, 1984 N.C. App. LEXIS 3323 (1984).

It is not enough that the worker be told a medical name for his disease, which may be meaningless to him, without a statement of its causal relationship to an extra-hazardous occupation. McKee v. Crescent Spinning Co., 54 N.C. App. 558, 284 S.E.2d 175, 1981 N.C. App. LEXIS 2924 (1981).

Employee Is Not Required to Diagnose His Own Condition. —

It was not the legislative intent to require an employee, in many instances, suffering from any one of these occupational diseases to make a correct medical diagnosis of his own condition or to file his notice and claim for compensation before he knew he had such disease, or run the risk of having his claim barred by the one-year (now two-year) statute. Duncan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410, 1951 N.C. LEXIS 313 (1951), overruled, Taylor v. J. P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144, 1980 N.C. LEXIS 1032 (1980).

Nor to Inquire and Discover Relationship of Disease to Employment. —

The legislature never intended that a claimant for workers’ compensation benefits would have to make a correct medical diagnosis of his own condition prior to notification by other medical authority of his disease in order to timely make his claim; likewise, plaintiff cannot be expected to inquire further and discover the relationship of his condition to his employment. McKee v. Crescent Spinning Co., 54 N.C. App. 558, 284 S.E.2d 175, 1981 N.C. App. LEXIS 2924 (1981).

When Plaintiff First Learned of Disease Irrelevant to When Disability Began. —

Plaintiff did not become disabled within the meaning of the Workers’ Compensation Act until June 3, 1982, when he was forced to stop work of any kind because of his occupational disease. Because plaintiff was able to earn the wages he had always received until that date, the arguments as to when plaintiff was first informed of the nature and work-related cause of his disease were irrelevant. Thus his claim, filed on February 2, 1983, was timely. Underwood v. Cone Mills Corp., 78 N.C. App. 155, 336 S.E.2d 634, 1985 N.C. App. LEXIS 4253 (1985).

§ 97-59. Employer to pay for treatment.

Medical compensation shall be paid by the employer in cases in which awards are made for disability or damage to organs as a result of an occupational disease after bills for same have been approved by the Industrial Commission.

In case of a controversy arising between the employer and employee relative to the continuance of medical, surgical, hospital or other treatment, the Industrial Commission may order such further treatments as may in the discretion of the Commission be necessary.

History. 1935, c. 123; 1945, c. 762; 1973, c. 1061; 1981, c. 339; 1991, c. 703, s. 5.

Legal Periodicals.

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

CASE NOTES

Section Controls over G.S. 97-25. —

This section, which is a more recent and specific statute dealing with awards of medical benefits in cases involving occupational disease, controls over G.S. 97-25, which is an older and more general statute. Smith v. American & Efird Mills, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

Grounds for Award of Medical Benefits. —

This section states two grounds upon which the Commission shall extend medical benefits; if either is found to exist by the Commissioner, an award for medical benefits must be made. Smith v. American & Efird Mills, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

There is no provision in the Act allowing the Commission to limit the award of medical expenses under this section to the period of time in which disability is paid; moreover upon finding that the treatment would provide needed relief, it is not necessary under this section for the Commission to determine that such treatment would also lessen the period of disability. Smith v. American & Efird Mills, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

“Needed Relief”. —

There is nothing talismanic about the phrase “needed relief.” Where a medical expert’s testimony is otherwise clear, he is not required to use those particular words to justify an award for future medical expenses. Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70, 1986 N.C. App. LEXIS 2676 (1986).

Prior Approval Only Required Where Practicable. —

The requirement in this section of prior approval of medical treatment applies only in cases where it is reasonably practicable to seek such prior approval. Smith v. American & Efird Mills, 305 N.C. 507, 290 S.E.2d 634, 1982 N.C. LEXIS 1337 (1982).

Failure to obtain approval for payments of medical expenses does not raise an estoppel claim. Knight v. Cannon Mills Co., 82 N.C. App. 453, 347 S.E.2d 832, 1986 N.C. App. LEXIS 2520 (1986).

Evidence From Unauthorized Physicians. —

North Carolina Industrial Commission did not err in relying upon the testimony of unauthorized physicians as, while the Commission could not require the employer to pay for treatment by an unauthorized physician, the fact that a physician was not authorized did not render his or her evidence incompetent. Branch v. Carolina Shoe Co., 172 N.C. App. 511, 616 S.E.2d 378, 2005 N.C. App. LEXIS 1802 (2005).

Failure to Make Findings of Fact and Conclusions of Law. —

In a workers’ compensation case wherein the employee was awarded compensation after being found permanently and totally disabled, the North Carolina Industrial Commission erred by failing to expressly rule on whether the employer was required to reimburse the employee for past out-of-pocket medical expenses; while it appeared from the emphasis in the Commission’s opinion and award, which ordered the employer to pay medical expenses as well as from its decision not to hold the employer in civil contempt, that the Commission implicitly ruled that the employee did not timely submit his request for reimbursement of $1,965.13 in past out-of-pocket medical expenses, the better approach for the Commission was to expressly respond to the issues raised by the employee’s appeal. Bolick v. ABF Freight Sys., 188 N.C. App. 294, 654 S.E.2d 793, 2008 N.C. App. LEXIS 81 (2008).

Plaintiff failed to properly preserve his right to appeal the failure of the Deputy Commissioner to order payment of medical expenses under this section, where there was no evidence in the record that the matter was ever addressed by the full commission, the plaintiff did not appeal from the Deputy Commissioner’s opinion and award, and the sole issue on appeal before the full commission was the propriety of the amounts awarded for loss of lung function and attorneys’ fees. Joyner v. Rocky Mount Mills, 85 N.C. App. 606, 355 S.E.2d 161, 1987 N.C. App. LEXIS 2636 (1987).

§ 97-60. [Repealed]

Repealed by Session Laws 2003-284, s. 10.33(a), effective July 1, 2003.

§ 97-61. [Repealed]

Rewritten as §§ 97-61.1 to 97-61.7.

Editor’s Note.

Session Laws 1955, c. 525, s. 2, rewrote G.S. 97-61 as G.S. 97-61.1 through 97-61.7. The rewritten section had been derived from Public Laws 1935, c. 123, and was amended by Session Laws 1945, c. 762.

§ 97-61.1. First examination of and report on employee having asbestosis or silicosis.

When the Industrial Commission is advised by an employer or employee that an employee has or allegedly has asbestosis or silicosis, the employee, when ordered by the Industrial Commission, shall submit to X rays and a physical examination by the advisory medical committee or other designated qualified physician who is not a member of the advisory medical committee. The employer shall pay the expenses connected with the examination by the advisory medical committee or other designated qualified physician who is not a member of the advisory medical committee in such amounts as shall be directed by the Industrial Commission. Within 30 days after the completion of the examination, the advisory medical committee or other designated qualified physician shall submit a written report to the Industrial Commission setting forth:

  1. The X rays and clinical procedures used.
  2. Whether or not the claimant has contracted asbestosis or silicosis.
  3. The advisory medical committee’s or designated qualified physician’s opinion expressed in percentages of the impairment of the employee’s ability to perform normal labor in the same or any other employment.
  4. Any other matter deemed pertinent.

When a competent physician certifies to the Industrial Commission that the employee’s physical condition is such that his movement to the place of examination ordered by the Industrial Commission as herein provided in G.S. 97-61.1, 97-61.3 and 97-61.4 would be harmful or injurious to the health of the employee, the Industrial Commission shall cause the examination of the employee to be made by the advisory medical committee or other designated qualified physician as herein provided at some place in the vicinity of the residence of the employee suitable for the purposes of making such examination.

History. 1935, c. 123; 1945, c. 762; 1955, c. 525, s. 2; 1973, c. 476, s. 128; 1989, c. 727, s. 219(15); 1997-443, s. 11A.37; 2003-284, s. 10.33(b).

Cross References.

See Editor’s note under G.S. 97-61.

CASE NOTES

An employer’s status (or lack thereof) as a “dusty trade” does not impact the application of the examination and compensation scheme set forth in G.S. 97-61.1 through 97-61.7. Austin v. Continental General Tire, 141 N.C. App. 397, 540 S.E.2d 824, 2000 N.C. App. LEXIS 1415 (2000), rev'd, 354 N.C. 344, 553 S.E.2d 680, 2001 N.C. LEXIS 1091 (2001).

An employer need not be designated a “dusty trade” for G.S. 97-61.1 through 97-61.7 to apply. Clark v. ITT Grinnell Indus. Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369, 2000 N.C. App. LEXIS 1416 (2000).

The “engaged or about to engage in” language of G.S. 97-60 does not carry over to the examination and compensation provisions of G.S. 97-61.1 through 97-61.7. Austin v. Continental General Tire, 141 N.C. App. 397, 540 S.E.2d 824, 2000 N.C. App. LEXIS 1415 (2000), rev'd, 354 N.C. 344, 553 S.E.2d 680, 2001 N.C. LEXIS 1091 (2001).

The “engaged or about to engage in” language of G.S. 97-60 does not carry over to the screening and reporting provisions of G.S. 97-61.1 through 97-61.7. Clark v. ITT Grinnell Indus. Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369, 2000 N.C. App. LEXIS 1416 (2000).

Opinion of Percent of Impairment. —

The Advisory Medical Committee’s final “impression” of “Silicosis, Grade II, 100% disability” was clearly a fulfillment of the statutory requirement that its written report include the Committee’s opinion, expressed in percentages, of the impairment of the employee’s ability to perform labor or earn wages in the same or any other employment. Pitman v. Feldspar Corp., 87 N.C. App. 208, 360 S.E.2d 696, 1987 N.C. App. LEXIS 3121 (1987).

Remand to Deputy Commissioner Proper. —

Commission’s remand to a deputy commissioner for a hearing on the worker’s disability did not violate the remand order from the supreme court of North Carolina because disability was not at issue at the first hearing, and no evidence was presented on the subject, but on remand the commission was directed to determine if the worker was entitled to benefits under G.S. 97-64; under G.S. 97-61.1 through G.S. 97-61.7, a diagnosis of asbestosis for purposes of determining eligibility to receive benefits was the equivalent of a finding of actual disability, and accordingly the issue of the worker’s disability was not a contested issue at the first hearing. Austin v. Cont'l Gen. Tire, 185 N.C. App. 488, 648 S.E.2d 570, 2007 N.C. App. LEXIS 1813 (2007).

§ 97-61.2. Filing of first report; right of hearing; effect of report as testimony.

The advisory medical committee shall file its report in triplicate with the Industrial Commission, which shall send one copy thereof to the claimant and one copy thereof to the employer by registered mail or certified mail. Unless within 30 days from receipt of the copy of said report the claimant and employer, or either of them, shall request the Industrial Commission in writing to set the case for hearing for the purpose of examining and cross-examining the members of the advisory medical committee respecting the report of said committee, and for the purpose of introducing additional testimony, said report shall become a part of the record of the case and shall be accepted by the Industrial Commission as expert medical testimony to be considered as such and in connection with all the evidence in the case in arriving at its decision.

History. 1935, c. 123; 1945, c. 762; 1955, c. 525, s. 2; 1963, c. 450, s. 5.

Cross References.

See Editor’s note under G.S. 97-61.

§ 97-61.3. Second examination and report.

As soon as practicable after the expiration of one year following the initial examination by the advisory medical committee and when ordered by the Industrial Commission, the employee shall again appear before the advisory medical committee, at least one of whom shall conduct the examination, and the member or members of the advisory medical committee conducting the examination shall forward the X rays and findings to the member or members of the committee not present for the physical examination. Within 30 days after the completion of the examination, the advisory medical committee shall make a written report to the Industrial Commission signed by all of its members, setting forth any change since the first report in the employee’s condition which is due to asbestosis or silicosis, said report to be filed in triplicate with the Industrial Commission, which shall send one copy thereof to the claimant, and one copy to the employer by registered mail or certified mail. The claimant and employer, or either of them, shall have the right only at the final hearing provided for in G.S. 97-61.4 to examine or cross-examine the members of the advisory medical committee respecting the second report of the committee.

History. 1935, c. 123; 1945, c. 762; 1955, c. 525, s. 2; 1959, c. 863, s. 2.

Cross References.

See Editor’s note under G.S. 97-61.

§ 97-61.4. Third examination and report.

As soon as practicable after the expiration of two years from the first examination and when ordered by the Industrial Commission, the employee shall appear before the advisory medical committee, or at least two of them, for final X rays and physical examination. Upon completion of this examination and within 30 days, the advisory medical committee shall make a written report setting forth:

  1. The X rays and clinical procedures used by the committee.
  2. To what extent, if any, has the damage to the employee’s lungs due to asbestosis or silicosis changed since the first examination.
  3. The opinion of the committee, expressed in percentages, with respect to the extent of impairment of the employee’s ability to earn in the same or any other employment the wages which the employee was receiving at the time of his last injurious exposure to asbestosis or silicosis.
  4. Any other matter deemed pertinent by the committee.

Said report shall be filed in triplicate with the Industrial Commission which shall send one copy thereof to the claimant and one copy to the employer by registered mail or certified mail.

History. 1935, c. 123; 1945, c. 762; 1955, c. 525, s. 2; 1959, c. 863, s. 3.

Cross References.

See Editor’s note under G.S. 97-61.

CASE NOTES

Opinion of Percent of Impairment. —

The Advisory Medical Committee’s final “impression” of “Silicosis, Grade II, 100% disability” was clearly a fulfillment of the statutory requirement that its written report include the Committee’s opinion, expressed in percentages, of the impairment of the employee’s ability to perform labor or earn wages in the same or any other employment. Pitman v. Feldspar Corp., 87 N.C. App. 208, 360 S.E.2d 696, 1987 N.C. App. LEXIS 3121 (1987).

§ 97-61.5. Hearing after first examination and report; removal of employee from hazardous occupation; compensation upon removal from hazardous occupation.

  1. After the employer and employee have received notice of the first committee report, the Industrial Commission, unless it has already approved an agreement between the employer and employee, shall set the matter for hearing at a time and place to be decided by it, to hear any controverted questions, determine if and to whom liability attaches, and where appropriate, file a written opinion with its findings of fact and conclusions of law and cause its award to be issued thereon, all of which shall be subject to modification as provided in G.S. 97-61.6.
  2. If the Industrial Commission finds at the first hearing that the employee has either asbestosis or silicosis or if the parties enter into an agreement to the effect that the employee has silicosis or asbestosis, it shall by order remove the employee from any occupation which exposes him to the hazards of asbestosis or silicosis, and if the employee thereafter engages in any occupation which exposes him to the hazards of asbestosis or silicosis without having obtained the written approval of the Industrial Commission as provided in G.S. 97-61.7, neither he, his dependents, personal representative nor any other person shall be entitled to any compensation for disablement or death resulting from asbestosis or silicosis; provided, that if the employee is removed from the industry the employer shall pay or cause to be paid as in this subsection provided to the employee affected by such asbestosis or silicosis a weekly compensation equal to sixty-six and two-thirds percent (662/3%) of his average weekly wages before removal from the industry, but not more than the amount established annually to be effective October 1 as provided in G.S. 97-29 or less than thirty dollars ($30.00) a week, which compensation shall continue for a period of 104 weeks. Payments made under this subsection shall be credited on the amounts payable under any final award in the cause entered under G.S. 97-61.6.

History. 1935, c. 123; 1945, c. 762; 1955, c. 525, s. 2; c. 1354; 1957, c. 1217; c. 1396, s. 8; 1963, c. 604, s. 6; 1967, c. 84, s. 7; 1969, c. 143, s. 6; 1971, c. 281, s. 5; 1973, c. 515, s. 6; c. 759, s. 5; 1981, c. 276, s. 1; c. 378, s. 1.

Cross References.

See Editor’s note under G.S. 97-61.

CASE NOTES

Constitutionality. —

Assuming arguendo that defendant employer did have standing to assert a constitutional challenge to this section on the basis that it treats employees with asbestosis or silicosis differently than employees who contract occupational diseases other than asbestosis or silicosis, the court agreed with the Commission that the statute was not unconstitutional; enacted as an added benefit to employees suffering from asbestosis or silicosis, its purpose to account for the incurable, latent, and unique nature of asbestosis and silicosis, factors not apparent in other occupational diseases, the statute survives minimum scrutiny. Jones v. Weyerhaeuser Co., 141 N.C. App. 482, 539 S.E.2d 380, 2000 N.C. App. LEXIS 1413 (2000).

This section is in conflict with G.S. 97-54 and former G.S. 97-58(a), thereby establishing an exception. This exception made the diagnosis of asbestosis or silicosis the same as disablement. The disease must therefore have developed within two years of the last exposure. Roberts v. Southeastern Magnesia & Asbestos Co., 61 N.C. App. 706, 301 S.E.2d 742, 1983 N.C. App. LEXIS 2747 (1983) (decided prior to the 1987 amendment to G.S. 97-58, which repealed subsection (a) thereof) .

It is clear from the language of this section and G.S. 97-61.7 that a diagnosis of asbestosis, for purposes of determining eligibility to receive benefits, is the equivalent of a finding of actual disability. Roberts v. Southeastern Magnesia & Asbestos Co., 61 N.C. App. 706, 301 S.E.2d 742, 1983 N.C. App. LEXIS 2747 (1983).

Purpose of Section. —

One of the purposes of this section is the compensation of employees for the incurable nature of the disease of asbestosis. Roberts v. Southeastern Magnesia & Asbestos Co., 61 N.C. App. 706, 301 S.E.2d 742, 1983 N.C. App. LEXIS 2747 (1983).

Legislative Intent. —

There is no indication that the legislature intended to prohibit any recovery whatsoever to those employees who refused to remove themselves from contact with asbestos after being diagnosed as having asbestosis. The statutory language merely prohibits recovery for actual partial incapacity if the employee, after receiving initial compensation in the form of 104 weeks of installment payments, is shown to have remained in a job where he or she is exposed to asbestos. Roberts v. Southeastern Magnesia & Asbestos Co., 61 N.C. App. 706, 301 S.E.2d 742, 1983 N.C. App. LEXIS 2747 (1983).

The intent of the legislature in providing for an automatic 104 installment payments was to encourage employees to remove themselves from hazardous exposure to asbestos and to provide for employee rehabilitation. Roberts v. Southeastern Magnesia & Asbestos Co., 61 N.C. App. 706, 301 S.E.2d 742, 1983 N.C. App. LEXIS 2747 (1983).

The Workers’ Compensation Act contemplates that an employee will not be allowed to remain exposed to silica dust or asbestos dust until he becomes actually incapacitated within the meaning of G.S. 97-54, and that if removed from the hazard before such incapacity, he will seek and obtain other remunerative employment. Brinkley v. United Feldspar & Minerals Corp., 246 N.C. 17, 97 S.E.2d 419, 1957 N.C. LEXIS 356 (1957).

Showing of Disability for Asbestosis. —

The claimant could not recover compensation for total or partial incapacity to earn wages, both of which require a showing of disablement, where his prior award of 104-weeks compensation for asbestosis did not establish his disablement, but he was entitled to compensation for permanent injury to his lungs without offset for previous benefits received. Davis v. Weyerhaeuser Co., 132 N.C. App. 771, 514 S.E.2d 91, 1999 N.C. App. LEXIS 284 (1999).

Removal by Employer a Prerequisite. —

Employee becoming disabled by asbestosis or silicosis within the terms of the specific definition embodied in G.S. 97-54, and who was no longer employed by the employer and had not been “removed” by the employer as required by G.S. 97-61.5(b), was entitled to be considered for ordinary compensation measured by the general provisions of the North Carolina Workmen’s Compensation Act and not G.S. 97-61.5(b). Abernathy v. Sandoz Chems./Clariant Corp., 151 N.C. App. 252, 565 S.E.2d 218, 2002 N.C. App. LEXIS 724, cert. denied, 356 N.C. 432, 572 S.E.2d 421, 2002 N.C. LEXIS 1220 (2002).

Compensation Where Employee’s Condition Is Complicated by Tuberculosis. —

Where an employee is ordered to abstain from employment in an industry having the hazards of silica dust and directed to report for second and third medical examinations under G.S. 97-61.3 and G.S. 97-61.4, it is proper that he be awarded the compensation provided by subsection (b) of this section without consideration of the fact that his condition was complicated by pulmonary tuberculosis, since the total amount of compensation is to be determined on the hearing after the third medical report as provided in G.S. 97-61.6, at which time consideration should be given to the tubercular condition in accordance with G.S. 97-65. Pitman v. Carpenter, 247 N.C. 63, 100 S.E.2d 231, 1957 N.C. LEXIS 540 (1957).

Section Construed with G.S. 97-31. —

The acceptance of benefits under this section does not necessarily preclude an award under G.S. 97-31(24). Hicks v. Leviton Mfg. Co., 121 N.C. App. 453, 466 S.E.2d 78, 1996 N.C. App. LEXIS 68 (1996).

Calculation Based on Wage at Time of Diagnosis. —

Plaintiff who was diagnosed with silicosis was entitled to compensation calculated based on his average weekly wage at the time he was diagnosed, not at the time of his last exposure or at the time he was “removed from the industry”. Moore v. Standard Mineral Co., 122 N.C. App. 375, 469 S.E.2d 594, 1996 N.C. App. LEXIS 374 (1996).

Plaintiff was not barred from seeking disability benefits if his retirement was for reasons unrelated to his occupational disease; the pertinent issue was whether plaintiff, subsequent to retirement, experienced a loss in wage-earning capacity. Stroud v. Caswell Ctr., 124 N.C. App. 653, 478 S.E.2d 234, 1996 N.C. App. LEXIS 1206 (1996).

An employee who retires prior to being diagnosed with asbestosis need not be “removed” from employment to be entitled to the 104 weeks compensation set forth in this section. Austin v. Continental General Tire, 141 N.C. App. 397, 540 S.E.2d 824, 2000 N.C. App. LEXIS 1415 (2000), rev'd, 354 N.C. 344, 553 S.E.2d 680, 2001 N.C. LEXIS 1091 (2001).

An employee need not be “removed” from employment to be entitled to the 104 weeks compensation set forth in this section; construing this section in para materia with G.S. 97-61.7 the court held that the General Assembly’s intent was to allow an injured plaintiff to remain in the harmful work environment and receive the 104 weeks of compensation although the court acknowledged that the language of this section by itself appeared to restrict recovery to an employee who is removed from the industry. Clark v. ITT Grinnell Indus. Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369, 2000 N.C. App. LEXIS 1416 (2000).

Former Law. —

As to removal from hazardous employment and rehabilitation under former G.S. 97-61, now rewritten as G.S. 97-61.1 to 97-61.7, see Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797, 1948 N.C. LEXIS 324 (1948); Bye v. Interstate Granite Co., 230 N.C. 334, 53 S.E.2d 274, 1949 N.C. LEXIS 640 (1949); Midkiff v. North Carolina Granite Corp., 235 N.C. 149, 69 S.E.2d 166, 1952 N.C. LEXIS 357 (1952); Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426, 1952 N.C. LEXIS 419 (1952).

Remand to Deputy Commissioner. Commission’s remand to a deputy commissioner for a hearing on the worker’s disability did not violate the remand order from the supreme court of North Carolina because disability was not at issue at the first hearing, and no evidence was presented on the subject, but on remand the commission was directed to determine if the worker was entitled to benefits under G.S. 97-64; under G.S. 97-61.1 through G.S. 97-61.7, a diagnosis of asbestosis for purposes of determining eligibility to receive benefits was the equivalent of a finding of actual disability, and accordingly the issue of the worker’s disability was not a contested issue at the first hearing. Austin v. Cont'l Gen. Tire, 185 N.C. App. 488, 648 S.E.2d 570, 2007 N.C. App. LEXIS 1813 (2007).

§ 97-61.6. Hearing after third examination and report; compensation for disability and death from asbestosis or silicosis.

After receipt by the employer and employee of the advisory medical committee’s third report, the Industrial Commission, unless it has approved an agreement between the employee and employer, shall set a final hearing in the cause, at which it shall receive all competent evidence bearing on the cause, and shall make a final disposition of the case, determining what compensation, if any, the employee is entitled to receive in addition to the 104 weeks already received.

Where the incapacity for work resulting from asbestosis or silicosis is found to be total, the employer shall pay, or cause to be paid, to the injured employee during such total disability a weekly compensation in accordance with G.S. 97-29.

When the incapacity for work resulting from asbestosis or silicosis is partial, the employer shall pay, or cause to be paid, to the affected employee, a weekly compensation equal to sixty-six and two-thirds percent (662/3%) of the difference between his average weekly wages at the time of his last injurious exposure, and the average weekly wages which he is able to earn thereafter, but not more than the amount established annually to be effective October 1 as provided in G.S. 97-29, a week, and provided that the total compensation so paid shall not exceed a period of 196 weeks, in addition to the 104 weeks for which the employee has already been compensated.

Provided, however, should death result from asbestosis or silicosis within two years from the date of last exposure, or should death result from asbestosis or silicosis, or from a secondary infection or diseases developing from asbestosis or silicosis within 350 weeks from the date of last exposure and while the employee is entitled to compensation for disablement due to asbestosis or silicosis, either partial or total, then in either of these events, the employer shall pay, or cause to be paid compensation in accordance with G.S. 97-38.

Provided further that if the employee has asbestosis or silicosis and dies from any other cause, the employer shall pay, or cause to be paid by one of the methods set forth in G.S. 97-38 compensation for any remaining portion of the 104 weeks specified in G.S. 97-61.5 for which the employee has not previously been paid compensation, and in addition shall pay compensation for such number of weeks as the percentage of disability of the employee bears to 196 weeks. If the employee was totally disabled as a result of asbestosis or silicosis, compensation shall be paid for any remaining portion of the 104 weeks specified in G.S. 97-61.5 for which the employee has not previously been paid compensation, and in addition shall be paid for an additional 300 weeks.

History. 1935, c. 123; 1945, c. 762; 1955, c. 525, s. 2; c. 1354; 1957, c. 1271; 1963, c. 604, s. 7; 1965, c. 907; 1967, c. 84, s. 8; 1969, c. 143, s. 7; 1971, c. 281, s. 6; c. 631; 1973, c. 515, s. 7; c. 759, s. 6; c. 1308, ss. 6, 7; 1979, c. 246; 1981, c. 276, s. 1.

Cross References.

See Editor’s note under G.S. 97-61.

Legal Periodicals.

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

CASE NOTES

Purpose of Section. —

Because of the difficulty of effecting a cure and the length of time necessary to ascertain the extent of the disability, this section fixes a time in the future when the total amount of compensation will be determined. Pitman v. Carpenter, 247 N.C. 63, 100 S.E.2d 231, 1957 N.C. LEXIS 540 (1957).

Constitutionality. —

Court of Appeals of North Carolina holds that the time limitation in the fourth paragraph of G.S. 97-61.6 violates the Equal Protection Clauses of U.S. Const., Amend. XIV and N.C. Const., Art. I, § 19 under the rational basis test because the statute imposes an additional burden for recovery — a shorter time frame for death benefits claims — for asbestosis or silicosis, and no rational basis exists for treating such occupational diseases differently from other latent occupational diseases. Payne v. Charlotte Heating & Air Conditioning, 172 N.C. App. 496, 616 S.E.2d 356, 2005 N.C. App. LEXIS 1782 (2005).

The language of the fourth paragraph of this section is clear, positive and understandable. When the language of a statute is plain and free from ambiguity, expressing a single, definite and sensible meaning, that meaning is conclusively presumed to be the meaning which the legislature intended, and the statute must be interpreted accordingly. Davis v. North Carolina Granite Corp., 259 N.C. 672, 131 S.E.2d 335, 1963 N.C. LEXIS 603 (1963).

The fourth paragraph of this section provides two conditions under which dependents of a deceased employee, who had silicosis, are entitled to compensation on account of his death: (1) If death results from silicosis within two years from the date of last exposure, or (2) if death results within 350 weeks from the date of last exposure and while the employee is entitled to compensation for disablement due to silicosis, either partial or total. These conditions are stated in independent clauses of a compound sentence, and neither clause is dependent upon the other. Davis v. North Carolina Granite Corp., 259 N.C. 672, 131 S.E.2d 335, 1963 N.C. LEXIS 603 (1963).

“Death Resulting from Asbestosis” Construed. —

“Death resulting from asbestosis” was construed to mean that a compensable death occurs when job-related asbestosis only accelerates and contributes to the death but is not the immediate or primary cause. Self v. Starr-Davis Co., 13 N.C. App. 694, 187 S.E.2d 466, 1972 N.C. App. LEXIS 2312 (1972) (decided prior to the 1971 amendment to this section) .

When Compensation Allowed Although Death Does Not Result from Silicosis. —

Under this section the dependents of a deceased employee are entitled to compensation if the employee dies within 350 weeks from the date of last exposure to silicosis and while he is receiving or is entitled to receive compensation for disability due to silicosis, either partial or total, notwithstanding that the death does not result from silicosis. Davis v. North Carolina Granite Corp., 259 N.C. 672, 131 S.E.2d 335, 1963 N.C. LEXIS 603 (1963).

The clear intent of this section to provide compensation for death occurring within 350 weeks from the date of last exposure if the employee was at the time of death receiving compensation for disablement due to silicosis, even though the death does not result from silicosis, must be given effect notwithstanding G.S. 97-2, subdivisions (6) and (10), and G.S. 97-52, since the specific provisions relating to silicosis, which were enacted because of the peculiar course of the disease, must be construed as an exception to the general tenor of the Workers’ Compensation Act to provide compensation for death only if it results from an accident arising out of and in the course of the employment. Davis v. North Carolina Granite Corp., 259 N.C. 672, 131 S.E.2d 335, 1963 N.C. LEXIS 603 (1963).

Disability Refers to Diminished Capacity to Earn Money. —

Under the Workers’ Compensation Act disability refers not to physical infirmity but to a diminished capacity to earn money. Mabe v. North Carolina Granite Corp., 15 N.C. App. 253, 189 S.E.2d 804, 1972 N.C. App. LEXIS 1892 (1972).

But Earning Capacity Must Be That of Particular Plaintiff. —

With respect to disability, the question is what effect has the disease had upon the earning capacity of this particular plaintiff; not what effect a like physical impairment would have upon an employee of average age and intelligence. Mabe v. North Carolina Granite Corp., 15 N.C. App. 253, 189 S.E.2d 804, 1972 N.C. App. LEXIS 1892 (1972).

Where the plaintiff is fully incapacitated because of silicosis to earn wages through work at hard labor, which is the only work he is qualified to do by reason of his age and education, the plaintiff is totally incapacitated because of silicosis to earn, in the same or any other employment, the wages he was earning at the time of his last injurious exposure. Mabe v. North Carolina Granite Corp., 15 N.C. App. 253, 189 S.E.2d 804, 1972 N.C. App. LEXIS 1892 (1972).

Effect of Commission’s Findings. —

If the findings of fact of the Industrial Commission are supported by competent evidence and are determinative of all the questions at issue in the proceeding, the court must accept such findings as final truth and merely determine whether or not they justify the legal conclusions and decision of the Commission. Mabe v. North Carolina Granite Corp., 15 N.C. App. 253, 189 S.E.2d 804, 1972 N.C. App. LEXIS 1892 (1972).

§ 97-61.7. Waiver of right to compensation as alternative to forced change of occupation.

An employee who has been compensated under the terms of G.S. 97-61.5(b) as an alternative to forced change of occupation, may, subject to the approval of the Industrial Commission, waive in writing his right to further compensation for any aggravation of his condition that may result from his continuing in an occupation exposing him to the hazards of asbestosis or silicosis, in which case payment of all compensation awarded previous to the date of the waiver as approved by the Industrial Commission shall bar any further claims by the employee, or anyone claiming through him, provided, that in the event of total disablement or death as a result of asbestosis or silicosis with which the employee was so affected, compensation shall nevertheless be payable, but in no case, whether for disability or death or both, for a longer period than 100 weeks in addition to the 104 weeks already paid. Such written waiver must be filed with the Industrial Commission, and the Commission shall keep a record of each waiver, which record shall be open to the inspection of any interested person.

History. 1935, c. 123; 1945, c. 762; 1955, c. 525, s. 2.

Cross References.

See Editor’s note under G.S. 97-61.

CASE NOTES

Construing G.S. 97-61.5 in para materia with this section, the court held that the General Assembly’s intent was to allow an injured plaintiff to remain in the harmful work environment and receive the 104 weeks of compensation. Clark v. ITT Grinnell Indus. Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369, 2000 N.C. App. LEXIS 1416 (2000).

It is clear from the language of G.S. 97-61.5 and this section that a diagnosis of asbestosis, for purposes of determining eligibility to receive benefits, is the equivalent of a finding of actual disability. Roberts v. Southeastern Magnesia & Asbestos Co., 61 N.C. App. 706, 301 S.E.2d 742, 1983 N.C. App. LEXIS 2747 (1983).

Waiver Inapplicable as to Subsequent Employment. —

A waiver of an employee’s right to compensation for silicosis signed by the employee upon his employment by one employer did not apply to or waive the employee’s right to compensation for silicosis upon his subsequent employment by an entirely separate employer. Fetner v. Rocky Mount Marble & Granite Works, 251 N.C. 296, 111 S.E.2d 324, 1959 N.C. LEXIS 572 (1959).

§ 97-62. “Silicosis” and “asbestosis” defined.

The word “silicosis” shall mean the characteristic fibrotic condition of the lungs caused by the inhalation of dust of silica or silicates. “Asbestosis” shall mean a characteristic fibrotic condition of the lungs caused by the inhalation of asbestos dust.

History. 1935, c. 123.

Legal Periodicals.

For note, “Caulder v. Waverly Mills: Expanding the Definition of an Occupational Disease under the Last Injurious Exposure Rule,” see 64 N.C.L. Rev. 1566 (1986).

CASE NOTES

Asbestosis is a disease of the lungs occurring in persons working in air laden with asbestos dust. It is infrequent as compared to silicosis, but has somewhat similar symptoms and consequences. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797, 1948 N.C. LEXIS 324 (1948).

Sufficient evidence supported the Commission’s finding that plaintiff had asbestosis as defined in this section. Austin v. Continental General Tire, 141 N.C. App. 397, 540 S.E.2d 824, 2000 N.C. App. LEXIS 1415 (2000), rev'd, 354 N.C. 344, 553 S.E.2d 680, 2001 N.C. LEXIS 1091 (2001).

Competent evidence supported the Industrial Commission’s findings that plaintiff suffered from asbestosis, as defined in this section; an expert in pulmonary medicine affiliated with the North Carolina Industrial Commission’s Advisory Medical Committee testified that plaintiff’s x-rays indicated evidence of “pleural plaques and thickening” and opined that plaintiff had “fibrotic conditions of the lung [] characteristic of asbestos exposure” while a pulmonary specialist, who examined plaintiff, found that “chest x-ray reveal[ed] definite pleural plaques quite consistent with asbestos exposure” and an expert in pulmonary medicine observed “evidence on chest radiograph consistent with a significant asbestos exposure.” Clark v. ITT Grinnell Indus. Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369, 2000 N.C. App. LEXIS 1416 (2000).

There was some competent evidence to support the North Carolina Industrial Commission’s award of total disability benefits and death benefits, pursuant to G.S. 97-39, to an estate administratrix on behalf of her deceased husband, who had been an employee of the employer for a period of time, where it was determined that the employer was the place where the employee had his last injurious exposure to asbestos, pursuant to G.S. 97-57, and further, that he in fact had “asbestosis,” as that term was defined under G.S. 97-62; credibility determinations were within the province of the Commission, and not for the court to redetermine. Payne v. Charlotte Heating & Air Conditioning, 172 N.C. App. 496, 616 S.E.2d 356, 2005 N.C. App. LEXIS 1782 (2005).

§ 97-63. Period necessary for employee to be exposed.

Compensation shall not be payable for disability or death due to silicosis and/or asbestosis unless the employee shall have been exposed to the inhalation of dust of silica or silicates or asbestos dust in employment for a period of not less than two years in this State, provided no part of such period of two years shall have been more than 10 years prior to the last exposure.

History. 1935, c. 123.

CASE NOTES

Constitutionality. —

This statute denies equal protection of the law under both the North Carolina Constitution and the United States Constitution in that it treats persons with asbestosis differently than persons with other occupational diseases and does so without any valid reason. Walters v. Algernon Blair, 120 N.C. App. 398, 462 S.E.2d 232, 1995 N.C. App. LEXIS 830 (1995), aff'd, 344 N.C. 628, 476 S.E.2d 105, 1996 N.C. LEXIS 501 (1996).

Court of Appeals of North Carolina holds that the time limitation in the fourth paragraph of G.S. 97-61.6 violates the Equal Protection Clauses of U.S. Const., Amend. XIV and N.C. Const., Art. I, § 19 under the rational basis test because, similar to the reasoning used for declaring G.S. 97-63 unconstitutional in the North Carolina Supreme Court’s decision in Walters v. Algernon Blair, 120 N.C. App. 398, 462 S.E.2d 232 (1995), the statute imposes an additional burden for recovery — a shorter time frame for death benefits claims — for asbestosis or silicosis, and no rational basis exists for treating such occupational diseases differently from other latent occupational diseases. Payne v. Charlotte Heating & Air Conditioning, 172 N.C. App. 496, 616 S.E.2d 356, 2005 N.C. App. LEXIS 1782 (2005).

Findings Required to Support Award for Silicosis. —

To support an award to one suffering from silicosis, the Industrial Commission must find, inter alia, that the employee had been exposed to the hazards of silicosis for the period provided by G.S. 97-57 and that the employee’s work in the State must have exposed him to the inhalation of silica dust for the further period prescribed by this section. Pitman v. Carpenter, 247 N.C. 63, 100 S.E.2d 231 (1957). In accord with the main volume. See Woodell v. Starr Davis Co., 77 N.C. App. 352, 335 S.E.2d 48, 1985 N.C. App. LEXIS 4073 (1985).

Employee Held Not Entitled to Rehabilitation Benefits Under Former G.S. 97-61. —

Employee had worked in granite industry from time to time during 18 years. However, from 1940 to 1946 he worked in a nondusty trade outside North Carolina and from 1946 to March, 1949, in a nondusty trade inside this State. From March, 1949, until June, 1950, he worked in defendant’s granite shed. He then left the dusty trade and filed a claim for rehabilitation benefits, having developed silicosis. An award of rehabilitation benefits under former G.S. 97-61 by the Commission was reversed by the Supreme Court, which held that no benefits could be obtained under the act until the employee had worked at least two years in a dusty trade in this State within the preceding 10 years. Midkiff v. North Carolina Granite Corp., 235 N.C. 149, 69 S.E.2d 166, 1952 N.C. LEXIS 357 (1952).

Where the evidence showed that decedent’s last possible exposure occurred in February, 1975, he was required to meet the statutory time limitations between February 1965, and February 1975. Exposure which occurred prior to 1964 could not be used to calculate his level of exposure, since it occurred over 10 years prior to the last exposure. Gosney v. Golden Belt Mfg., 89 N.C. App. 670, 366 S.E.2d 873, 1988 N.C. App. LEXIS 358 (1988) (upholding Commission’s finding that plaintiff failed to show the length of exposure to asbestos required by G.S. 97-57 and this section) .

§ 97-64. General provisions of act to control as regards benefits.

Except as herein otherwise provided, in case of disablement or death from silicosis and/or asbestosis, compensation shall be payable in accordance with the provisions of the North Carolina Workers’ Compensation Act.

History. 1935, c. 123; 1979, c. 714, s. 2.

CASE NOTES

Purpose of Section. —

With a view to averting the unjust and oppressive results of an indiscriminate transfer of workers affected by asbestosis or silicosis from their accustomed occupations to other employments under the economic threat of deprivation of compensation, the legislature established in this section the general rule that an employee becoming disabled by asbestosis or silicosis within the terms of the specific definition embodied in G.S. 97-54 should be entitled to ordinary compensation measured by the general provisions of the act. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797, 1948 N.C. LEXIS 324 (1948).

Disablement from Asbestosis or Silicosis. —

Employee becoming disabled by asbestosis or silicosis within the terms of the specific definition embodied in G.S. 97-54, and who was no longer employed by the employer and had not been “removed” by the employer as required by G.S. 97-61.5(b), was, under G.S. 97-64 entitled to be considered for ordinary compensation measured by the general provisions of the North Carolina Workmen’s Compensation Act and not G.S. 97-61.5(b). Abernathy v. Sandoz Chems./Clariant Corp., 151 N.C. App. 252, 565 S.E.2d 218, 2002 N.C. App. LEXIS 724, cert. denied, 356 N.C. 432, 572 S.E.2d 421, 2002 N.C. LEXIS 1220 (2002).

Commission’s remand to a deputy commissioner for a hearing on the worker’s disability did not violate the remand order from the supreme court of North Carolina because disability was not at issue at the first hearing, and no evidence was presented on the subject, but on remand the commission was directed to determine if the worker was entitled to benefits under G.S. 97-64; under G.S. 97-61.1 through G.S. 97-61.7, a diagnosis of asbestosis for purposes of determining eligibility to receive benefits was the equivalent of a finding of actual disability, and accordingly the issue of the worker’s disability was not a contested issue at the first hearing. Austin v. Cont'l Gen. Tire, 185 N.C. App. 488, 648 S.E.2d 570, 2007 N.C. App. LEXIS 1813 (2007).

§ 97-65. Reduction of rate where tuberculosis develops.

In case of disablement or death due primarily from silicosis and/or asbestosis and complicated with tuberculosis of the lungs compensation shall be payable as hereinbefore provided, except that the rate of payments may be reduced one sixth.

History. 1935, c. 123.

CASE NOTES

Time for Making Reduction in Award. —

It is at the time of determining the total amount of compensation as provided in G.S. 97-61.6 that the Commission should take into consideration the fact that the employee’s condition is complicated by pulmonary tuberculosis and determine in its wisdom the extent to which the provisions of this section should affect the compensation payable to the employee. Pitman v. Carpenter, 247 N.C. 63, 100 S.E.2d 231, 1957 N.C. LEXIS 540 (1957).

Reduction of Award Rests in Discretion of Commission. —

Where the Industrial Commission found that a disabled employee was suffering from tuberculosis as well as from silicosis, whether the award for disability from silicosis should be reduced by one-sixth rested in the discretion of the Industrial Commission. Stewart v. Duncan, 239 N.C. 640, 80 S.E.2d 764, 1954 N.C. LEXIS 631 (1954); Fetner v. Rocky Mount Marble & Granite Works, 251 N.C. 296, 111 S.E.2d 324, 1959 N.C. LEXIS 572 (1959).

§ 97-66. Claim where benefits are discontinued.

Where compensation payments have been made and discontinued, and further compensation is claimed, the claim for further compensation shall be made within two years after the last payment in all cases of occupational disease, provided, that claims for further compensation for asbestosis or silicosis shall be governed by the final award as set forth in G.S. 97-61.6.

History. 1935, c. 123; 1945, c. 762; 1955, c. 525, s. 3; 1987, c. 729, s. 14.

CASE NOTES

For decision under former provisions of this section, see Blassingame v. Southern Asbestos Co., 217 N.C. 223, 7 S.E.2d 478, 1940 N.C. LEXIS 209 (1940).

§ 97-67. Postmortem examinations; notice to next of kin and insurance carrier.

Upon the filing of a claim for death from an occupational disease where in the opinion of the Industrial Commission a postmortem examination is necessary to accurately ascertain the cause of death, such examination shall be ordered by the Industrial Commission. A full report of such examination shall be certified to the Industrial Commission. The surviving spouse or next kin and the employer or his insurance carrier, if their identity and whereabouts can be reasonably ascertained, shall be given reasonable notice of the time and place of such postmortem examination, and, if present at such examination, shall be given an opportunity to witness the same. Any such person may be present at and witness such examination either in person or through a duly authorized representative. If such examination is not consented to by the surviving husband or wife or next of kin, all right to compensation shall cease.

History. 1935, c. 123.

§ 97-68. Controverted medical questions.

The Industrial Commission may at its discretion refer to the advisory medical committee controverted medical questions arising out of occupational disease claims other than asbestosis or silicosis.

History. 1935, c. 123; 1955, c. 525, s. 4.

§ 97-69. Examination by advisory medical committee; inspection of medical reports.

The advisory medical committee, upon reference to it of a case of occupational disease shall notify the employee, or, in case he is dead, his dependents or personal representative, and his employer to appear before the advisory medical committee at a time and place stated in the notice. If the employee be living, he shall appear before the advisory medical committee at the time and place specified then or thereafter and he shall submit to such examinations including clinical and X-ray examinations as the advisory medical committee may require. The employee, or, if he be dead, the claimant and the employer shall be entitled to have present at all such examinations, a physician admitted to practice medicine in the State who shall be given every reasonable facility for observing every such examination whose services shall be paid for by the claimant or by the employer who engaged his services. If a physician admitted to practice medicine in the State shall certify that the employee is physically unable to appear at the time and place designated by the advisory medical committee, such committee may, upon the advice of the Industrial Commission, and on notice to the employer, change the place and/or time of the examination so as to reasonably facilitate the examination of the employee, and in any such case the employer shall furnish transportation and provide for other reasonably necessary expenses incidental to necessary travel. The claimant and the employer shall produce to the advisory medical committee all reports of medical and X-ray examinations which may be in their respective possession or control showing the past or present condition of the employee to assist the advisory medical committee in reaching its conclusions. Provided that this section shall not apply to a living employee who has contracted asbestosis or silicosis.

History. 1935, c. 123; 1955, c. 525, s. 5.

§ 97-70. Report of committee to Industrial Commission.

The advisory medical committee, shall, as soon as practicable after it has completed its consideration of a case, report to the Industrial Commission its opinion regarding all medical questions involved in the case. The advisory medical committee shall include in its report a statement of what, if any, physician or physicians were present at the examination on behalf of the claimant or employer and what, if any, medical reports and X rays were produced by or on behalf of the claimant or employer.

History. 1935, c. 123.

§ 97-71. Filing report; right of hearing on report.

The advisory medical committee shall file its report in triplicate with the Industrial Commission, which shall send one copy thereof to the claimant and one copy to the employer by registered mail. Unless within 30 days from receipt of the copy of said report the claimant and/or employer shall request the Industrial Commission in writing to set the case for further hearing for the purpose of examining and/or cross-examining the members of the advisory medical committee respecting the report of said committee, said report shall become a part of the record of the case and shall be accepted by the Industrial Commission as expert medical testimony to be considered as such in connection with all the evidence in the case in arriving at its decision.

History. 1935, c. 123.

§ 97-72. Appointment of advisory medical committee; terms of office; duties and functions; salaries and expenses.

  1. There shall be an advisory medical committee consisting of three members, who shall be licensed physicians in good professional standing and peculiarly qualified in the diagnosis or treatment of occupational diseases. They shall be appointed by the Industrial Commission with the approval of the Governor, and one of them shall be designated as chairman of the committee by the Industrial Commission. The members of committee shall be appointed to serve terms as follows: one for a term of two years, one for a term of four years, and one for a term of six years. Upon the expiration of each term as above mentioned the Industrial Commission shall appoint a successor for a term of six years. The function of the committee shall be to conduct examinations and make reports as required by G.S. 97-61.1 through 97-61.6 and 97-68 through 97-71, and to assist in any postmortem examinations provided for in G.S. 97-67 when so directed by the Industrial Commission. Members of the committee shall devote to the duties of the office so much of their time as may be required in the conducting of examinations with reasonable promptness, and they shall attend hearings as scheduled by the Industrial Commission when their attendance is desired for the purpose of examining and cross-examining them respecting any report or reports made by them.
  2. Repealed by Session Laws 2003-284, s. 10.33(c), effective July 1, 2003.
  3. Notwithstanding any other provision of this Article, the Industrial Commission, in its discretion, may designate a qualified physician who is not a member of the advisory medical committee to perform an examination of an employee who has filed a claim for benefits for asbestosis or silicosis. This physician shall file his reports in the same manner a member of the advisory medical committee files reports; and these reports shall be deemed reports of the advisory medical committee.

History. 1935, c. 123; 1955, c. 525, s. 7; 1981, c. 562, s. 2; 1989, c. 439; 1991, c. 481, s. 1; 1997-443, s. 11A.38; 1997-508, s. 1; 2003-284, s. 10.33(c).

§ 97-73. Fees.

  1. Claims. —  Except as provided in subsection (e) of this section, the Industrial Commission may establish by rule a schedule of fees for examinations conducted, reports made, documents filed, and agreements reviewed under this Article. The fees shall be collected in accordance with rules adopted by the Industrial Commission.
  2. , (c) Repealed by Session Laws 2003-284, s. 10.33(d), effective July 1, 2003.
  3. Safety. —  A fee in the amount set by the Industrial Commission is imposed on an employer for whom the Industrial Commission provides an educational training program on how to prevent or reduce accidents or injuries that result in workers’ compensation claims or a person for whom the Industrial Commission provides other educational services. The fees are departmental receipts.
  4. Exceptions. —  Notwithstanding subsection (a) of this section, the Industrial Commission may not charge fees for any of the following:
    1. A hearing before a Deputy Commissioner under this Chapter.
    2. A hearing before the full Commission under this Chapter.
    3. Processing of an agreement for compensation of disability, an employer’s admission of employee’s right to permanent partial disability, or a supplemental agreement as to payment of compensation.

History. 1935, c. 123; 1955, c. 525, s. 8; 1991, c. 481, s. 2; 1991 (Reg. Sess., 1992), c. 1039, s. 2; 1997-443, s. 11A.39; 2003-284, s. 10.33(d); 2005-276, s. 45.1(a); 2009-451, s. 14.16(a); 2014-100, s. 15.16B(a).

Effect of Amendments.

Session Laws 2005-276, s. 45.1(a), effective August 13, 2005, rewrote the section heading and subsection (a).

Session Laws 2009-451, s. 14.16(a), effective July, 1, 2009, added the subsection heading in subsection (a), and added subsection (d).

Session Laws 2014-100, s. 15.16B(a), effective July 1, 2015, in subsection (a), substituted “Except as provided in subsection (e) of this section, the Industrial” for “The Industrial”; and added subsection (e).

§ 97-74. Expense of hearings taxed as costs in compensation cases; fees collected directed to general fund.

In hearings arising out of claims for disability and/or death resulting from occupational diseases the Industrial Commission shall tax as a part of the costs in cases in which compensation is awarded a reasonable allowance for the services of members of the advisory medical committee attending such hearings and reasonable allowances for the services of members of the advisory medical committee for making investigations in connection with all claims for compensation on account of occupational diseases, including uncontested cases, as well as contested cases, and whether or not hearings shall have been conducted in connection therewith. All such charges, fees and allowances to be collected by the Industrial Commission shall be paid into the general fund of the State treasury to constitute a fund out of which to pay the expenses of the advisory medical committee.

History. 1935, c. 123.

§§ 97-75, 97-76. [Repealed]

Repealed by Session Laws 2003-284, s. 10.33(f), effective July 1, 2003.

§ 97-77. North Carolina Industrial Commission created; members appointed by Governor; terms of office; chairman.

  1. There is hereby created a commission to be known as the North Carolina Industrial Commission, consisting of six commissioners who shall devote their entire time to the duties of the Commission. The Governor shall appoint the members of the Commission for terms of six years. Three commissioners shall be persons who, on account of their previous vocations, employment or affiliations, can be classed as representatives of employers. Three commissioners shall be persons who, on account of their previous vocations, employment or affiliations, can be classed as representatives of employees. No person may serve more than two terms on the Commission, including any term served prior to the effective date of this section. In calculating the number of terms served, a partial term that is less than three years in length shall not be included.
  2. Appointments of commissioners are subject to confirmation by the General Assembly by joint resolution. The names of commissioners to be appointed by the Governor shall be submitted by the Governor to the General Assembly for confirmation by the General Assembly on or before March 1 of the year of expiration of the term. If the Governor fails to timely submit nominations, the General Assembly shall appoint to fill the succeeding term upon the joint recommendation of the President Pro Tempore of the Senate and the Speaker of the House of Representatives in accordance with G.S. 120-121 not inconsistent with this section.In case of death, incapacity, resignation, or any other vacancy in the office of any commissioner prior to the expiration of the term of office, a nomination to fill the vacancy for the remainder of the unexpired term shall be submitted by the Governor within four weeks after the vacancy arises to the General Assembly for confirmation by the General Assembly. If the Governor fails to timely nominate a person to fill the vacancy, the General Assembly shall appoint a person to fill the remainder of the unexpired term upon the joint recommendation of the President Pro Tempore of the Senate and the Speaker of the House of Representatives in accordance with G.S. 120-121 not inconsistent with this section. If a vacancy arises or exists pursuant to this subsection when the General Assembly is not in session, and the appointment is deemed urgent by the Governor, the commissioner may be appointed and serve on an interim basis pending confirmation by the General Assembly; provided, however, no person may be appointed to serve on an interim basis pending confirmation by the General Assembly if the person was subject to but not confirmed by the General Assembly within the preceding four years. The limitation on appointment contained in this subsection includes, among other things, unfavorable action on a joint resolution for confirmation, such as the resolution failing on any reading in either chamber of the General Assembly, and failure to ratify a joint resolution for confirmation prior to adjournment of the then current session of the General Assembly. For the purpose of this subsection, the General Assembly is not in session only (i) prior to convening of the Regular Session, (ii) during any adjournment of the Regular Session for more than 10 days, and (iii) after sine die adjournment of the Regular Session.No person while in office as a commissioner may be nominated or appointed on an interim basis to fill the remainder of an unexpired term, or to a full term that commences prior to the expiration of the term that the commissioner is serving.
  3. One member, to be designated by the Governor, shall act as chairman.The chairman shall be the chief judicial officer and the chief executive officer of the Industrial Commission; such authority shall be exercised pursuant to the provisions of Chapter 126 of the General Statutes and the rules and policies of the State Human Resources Commission. Notwithstanding the provisions of this Chapter, the chairman shall have such authority as is necessary to direct and oversee the Commission. The chairman may delegate any duties and responsibilities as may be necessary to ensure the proper management of the Industrial Commission. Notwithstanding the provisions of this Chapter, Chapter 143A, and Chapter 143B of the General Statutes, the chairman may hire or fire personnel and transfer personnel within the Industrial Commission.The Governor may designate one vice-chairman from the remaining commissioners.

History. 1929, c. 120, s. 51; 1931, c. 274, s. 8; 1991, c. 264, s. 1; 1993, c. 399, s. 3; 1993 (Reg. Sess., 1994), c. 769, s. 28.15(a); 2011-287, ss. 16, 17; 2013-382, s. 9.1(c); 2016-125, 4th Ex. Sess., s. 24(a), (b); 2018-114, s. 23(b); 2019-167, s. 2.

Cross References.

For provision constituting Industrial Commission a court to hear and determine tort claims, see G.S. 143-291.

Editor’s Note.

For act authorizing the Industrial Commission to hear and determine certain listed tort claims against certain State departments and agencies, see Session Laws 1949, c. 1138.

Session Laws 2005-448, s. 9, provides: “It is the intent of the General Assembly to provide the North Carolina Industrial Commission with adequate resources by establishing new positions to assist the Commission in performing its important task.”

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 22, provides: “As of February 1, 2011, the terms of the seven members of the Industrial Commission are as follows:

“(1) One serves a term expiring April 30, 2011.

“(2) Two serve terms expiring June 30, 2012.

“(3) One serves a term expiring April 30, 2013.

“(4) One serves a term expiring June 30, 2014.

“(5) One serves a term expiring April 30, 2015.

“(6) One serves a term expiring June 30, 2016.

“The reduction from seven commissioners to six commissioners provided by Section 16 of this act shall be effected by not filling one of the two offices that expire June 30, 2012, pursuant to subdivision (2) of this section.”

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section, brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Session Laws 2016-125, 4th Ex. Sess., s. 24(c), provides: “Subsection (a) of this section is effective when it becomes law and applies to the first appointment made to fill a vacancy existing as of that date. Subsection (b) of this section becomes effective on the earlier of December 31, 2016, or upon the filling of a vacancy pursuant to subsection (a) of this section.

Session Laws 2016-125, 4th Ex. Sess., s. 25, is a severability clause.

Session Laws 2017-57, s. 15.19(a)-(e), provides: “(a) The Industrial Commission shall coordinate with the Department of Information Technology and other State agencies to replace the Industrial Commission’s case management systems by assessing system requirements and to find the most cost-effective means of meeting those requirements.

“(b) The Industrial Commission may retain the additional revenue up to one million two hundred thousand dollars ($1,200,000) of the fee charged to parties for the filing of compromise settlement agreements to be used for the purpose of replacing and maintaining the Industrial Commission’s case management systems and related expenditures.

“(c) Of the funds appropriated in this act to the Industrial Commission, the sum of seven hundred fifty thousand dollars ($750,000) in nonrecurring funds for each year of the 2017-2019 fiscal biennium shall be allocated for the purpose of replacing and maintaining the Industrial Commission’s case management systems and related expenditures.

“(d) For the 2019-2021 fiscal biennium only, the Director of the Budget shall also include in the base budget, as defined by G.S. 143C-1-1(d)(1c), the sum of seven hundred fifty thousand dollars ($750,000) in nonrecurring funds for each year of the 2019-2021 fiscal biennium for the purposes set forth in subsection (c) of this section.

“(e) The fee retention authorization in subsection (b) of this section shall expire on June 30, 2021.”

Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”

Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2018-114, s. 23(c), made the amendment of subsection (a1) by Session Laws 2018-114, s. 23(b), effective June 27, 2018, and applicable to appointments made on or after that date.

Sessions Laws 2018-114, s. 29 is a severability clause.

Session Laws 2019-167, s. 2, repealed Session Laws 2016-125, s. 24(a), which amended subsections (a1) and (b), effective July 26, 2019. The amendments to subsection (a1) were undone by Session Laws 2016-125, s. 24(b). However, in subsection (b), pursuant to the 2019 act, “One member, to be designated by the Governor, shall act as chairman.” was substituted for “On December 30, 2016, and every four years thereafter, one member shall be designated by the Governor to act as chairman for a term of four years. In case of death, incapacity, resignation, or any other vacancy of the chairman, the Governor shall designate a new chairman from the remaining commissioners for the remainder of the four-year term. No member who has served less than one year on the Commission may be designated to act as chairman.” and “The Governor may designate one vice-chairman from the remaining commissioners.” was substituted for “On December 30, 2016, and every four years thereafter, one member shall be designated by the Governor to act as vice-chairman for a term of four years. In case of death, incapacity, resignation, or any other vacancy of the vice-chairman, the Governor shall designate a new vice-chairman from the remaining commissioners for the remainder of the four-year term.”

Effect of Amendments.

Session Laws 2011-287, ss. 16 and 17, effective June 24, 2011, rewrote subsection (a); and added subsection (a1).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” in the second sentence of the first paragraph of subsection (b).

Session Laws 2016-125, 4th Ex. Sess., s. 24(a), in the second paragraph of subsection (a1), deleted “for the remainder of the unexpired term” following “fill the vacancy” in the first sentence, and inserted the present second sentence; and in subsection (b), rewrote the first paragraph and the first sentence in the third paragraph. For effective date and applicability, see editor’s note.

Session Laws 2016-125, 4th Ex. Sess., s. 24(b), as amended by Session Laws 2016-125, s. 24(a), in the second paragraph of subsection (a1), inserted “for the remainder of the unexpired term” following “fill the vacancy” in the first sentence, and deleted the former second sentence, which read: “Appointments to fill a vacancy shall have a term of six years plus the remainder of the unexpired term.” For effective date and applicability, see editor’s note.

Session Laws 2018-114, s. 23(b), in the second paragraph of subsection (a1), added the proviso at the end of the third sentence, and added the next-to-last sentence. For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Why Aren’t You Working?: Medlin with Proof of Disability Under the North Carolina Workers’ Compensation Act,” see 38 Campbell L. Rev. 211 (2016).

CASE NOTES

The Industrial Commission is a creature of the General Assembly and was created by statute. Bowman v. Comfort Chair Co., 271 N.C. 702, 157 S.E.2d 378, 1967 N.C. LEXIS 1267 (1967).

The Industrial Commission is primarily an administrative agency of the State, charged with the duty of administering the provisions of the Workers’ Compensation Act. Hanks v. Southern Pub. Util. Co., 210 N.C. 312, 186 S.E. 252, 1936 N.C. LEXIS 93 (1936) (citing) In re Hayes, 200 N.C. 133, 156 S.E. 791, 1931 N.C. LEXIS 271, 73 A.L.R. 1179 (1931). See Brice v. Robertson House Moving, Wrecking & Salvage Co., 249 N.C. 74, 105 S.E.2d 439, 1958 N.C. LEXIS 440 (1958).

The Commission is not a court of general jurisdiction. It can have no implied jurisdiction beyond the presumption that it is clothed with the power to perform the duties required of it by the law entrusted to it for administration. Barber v. Minges, 223 N.C. 213, 25 S.E.2d 837 (1943). In accord with first paragraph in main volume. See Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

The Industrial Commission is not a court of general jurisdiction. It is an administrative board with quasi-judicial functions and has a special or limited jurisdiction created by statute and confined to its terms. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962); Bowman v. Comfort Chair Co., 271 N.C. 702, 157 S.E.2d 378, 1967 N.C. LEXIS 1267 (1967); Morse v. Curtis, 276 N.C. 371, 172 S.E.2d 495, 1970 N.C. LEXIS 691 (1970).

The Industrial Commission is not a court of general jurisdiction. It has no jurisdiction except that conferred upon it by statute. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548, 1966 N.C. LEXIS 1079 (1966).

Its Jurisdiction Is Limited. —

In its functions as a court, the jurisdiction of the Industrial Commission is limited, and jurisdiction cannot be conferred on it by agreement or waiver. Chadwick v. North Carolina Dep't of Conservation & Dev., 219 N.C. 766, 14 S.E.2d 842, 1941 N.C. LEXIS 145 (1941).

The Industrial Commission has only the limited power and jurisdiction delegated to it by statute, as it is purely a creation of the General Assembly. Buck v. Procter & Gamble Mfg. Co., 58 N.C. App. 804, 295 S.E.2d 243, 1982 N.C. App. LEXIS 2845 (1982), cert. denied, 308 N.C. 543, 304 S.E.2d 236, 1983 N.C. LEXIS 1357 (1983).

The jurisdiction of the Industrial Commission may not be enlarged or extended by act or consent of parties, nor may jurisdiction be conferred by agreement or waiver. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962); Morse v. Curtis, 276 N.C. 371, 172 S.E.2d 495, 1970 N.C. LEXIS 691 (1970).

Continuing Jurisdiction. —

It was the purpose of the General Assembly that the Industrial Commission should have a continuing jurisdiction of all proceedings begun before the Commission for compensation in accordance with its terms. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Hearing Commissioners Entitled To Absolute Quasi-Judicial Immunity. —

Workers’ compensation commissioners were entitled to absolute quasi-judicial immunity because their role as Deputy Commissioners was indisputably judicial in nature under G.S. 97-77, and safeguards in the form of appeals from Deputy Commissioners’ decisions to the full Industrial Commission and the North Carolina Courts were available under G.S. 97-85 and G.S. 97-86. Sherwin v. Piner, 2003 U.S. Dist. LEXIS 26855 (E.D.N.C. July 21, 2003), aff'd, 91 Fed. Appx. 312, 2004 U.S. App. LEXIS 6686 (4th Cir. 2004).

Commission Is Special Tribunal When Considering Claims. —

When a claim for compensation has been filed and the employer and employee have failed to reach an agreement, the statute authorizes the Commission to hear and determine all matters in dispute. Thereupon, the Commission is constituted a special or limited tribunal, and is invested with certain judicial functions, and possesses the powers and incidents of a court, within the provisions of the act, and as are necessary to determine the rights and liabilities of employees and employers. Hanks v. Southern Pub. Util. Co., 210 N.C. 312, 186 S.E. 252 (1936). In accord with first paragraph in the main volume. See Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

The Industrial Commission, while primarily an administrative agency of the State, is constituted a special or limited tribunal to hear and determine matters in dispute between employer and employee in a claim for compensation under the Workers’ Compensation Act. Hodge v. Robertson, 2 N.C. App. 216, 162 S.E.2d 594, 1968 N.C. App. LEXIS 905 (1968).

In approving settlements the Commission acts in its judicial capacity. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962).

The legislature intended that the Industrial Commission should administer the Workers’ Compensation Act under summary and simple procedure, distinctly its own, so as to furnish speedy, substantial, and complete relief to parties bound by the act. Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488, 1952 N.C. LEXIS 611 (1952).

The Commission may not ex mero motu institute a proceeding. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962).

Power to Order Rehearing. —

The Commission has the power to order a rehearing on the basis of newly discovered evidence. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Power to Set Aside Judgment. —

The Industrial Rule Commission has inherent power analogous to that conferred on courts by G.S. 1A-1, Rule 60(b)(6), in the exercise of supervision over its own judgments to set aside a former judgment when the paramount interest in achieving a just and proper determination of a workers’ compensation claim requires it. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Because the power to set aside a former judgment is vital to the proper functioning of the judiciary, the Legislature impliedly vested such power in the Commission in conjunction with the judicial power which the Legislature granted it to administer the Workers’ Compensation Act. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

The Industrial Commission possesses such judicial power as is necessary to administer the Workers’ Compensation Act. The Commission’s judicial power includes the power to set aside a former judgment on the grounds of mutual mistake, misrepresentation, or fraud. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Finding that Appeal Untimely. —

Panel of the North Carolina Industrial Commission which heard an employer’s appeal from a decision by a deputy commissioner that awarded workers’ compensation benefits to an employee was not barred from finding that the appeal was untimely because the chairman of the Commission had denied the employee’s motion to dismiss the appeal. Cornell v. Western & Southern Life Ins. Co., 162 N.C. App. 106, 590 S.E.2d 294, 2004 N.C. App. LEXIS 4 (2004).

Majority of Commission. —

The Commission is a continuing body. As a commission it acts by a majority of its qualified members at the time a decision is made. A vote of two members, therefore, would constitute a majority of the Commission empowered to act for the Commission. Gant v. Crouch, 243 N.C. 604, 91 S.E.2d 705, 1956 N.C. LEXIS 595 (1956).

A hearing commissioner has no authority to award plaintiff an attorneys’ fee as part of the costs upon an initial hearing in a workers’ compensation matter. Bowman v. Comfort Chair Co., 271 N.C. 702, 157 S.E.2d 378, 1967 N.C. LEXIS 1267 (1967).

OPINIONS OF ATTORNEY GENERAL

The governor is not required to appoint a representative of employers and a representative of employees. See opinion of Attorney General to the Honorable Robert W. Scott, Governor of North Carolina, 40 N.C. Op. Att'y Gen. 311 (1970).

§ 97-77.1. Expired.

Editor’s Note.

Session Laws 1993, c. 679, s. 11.1, as amended by Session Laws 1997-483, s. 13.1, provided that this section, relating to an advisory council, would expire July 1, 2001.

§ 97-78. Salaries and expenses; administrator, executive secretary, deputy commissioners, and other staff assistance; annual report.

  1. The salary of each commissioner shall be the same as that fixed from time to time for district attorneys except that the commissioner designated as chair shall receive one thousand five hundred dollars ($1,500) additional per annum.
  2. The Commission may appoint an administrator whose duties shall be prescribed by the Commission. The Commission may appoint an executive secretary whose duties shall be prescribed by the Commission, and who, upon entering upon his duties, shall give bond in such sum as may be fixed by the Commission. The Commission may also employ such clerical or other assistance as it may deem necessary, and fix the compensation of its staff, except that the salaries of the administrator and the executive secretary shall be fixed by subsection (b1) of this section. The compensation of Commission staff shall be in keeping with the compensation paid to the persons employed to do similar work in other State departments.
  3. The salary of the administrator shall be ninety percent (90%) of the salary of a commissioner. The salary of the executive secretary shall be ninety percent (90%) of the salary of a commissioner.
  4. The Chairman of the Industrial Commission shall designate one deputy commissioner as chief deputy commissioner. The salary of the chief deputy commissioner shall be ninety percent (90%) of the salary of a commissioner.
  5. The salary of deputy commissioners shall be based upon years of experience as a deputy commissioner as follows:
    1. Seventy-five percent (75%) of the salary of a commissioner, with three years of experience or less.
    2. Seventy-seven percent (77%) of the salary of a commissioner, with more than three but less than seven years of experience.
    3. Eighty percent (80%) of the salary of a commissioner, with seven or more but less than 10 years of experience.
    4. Eighty-three percent (83%) of the salary of a commissioner, with 10 or more but less than 12 years of experience.
    5. Eighty-five percent (85%) of the salary of a commissioner, with 12 or more years experience.
  6. In lieu of merit and other incremental raises, the administrator, executive secretary, chief deputy commissioner, and deputy commissioners shall receive longevity pay on the same basis as is provided to other employees subject to the North Carolina Human Resources Act.
  7. The members of the Commission and its assistants shall be entitled to receive from the State their actual and necessary expenses while traveling on the business of the Commission, but such expenses shall be certified by the person who incurred the same, and shall be approved by the chairman of the Commission before payment is made.
  8. All salaries and expenses of the Commission shall be audited and paid out of the State treasury, in the manner prescribed for similar expenses in other departments or branches of the State service, and to defray such salaries and expenses a sufficient appropriation shall be made under the General Appropriation Act as made to other departments, commissions and agencies of the State government.
  9. No later than October 1 of each year, the Commission shall publish annually for free distribution a report of the administration of this Article, together with such recommendations as the Commission deems advisable. No later than October 1 of each year, the Commission shall submit this report to the Joint Legislative Oversight Committee on General Government, the Senate Appropriations Committee on General Government and Information Technology, and the House Appropriations Committee on General Government.
  10. Every four years beginning April 1, 2022, the Commission shall prepare and implement a strategic plan for accomplishing all of the following:
    1. Tracking compliance with the provisions of G.S. 97-18(b), (c), and (d), and establishing a procedure to enforce compliance with the requirements of these subsections.
    2. Expeditiously resolving requests for, or disputes involving, medical compensation under G.S. 97-25, including selection of a physician, change of physician, the specific treatment involved, and the provider of such treatment.
  11. The Commission shall demonstrate its success in implementing its strategic plan under subsection (f) of this section by including all of the following in its annual report under subsection (e) of this section:
    1. The total number of claims made during the preceding fiscal year, the total number of claims in which compliance was not timely made, and, for each claim, the date the claim was filed, the date by which compliance was required, the date of actual compliance, and any sanctions or other remedial action imposed by the Commission.
    2. The total number of requests for, and disputes involving, medical compensation under G.S. 97-25 in which final disposition was not made within 75 days of the filing of the motion with the Commission, and, for each such request or dispute, the date the motion or other initial pleading was filed, the date on which final disposition was made.”

History. 1929, c. 120, s. 52; 1931, c. 274, s. 9; 1941, c. 358, s. 2; 1947, c. 823; 1957, c. 541, s. 6; 1971, c. 527, s. 1; c. 1147, s. 1; 1983, c. 717, s. 20; 1983 (Reg. Sess., 1984), c. 1034, s. 164; 1997-443, s. 33.4; 1998-212, s. 28.18(a); 2005-276, s. 29.20(b); 2007-323, ss. 13.4A(a), (b); 2013-382, s. 9.1(c); 2013-413, s. 60(a); 2014-77, s. 5; 2014-115, ss. 17, 55.4(c); 2017-57, s. 14.1(p); 2021-180, s. 37.8(a).

Editor’s Note.

Session Laws 2005-448, s. 9, provides: “It is the intent of the General Assembly to provide the North Carolina Industrial Commission with adequate resources by establishing new positions to assist the Commission in performing its important task.”

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section, brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Session Laws 2013-413, s. 61(b), provides: “Except as otherwise provided, this act is effective when it becomes law [August 23, 2013].” Session Laws 2013-413, s. 60(c), had provided that: “This act becomes effective July 1, 2015.” Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to “This act” with the words “This Part.”

Session Laws 2013-413, s. 61(a) is a severability clause.

Session Laws 2021-180, s. 37.13, made the amendments to subsections (e), (f), and (g) of this section by Session Laws 2021-180, s. 37.8(a), effective November 18, 2021, and applicable to reports submitted on or after that date.

Session Laws 2021-180, s. 37.13, made the amendments to subsections (e), (f), and (g) of this section by Session Laws 2021-180, s. 37.8(a), effective November 18, 2021, and applicable to reports submitted on or after that date.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2005-276, s. 29.20(b), effective July 1, 2005, in the section heading, inserted “deputy commissioners”; in subsection (b1), substituted “ninety percent (90%)” for “eighty percent (80%)” and deleted the last sentence, which read: “In lieu of merit and other incremental raises, the administrator and the executive secretary shall receive longevity pay on the same basis as is provided to other employees subject to the State Personnel Act”; and added subsections (b2) through (b4).

Session Laws 2007-323, s. 13.4A(a) and (b), effective July 1, 2007, in subsection (e), substituted “No later than October 1 of each year, the” for “The” at the beginning of the first sentence, and added the second sentence; and added subsections (f) and (g).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “State Personnel Act” in subsection (b4).

Session Laws 2013-413, s. 60(a), as amended by Session Laws 2014-115, s. 17, effective July 1, 2015, deleted “and who shall be subject to the State Personnel System” following “Commission” in the first and second sentences of subsection (b).

Session Laws 2014-77, s. 5, effective July 22, 2014, substituted “made within 75 days” for “made within 45 days” in subsection (g)(2).

Session Laws 2014-115, s. 55.4(c), effective August 11, 2014, substituted “State Human Resources system” for “State Personnel System” twice in the current version of subsection (b).

Session Laws 2017-57, s. 14.1(p), effective July 1, 2017, substituted “Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the Senate Appropriations Committee on Agriculture, Natural, and Economic Resources, and the chairs of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources” for “Joint Legislative Commission on Governmental Operations” in the last sentence of subsection (e).

Session Laws 2021-180, s. 37.8(a), in subsection (e), substituted “General Government, the Senate Appropriations Committee on General Government and Information Technology, and the House Appropriations Committee on General Government” for “Agriculture and Natural and Economic Resources, the Senate Appropriations Committee on Agriculture, Natural, and Economic Resources, and the chairs of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources”; in subsection (f), substituted “Every four years beginning April 1, 2022, the” for “No later than April 1, 2008, the” at the beginning of the sentence; and, in subsection (g), substituted “fiscal year” for “calendar year” in subdivision (g)(1), and deleted “and, where reasonably ascertainable, the date on which any ordered medical treatment was actually provided” following “made” at the end of subdivision (g)(2). For effective date and applicability, see editor's note.

CASE NOTES

Appeal Under Expedited Medical Motions Procedure Is Interlocutory. —

Appeal of an employer and its carrier of a North Carolina Industrial Commission order directing them to authorize radiofrequency ablation treatments for an employee was dismissed because the order was interlocutory since the ruling was under the medical motions procedure, G.S. 97-78(f) and (g), and was not a final ruling that determined all issues, and the appeal did not affect a substantial rights; the employer and carrier sought a determination that the medical conditions of which the employee complained were not caused by a compensable injury and that the radiofrequency ablation treatment should not have been authorized, but that issue had yet to be ruled upon by the Industrial Commission, and the court of appeals had already affirmed the ruling of the Industrial Commission that denied the employer’s motion to terminate the employee’s temporary total disability benefits. Berardi v. Craven County Sch., 202 N.C. App. 364, 688 S.E.2d 115, 2010 N.C. App. LEXIS 182 (2010).

Where defendants appeal from an order of the North Carolina Industrial Commission issued under the Expedited Medical Motions Procedure, such appeal is interlocutory and not properly before the appellate court because the enactment of G.S. 97-78(f) and (g) by the General Assembly mandates that medical treatment issues be handled expeditiously. In order to comply with these statutory amendments, rulings must necessarily be expedited, are interlocutory, and entered without prejudice to the subsequent resolution of the contested issues in the case. Berardi v. Craven County Sch., 202 N.C. App. 364, 688 S.E.2d 115, 2010 N.C. App. LEXIS 182 (2010).

§ 97-78.1. Standards of judicial conduct to apply to commissioners and deputy commissioners.

The Code of Judicial Conduct for judges of the General Court of Justice and the procedure for discipline of judges in Article 30 of Chapter 7A of the General Statutes shall apply to commissioners and deputy commissioners. Commissioners and deputy commissioners shall be liable for impeachment for the causes and in the manner provided for judges of the General Court of Justice in Chapter 123 of the General Statutes.

History. 2011-287, s. 18.

Editor’s Note.

Session Laws 2011-287, s. 23, made this section effective June 24, 2011.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

§ 97-79. Offices and supplies; deputies with power to subpoena witnesses and to take testimony; meetings; hearings.

  1. The Commission shall be provided with adequate offices in which the records shall be kept and its official business transacted during regular business hours; it shall also be provided with necessary office furniture, stationery, and other supplies.
  2. The Chair of the Commission may appoint deputy commissioners to serve a term of six years. No person may serve more than two terms as a deputy commissioner. In calculating the number of terms served, a partial term of less than two years shall not be included. Deputy commissioners shall have the same power as members of the Commission pursuant to G.S. 97-80 and the same power to take evidence and enter orders, opinions, and awards based thereon as is possessed by the members of the Commission. During the term, the deputy commissioner may only be removed from office pursuant to G.S. 97-78.1. Upon the expiration of each term, the deputy commissioner’s employment shall be separated unless reappointed by the Chair of the Commission.
  3. The Commission or any member thereof may hold sessions at any place within the State as may be deemed necessary by the Commission.
  4. Hearings before the Commission shall be open to the public and shall be stenographically reported, and the Commission is authorized to contract for the reporting of such hearings. The Commission shall by regulation provide for the preparation of a record of the hearings and other proceedings. Notwithstanding the provisions of this subsection, informal hearings conducted pursuant to the provisions of G.S. 97-18.1, whether by telephone or in person, shall not be open to the public nor stenographically reported unless the Commission orders otherwise.
  5. The Commission, or any member thereof, or any deputy is authorized by appropriate order, to make additional parties plaintiff or defendant in any proceeding pending before the Commission when it is made to appear that such new party is either a necessary party or a proper party to a final determination of the proceeding.
  6. The Commission shall create an ombudsman program to assist unrepresented claimants, employers, and other parties, to enable them to protect their rights under this Article. In addition to other duties assigned by the Commission, the ombudsman shall meet with, or otherwise provide information to, injured employees, investigate complaints, and communicate with employers’ insurance carriers and physicians at the request of the claimant. Assistance provided under this subsection shall not include representing the claimant in a compensation hearing.
  7. The Commission shall adopt rules, in accordance with Article 2A of Chapter 150B of the General Statutes, for administrative motions, including practices and procedures for carrying out the provisions of this Article.

History. 1929, c. 120, s. 53; 1931, c. 274, s. 10; 1951, c. 1059, s. 7; 1955, c. 1026, s. 11; 1971, c. 527, s. 2; c. 1147, s. 2; 1981 (Reg. Sess., 1982), c. 1243, s. 1; 1993 (Reg. Sess., 1994), c. 679, s. 5.2; 2013-294, s. 5; 2013-413, s. 60(b); 2014-100, s. 15.16(a), (d); 2014-115, s. 17.

Editor’s Note.

Session Laws 2014-100, s. 15.16(c), provides: “As of August 1, 2014, the terms of all current deputy commissioners are as follows:

“(1) The seven deputy commissioners with the least time of service shall each serve a term of six months expiring February 1, 2015.

“(2) The seven deputy commissioners with the next least time of service shall each serve a term of 12 months expiring August 1, 2015.

“(3) The remaining deputy commissioners not covered under subdivision (1) or (2) of this subsection shall each serve a term of 18 months expiring February 1, 2016.

“(4) Time of service shall be calculated beginning with the hire date of the person as a deputy commissioner.

“(5) Nothing in this section shall prohibit a current deputy commissioner from being eligible for reappointment to a six]year term, as provided by subsection (a) of this section.”

Session Laws 2014-100, s. 15.16(d), effective August 7, 2014, repealed Session Laws 2013-413, s. 60(b), which had, effective July 1, 2015, rewritten the second sentence in subsection (b).

Session Laws 2014-100, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2014.’ ”

Session Laws 2014-100, s. 38.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year.”

Session Laws 2014-100, s. 38.7, is a severability clause.

Effect of Amendments.

Session Laws 2013-294, s. 5, effective July 18, 2013, added subsection (g).

Session Laws 2014-100, s. 15.16(a), effective August 7, 2014, rewrote subsection (b).

Legal Periodicals.

For comment on the 1951 amendment, which rewrote subsection (b), see 29 N.C.L. Rev. 416 (1951).

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

CASE NOTES

Appointment of Deputies Discretionary. —

It is inherent in this section that the Commission has the discretion to appoint deputies for such purposes as are appropriate for the conduct of its business. Hedgecock v. Frye, 1 N.C. App. 369, 161 S.E.2d 647, 1968 N.C. App. LEXIS 1081 (1968).

No Particular Title Need Be Conferred on Deputy. —

The authority to appoint a deputy does not require that any particular title be conferred upon the deputy, nor does it require that his title must include the word “deputy.” Hedgecock v. Frye, 1 N.C. App. 369, 161 S.E.2d 647, 1968 N.C. App. LEXIS 1081 (1968).

Deputy Commissioner’s Authority to Order Deposition. —

When a deputy commissioner ordered the deposition of an unrepresented claimant’s physician, she did not indicate a disqualifying personal bias or deprive the employer of an impartial decision maker in violation of the employer’s due process rights because, under G.S. 97-80(d), the Industrial Commission could order the deposition of a witness, under G.S. 97-79(b), the deputy commissioner had the same powers as members of the Industrial Commission, and, under G.S. 8C-1, N.C. R. Evid. 614(a), a court was permitted to call witnesses, with or without a request from a party. Handy v. PPG Indus., 154 N.C. App. 311, 571 S.E.2d 853, 2002 N.C. App. LEXIS 1442 (2002).

The Commission has the authority to appoint a chief claims examiner as its deputy to act for it in approval or disapproval of agreements for compensation. Hedgecock v. Frye, 1 N.C. App. 369, 161 S.E.2d 647, 1968 N.C. App. LEXIS 1081 (1968).

Representing the Claimant in a Compensation Hearing. —

Deputy commissioner’s actions, after a hearing, treating an unrepresented claimant’s case as an occupational disease claim and ordering the deposition of the claimant’s physician, to whom she submitted a written hypothetical and written follow-up questions, did not violate the prohibition in G.S. 97-79(f) against a deputy commissioner representing a claimant in a compensation hearing. Handy v. PPG Indus., 154 N.C. App. 311, 571 S.E.2d 853, 2002 N.C. App. LEXIS 1442 (2002).

View of Premises and Method of Doing Work. —

In Johnson v. Erwin Cotton Mills Co., 232 N.C. 321, 59 S.E.2d 828 (1950), the hearing commissioner, claimant and defendant viewed the premises and the method of doing the work in which plaintiff had been employed. Although apparently approved by the court, the point was not discussed. See also Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97, 1946 N.C. LEXIS 444 (1946).

§ 97-80. Rules and regulations; subpoena of witnesses; examination of books and records; depositions; costs.

  1. The Commission shall adopt rules, in accordance with Article 2A of Chapter 150B of the General Statutes and not inconsistent with this Article, for carrying out the provisions of this Article.The Commission shall adopt rules establishing processes and procedure to be used under this Article.Processes, procedure, and discovery under this Article shall be as summary and simple as reasonably may be.
  2. The Commission or any member thereof, or any person deputized by it, shall have the power, for the purpose of this Article, to tax costs against the parties, to administer or cause to have administered oaths, to preserve order at hearings, to compel the attendance and testimony of witnesses, and to compel the production of books, papers, records, and other tangible things.
  3. The Commission may order parties to participate in mediation, under rules substantially similar to those approved by the Supreme Court for use in the Superior Court division, except the Commission shall determine the manner in which payment of the costs of the mediated settlement conference is assessed.
  4. The Commission may order testimony to be taken by deposition and any party to a proceeding under this Article may, upon application to the Commission, which application shall set forth the materiality of the evidence to be given, cause the depositions of witnesses residing within or without the State to be taken, the costs to be taxed as other costs by Commission. Depositions ordered by the Commission upon application of a party shall be taken after giving the notice and in the manner prescribed by law for depositions in action at law, except that they shall be directed to the Commission, the commissioner, or the deputy commissioner before whom the proceedings may be pending.
  5. A subpoena may be issued by the Commission and served in accordance with G.S. 1A-1, Rule 45. A party shall not issue a subpoena duces tecum less than 30 days prior to the hearing date except upon prior approval of the Commission. Upon a motion, the Commission may quash a subpoena if it finds that the evidence the production of which is required does not relate to a matter in issue, the subpoena does not describe with sufficient particularity the evidence the production of which is required, or for any other reason sufficient in law the subpoena may be quashed. Each witness who appears in obedience to such subpoena of the Commission shall receive for attendance the fees and mileage for witnesses in civil cases in courts of the county where the hearing is held.
  6. The Commission may by rule provide for and limit the use of interrogatories and other forms of discovery, including production of books, papers, records, and other tangible things, and it may provide reasonable sanctions for failure to comply with a Commission order compelling discovery.
  7. The Commission or any member or deputy thereof shall have the same power as a judicial officer pursuant to Chapter 5A of the General Statutes to hold a person in civil contempt, as provided thereunder, for failure to comply with an order of the Commission, Commission member, or deputy. A person held in civil contempt may appeal in the manner provided for appeals pursuant to G.S. 97-85 and G.S. 97-86. The provisions of G.S. 5A-24 shall not apply to appeals pursuant to this subsection.
  8. The Commission or any member or deputy thereof shall also have the same power as a judicial officer pursuant to Chapter 5A of the General Statutes to punish for criminal contempt, subject to the limitations thereunder, (i) for willful behavior committed during the sitting of the commissioner or deputy commissioner and directly tending to interrupt the proceedings; (ii) for willful disobedience of a lawful order of the Commission or a member or deputy thereof; or (iii) for willful refusal to be sworn or affirmed as a witness, or, when so sworn or affirmed, willful refusal to answer any legal and proper question when refusal is not legally justified. The Commission or any member or deputy thereof may issue an order of arrest as provided by G.S. 15A-305 when authorized by G.S. 5A-16 in connection with contempt proceedings. When the commissioner or deputy commissioner chooses not to proceed summarily pursuant to G.S. 5A-14, the proceedings shall be before a district court judge, and venue lies throughout the district where the order was issued directing the person charged to appear. To initiate plenary proceedings in district court for indirect criminal contempt, the Commission shall issue and file with the clerk of court an order to appear and show cause pursuant to G.S. 5A-15(a) and, if appropriate, an order for arrest pursuant to G.S. 5A-16(b) and G.S. 15A-305. A person found in criminal contempt may appeal in the manner provided for appeals in criminal actions to the superior court of the district in which the order of contempt was issued, and the appeal is by hearing de novo before a superior court judge.

History. 1929, c. 120, s. 54; 1977, cc. 456, 505; 1981 (Reg. Sess., 1982), c. 1243, s. 2; 1993, c. 321, s. 25(b); c. 399, s. 1; 1993 (Reg. Sess., 1994), c. 679, ss. 5.3, 5.4; 1995, c. 358, s. 8(a), (b); c. 437, s. 6(a), (b); c. 467, s. 5(a), (b); c. 507, ss. 25.13, 27.8(o); c. 509, s. 48; 2000-140, s. 93.1(a); 2001-424, s. 12.2(b); 2011-287, s. 19; 2013-294, s. 6; 2016-100, s. 10.

Cross References.

As to medical committee fees, see G.S. 97-74.

As to costs on review, see G.S. 97-88.

As to medical fees, see G.S. 97-89.

Editor’s Note.

Session Laws 1993, c. 321, s. 25(b) provides that, if HB 658 (Session Laws 1993, c. 399) is enacted, the first sentence of s. 4 of c. 399 is amended by deleting “only if the General Assembly appropriates funds to implement the purpose of this act.” However, this language is in the second sentence of section 5 of Chapter 399 and reads “only if the General Assembly appropriates funds to implement the purpose of these sections.” The Revisor of Statutes was informed that appropriation was made in 1994.

Session Laws 2013-294, s. 1, provides: “Pursuant to G.S. 150B-21.3(b1), 04 NCAC 10A.0102 (Official Forms), 04 NCAC 10A.0105 (Electronic Payment of Costs), 04 NCAC 10A.0405 (Reinstatement of Compensation), 04 NCAC 10A.0601 (Employer’s Obligations Upon Notice; Denial of Liability. . .), 04 NCAC 10A.0603 (Responding to a Party’s Request for Hearing), 04 NCAC 10A.0605 (Discovery), 04 NCAC 10A.0608 (Statement of Incident Leading to Claim), 04 NCAC 10A.0609A (Medical Motions and Emergency Medical Motions), 04 NCAC 10A.0612 (Depositions and Additional Hearings), 04 NCAC 10A.0613 (Expert Witnesses and Fees), 04 NCAC 10A.0701 (Review by Full Commission), 04 NCAC 10A.0704 (Remand from the Appellate Courts), 04 NCAC 10C.0103 (Definitions), 04 NCAC 10C.0109 (Vocational Rehabilitation Services Return to Work), 04 NCAC 10E.0201 (Document and Record Fees), 04 NCAC 10E.0202 (Hearing Costs or Fees), 04 NCAC 10E.0203 (Fees Set by the Commission), 04 NCAC 10G.0104A (Foreign Language Interpreters), as adopted by the Industrial Commission on September 20, 2012, and approved by the Rules Review Commission on October 18, 2012, are disapproved.”

Session Laws 2013-294, s. 2, provides: “Pursuant to G.S. 150B-21.3(b1), 04 NCAC 10A.0801 (Suspension of Rules), 04 NCAC 10B.0501 (Suspension of Rules), 04 NCAC 10C.0108 (Interaction with Physicians), 04 NCAC 10C.0201 (Suspension of Rules), 04 NCAC 10D.0110 (Suspension of Rules), 04 NCAC 10E.0301 (Suspension of Rules), 04 NCAC 10G.0107 (Compensation of the Mediator), 04 NCAC 10G.0110 (Waiver of Rules), 04 NCAC 10H.0206 (Waiver of Rules), 04 NCAC 10I.0204 (Suspension of Rules), as adopted by the Industrial Commission on September 20, 2012, and approved by the Rules Review Commission on November 15, 2012, are disapproved.”

Session Laws 2013-294, s. 8, provides: “The Industrial Commission shall adopt rules to replace the rules disapproved by Sections 1 and 2 of this act, in accordance with the following directions:

“(1) With regard to 04 NCAC 10A.0601 (Employer’s Obligations Upon Notice; Additional Medical Comp.), the Commission shall amend subsection (b) of the rule to provide that the letter of denial shall be sent to all known health care providers who have submitted bills and provided medical records to the employer or carrier.

“(2) With regard to 04 NCAC 10A.0603 (Responding to a Party’s Request for Hearing), the Commission shall amend subsection (a) of the rule to delete the sentence ‘If a defendant files a request for hearing, the employee is not required to respond.’ The Commission shall amend subsection (b) of the rule to delete all references to ‘plaintiff’ and substitute ‘moving party,’ and all references to ‘defendant’ and substitute ‘nonmoving party.’

“(3) With regard to 04 NCAC 10A.0605 (Discovery), the Commission shall amend the rule by deleting the following phrase from subdivision (4): ‘including the sanctions specified in G.S. 1A-1, Rule 37.’; and by deleting the following from subdivision (9): ‘The parties shall not submit motions to compel production of information otherwise obtainable under G.S. 97-25.6.’

“(4) With regard to 04 NCAC 10A.0608 (Statement of Incident Leading to Claim), the Commission shall amend subsection (b) of the rule by adding the word ‘unreasonably’ between the words ‘corporation’ and ‘fails.’

“(5) With regard to 04 NCAC 10A.0701 (Review by Full Commission), the Commission shall establish a procedure to track an appellant’s electronic receipt of a Form 44 and notice of appeal from the Commission.

“(6) With regard to 04 NCAC 10A.0704 (Remand from the Appellate Courts), the Commission shall rewrite the rule to specifically allow for a stay of the deadline to submit a statement to the Commission on remand when a party files a petition for discretionary review or rehearing.

“(7) With regard to 04 NCAC 10C.0103 (Definitions), the Commission shall amend subdivision (3) to read as follows: ‘ ’Vocational rehabilitation’ ’ means the delivery and coordination of services under an individualized written plan, with the goal of assisting the injured worker to return to suitable employment or participate in education or retraining, as defined by subsection (5) of this rule or applicable statute.

“(8) With regard to 04 NCAC 10C.0108 (Interaction with Physicians), the Commission shall amend subsection (e)(1) by inserting the phrase ‘that is authorized or ordered’ after the word ‘examination.’

“(9) With regard to 04 NCAC 10C.0109 (Vocational Rehabilitation Services Return to Work), the Commission shall delete subsection (i) of the rule.

“(10) With regard to 04 NCAC 10A.0405 (Reinstatement of Compensation), the Commission shall delete subsections (a) through (g) and substitute the following:

“ ‘(a) In a claim in which the employer, carrier, or administrator has admitted liability, when an employee seeks reinstatement of compensation pursuant to G.S. 97-18(k), the employee may notify the employer, carrier, or administrator, and the employer’s, carrier’s, or administrator’s attorney of record, on a Form 23 Application to Reinstate Payment of Disability Compensation, or by the filing of a Form 33 Request that Claim be Assigned for Hearing.

“(b) When reinstatement is sought by the filing of a Form 23 Application to Reinstate Payment of Disability Compensation, the original Form 23 Application to Reinstate Payment of Disability Compensation and the attached documents shall be sent to the Commission at the same time and by the same method by which a copy of the Form 23 and attached documents are sent to the employer, carrier, or administrator and the employer’s, carrier’s, or administrator’s attorney of record. The employee shall specify the grounds and the alleged facts supporting the application and shall complete the blank space in the ‘Important Notice to Employer’ portion of Form 23 Application to Reinstate Payment of Disability Compensation by inserting a date 17 days from the date the employee serves the completed Form 23 Application to reinstate Payment of Disability Compensation on the employer, carrier, or administrator and the attorney of record, if any. The Form 23 Application to Reinstate Payment of Disability Compensation shall specify the number of pages of documents attached that are to be considered by the Commission. Within 17 days from the date the employee serves the completed Form 23 Application to Reinstate Payment of Disability Compensation on the employer, carrier, or administrator and the attorney of record, if any, the employer, carrier, or administrator shall complete Section B of the Form 23 Application to Reinstate Payment of Disability Compensation and send it to the Commission and to the employee, or the employee’s attorney of record, at the same time and by the same method by which the form is sent to the Commission.

“(c) If the employer, carrier, or administrator does not object within the time allowed, the Commission shall review the Form 23 Application to Reinstate Payment of Disability Compensation and attached documentation and, without an informal hearing, render an Administrative Decision or Order as to whether there is sufficient basis under the Workers’ Compensation Act to reinstate compensation. This Administrative Decision and Order shall be rendered within five days of the expiration of the time within which the employer, carrier, or administrator could have filed a response to the Form 23 Application to Reinstate Payment of Disability Compensation. Either party may seek review of the Administrative Decision and Order as provided by Rule .0703 of this subchapter.

“(d) If the employer, carrier, or administrator timely objects to the Form 23 Application to Reinstate Payment of Disability Compensation, the Commission shall conduct an informal hearing within 25 days of the receipt by the Commission of the Form 23 Application to Reinstate Payment of Disability Compensation unless the time is extended for good cause shown. The informal hearing may be conducted with the parties or their attorneys of record personally present with the Commission. The Commission shall make arrangements for the informal hearing with a view toward conducting the hearing in the most expeditious manner. The informal hearing shall be no more than 30 minutes, with each side being given 10 minutes to present its case and five minutes for rebuttal. Notwithstanding the foregoing, the employee may waive the right to an informal hearing and proceed to a formal hearing by filing a request for hearing on a Form 33 Request that Claim be Assigned for Hearing. Either party may appeal the Administrative Decision and Order of the Commission as provided by Rule .0703 of this subchapter. A Deputy Commissioner shall conduct a hearing which shall be a hearing de novo. The hearing shall be peremptorily set and shall not require a Form 33 Request that Claim be Assigned for Hearing. The employee has the burden of producing evidence on the issue of the employee’s application to reinstate compensation. If the Deputy Commissioner reverses an order previously granting a Form 23 Application to Reinstate Payment of Disability Compensation motion, the employer shall promptly terminate compensation or otherwise comply with the Deputy Commissioner’s decision, notwithstanding any appeal or application for review to the Full Commission under G.S. 97-85.

“(e) If the Commission is unable to render a decision after the informal hearing, the Commission shall issue an order to that effect, that shall be in lieu of a Form 33 Request that Claim be Assigned for Hearing, and the case shall be placed on the formal hearing docket. If additional issues are to be addressed, the employee, employer, carrier, or administrator shall file a Form 33 Request that Claim be Assigned for Hearing or notify the Commission that a formal hearing is not currently necessary, within 30 days of the date of the Administrative Decision or Order. The effect of placing the case on the docket shall be the same as if the Form 23 Application to Reinstate Payment of Disability Compensation was denied, and compensation shall not be reinstated until such time as the case is decided by a Commissioner or a Deputy Commissioner following a formal hearing.’

“(11) With regard to 04 NCAC 10A.0609A (Medical Motions and Emergency Medical Motions), the Commission shall rewrite the rule in accordance with G.S. 97-25, as amended by Section 4 of this act.

“(12) With regard to 04 NCAC 10A.0102 (Official Forms), the Commission shall adopt a form for use as a subpoena that is in compliance with current North Carolina law. The Commission shall also review all prior minutes and administrative rulings of the Commission and where necessary adopt rules related to the processes and procedures outlined in the prior minutes and administrative rulings. The rules shall be adopted in accordance with Article 2A of Chapter 150B of the General Statutes.”

Session Laws 2013-294, s. 9, provides: “The Industrial Commission shall adopt rules to replace the following disapproved rules which relate to when the Commission may waive rules. In each case, the Commission shall amend references to granting a waiver ‘upon its own initiative’ to read ‘upon its own initiative only if the employee is not represented by counsel.’

“04 NCAC 10A.0801 (Waiver of Rules)

“04 NCAC 10B.0501 (Waiver of Rules)

“04 NCAC 10C.0201 (Waiver of Rules)

“04 NCAC 10D.0110 (Waiver of Rules)

“04 NCAC 10E.0301 (Waiver of Rules)

“04 NCAC 10G.0110 (Waiver of Rules)

“04 NCAC 10H.0206 (Waiver of Rules)

“04 NCAC 10I.0204 (Waiver of Rules)”

Session Laws 2013-294, s. 10, provides: “The Industrial Commission shall study the financial and economic impact and operational burdens on all parties of mandating that costs and fees be submitted electronically as provided by 04 NCAC 10A.0105. The Commission shall submit a report of its findings and recommendations to the 2014 Regular Session of the 2013 General Assembly.”

Session Laws 2013-294, s. 11, provides: “Notwithstanding G.S. 150B-21.2, the Industrial Commission shall adopt permanent rules in accordance with the provisions of this act using the procedure and time lines for temporary rules set forth in G.S. 150B-21.1(a3). Rules adopted by the Industrial Commission in accordance with this section shall be subject to review by the Rules Review Commission as provided by G.S. 150B-21.1(b); provided however, that if the rules are approved by the Rules Review Commission, they shall become effective as provided by G.S. 150B-21.3(b). Rules adopted pursuant to this section shall not be subject to G.S. 150B-19.1(h) or G.S. 150B-21.4. The Industrial Commission shall consult with the Office of Administrative Hearings to ensure that rules adopted in accordance with this section are submitted to the Rules Review Commission in time to be eligible for legislative disapproval in the 2014 Regular Session of the 2013 General Assembly. The rules of the Industrial Commission that were in effect on the effective date of S.L. 2011-287 shall remain in effect with regard to rules disapproved by Sections 1 and 2 of this act until rules adopted to replace the disapproved rules become effective pursuant to this section.”

Session Laws 2014-77, s. 1, provides: “Pursuant to G.S. 150B-21.3(b1), 04 NCAC 10A .0605 (Discovery), 04 NCAC 10A .0701 (Review by the Full Commission), 04 NCAC 10C .0109 (Vocational Rehabilitation Services and Return to Work), 04 NCAC 10E .0203 (Fees Set by the Commission), 04 NCAC 10L .0101 (Form 21 — Agreement for Compensation for Disability), 04 NCAC 10L .0102 (Form 26 — Supplemental Agreement as to Payment of Compensation), and 04 NCAC 10L .0103 (Form 26A — Employer’s Admission of Employee’s Rights to Permanent Partial Disability), as adopted by the Industrial Commission on March 11, 2014, and approved by the Rules Review Commission on March 20, 2014, are disapproved.”

Session Laws 2014-77, s. 2, provides: “Pursuant to G.S. 150B-21.3(b1), 04 NCAC 10A .0609A (Medical Motions and Emergency Medical Motions), as adopted by the Industrial Commission on March 11, 2014, and approved by the Rules Review Commission on April 17, 2014, is disapproved.”

Session Laws 2014-77, s. 3, provides: “04 NCAC 10A .0202 (Hearing Costs or Fees), as adopted by the Industrial Commission on March 11, 2014, and approved by the Rules Review Commission on March 20, 2014, is disapproved; and 04 NCAC 10A .0702 (Review of Administrative Decisions), as adopted by the Industrial Commission on September 20, 2012, and approved by the Rules Review Commission on October 18, 2012, is disapproved.”

Session Laws 2014-77, s. 6, provides: “The Industrial Commission shall adopt rules to replace the rules disapproved by Sections 1, 2, and 3 of this act, in accordance with the following directions:

“(1) With regard to 04 NCAC 10A .0605 (Discovery), the Commission shall amend subsection (6) of the rule by deleting the following sentence: ‘Until a matter is calendared for a hearing, parties may serve requests for production of documents without leave of the Commission’ and by inserting the following sentence: ‘The parties may serve requests for production of documents without leave of the Commission until 35 days prior to the date of hearing’; and by changing the word ‘shall’ to ‘may’ in subsection (7) of the rule.

“(2) With regard to 04 NCAC 10A .0609A (Medical Motions and Emergency Medical Motions), the Commission shall amend subsection (a) of the rule by adding the word ‘either’ between the word ‘before’ and ‘the’; adding the phrase ‘or the Executive Secretary’ after the word ‘Commissioner’; changing the word ‘simultaneously’ to ‘contemporaneously’; and changing the word ‘and’ that appears between the words ‘party’ and ‘opposing’ to ‘or’. Subsection (b) of the rule shall be amended by deleting the phrase ‘Once notification has been received by the parties that a medical motion has been assigned to a Deputy Commissioner, subsequent’; adding the word ‘Subsequent’ before the word ‘filings’; adding the word ‘electronically’ between the words ‘submitted’ and ‘directly’; and adding the phrase ‘either the Executive Secretary or’ between the words ‘to’ and ‘the’. The Commission shall amend subsection (c) of the rule by deleting the sentence ‘Upon receipt of a medical motion, carriers, third-party administrators, and employers shall immediately send notification of the name, email address, telephone number and fax number of the attorney appearing on their behalf to medicalmotions@ic.nc.gov.’ and deleting the word ‘also’ from the subsection. The Commission shall amend subsection (d)(2) of the rule by substituting the word ‘employee’ for the word ‘claimant’ throughout. The Commission shall amend subsection (d)(6) of the rule by substituting the following phrase ‘if an attorney has been retained for the employer or carrier, the attorney’s’ for the phrase ‘the counsel for employer and carrier’s.’ The Commission shall amend subsection (d)(8) of the rule by adding the word ‘the’ between the words ‘of’ and ‘claimant’; by substituting the word ‘employee’ for ‘claimant’; by deleting the phrase ‘and the treatment recommendation’; by adding the word ‘the’ between the words ‘and’ and ‘name’; and by substituting the word ‘any’ for the word ‘the’ that appears between the words ‘of’ and ‘health’. The Commission shall add the phrase ‘, if any’ after the word ‘request’ in subsection (d)(10) of the rule. The Commission shall amend subsection (d)(11) of the rule by substituting the word ‘movant’ for the word ‘employee’; and by substituting the phrase ‘of additional medical or other’ with the phrase ‘by any’. In subsection (d)(12) of the rule, the Commission shall substitute the word ‘employee’ for ‘plaintiff’. The Commission shall substitute the word ‘employee’ for the word ‘claimant’ throughout subsection (e)(2) of the rule. The Commission shall amend subsection (e)(3) of the rule by adding the phrase ‘, if known’ after the word ‘code’. The Commission shall amend subsection (e)(8) of the rule by substituting the word ‘relief’ for the word ‘treatment’. The Commission shall amend subsection (e)(9) of the rule by substituting the word ‘movant’ for the word ‘employee’; and substituting the phrase ‘of additional medical or other’ with the phrase ‘by any’. The Commission shall amend subsection (e)(11) of the rule by substituting the word ‘documents’ for the word ‘documentation’; and substituting the phrase ‘employee in support of’ with the phrase ‘movant relevant to’. The Commission shall amend the rule by deleting subsections (f), (g), and (i) of the rule; former subsection (j) of the rule shall become new subsection (f) of the rule; former subsection (k) of the rule shall become new subsection (i) of the rule. The Commission shall amend subsection (h) of the rule by deleting the phrase ‘deemed necessary by the Deputy Commissioner’; by adding the phrase ‘pursuant to G.S. 97-25’ between the words ‘order’ and ‘within’; and by deleting the phrase ‘within 35 days of the date the motion is filed. Transcripts of depositions shall be submitted electronically to the Commission within 40 days of the date of the filing of the motion’; and by adding the phrase ‘or upon agreement of the parties’ after the phrase ‘for good cause shown’. The Commission shall amend the rule by adding a new subsection (g) that shall read as follows: ‘(g) A party may appeal an order of the Executive Secretary on a motion brought pursuant to G.S. 97-25(f)(1) or receipt of a ruling on a motion to reconsider filed pursuant to Rule .0702(b) of the Subchapter by giving notice of appeal to the Docket Section within 15 calendar days. A letter expressing an intent to appeal a decision of the Executive Secretary shall be considered a request for an expedited hearing pursuant to G.S. 97-25 and G.S. 97-84. The letter shall specifically identify the order from which appeal is taken. After receipt of a notice of appeal, the appeal shall be assigned to a Deputy Commissioner by the Docket Section, and an order under the name of the Deputy Commissioner to which the appeal is assigned shall be issued within three days of receipt of the notice of appeal.’ The Commission shall amend the rule by adding a new subsection (j) that shall read as follows: ‘(j) A party may appeal the administrative decision of the Chief Deputy or the Chief Deputy’s designee filed pursuant to G.S. 97-25(f)(3) by giving notice of appeal to the Docket Section within 15 calendar days of receipt of the Order. A letter expressing an intent to appeal the Chair or the Chair’s designee’s Order filed pursuant to G.S. 97-25(f)(3) shall be considered a notice of appeal, provided that the letter specifically identifies the Order from which appeal is taken. After receipt of notice of appeal, the appeal shall be acknowledged by the Docket Section within three days by sending an Order under the name of the Deputy Commissioner to which the appeal is assigned. The appeal of the administrative decision of the Chair or the Chair’s designee shall be subject to G.S. 97-25(f)(2) and G.S 97-84.’ The Commission shall amend new subsection (i) of the rule by substituting the phrase ‘the decision of a Deputy Commissioner, Chief Deputy, or Chief Deputy’s designee filed’ for the phrase ‘a Deputy Commissioner’s Order on a motion brought’; by adding the phrase ‘(f)(2)’ between the words ‘G.S. 97-25’ and ‘by’; by deleting the phrase ‘or receipt of the ruling on a Motion to Reconsider the Order filed pursuant to Rule .0702 of this Subchapter’; by substituting the word ‘filed’ for the phrase ‘on a motion brought’; by substituting the phrase ‘briefs and set the schedule for filing.’ for the phrase ‘briefs and the schedule for filing them. At the time the motion is set for informal hearing, the Chair of the Panel shall also indicate to the parties if oral arguments are to be by telephone, in person, or waived.’; and by adding ‘A Full Commission hearing on an appeal of a medical motion filed pursuant to G.S. 97-25(f)(1), 97-25(f)(2), and 97-25(f)(3) shall be held telephonically and shall not be recorded unless unusual circumstances arise and the Commission so orders.’

“(3) With regard to 04 NCAC 10A .701 (Review by the Full Commission), the Commission shall amend subsection (b) of the rule by inserting the sentences ‘Parties represented by counsel shall sign a joint certification acknowledging receipt of the Form 44 Application for Review and the official transcript and exhibits and submit the certification within ten days of receipt of the Form 44 Application for Review and the official transcript and exhibits. The certification shall stipulate the date the Form 44 Application for Review and the official transcript and exhibits were received by the parties and shall note the date the appellant’s brief is due.’ after the sentence that reads ‘The e-mail shall also provide instructions for the submission of the parties’ acknowledgement of receipt of the Form 44 Application for Review and the official transcript and exhibits to the Commission.’

“(4) With regard to 04 NCAC 10C .0109 (Vocational Rehabilitation Services and Return to Work), the Commission shall amend subsection (b) of the rule by deleting the phrase ‘only toward prospective employers offering the opportunity for suitable employment’. The Commission shall change the word ‘shall’ to ‘should’ in subsection (c) of the rule. The Commission shall change subsection (d)(3) of the rule by substituting the phrase ‘the likely duration until completion of the requested retraining or education, the number of credits needed to complete the retraining or education, the course names and schedules for the retraining or education, and which courses are available on-line versus in person’ for the phrase ‘the likely duration until completion of the requested retraining or education and the likely class schedules, class attendance requirements, and out-of-class time required for homework and study’. The Commission shall substitute the phrase ‘initiate or continue placement activities’ for the phrase ‘place the worker in suitable employment’ within subsection (j) of the rule.

“(5) With regard to 04 NCAC 10E .0202 (Hearing Costs), the Commission shall amend subsection (a) of the rule to insert the following phrase ‘other than workers’ compensation cases’ after the word ‘Commission’ effective July 1, 2015. The Commission shall amend the rule by deleting the following sentence from subsection (a) of the rule effective July 1, 2015: ‘In workers’ compensation cases, these fees shall be paid by the employer unless the Commission orders otherwise, except as specified in subsection (2) above.

“(6) With regard to 04 NCAC 10E .0203 (Fees Set by the Commission), the Commission shall delete subsection (a)(2) of the rule effective July 1, 2015.

“(7) With regard to 04 NCAC 10L .0101 (Form 21 — Agreement for Compensation for Disability), 04 NCAC 10L .0102 (Form 26 — Supplemental Agreement as to Payment of Compensation), and 04 NCAC 10L .0103 (Form 26A — Employer’s Admission of Employee’s Rights to Permanent Partial Disability), the Commission shall delete any references to fees for processing agreements and the party responsible for payment of fees effective July 1, 2015.

“(8) With regard to 04 NCAC 10A .0702 (REVIEW OF ADMINISTRATIVE DECISIONS), the Commission shall amend the rule by striking subdivision (3) from subsection (a); by renumbering existing subdivisions (a)(4) and (a)(5) as new subdivisions (a)(3) and (a)(4) respectively; and by adding a new subsection (e) that reads, ‘This rule shall not apply to medical motions filed pursuant to G.S. 97-25; provided, however, that a party may request reconsideration of an administrative ruling on a medical motion, or may request a stay, or may request an evidentiary hearing de novo, all as set forth in G.S. 97-25.’ ”

Session Laws 2014-77, s. 7, provides: ‘Notwithstanding G.S. 150B-21.2, the Industrial Commission shall adopt permanent rules in accordance with the provisions of this act using the procedure and time lines for temporary rules set forth in G.S. 150B-21.1(a3). Rules adopted by the Industrial Commission in accordance with this section shall be subject to review by the Rules Review Commission as provided by G.S. 150B-21.1(b); provided, however, that if the rules are approved by the Rules Review Commission, they shall become effective as provided by G.S. 150B-21.3(b). Rules adopted pursuant to this section shall not be subject to G.S. 150B-19.1(h) or G.S. 150B-21.4. The Industrial Commission shall consult with the Office of Administrative Hearings to ensure that rules adopted in accordance with this section are submitted to the Rules Review Commission in time to be eligible for legislative disapproval in the 2015 Regular Session of the 2015 General Assembly. The rules of the Industrial Commission that were in effect on the effective date of S.L. 2011-287 shall remain in effect with regard to rules disapproved by Sections 1, 2, and 3 of this act until rules adopted to replace the disapproved rules become effective pursuant to this section.”

Session Laws 2016-100, s. 12, made the next-to-last sentence in subsection (h), as added by Session Laws 2016-100, s. 10, applicable to proceedings for indirect criminal contempt filed on or after October 1, 2016.

Effect of Amendments.

Session Laws 2011-287, s. 19, effective June 24, 2011, in the first paragraph of subsection (a), substituted “shall adopt rules, in accordance with Article 2A of Chapter 150B of the General Statutes and not inconsistent” for “may make rules, not inconsistent,” and deleted the former last two sentences, which read: “The Commission shall request the Office of State Budget and Management to prepare a fiscal note for a proposed new or amended rule that has a substantial economic impact, as defined in G.S. 150B-21.4(b1). The Commission shall not take final action on a proposed rule change that has a substantial economic impact until at least 60 days after the fiscal note has been prepared.”

Session Laws 2013-294, s. 6, effective July 18, 2013, added the present second paragraph in subsection (a); added the present second sentence in subsection (e); inserted “including production of books, papers, records, and other tangible things” in subsection (f); and substituted “willful” for “wilful” throughout subsection (h).

Session Laws 2016-100, s. 10, effective October 1, 2016, added the next-to-last sentence in subsection (h). See editor’s note for applicability.

Legal Periodicals.

For discussion of this section, see 8 N.C.L. Rev. 427 (1930).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

For article, “Mediation of Industrial Commission Cases,” see 17 Campbell L. Rev. 395 (1995).

CASE NOTES

Analysis

I.In General

Determination of Jurisdiction Is First Order of Business. —

In every proceeding before the Commission, determination of jurisdiction is the first order of business. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962).

Continuing Jurisdiction. —

It was the purpose of the General Assembly that the Industrial Commission should have a continuing jurisdiction of all proceedings begun before the Commission for compensation in accordance with its terms. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Power to Order Rehearing. —

While there is no direct statutory provision giving the Industrial Commission power to order a rehearing of an award made by it for newly discovered evidence, the Commission has such power in proper instances in accordance with its rules and regulations, as provided by this section, it being the intent of the legislature, as gathered from the whole act, to give the Industrial Commission continuing jurisdiction of all proceedings begun before it with appellate jurisdiction in the superior court on matters of law only. Butts v. Montague Bros., 208 N.C. 186, 179 S.E. 799, 1935 N.C. LEXIS 353 (1935).

The Commission has the power to order a rehearing on the basis of newly discovered evidence. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Power to Set Aside Judgment. —

The Industrial Rule Commission has inherent power analogous to that conferred on courts by G.S. 1A-1, Rule 60(b)(6), in the exercise of supervision over its own judgments to set aside a former judgment when the paramount interest in achieving a just and proper determination of a workers’ compensation claim requires it. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Because the power to set aside a former judgment is vital to the proper functioning of the judiciary, the Legislature impliedly vested such power in the Commission in conjunction with the judicial power which the Legislature granted it to administer the Workers’ Compensation Act. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

The Industrial Commission possesses such judicial power as is necessary to administer the Workers’ Compensation Act. The Commission’s judicial power includes the power to set aside a former judgment on the grounds of mutual mistake, misrepresentation, or fraud. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Compromise Settlement. —

Signed memorandum of settlement fully complied with the workers’ compensation rules, and was a valid compromise settlement agreement subject to approval by the Industrial Commission, even though the worker had not signed a clincher agreement. Lemly v. Colvard Oil Co., 157 N.C. App. 99, 577 S.E.2d 712, 2003 N.C. App. LEXIS 372 (2003).

Power to Force Witness to Testify. —

This section does not deprive the Commission of the power to force a witness who is before it to testify and to punish for contempt a witness who refuses to testify. In re Hayes, 200 N.C. 133, 156 S.E. 791, 1931 N.C. LEXIS 271 (1931).

When a deputy commissioner ordered the deposition of an unrepresented claimant’s physician, she did not indicate a disqualifying personal bias or deprive the employer of an impartial decision maker in violation of the employer’s due process rights because, under G.S. 97-80(d), the Industrial Commission could order the deposition of a witness, under G.S. 97-79(b), the deputy commissioner had the same powers as members of the Industrial Commission, and, under G.S. 8C-1, N.C. R. Evid. 614(a), a court was permitted to call witnesses, with or without a request from a party. Handy v. PPG Indus., 154 N.C. App. 311, 571 S.E.2d 853, 2002 N.C. App. LEXIS 1442 (2002).

The Industrial Commission did not exceed its authority by the repeal of the Blue Cross Blue Shield rule. —

Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716, 1994 N.C. LEXIS 240, dismissed, 336 N.C. 305, 443 S.E.2d 733, 1994 N.C. LEXIS 231 (1994).

Attorney’s Travel Expenses in Taking Deposition Out-of-State. —

The travel expenses of the attorney who took a deposition of a witness out-of-state by order of the Commissioner were part of the cost of taking the deposition under this section, and should have been so taxed by the full Commission. Cloutier v. State, 57 N.C. App. 239, 291 S.E.2d 362, 1982 N.C. App. LEXIS 2646, cert. denied, 306 N.C. 555, 294 S.E.2d 222, 1982 N.C. LEXIS 1683 (1982).

Taxing Costs of Taking Medical Expert’s Deposition. —

There is no restriction in either the Workers’ Compensation Act or the Rules of the Industrial Commission on the commission’s discretion to tax costs of a deposition when the plaintiff requests the deposition of its own medical expert. Harvey v. Raleigh Police Dep't, 85 N.C. App. 540, 355 S.E.2d 147, 1987 N.C. App. LEXIS 2599 (1987) (affirming commission’s order requiring defendant to pay the costs of expert’s deposition) .

Offer of proof. —

While the rules of procedure and evidence governing proceedings in the general courts of justice do not generally apply in hearings before the Commission, upon request, the Commission must afford a party in a workers’ compensation proceeding the opportunity to make an offer of proof regarding the substance of evidence that has been excluded unless the substance of the evidence and the significance are readily apparent. Willard v. VP Builders, Inc., 233 N.C. App. 773, 757 S.E.2d 682, 2014 N.C. App. LEXIS 409 (2014).

Industrial Commission erred in failing to allow an employer and a third-party administrator the opportunity to make an offer of proof; like the right to cross-examine the opposing party’s witnesses, the right to make a record sufficient for appellate review through an offer of proof is also necessary to preserve justice and due process. Willard v. VP Builders, Inc., 233 N.C. App. 773, 757 S.E.2d 682, 2014 N.C. App. LEXIS 409 (2014).

Enumeration of Rules Violations. —

An order dismissing a workers’ compensation action or proceeding for violation of the Workers’ Compensation Rules must specifically enumerate which of the Rules has been violated and what actions constitute the violations. Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11, 510 S.E.2d 388, 1999 N.C. App. LEXIS 2 (1999).

Full Commission’s Reservation of Decision. —

Full Commission of the North Carolina Industrial Commission did not abuse its discretion by reserving its decision regarding the issue of an injured employee’s wage-earning capacity because the full extent of the employee’s injuries had not yet been determined, and the employee was entitled to an opportunity to gather that information necessary to determine which of her conditions was causing her continuing incapacity for work. Brown v. Kroger Co., 169 N.C. App. 312, 610 S.E.2d 447, 2005 N.C. App. LEXIS 611 (2005).

II.Rules and Rule Making

Application of Judicial Rules of Evidence. —

Strictly speaking, the rules of evidence applicable in the general courts do not govern the Industrial Commission’s own administrative factfinding. Haponski v. Constructor's Inc., 87 N.C. App. 95, 360 S.E.2d 109, 1987 N.C. App. LEXIS 3078 (1987).

Rule-Making Power Relates Only to Administrative Matters. —

The rule-making power here granted relates only to administrative matters. There can be no delegation of the power to make law. Motsinger v. Perryman, 218 N.C. 15, 9 S.E.2d 511, 1940 N.C. LEXIS 93 (1940).

Construction and Application of Rules. —

Under this section the Industrial Commission has the power not only to make rules governing its administration of the act, but also to construe and apply such rules. Its construction and application of its rules, duly made and promulgated, in proceedings pending before the Commission, ordinarily is final and conclusive and not subject to review by the courts of this State on an appeal from an award made by the Commission. Winslow v. Carolina Conference Ass'n, 211 N.C. 571, 191 S.E. 403, 1937 N.C. LEXIS 154 (1937); Shore v. Chatham Mfg. Co., 54 N.C. App. 678, 284 S.E.2d 179, 1981 N.C. App. LEXIS 2928 (1981), cert. denied, 304 N.C. 729, 287 S.E.2d 902, 1982 N.C. LEXIS 1306 (1982).

Statutory authority existed to promulgate rules for the assessment of attorney’s fees in a case where a party’s attorney failed to stipulate as to medical reports prepared by a doctor and a deputy commissioner had to order a deposition of the doctor. Hawley v. Wayne Dale Constr., 146 N.C. App. 423, 552 S.E.2d 269, 2001 N.C. App. LEXIS 944 (2001).

Workers’ Comp. R. N.C. Indus. Comm’n Art. VI, R. 601 was properly enacted under G.S. 97-80, was presumed valid, and did not shift the burden of proof to the employer by requiring it to come forward with any evidence to rebut an employee’s claim. D'Aquisto v. Mission St. Joseph's Health Sys., 171 N.C. App. 216, 614 S.E.2d 583, 2005 N.C. App. LEXIS 1269 (2005), rev'd, 360 N.C. 567, 633 S.E.2d 89, 2006 N.C. LEXIS 843 (2006).

Rules promulgated by the Commission are for the benefit of the Commission and must be complied with by the parties to a proceeding brought pursuant to the provisions of the Workers’ Compensation Act. Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608, 1962 N.C. LEXIS 432 (1962); Petty v. Associated Transp., 4 N.C. App. 361, 167 S.E.2d 38, 1969 N.C. App. LEXIS 1498 (1969), rev'd, 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970).

And Do Not Limit Its Power to Review Findings of Fact. —

Rules promulgated by the Commission do not limit the power of the Commission to review, modify, adopt, or reject the findings of fact found by a deputy commissioner or by an individual member of the Commission when acting as a hearing commissioner. Petty v. Associated Transp., 4 N.C. App. 361, 167 S.E.2d 38, 1969 N.C. App. LEXIS 1498 (1969), rev'd, 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970).

The Commission was not entitled to relax its rule that fees for practical nursing would not be allowed unless written authority was obtained from the Commission in advance, so as to award mother of injured employee an amount for practical nursing services rendered to injured employee, where the record showed that the Commission never gave its written or oral permission for rendition of services. Hatchett v. Hitchcock Corp., 240 N.C. 591, 83 S.E.2d 539, 1954 N.C. LEXIS 486 (1954).

The Commission may not use its own rules to deprive a plaintiff of the right to have his case fully determined; thus, the Commission’s statement in an order dismissing plaintiff’s motions that “the issue of payment of future medical expenses is not properly preserved” would not support the order. Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610, 1988 N.C. App. LEXIS 1061 (1988).

Rules Inconsistent with Article. —

The power to make rules may not be exercised when the rule is inconsistent with this Article. Evans v. Asheville Citizens Times Co., 246 N.C. 669, 100 S.E.2d 75, 1957 N.C. LEXIS 527 (1957) (holding that Rule XVI of the Commission was inconsistent with G.S. 97-30) .

Commission Held Without Authority to Allow Claim. —

To allow an employee’s claim for additional compensation for the reason that such claim was made within 12 months from the time he was furnished a copy of Form 28B would be allowing the Commission by its rule-making authority to amend G.S. 97-47; this would exceed the authority granted the Commission by this section. Willis v. J.M. Davis Indus., Inc., 280 N.C. 709, 186 S.E.2d 913, 1972 N.C. LEXIS 1296 (1972) (decided prior to 1973 amendment to G.S. 97-47) .

Rule requiring notice of cancellation of policy to be given to the Commission does not become a part of the policy contract. Motsinger v. Perryman, 218 N.C. 15, 9 S.E.2d 511, 1940 N.C. LEXIS 93 (1940).

Rule Relative to New Evidence on Review. —

The rules of the Industrial Commission, adopted pursuant to this section, relative to the introduction of new evidence on review by the full Commission, are in accord with the decisions of the Supreme Court as to granting new trials for newly discovered evidence. Tindall v. American Furn. Co., 216 N.C. 306, 4 S.E.2d 894, 1939 N.C. LEXIS 153 (1939); Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965); McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467, 1966 N.C. LEXIS 1376 (1966).

Procedure before the Industrial Commission need not necessarily conform strictly to judicial procedure in courts of law unless the statute so requires or the court of last resort shall consider such procedure indispensable to the preservation of the essentials of justice and the principles of due process of law, and procedure adopted by the Commission with respect to the reception and consideration of evidence will be given liberal treatment by the courts, since this section empowers the Commission to make rules for carrying out the provisions of the act, and requires processes and procedure to be summary and simple. Maley v. Thomasville Furn. Co., 214 N.C. 589, 200 S.E. 438, 1939 N.C. LEXIS 386 (1939).

Sanctions. —

G.S. 97-80(a) gave the North Carolina Industrial Commission (commission) the power to make rules consistent with the Workers’ Compensation Act for carrying out its provisions, Workers’ Comp. R. N.C. Indus. Comm’n 605(1), 2002 Ann. R. N.C. 765 provided that the commission was allowed to order discovery and impose discovery sanctions, and Workers’ Comp. R. N.C. Indus. Comm’n 802 provided that “failure to comply” with the Workers’ Compensation Rules may have subjected the violator to any of the sanctions outlined in G.S. 1A-1, N.C. R. Civ. P. 37; a discovery sanction which struck the employer’s defenses was proper and was affirmed where the sanction was imposed three and a half months after the employer had been ordered to respond to the interrogatories and was warned that his refusal to answer may have resulted in sanctions. Joyner v. Mabrey Smith Motor Co., 161 N.C. App. 125, 587 S.E.2d 451, 2003 N.C. App. LEXIS 1994 (2003).

III.Evidence

Basis of Facts Found. —

Determinative facts upon which rights of parties are made to rest must be found from judicial admissions made by the parties, facts agreed, stipulations entered into and noted at the hearing, and evidence offered in open court, after all parties have been given full opportunity to be heard. Recourse may not be had to records, files, evidence, or data not thus presented to the court. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962).

Hearsay evidence is not competent to establish either that an accident arose out of or in the course of the employment. Plyler v. Charlotte Country Club, 214 N.C. 453, 199 S.E. 622, 1938 N.C. LEXIS 374 (1938).

The award of the Commission will not be disturbed because of the presence of hearsay testimony when there is other competent evidence upon which to base the findings. Hearsay evidence offered without objection may serve to corroborate and explain the other evidence in the case. Maley v. Thomasville Furn. Co., 214 N.C. 589, 200 S.E. 438, 1939 N.C. LEXIS 386 (1939).

The report of an accident filed by the employer with the Commission, being in the nature of an admission, is competent evidence in a hearing involving the accident. Russell v. Western Oil Co., 206 N.C. 341, 174 S.E. 101, 1934 N.C. LEXIS 179 (1934).

Even if a report filed by defendant’s manager contained some statement of fact not of his personal knowledge, it was competent as a declaration against interest. Carlton v. Bernhardt-Seagle Co., 210 N.C. 655, 188 S.E. 77, 1936 N.C. LEXIS 188 (1936) (where the only evidence to show the cause of injury was that contained in the employer’s report) .

Unsigned Letter from Doctor Reporting on Employee’s Condition. —

Pending hearing in the superior court, a copy of an unsigned letter from a doctor reporting the condition of employee’s eye was added to the record by the Commission’s supplemental certificate. On later appeal and reversal for other reasons, the Supreme Court declared that this letter was “incompetent” and “had no place in the record and evidence.” Logan v. Johnson, 218 N.C. 200, 10 S.E.2d 653 (1940). See note, “Evidence before North Carolina Tribunals,” 19 N.C.L. Rev. 568 (1941).

Evidence as to the course of dealing between employer and employee is of value to show the interpretation which they put upon the character of the employment and their intention regarding it. Smith v. City of Gastonia, 216 N.C. 517, 5 S.E.2d 540, 1939 N.C. LEXIS 31 (1939).

The Commission is the sole judge of the credibility of witnesses, and there is no obligation to accord unquestioned credence to any testimony, even if uncontradicted. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265, 1951 N.C. LEXIS 604 (1951).

The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. West v. Stevens, 6 N.C. App. 152, 169 S.E.2d 517, 1969 N.C. App. LEXIS 1154 (1969).

The function of the Industrial Commission is to weigh and evaluate the entire evidence and determine as best it can where the truth lies. West v. Stevens, 6 N.C. App. 152, 169 S.E.2d 517, 1969 N.C. App. LEXIS 1154 (1969).

And It Is Not Compelled to Find According to Testimony of Any Particular Witness. —

In its consideration of claims, the Industrial Commission is not compelled to find in accordance with testimony of any particular witness. West v. Stevens, 6 N.C. App. 152, 169 S.E.2d 517, 1969 N.C. App. LEXIS 1154 (1969).

Video Evidence. —

Where surveillance videos which an employer sought to introduce were a recording of events occurring in the service area at the employer’s business, the employer laid a sufficient foundation, which consisted of evidence concerning the operation of the video camera, the chain of custody of the DVDs, and testimony that the videotape had not been edited and that the picture fairly and accurately recorded the actual appearance of the area photographed, to support admission of the surveillance videos; thus, the Industrial Commission erred by refusing to consider the surveillance videos as evidence. Bowman v. Cox Toyota Scion, 224 N.C. App. 1, 737 S.E.2d 384, 2012 N.C. App. LEXIS 1362 (2012).

IV.Findings

The Commission is the fact-finding body under the Workers’ Compensation Act. Petty v. Associated Transp., 4 N.C. App. 361, 167 S.E.2d 38, 1969 N.C. App. LEXIS 1498 (1969), rev'd, 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970).

Findings Required. —

To enable a proper review of a conclusion concerning disability, the Industrial Commission is required to make specific findings of fact as to a plaintiff’s earning capacity. Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

The finding of facts is one of the primary duties of the Commission. Petty v. Associated Transp., 4 N.C. App. 361, 167 S.E.2d 38, 1969 N.C. App. LEXIS 1498 (1969), rev'd, 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970).

Conclusive Effect of Findings of Fact. —

The findings of fact by the Industrial Commission are conclusive and binding upon the courts when supported by competent evidence. West v. Stevens, 6 N.C. App. 152, 169 S.E.2d 517, 1969 N.C. App. LEXIS 1154 (1969).

Judicial Review of Findings of Fact of Hearing Commissioner. —

A finding of fact by a hearing commissioner or by a deputy commissioner never reaches the superior court or the Court of Appeals unless it has been affirmed by the Commission. Petty v. Associated Transp., 4 N.C. App. 361, 167 S.E.2d 38, 1969 N.C. App. LEXIS 1498 (1969), rev'd, 276 N.C. 417, 173 S.E.2d 321, 1970 N.C. LEXIS 696 (1970).

§ 97-81. Blank forms and literature; statistics; safety provisions; accident reports; studies and investigations and recommendations to General Assembly; to cooperate with other agencies for prevention of injury.

  1. The Commission shall prepare and cause to be printed, and upon request furnish, free of charge to any employee or employer, such blank forms and literature as it shall deem requisite to facilitate or prompt the efficient administration of this Article. Notwithstanding G.S. 150B-2(8a)d., any new forms or substantive amendments to old forms adopted after July 1, 2013, shall be adopted in accordance with Article 2A of Chapter 150B of the General Statutes. The Commission may authorize the use of electronic submission of forms and other means of transmittal of forms and notices when it deems appropriate.
  2. The Commission shall tabulate the accident reports received from employers in accordance with G.S. 97-92 and shall publish the same in the annual report of the Commission and as often as it may deem advisable, in such detailed or aggregate form as it may deem best. The name of the employer or employee shall not appear in such publications, and the employers’ reports shall be private records of the Commission, and shall not be open for public inspection except for the inspection of the parties directly involved, and only to the extent of such interest, and except for inspection by the Department of Labor and other State or federal agencies pursuant to subsections (d) and (e) of this section. These reports shall not be used as evidence against any employer in any suit at law brought by any employee for the recovery of damages.
  3. Repealed by Session Laws 2017-203, s. 5, effective August 11, 2017.
  4. In making such studies and investigations the Commission shall:
    1. Cooperate with any agency of the United States charged with the duty of enforcing any law securing safety against injury in any employment covered by this Article, or with any State agency engaged in enforcing any laws to assure safety for employees, and
    2. Permit any such agency to have access to the records of the Commission.In carrying out the provisions of this section the Commission or any officer or employee of the Commission is authorized to enter at any reasonable time upon any premises, tracks, wharf, dock, or other landing place, or to enter any building, where an employment covered by this Article is being carried on, and to examine any tool, appliance, or machinery used in such employment.
  5. The Commission shall, upon written request from the Commissioner of Labor, provide from the Commission’s records the following information from claims filed by employees, and from employer reports of injury to an employee required by G.S. 97-92:
    1. Name and business address of the employer;
    2. Type of business of the employer;
    3. Date the accident, illness, or injury occurred;
    4. Nature of the injury or disease reported; and
    5. Whether compensation for disability or medical expenses was paid to the injured employee.Information provided to the Commissioner of Labor pursuant to this subsection, and to other State and federal agencies pursuant to subsection (d) of this section, shall be private and exempt from public inspection to the same extent that records of the Commission are so exempt.

History. 1929, c. 120, s. 55; 1991 (Reg. Sess., 1992), c. 894, s. 2; 1993 (Reg. Sess., 1994), c. 679, s. 10.2; 2013-294, s. 7; 2017-203, s. 5.

Effect of Amendments.

Session Laws 2013-294, s. 7, effective July 18, 2013, added the second sentence in subsection (a).

Session Laws 2017-203, s. 5, effective August 11, 2017, repealed subsection (c).

§ 97-82. Memorandum of agreement between employer and employee to be submitted to Commission on prescribed forms for approval; direct payment as award.

  1. If the employer and the injured employee or his dependents reach an agreement in regard to compensation under this Article, they may enter into a memorandum of the agreement in the form prescribed by the Commission.An agreement, however, shall be incorporated into a memorandum of agreement in regard to compensation: (i) for loss or permanent injury, disfigurement, or permanent and total disability under G.S. 97-31, (ii) for death from a compensable injury or occupational disease under G.S. 97-38, or (iii) when compensation under this Article is paid or payable to an employee who is incompetent or under 18 years of age.The memorandum of agreement, accompanied by the material medical and vocational records, shall be filed with and approved by the Commission; otherwise such agreement shall be voidable by the employee or his dependents.
  2. If approved by the Commission, a memorandum of agreement shall for all purposes be enforceable by the court’s decree as hereinafter specified. Payment pursuant to G.S. 97-18(b), or payment pursuant to G.S. 97-18(d) when compensability and liability are not contested prior to expiration of the period for payment without prejudice, shall constitute an award of the Commission on the question of compensability of and the insurer’s liability for the injury as reflected on a form prescribed by the Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d) for which payment was made. An award of the Commission arising out of G.S. 97-18(b) or G.S. 97-18(d) shall not create a presumption that medical treatment for an injury or condition not identified in the form prescribed by the Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d) is causally related to the compensable injury. An employee may request a hearing pursuant to G.S. 97-84 to prove that an injury or condition is causally related to the compensable injury. Compensation paid in these circumstances shall constitute payment of compensation pursuant to an award under this Article.

History. 1929, c. 120, s. 56; 1993 (Reg. Sess., 1994), c. 679, s. 3.2; 2005-448, s. 7; 2017-124, s. 1(a).

Editor’s Note.

The preamble to Session Laws 2017-124, provides: “Whereas, in 2011, the Workers’ Compensation Act was amended by S.L. 2011-287; and

“Whereas, the North Carolina Supreme Court issued a decision in Wilkes v. City of Greenville (No. 368PA15) on June 9, 2017; and

“Whereas, prior to the Supreme Court’s decision in Wilkes , employees were not required to prove entitlement to additional medical treatment for the injuries determined to be compensable by the Commission; and

“Whereas, prior to the Supreme Court’s decision in Wilkes , employees could seek medical treatment for future symptoms allegedly related to the original compensable injury; and

“Whereas, the Wilkes decision held that once an employer issues direct payment to an employee pursuant to G.S. 97-82(b), the employee is entitled to a presumption that additional medical treatment is causally related to the employee’s compensable injury unless the employer rebuts this presumption with evidence that the condition or treatment is not causally related to the compensable injury; and

“Whereas, an employee bears the burden of proving that the employee’s future symptoms or conditions that the employee alleges are related to the compensable injury but that were not enumerated on a Form 60 or Form 63 pursuant to G.S. 97-18(b) or G.S. 97-18(d), respectively, are causally related to the compensable injury; Now, therefore,”

Session Laws 2017-124, s. 1(b), provides: “In enacting subsection (a) of this section, it is the intent of the General Assembly to clarify, in response to Wilkes v. City of Greenville, that an injury not identified in an award arising out of G.S. 97-18(b) or G.S. 97-18(d) is not presumed to be causally related to the compensable injury to reflect the intent of the General Assembly when it enacted S.L. 2011-287.”

Session Laws 2017-124, s. 1(c), made the amendment to subsection (b) of this section by Session Laws 2017-124, s. 1(a), effective July 20, 2017, and applicable to claims accrued or pending prior to, on, or after that date.

Effect of Amendments.

Session Laws 2005-448, s. 7, effective September 29, 2005, and applicable to claims pending and filed on or after that date, substituted “the material medical and vocational records” for “a full and complete medical report” in the third paragraph of subsection (a).

Session Laws 2017-124, s. 1(a), in subsection (b) added “as reflected on a form prescribed by the Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d)” near the end of the second sentence, and added the third and fourth sentences. For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1976 case law on workers’ compensation, see 55 N.C.L. Rev. 1116 (1977).

For Survey of Developments in North Carolina Law (1992), see 71 N.C.L. Rev. 1893 (1993).

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For survey, “Vernon v. Stephen L. Mabe Builders: The Requirements of Fairness in Settlement Agreements Under the North Carolina Workers’ Compensation Act,” see 73 N.C.L. Rev. 2529 (1995).

For note, “The Fairness Requirement for a Workers’ Compensation Agreement — The Effect of Vernon v. Steven L. Mabe Builders,” see 17 Campbell L. Rev. 521 (1995).

CASE NOTES

Purpose and Effect of Section. —

This section was inserted in the act to protect the employees of the State against the disadvantages arising out of their economic status and give assurance that their settlements are in accord with the intent and purpose of the act. Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777, 1953 N.C. LEXIS 704 (1953).

The legislature anticipated that employers and employees would, in most cases, be able to reach an agreement with respect to the employee’s right to compensation; hence, it inserted in the act a provision authorizing such agreements, when made in the manner prescribed by the Industrial Commission. White v. Shoup Boat Corp., 261 N.C. 495, 135 S.E.2d 216, 1964 N.C. LEXIS 515 (1964).

When Jurisdiction of Commission Is Invoked. —

The jurisdiction of the Commission is invoked either when a claim for compensation is filed or a voluntary settlement is submitted for approval. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962); Tabron v. Gold Leaf Farms, Inc., 269 N.C. 393, 152 S.E.2d 533, 1967 N.C. LEXIS 1080 (1967).

Section Contemplates Only Settlement in Respect of Amount of Compensation. —

The only “settlement” contemplated by this section is a settlement in respect of the amount of compensation to which claimants are entitled under the act. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957).

And Does Not Apply to Compromise and Settlement of Common-Law Claim. —

Compromise and settlement of the common-law claim of the administratrix of a deceased employee for the wrongful death of the employee, executed under the mistaken belief that the act was not applicable, would not be disturbed on the ground that the Industrial Commission did not approve such settlement as provided in this section. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957).

In approving settlements the Commission acts in a judicial capacity. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215, 1962 N.C. LEXIS 656 (1962).

And Approved Settlements Are Enforceable by Court Decree. —

In approving a settlement agreement, the Industrial Commission acts in a judicial capacity, and the settlement as approved becomes an award enforceable, if necessary, by a court decree. Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777, 1953 N.C. LEXIS 704 (1953); Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

An agreement for the payment of compensation approved by the Commission is enforceable by a court decree. Dalton v. Anvil Knitwear, 119 N.C. App. 275, 458 S.E.2d 251, 1995 N.C. App. LEXIS 471 (1995).

Conclusiveness of Commission’s Approval. —

The Commission’s approval of stipulated facts and payments is as conclusive as if made upon a determination of facts in an adversary proceeding. Stanley v. Brown, 261 N.C. 243, 134 S.E.2d 321, 1964 N.C. LEXIS 444 (1964); Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

An agreement for the payment of compensation, when approved by the Industrial Commission, is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal. Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

An agreement for compensation, when approved by the Commission, is binding on the parties. Roberts v. Carolina Tables of Hickory, 76 N.C. App. 148, 331 S.E.2d 757, 1985 N.C. App. LEXIS 3719 (1985).

An agreement for the payment of compensation, when approved by the Commission, is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal. Brookover v. Borden, Inc., 100 N.C. App. 754, 398 S.E.2d 604, 1990 N.C. App. LEXIS 1227 (1990).

Until Set Aside. —

An approved compensation agreement is binding on the parties unless and until it is set aside by the Industrial Commission. Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355, 1976 N.C. LEXIS 1248 (1976).

Required Inquiry Not Conducted in Claim for Additional Benefits. —

In the employee’s claim for additional compensation benefits for injuries sustained while working for the employer, because the North Carolina Industrial Commission’s reliance on the evaluation for permanent disability and not on the full and complete medical report was statutorily impermissible, the original compensation agreement was set aside. Atkins v. Kelly Springfield Tire Co., 154 N.C. App. 512, 571 S.E.2d 865, 2002 N.C. App. LEXIS 1443 (2002) (decided prior to 2005 amendment to this section).

Commission May Not Set Aside a Duly Executed Agreement. —

Absent a showing of fraud, misrepresentation, mutual mistake, or undue influence, the Industrial Commission may not set aside a settlement agreement duly executed by the parties, properly submitted to the Industrial Commission for approval, and approved by the Chairman of the Commission in accordance with G.S. 97-17 and this section. The fact that defense counsel had attempted to revoke its consent to the agreement after it was submitted to the Commission was immaterial. Glenn v. McDonald's, 109 N.C. App. 45, 425 S.E.2d 727, 1993 N.C. App. LEXIS 200 (1993).

Interlocutory Award. —

The approval by the Industrial Commission of an agreement of the parties for compensation was not, under the circumstances, a final award, but an interlocutory award, and the Industrial Commission retained jurisdiction to enter a final award upon the filing of a full and complete medical report. Pratt v. Central Upholstery Co., 252 N.C. 716, 115 S.E.2d 27, 1960 N.C. LEXIS 444 (1960).

Presumption Additional Medical Treatment Related to Compensable Condition. —

Court of appeals properly vacated the North Carolina Industrial Commission’s finding that an employee failed to establish that his anxiety and depression were a result of his work-related accident because the employee was entitled to a presumption that additional medical treatment was related to his compensable conditions; the Commission did not apply any presumption, and instead placed the initial burden on the employee to prove causation for any medical compensation he sought. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

Continually placing the burden on an employee to prove that his or her symptoms are causally related to his or her admittedly compensable injury before he or she can receive further medical treatment ignores the prior award; accordingly, an admission of compensability approved under the Workers’ Compensation Act entitles an employee to a presumption that additional medical treatment is causally related to his or her compensable injury. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

Waiver of Right to Contest Compensability of Injuries. —

Defendants waived their right to contest the compensability of claimant’s injuries, and thus, the award of compensation became final, where the defendants knew that claimant might have been a subcontractor on the day of the accident, but although they made payments without prejudice to their rights, they did not investigate the claimant’s status within the prescribed time. Higgins v. Michael Powell Bldrs., 132 N.C. App. 720, 515 S.E.2d 17, 1999 N.C. App. LEXIS 346 (1999).

Change of Condition Following Complete Settlement. —

After plaintiff had been awarded compensation for partial disability, a hearing was had to determine whether there had been a change of condition. Plaintiff alleged partial deafness. The matter was heard several times, and finally a compromise was approved whereby plaintiff was paid a lump sum “as a full and complete settlement.” Later plaintiff asked for another hearing because of another change of condition. It was held that in the absence of fraud or mutual mistake, or in the absence of consent on defendant’s part, the agreement was binding. Recovery was denied. Morgan v. Town of Norwood, 211 N.C. 600, 191 S.E. 345, 1937 N.C. LEXIS 157 (1937).

Where plaintiff’s initial compensation award for temporary total disabilities was determined by agreement prior to the time plaintiff became fully aware of the extent of his injuries, and plaintiff’s initial claim was closed upon the filing of Form 28B, the proper procedure for presenting plaintiff’s claim for his alleged permanent disabilities was through the statutorily prescribed procedure for compensation for substantial change of condition. Chisholm v. Diamond Condominium Constr. Co., 83 N.C. App. 14, 348 S.E.2d 596, 1986 N.C. App. LEXIS 2634 (1986).

Where an employee accepts benefits from an agreement for compensation executed by himself, his employer, and the insurance carrier, which agreement was duly approved by the commission, the employee may attack and have such agreement set aside only for fraud, misrepresentation, undue influence, or mutual mistake. Brookover v. Borden, Inc., 100 N.C. App. 754, 398 S.E.2d 604, 1990 N.C. App. LEXIS 1227 (1990).

A Form 21 agreement constitutes an award by the Commission and such an award is conclusive and binding as to all questions of fact. Kisiah v. W.R. Kisiah Plumbing, Inc., 124 N.C. App. 72, 476 S.E.2d 434, 1996 N.C. App. LEXIS 1006 (1996).

Where the North Carolina Industrial Commission invalidated a Form 26 agreement because no medical documentation was submitted, it was not obliged under G.S. 97-91 to determine whether the claimant had undergone a G.S. 97-47 change of condition. Clawson v. Phil Cline Trucking, Inc., 168 N.C. App. 108, 606 S.E.2d 715, 2005 N.C. App. LEXIS 152 (2005).

The Full Industrial Commission erred in concluding that plaintiff was entitled to total and permanent disability benefits where the plaintiff did not meet his burden of showing, as required by G.S. 97-31, unless a presumption has been established through the filing of a Form 21, pursuant to this section, that he was totally disabled and therefore unable to earn any of the wages he was receiving at the time of his injury in the same or any other employment. Demery v. Converse, Inc., 138 N.C. App. 243, 530 S.E.2d 871, 2000 N.C. App. LEXIS 599 (2000).

Effect of Litigation of Earning Capacity on Review of Form 26 Agreement. —

Where plaintiff’s earning capacity was actually litigated and necessary to the outcome of his G.S. 97-47 hearing, the Industrial Commission was bound by that finding in determining if a Form 26 agreement was fair and just; therefore, its finding that the agreement was “improvidently approved” on the grounds that plaintiff had no earning capacity, thus qualifying him for benefits under G.S. 97-29, would be reversed. Lewis v. Craven Reg'l Med. Ctr., 134 N.C. App. 438, 518 S.E.2d 1, 1999 N.C. App. LEXIS 804 (1999), aff'd, 352 N.C. 668, 535 S.E.2d 33, 2000 N.C. LEXIS 750 (2000).

North Carolina Industrial Commission properly invalidated a Form 26 Agreement because the only medical report accompanying it, as required by G.S. 97-82(a), was a one-paragraph note to the claimant’s medical file, and the Commission lacked the relevant medical records necessary to properly determine whether to approve the agreement. Clawson v. Phil Cline Trucking, Inc., 168 N.C. App. 108, 606 S.E.2d 715, 2005 N.C. App. LEXIS 152 (2005).

Form 60 Could Not Be Set Aside. —

North Carolina Industrial Commission properly determined that defendants were not entitled to have the Industrial Commission Form 60 in which they admitted liability to plaintiff set aside because defendants were not completely unrelated to plaintiff’s employment; defendants were the parties with whom plaintiff’s employer had previously contracted for the purpose of obtaining workers’ compensation coverage applicable to plaintiff and with whom plaintiff should have been covered at the time of his injury. Spivey v. Wright's Roofing, 225 N.C. App. 106, 737 S.E.2d 745, 2013 N.C. App. LEXIS 58 (2013).

North Carolina Industrial Commission properly determined that defendants were not entitled to have the Industrial Commission Form 60 in which they admitted liability to plaintiff set aside because the doctrine of mutual mistake was not applicable to a workers’ compensation award made pursuant to a Form 60; an employer or carrier is not entitled to relief from a Form 60 based solely upon the fact that the party making the filing failed to adequately investigate all relevant issues before conceding compensability or liability. Spivey v. Wright's Roofing, 225 N.C. App. 106, 737 S.E.2d 745, 2013 N.C. App. LEXIS 58 (2013).

No Determination of Whether Agreement Was Fair and Just. —

North Carolina Industrial Commission erred by failing to undertake a full investigation to determine if the settlement agreement was fair and just, as required by G.S. 97-17 and G.S. 97-82; determination that there was insufficient evidence to justify setting aside the settlement agreements was not supported by competent evidence. Smythe v. Waffle House, 170 N.C. App. 361, 612 S.E.2d 345, 2005 N.C. App. LEXIS 999 (2005).

Findings of Fact and Conclusions of Law on Remand. —

North Carolina Industrial Commission did not err by vacating an order approving a settlement agreement on remand and then awarding full disability benefits effective to the date of the approval of the settlement agreement, without making findings of fact or conclusions of law to support the award, as the commission’s conclusions of law were merely a formalization of the appellate court’s conclusions of law so that independent fact-finding and conclusions of law were inappropriate. Smythe v. Waffle House, 182 N.C. App. 754, 643 S.E.2d 407, 2007 N.C. App. LEXIS 807 (2007).

Sanctions Not Imposed. —

Insurance carrier’s motion for sanctions was denied because the North Carolina Industrial Commission correctly ruled that the carrier and an employer were bound by their admission of compensability. Spivey v. Wright's Roofing, 225 N.C. App. 106, 737 S.E.2d 745, 2013 N.C. App. LEXIS 58 (2013).

§ 97-83. Commission is to make award after hearing.

If the employer and the injured employee or his dependents fail to reach an agreement in regard to benefits under this Article within 14 days after the employer has written or actual notice of the injury or death, or upon the arising of a dispute under this Article, either party may make application to the Commission for a hearing in regard to the matters at issue, and for a ruling thereon.

Immediately after such application has been received the Commission shall set the date of a hearing, which shall he held as soon as practicable and shall notify the parties at issue of the time and place of such hearing. The hearing or hearings shall be held in the city or county where the injury occurred, unless otherwise authorized by the Commission.

History. 1929, c. 120, s. 57; 1955, c. 1026, s. 121/2; 1977, c. 743; 1993 (Reg. Sess., 1994), c. 679, s. 3.3.

CASE NOTES

Provisions for Settlement of Any Matter in Dispute. —

In this section and G.S. 97-84 through 97-86 the General Assembly prescribed an adequate remedy by which any matter in dispute and incident to any claim under the provisions of the Workers’ Compensation Act may be determined and settled. Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504, 1948 N.C. LEXIS 357 (1948).

Remedy Is Exclusive. —

The remedy provided by this section and G.S. 97-84 through 97-86 is exclusive. Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504, 1948 N.C. LEXIS 357 (1948).

The Industrial Commission has exclusive authority to find facts except in matters determinative of jurisdiction. Hargus v. Select Foods, Inc., 271 N.C. 369, 156 S.E.2d 737, 1967 N.C. LEXIS 1198 (1967).

Employer Permitted to Request Hearing Regarding Employee’s Benefits. —

Former employer was not barred from asking the North Carolina Commission to resolve the issue regarding the payments of a former employee’s permanent partial disability benefits because the employer was permitted to request a hearing as to the employee’s benefits under the Act pursuant to G.S. 97-83. Polk v. Nationwide Recyclers, Inc., 192 N.C. App. 211, 664 S.E.2d 619, 2008 N.C. App. LEXIS 1521 (2008).

Employer and statutory insurer had standing under G.S. 97-83 to request a hearing with respect to a dispute between them and the employee as to the proper classification of the extent of the employee’s disability and the benefits owed to her. Pait v. Southeastern Gen. Hosp., 219 N.C. App. 403, 724 S.E.2d 618, 2012 N.C. App. LEXIS 389 (2012).

Employer and statutory insurer’s request for a hearing under G.S. 97-83 in order to resolve a dispute between them and the employee as to the proper classification of the extent of the employee’s disability and the benefits owed to her was a matter that was ripe for determination, as there was competent evidence that the employee’s condition had reached maximum medical improvement. Pait v. Southeastern Gen. Hosp., 219 N.C. App. 403, 724 S.E.2d 618, 2012 N.C. App. LEXIS 389 (2012).

Determination of Conflicting Claims to Compensation Already Paid. —

While the Industrial Commission has jurisdiction to amend its award in regard to persons entitled to receive compensation awarded by it, it has no jurisdiction to enter a judgment in favor of a party to recover compensation theretofore paid to another; rather, the superior court has jurisdiction to determine conflicting claims of persons in regard to compensation which has already been paid. Hill v. Cahoon, 252 N.C. 295, 113 S.E.2d 569, 1960 N.C. LEXIS 559 (1960).

Physician’s Claim for Services. —

The sole remedy of a physician seeking to recover for services to an injured employee, where the employee and employer are subject to the Workers’ Compensation Act, is by application to the Industrial Commission in accordance with this section and G.S. 97-84 through 97-86 to consider plaintiff ’s bill for such services, notwithstanding the fact that the employer denies liability for the injury on the ground that it did not arise out of and in the course of the employment. The physician may not challenge the constitutionality of the relevant provisions of this Chapter by an independent suit against the employee to recover for the medical services. Matros v. Owen, 229 N.C. 472, 50 S.E.2d 509, 1948 N.C. LEXIS 358 (1948).

Where a physician renders services to an injured employee under private contract without knowledge that the injury was covered by the Workers’ Compensation Act, and thereafter upon discovery that the injury is compensable files claim for such services with the Industrial Commission in order that the employee may get the benefit thereof, his remedy upon approval by the Industrial Commission in a sum less than the full amount of his claim is to request a hearing before the Commission, with right of appeal to the courts for review, pursuant to this section and G.S. 97-84 through 97-86; this remedy is exclusive and precludes the physician from maintaining an action against the employee to recover the full contractual amount for the services and attacking the constitutionality of the relevant provisions of the act. Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504, 1948 N.C. LEXIS 357 (1948).

How Minor Under 18 May Prosecute Claim. —

While, for the purposes of the act, a minor becomes sui juris upon attaining the age of 18 years, until then he may prosecute his proceeding for compensation only when represented by general guardian or other legal representative. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957).

Proceeding Should Not Be in Name of Deceased Employee. —

A proceeding under the act to determine the liability of defendants to the next of kin of a deceased employee should not be brought in the name of the deceased employee. Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844, 1936 N.C. LEXIS 360 (1936).

When Administratrix Is Proper Claimant. —

The administratrix of the decedent is the proper claimant in a proceeding for compensation only when there are no dependents, whole or partial. However, the joinder of the administratrix with the dependents in the prosecution of a claim will be treated as surplusage. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957). See G.S. 97-40 .

Failure to File Claim Did Not Bar Father’s Participation in Award. —

A father was not barred from participation in a workers’ compensation award for the death of his son by his failure to file a claim therefor, where the matter was heard by the Industrial Commission upon the request of the employer’s insurance carrier pursuant to this section. Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296, 1971 N.C. LEXIS 891 (1971).

The Commission used the wrong criteria when it denied defendants’ request under this section to modify disability payments, because the employee’s continued entitlement to benefits must be based on his post-injury earning capacity, not his post-injury wages. McGee v. Estes Express Lines, 125 N.C. App. 298, 480 S.E.2d 416, 1997 N.C. App. LEXIS 80 (1997).

When Employer Authorized to Cease Payments to Employee. —

Having received a Form 28U from the injured employee, the employer could cease making payments only on the basis of G.S. 97-18.1, 97-83, and 97-84. Roberts v. Dixie News, Inc., 189 N.C. App. 495, 658 S.E.2d 684, 2008 N.C. App. LEXIS 654 (2008).

North Carolina Industrial Commission properly addressed the claimant’s continuing disability where the claimant’s total or partial disability had consistently been identified as an issue before the Commission. Alphin v. Tart L.P. Gas Co., 192 N.C. App. 576, 666 S.E.2d 160, 2008 N.C. App. LEXIS 1659 (2008).

§ 97-83.1. Facilities for hearings; security.

The senior resident superior court judge shall provide suitable facilities for the conduct of hearings under this Article in the county or counties within the judge’s district at the time the Commission schedules hearings therein. The senior resident superior court judge shall, to the extent the judge determines necessary and practicable, provide or arrange for security at Commission hearings upon the request of a member or deputy of the Commission.

History. 1993 (Reg. Sess., 1994), c. 679, s. 5.7.

§ 97-84. Determination of disputes by Commission or deputy.

The Commission or any of its members or deputies shall hear the parties at issue and their representatives and witnesses, and shall determine the dispute in a summary manner. The case shall be decided and findings of fact issued based upon the preponderance of the evidence in view of the entire record. The award, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue shall be filed with the record of the proceedings, within 180 days of the close of the hearing record unless time is extended for good cause by the Commission, and a copy of the award shall immediately be sent to the parties in dispute. If the deputy or member of the Commission that heard the parties at issue and their representatives and witnesses is unable to determine the matters in dispute and issue an award, the Commission may assign another deputy or member to decide the case and issue an award.

History. 1929, c. 120, s. 58; 1951, c. 1059, s. 7; 1987, c. 729, s. 15; 2011-287, s. 20; 2017-150, s. 3.

Editor’s Note.

Session Laws 2011-287, s. 1, provides: “This act shall be known as the ‘Protecting and Putting North Carolina Back to Work Act.’ ”

Session Laws 2011-287, s. 20, which added the second sentence, was applicable to claims arising on or after June 24, 2011.

Session Laws 2017-150, s. 4, made the amendment to this section by Session Laws 2017-150, s. 3, effective July 20, 2017, and applicable to claims pending on or after the effective date of this act.

Effect of Amendments.

Session Laws 2011-287, s. 20, effective June 24, 2011, and applicable to claims arising on or after that date, added the second sentence.

Session Laws 2017-150, s. 3, inserted “or deputies” in the first sentence; substituted “The case shall be decided and findings of fact issued” for “The Commission shall decide the case and issue findings of fact” in the second sentence; deleted the former last sentence which read: “The parties may be heard by a deputy, in which event the hearing shall be conducted in the same way and manner prescribed for hearings which are conducted by a member of the Industrial Commission, and said deputy shall proceed to a complete determination of the matters in dispute, file his written opinion within 180 days of the close of the hearing record unless time is extended for good cause by the Commission, and the deputy shall cause to be issued an award pursuant to such determination.” and added the present last sentence. For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment on the 1951 amendment, which gave a deputy authority to make a complete determination of a dispute, see 29 N.C.L. Rev. 416 (1951).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For article, “Why Aren’t You Working?: Medlin with Proof of Disability Under the North Carolina Workers’ Compensation Act,” see 38 Campbell L. Rev. 211 (2016).

CASE NOTES

The Industrial Commission has exclusive original jurisdiction of the rights and remedies afforded by this Chapter. Carpenter v. Hawley, 53 N.C. App. 715, 281 S.E.2d 783, 1981 N.C. App. LEXIS 2725 (1981).

And Is Constituted a Special Tribunal. —

The Industrial Commission is primarily an administrative agency of the State, but when a claim for compensation is presented the Commission is constituted a special tribunal, is invested with certain judicial functions, and possesses the powers and incidents of a court. Hanks v. Southern Pub. Util. Co., 210 N.C. 312, 186 S.E. 252, 1936 N.C. LEXIS 93 (1936).

The Commission is the sole fact-finding agency in cases in which it has jurisdiction. The finding of facts is one of the primary duties of the Commission. Morgan v. Thomasville Furn. Indus., 2 N.C. App. 126, 162 S.E.2d 619, 1968 N.C. App. LEXIS 883 (1968).

Under this section the Commission is made a fact-finding body. The finding of facts is one of its primary duties. Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515, 1941 N.C. LEXIS 96 (1941); Brice v. Robertson House Moving, Wrecking & Salvage Co., 249 N.C. 74, 105 S.E.2d 439, 1958 N.C. LEXIS 440 (1958).

Industrial Commission Authority. —

North Carolina Industrial Commission (Commission) had authority to award salary continuation benefits under G.S. 143-166.19 because (1) North Carolina case law gave the Commission such authority, and (2) G.S. 143-166.19 authorized the Commission, upon a timely appeal from an employer’s decision, to issue such an award, so the Commission’s role was not purely advisory. Yerby v. N.C. Dep't of Pub. Safety/Div. of Juvenile Justice, 232 N.C. App. 515, 754 S.E.2d 209, 2014 N.C. App. LEXIS 171 (2014).

The Commission is without authority to sit en banc; the Full Commission shall be composed of three member panels. Sims v. Charmes, 142 N.C. App. 154, 542 S.E.2d 277, 2001 N.C. App. LEXIS 46 (2001).

And Determines Credibility and Weight of Testimony. —

The Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. It may accept all the testimony of a witness or reject all the testimony of a witness. It may accept a part of the testimony of a witness and reject a part of the testimony of such witness. It is not required to accept the uncontradicted testimony of a witness. Morgan v. Thomasville Furn. Indus., 2 N.C. App. 126, 162 S.E.2d 619, 1968 N.C. App. LEXIS 883 (1968).

In passing upon issues of fact, the Commission, like any other trier of facts, is the sole judge of the credibility of the witnesses, and of the weight to be given to their testimony. It may accept or reject the testimony of a witness, either in whole or in part, depending solely upon whether it believes or disbelieves the same. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265, 1951 N.C. LEXIS 604 (1951); Moses v. Bartholomew, 238 N.C. 714, 78 S.E.2d 923, 1953 N.C. LEXIS 620 (1953); Smith v. William Muirhead Constr. Co., 27 N.C. App. 286, 218 S.E.2d 717, 1975 N.C. App. LEXIS 1822 (1975).

The Industrial Commission is the sole judge of the truthfulness and weight of the testimony of the witnesses in the discharge of its function as the fact-finding authority under the act. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760, 1950 N.C. LEXIS 478 (1950).

Contradictions in the testimony go to its weight, which is for the fact-finding body, the Industrial Commission. Evans v. Topstyle, Inc., 270 N.C. 134, 153 S.E.2d 851, 1967 N.C. LEXIS 1310 (1967).

North Carolina Industrial Commission is the sole judge of the credibility of the witnesses and the weight of the evidence, and the Commission’s findings of fact are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary. Davis v. Harrah's Cherokee Casino, 362 N.C. 133, 655 S.E.2d 392, 2008 N.C. LEXIS 30 (2008).

Remedy Is Exclusive. —

The remedy provided by this section and G.S. 97-83, 97-85, and 97-86 is exclusive. Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504, 1948 N.C. LEXIS 357 (1948).

Prerogative of Commission to Determine Credibility and Weight of Evidence. —

The full Commission has the authority to make additional findings of fact, and where it found that plaintiff failed to prove that he was injured while making an arrest was supported by competent evidence, plaintiff’s case was left without a foundation. In not accepting plaintiff’s contrary version of the event involved, the Commission exercised it prerogative under the law to determine the credibility and weight of the evidence presented. Griffey v. Town of Hot Springs, 87 N.C. App. 290, 360 S.E.2d 457, 1987 N.C. App. LEXIS 3164 (1987).

Duty and Responsibility of Commission to Decide All Matters of Controversy Between Parties. —

Plaintiff’s claim, initially decided by a hearing officer, embodied a claim for future medical expenses, and when the matter was appealed to the full Commission by defendants it was the duty and responsibility of the full Commission to decide all of the matters in controversy between the parties, indeed, if necessary, the full Commission should have conducted a full evidentiary hearing to resolve all matters embodied in plaintiff’s claim; inasmuch as the Industrial Commission decides claims without formal pleadings, it was the duty of the Commission to consider every aspect of plaintiff’s claim whether before a hearing officer or on appeal to the full Commission. Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610, 1988 N.C. App. LEXIS 1061 (1988).

Duty of Commission to Make Detailed Findings of Fact to Every Aspect of Case. —

The “full Commission” is not an appellate court in the sense that it reviews decisions of a trial court; it is the duty and responsibility of the full Commission to make detailed findings of fact and conclusions of law with respect to every aspect of the case before it. Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610, 1988 N.C. App. LEXIS 1061 (1988).

The full Commission has the authority to determine a case from the written transcript of the hearing before the deputy commissioner or hearing officer; however, when that transcript is insufficient to resolve all the issues, the full Commission must conduct its own hearing or remand the matter for further hearing. Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610, 1988 N.C. App. LEXIS 1061 (1988).

After review of a transcript of a hearing before a deputy commissioner or hearing officer, the full Commission must make findings of fact, draw conclusions of law therefrom and enter the appropriate order; the better practice would be for the full Commission to make its own findings of fact and not adopt the findings of fact of the deputy commissioner or hearing officer. Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610, 1988 N.C. App. LEXIS 1061 (1988).

Duty of Commission as Fact-Finder. —

Appellate courts must follow the “any competent evidence” standard in deciding whether the evidence permits a determination by the Commission, which is the fact-finder. The fact-finder, however, is not required so to view the evidence. Rather, its duty is to weigh the evidence, resolve conflicts therein, and make its own determination as to weight and credibility. Wagoner v. Douglas Battery Mfg. Co., 80 N.C. App. 163, 341 S.E.2d 120, 1986 N.C. App. LEXIS 2160 (1986).

Function of the Commission necessarily includes determining paternity of an illegitimate child when such a determination is necessary to resolve a dispute as to who is entitled to the compensation due under this Chapter. Carpenter v. Hawley, 53 N.C. App. 715, 281 S.E.2d 783, 1981 N.C. App. LEXIS 2725 (1981).

Specific findings of fact by the Industrial Commission are required. These must cover the crucial questions of fact upon which plaintiff ’s right to compensation depends. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596, 1955 N.C. LEXIS 387 (1955); State v. Haywood Elec. Membership Corp., 260 N.C. 59, 131 S.E.2d 865, 1963 N.C. LEXIS 637 (1963); Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747, 1963 N.C. LEXIS 707 (1963); Nello L. Teer Co. v. North Carolina State Hwy. Comm'n, 265 N.C. 1, 143 S.E.2d 247, 1965 N.C. LEXIS 937 (1965); Morgan v. Thomasville Furn. Indus., 2 N.C. App. 126, 162 S.E.2d 619, 1968 N.C. App. LEXIS 883 (1968); State ex rel. Utils. Comm'n v. Queen City Coach Co., 4 N.C. App. 116, 166 S.E.2d 441, 1969 N.C. App. LEXIS 1457 (1969); Cannady v. Gold Kist, 43 N.C. App. 482, 259 S.E.2d 342, 1979 N.C. App. LEXIS 3118 (1979).

It is impossible to exaggerate how essential the proper exercise of the fact-finding authority of the Industrial Commission is to the due administration of the act. The findings of fact of the Industrial Commission should tell the full story of the event giving rise to the claim for compensation. They must be sufficiently positive and specific to enable the court on appeal to determine whether they are supported by the evidence and whether the law has been properly applied to them. It is obvious that the court cannot ascertain whether the findings of fact are supported by the evidence unless the Industrial Commission reveals with at least a fair degree of positiveness what facts it finds. It is likewise plain that the court cannot decide whether the conclusions of laws and the decision of the Industrial Commission rightly recognize and effectively enforce the rights of the parties upon the matters in controversy if the Industrial Commission fails to make specific findings as to each material fact upon which those rights depend. Morgan v. Thomasville Furn. Indus., 2 N.C. App. 126, 162 S.E.2d 619, 1968 N.C. App. LEXIS 883 (1968); Cannady v. Gold Kist, 43 N.C. App. 482, 259 S.E.2d 342, 1979 N.C. App. LEXIS 3118 (1979).

But the Commission is not required to make a finding as to each detail of the evidence or at every inference or shade of meaning to be drawn therefrom. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596, 1955 N.C. LEXIS 387 (1955).

The Commission must make specific findings of fact regarding each material fact upon which a plaintiff ’s right to compensation depends. The Commission is not required, however, to make findings as to facts presented by the evidence that are not material to plaintiff ’s claim. Guy v. Burlington Indus., 74 N.C. App. 685, 329 S.E.2d 685, 1985 N.C. App. LEXIS 3554 (1985).

The Commission must make specific findings of fact as to each material fact upon which the rights of the parties in a case involving a claim for compensation depend. Moore v. J.P. Stevens & Co., 47 N.C. App. 744, 269 S.E.2d 159, 1980 N.C. App. LEXIS 3210 (1980); Walston v. Burlington Indus., 49 N.C. App. 301, 271 S.E.2d 516, 1980 N.C. App. LEXIS 3403 (1980), rev'd, 304 N.C. 670, 285 S.E.2d 822, 1982 N.C. LEXIS 1239 (1982).

When evidence is presented in support of a material issue that has been raised, it becomes necessary for the Commission to make a finding one way or the other. Smith v. William Muirhead Constr. Co., 27 N.C. App. 286, 218 S.E.2d 717, 1975 N.C. App. LEXIS 1822 (1975).

Where the Commission awards compensation for disablement due to an occupational disease encompassed by G.S. 97-53(13), the opinion and award must contain explicit findings as to the characteristics, symptoms and manifestations of the disease from which the plaintiff suffers, as well as a conclusion of law as to whether the disease falls within the statutory provision. Moore v. J.P. Stevens & Co., 47 N.C. App. 744, 269 S.E.2d 159, 1980 N.C. App. LEXIS 3210 (1980).

Where the record contains conflicting evidence concerning the claimant’s capacity to work because of his disability, the Commission is required to make findings of fact which support its conclusion as to the presence or absence of disability as defined by G.S. 97-2(9). Priddy v. Cone Mills Corp., 58 N.C. App. 720, 294 S.E.2d 743, 1982 N.C. App. LEXIS 2815 (1982).

Although the Industrial Commission is free to accept or reject any or all of plaintiff ’s evidence in making its award, it must make specific findings as to the facts upon which a compensation claim is based, including the extent of a claimant’s disability. The order must contain more than mere recitals of medical opinion to resolve these basic issues. Priddy v. Cone Mills Corp., 58 N.C. App. 720, 294 S.E.2d 743, 1982 N.C. App. LEXIS 2815 (1982).

Findings May Not Rest upon Evidence Not Presented to Commission. —

In judicial proceedings before the Commission, the facts found must rest upon admissions made by the parties, facts agreed, stipulations entered into and noted at the hearing, and evidence offered in open court, after all parties have been given full opportunity to be heard. Recourse may not be had to records, files, evidence, or data not thus presented to the Commission for consideration. Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777, 1953 N.C. LEXIS 704 (1953); Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743, 1978 N.C. LEXIS 1019 (1978).

Findings and Conclusions Outside Scope of Hearing Are Improper. —

Where a full Commission limited the initial hearing to defendant’s motion to dismiss for lack of jurisdiction, given the limited scope of the hearing it was patently improper for the deputy commissioner to find and conclude that plaintiff had suffered an injury arising from his employment with defendant, and it was similarly improper for the full Commission, on appeal from the opinion and award of the deputy commissioner, to find and conclude that plaintiff had a compensable injury, regardless of its ruling with respect to jurisdiction. Weston v. Sears Roebuck & Co., 65 N.C. App. 309, 309 S.E.2d 273, 1983 N.C. App. LEXIS 3462 (1983).

Workers’ compensation claimant had no constitutional right to prevent the public disclosure of the claimant’s award because the claimant’s asserted privacy interests did not outweigh the public interests at stake, and statutory safeguards mitigated against the unwarranted disclosure of personal information. Mastanduno v. Nat'l Freight Indus., 262 N.C. App. 77, 821 S.E.2d 592, 2018 N.C. App. LEXIS 1024 (2018), writ denied, 371 N.C. 785, 819 S.E.2d 559, 2018 N.C. LEXIS 982 (2018), cert. denied, 372 N.C. 52, 822 S.E.2d 636, 2019 N.C. LEXIS 109 (2019), cert. denied, 140 S. Ct. 269, 205 L. Ed. 2d 133, 2019 U.S. LEXIS 5952 (2019).

Cause May Be Remanded for Findings. —

If the findings of fact of the Commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the cause must be remanded to the Commission for proper findings of fact. Moore v. J.P. Stevens & Co., 47 N.C. App. 744, 269 S.E.2d 159, 1980 N.C. App. LEXIS 3210 (1980).

Conclusive Effect of Findings. —

The Industrial Commission is the judge of the credibility of the evidence and is the fact-finding body under the act. Where the evidence before the Commission is contradictory, the findings of fact by the Commission, which are nonjurisdictional, are conclusive on appeal to the Court of Appeals. Priddy v. Blue Bird Cab Co., 9 N.C. App. 291, 176 S.E.2d 26, 1970 N.C. App. LEXIS 1343 (1970).

Right of Party to Testify and Present Evidence. —

Under this section, a party to workers’ compensation proceedings is afforded the right to testify and present such relevant evidence as he may choose. Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743, 1978 N.C. LEXIS 1019 (1978).

When a claimant refrains from presenting evidence in reliance on an inaccurate statement by a deputy commissioner that a certain matter is uncontested, the right guaranteed by this section has been abridged and the claimant’s failure to present such evidence may not be used against him. Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743, 1978 N.C. LEXIS 1019 (1978).

When Employer Authorized to Cease Payments to Employee. —

Having received a Form 28U from the injured employee, the employer could cease making payments only on the basis of G.S. 97-18.1, 97-83, and 97-84. Roberts v. Dixie News, Inc., 189 N.C. App. 495, 658 S.E.2d 684, 2008 N.C. App. LEXIS 654 (2008).

Agreement Approved by Commission Is as Binding as Award. —

An agreement for the payment of compensation, when approved by the Commission, is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed on appeal. Neal v. Clary, 259 N.C. 163, 130 S.E.2d 39, 1963 N.C. LEXIS 505 (1963).

Commission May Vacate Award Entered Contrary to Law. —

The Commission is privileged to vacate an award which the Commission itself admits was entered contrary to law. Ruth v. Carolina Cleaners, 206 N.C. 540, 174 S.E. 445, 1934 N.C. LEXIS 235 (1934).

Deputy Commissioner May Set Aside Opinion and Award. —

Where, in order to allow defendants to depose a physician, the Deputy Commissioner entered an order to keep the record open, but before defendants had an opportunity to depose the physician, the Deputy Commissioner entered an Opinion and Award, this Act vested the Deputy Commissioner with the inherent authority to set aside his Opinion and Award once informed of the omission of the physician’s testimony. Plummer v. Henderson Storage Co., 118 N.C. App. 727, 456 S.E.2d 886, 1995 N.C. App. LEXIS 381 (1995).

Motions for Additional Evidence and for Rehearing Held Properly Denied. —

The Industrial Commission properly denied employee’s motion to take additional evidence on appeal and motion for a rehearing on all issues, where employee’s claim was denied by the hearing commissioner on the ground that he did not sustain an injury by accident arising out of and in the course of his employment, and where additional medical testimony proposed had no bearing on how the accident occurred and was only more elaborative than the testimony at the original hearing. Cooke v. Thurston Motor Lines, 13 N.C. App. 342, 185 S.E.2d 445, 1971 N.C. App. LEXIS 1247 (1971), dismissed, Cooke v. Thurston Motors Lines, Inc., 280 N.C. 721, 186 S.E.2d 923, 1972 N.C. LEXIS 1300 (1972).

True Copy to Be Sent to Parties. —

This section requires that when the Commission or one of its deputies determines a dispute before it, a copy of the opinion and award be sent to the parties; this necessarily means a true copy. Crawford v. McLaurin Trucking Co., 78 N.C. App. 219, 336 S.E.2d 647, 1985 N.C. App. LEXIS 4247 (1985).

Incorrect Notice Did Not Affect Right to Appeal. —

Since the law permits appeals only from actual rather than supposed decisions, the incorrect notice of a decision that had not been made had no effect on plaintiff’s right to appeal from the decision that was made. Crawford v. McLaurin Trucking Co., 78 N.C. App. 219, 336 S.E.2d 647, 1985 N.C. App. LEXIS 4247 (1985).

Findings Held Insufficient to Support Award Determination. —

Although an employee’s doctor had not released the employee to return to work, that fact alone was not sufficient to permit an award of benefits under the North Carolina Workers’ Compensation Act G.S. 97-1 et seq., and the North Carolina Industrial Commission erred by awarding the employee temporary total disability benefits without determining whether the employee had the capacity to return to work at pre-injury wages in the same or some other job. Parker v. Wal-Mart Stores, Inc., 156 N.C. App. 209, 576 S.E.2d 112, 2003 N.C. App. LEXIS 70 (2003).

The North Carolina Industrial Commission erred in finding that an employee was entitled to a presumption of disability due to the employer and its carrier failing to accept or deny the claim within the time period after filing a Form 63, because the commission improperly shifted to the employer the burden of proving that suitable jobs were available to the employee; since the burden remained on the employee to prove his disability, the commission was obligated to make specific findings as to the existence and extent of any disability, and since evidence was presented that the employee was still able to perform some jobs, the commission’s findings were inadequate to establish that the employee was disabled because of pain. Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 599 S.E.2d 508, 2004 N.C. LEXIS 915 (2004).

North Carolina Industrial Commission had to modify a finding of fact and conclusion of law because the finding was simply a recitation of the evidence and did not constitute a finding of fact sufficient to comply with the Workers’ Compensation Act; the Commission had to explain its finding of no permanent impairment, given the nearly eight years of treatment between a doctor’s medical opinion and the date when the condition was found compensable. Harrison v. Gemma Power Sys., LLC, 369 N.C. 572, 799 S.E.2d 855, 2017 N.C. LEXIS 402 (2017).

Award Determination Upheld. —

Award of workers’ compensation benefits by the Industrial Commission was upheld as the Commission’s finding that a per diem “allowance” paid to the employee was “in lieu of wages” under G.S. 97-2(5) was supported by evidence; the allowance was paid regardless of whether employee traveled and was spent at the employee’s complete discretion. Greene v. Conlon Constr. Co., 184 N.C. App. 364, 646 S.E.2d 652, 2007 N.C. App. LEXIS 1430 (2007).

Where an employee worked as a teacher and sought workers’ compensation benefits, arguing that the employee’s generalized anxiety disorder (GAD) was an occupational disease caused by a hostile and abusive classroom environment, the North Carolina Industrial Commission properly concluded that the employee’s GAD was not an occupational disease because, although it was inappropriate to imply that the employee’s fault played a role in determining compensability, the employee failed to prove either that the employee’s work increased the risk of GAD or significantly contributed to it, and the Commission did not ignore the testimony of the employee’s expert. Hassell v. Onslow County Bd. of Educ., 362 N.C. 299, 661 S.E.2d 709, 2008 N.C. LEXIS 498 (2008).

Insurer’s pre-term cancellation of an insured’s workers’ compensation coverage was both valid and effective pursuant to G.S. 58-36-105 because, although the insured had requested a premium reduction, it did not make any part of the installment payment by the due date; even after the adjustment, the insured still owed an outstanding balance as of the due date, and by the terms of the Rate Bureau table, it owed an installment payment of one-third of that amount, yet it paid nothing by the due date, and competent evidence in the record supported the commission’s findings and conclusions. Bell v. Hype Mfg., LLC, 210 N.C. App. 235, 705 S.E.2d 926, 2011 N.C. App. LEXIS 299 (2011).

Award Determination Vacated. —

North Carolina Industrial Commission erred in determining that an injured worker was not an “employee” of the alleged employer for purposes of the North Carolina Workers’ Compensation Act because the proceedings at issue violated the Act inasmuch as they were heard by the first deputy commissioner and a second deputy commissioner rendered an opinion and order, and a plain reading of the statute at issue required a single deputy commissioner to both hear the evidence and render an opinion and award. Bentley v. Jonathan Piner Constr., 249 N.C. App. 466, 790 S.E.2d 379, 2016 N.C. App. LEXIS 966 (2016), superseded, 254 N.C. App. 362, 802 S.E.2d 161, 2017 N.C. App. LEXIS 561 (2017).

North Carolina Industrial Commission erred in determining that an injured worker was not an “employee” of the alleged employer for purposes of the North Carolina Workers’ Compensation Act because the proceedings at issue violated the Act inasmuch as they were heard by the first deputy commissioner and a second deputy commissioner rendered an opinion and order, and a plain reading of the statute at issue required a single deputy commissioner to both hear the evidence and render an opinion and award. Bentley v. Jonathan Piner Constr., 249 N.C. App. 466, 790 S.E.2d 379, 2016 N.C. App. LEXIS 966 (2016), superseded, 254 N.C. App. 362, 802 S.E.2d 161, 2017 N.C. App. LEXIS 561 (2017).

§ 97-85. Review of award.

  1. If application is made to the Commission within 15 days from the date when notice of the award shall have been given, the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award: Provided, however, when application is made for review of an award, and such an award has been heard and determined by a commissioner of the North Carolina Industrial Commission, the commissioner who heard and determined the dispute in the first instance, as specified by G.S. 97-84, shall be disqualified from sitting with the full Commission on the review of such award, and the chairman of the Industrial Commission shall designate a deputy commissioner to take such commissioner’s place in the review of the particular award. The deputy commissioner so designated, along with the two other commissioners, shall compose the full Commission upon review. Provided further, the chairman of the Industrial Commission shall have the authority to designate a deputy commissioner to take the place of a commissioner on the review of any case, in which event the deputy commissioner so designated shall have the same authority and duty as does the commissioner whose place he occupies on such review.
  2. Unless waived by consent of the parties, all hearings of the full Commission shall be recorded. Court reporters, transcription personnel, or electronic or other mechanical devices may be utilized. If an electronic or other mechanical device is utilized, it shall be the duty of some person designated by the Commission to operate the device while a hearing is in progress, and the recording shall be preserved and may be transcribed, as required. If stenotype, shorthand, or stenomask equipment is used, the original tapes, notes, discs, or other records are the property of the State and the Commission shall keep them in its custody. The compensation and allowances of reporters shall be fixed by the Commission in a manner that is consistent with policies set by the Administrative Office of the Courts for the General Court of Justice.

History. 1929, c. 120, s. 59; 1963, c. 402; 1977, cc. 390, 431; 2013-163, s. 1.

Editor’s Note.

Session Laws 2013-163, s. 2 provides: “Nothing in this act shall be construed to obligate the General Assembly to appropriate funds to implement the provisions of this act.”

Effect of Amendments.

Session Laws 2013-163, s. 1, effective August 1, 2013, designated the formerly undesignated provisions of this section as present subsection (a); and added subsection (b).

Legal Periodicals.

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

CASE NOTES

Continuing Jurisdiction of Commission. —

The Industrial Commission has, within the limits prescribed by statute, continuing jurisdiction, and hence as an administrative agency empowered to hear evidence and render awards thereon affecting the rights of workers, has and ought to have authority to make its own records speak the truth in order to protect its own decrees from mistake of material facts and the blight of fraud; therefore, when the full Commission finds and asserts that the award was not made in compliance with the provisions of the statute, then manifestly the Commission is entitled to vacate an award which the Commission itself admits was contrary to law. McDowell v. Town of Kure Beach, 251 N.C. 818, 112 S.E.2d 390, 1960 N.C. LEXIS 365 (1960).

Remedy Is Exclusive. —

The remedy provided by this section and G.S. 97-83, 97-84, and 97-86 is exclusive. Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504, 1948 N.C. LEXIS 357 (1948).

The Commission is the fact-finding body under the act. The finding of facts is one of the primary duties of the Commission. Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608, 1962 N.C. LEXIS 432 (1962).

As the full Commission is the ultimate fact finder, it does not have to make specific findings of fact when it modifies a hearing commissioner’s findings. Arp v. Parkdale Mills, Inc., 150 N.C. App. 266, 563 S.E.2d 62, 2002 N.C. App. LEXIS 510 (2002), rev'd, 356 N.C. 657, 576 S.E.2d 326, 2003 N.C. LEXIS 36 (2003).

Whether the full Industrial Commission conducts a hearing or reviews a cold record, G.S. 97-85 places the ultimate fact-finding function with the Commission and not the hearing officer; it is the Commission that ultimately determines credibility, whether from a cold record or from live testimony. In affirming a denial of worker’s compensation benefits, where the full Commission did not rely solely upon a deputy commissioner’s credibility determination, and where it considered all the evidence and made factual findings different from the findings of the deputy commissioner, it fulfilled its duty to be the ultimate fact-finder. Dunn v. Marconi Communs., Inc., 161 N.C. App. 606, 589 S.E.2d 150, 2003 N.C. App. LEXIS 2260 (2003).

Whether the full North Carolina Industrial Commission conducts a hearing or reviews a cold record, G.S. 97-85 places the ultimate fact-finding function with the commission, not the hearing officer, and it is the commission that ultimately determines credibility, whether from a cold record or from live testimony; the commission did not err by failing to consider the deputy commissioner’s personal observations that an employee was exaggerating any pain he was experiencing at the hearing before the deputy and by failing to place sufficient weight on a doctor’s opinion that the employee had reached maximum medical improvement. Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 599 S.E.2d 508, 2004 N.C. LEXIS 915 (2004).

Employer’s allegations that the claimant’s counsel engaged in witness tampering was not properly before the court because G.S. 97-85 placed the ultimate fact-finding function with the Commission; thus, the Commission was under no obligation to consider a deputy commissioner’s finding regarding the credibility of the claimant’s medical experts. Matthews v. Wake Forest Univ., 187 N.C. App. 780, 653 S.E.2d 557, 2007 N.C. App. LEXIS 2522 (2007).

The Commission is without authority to sit en banc; the Full Commission shall be composed of three member panels. Sims v. Charmes, 142 N.C. App. 154, 542 S.E.2d 277, 2001 N.C. App. LEXIS 46 (2001).

Commission Can Accept Deputy Commissioner’s Credibility Determinations. —

It was properly within the province of the Commission to elect, in several instances, to accept the deputy commissioner’s credibility determinations. Fuller v. Motel 6, 136 N.C. App. 727, 526 S.E.2d 480, 2000 N.C. App. LEXIS 150 (2000).

Deputy Commissioner’s Findings of Fact Not Conclusive. —

The deputy commissioner’s findings of fact are not conclusive; only the Full Commission’s findings of fact are conclusive. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

Upon appeal from a deputy commissioner’s award, the Commission may receive further evidence regardless of whether it was newly discovered evidence. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

The Commission may weigh the evidence presented to the deputy commissioner and make its own determination as to the weight and credibility of the evidence. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

The Commission may strike the deputy commissioner’s findings of fact even if no exception was taken to the findings. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

The Commission is the fact-finding body under the Workers’ Compensation Act. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976).

Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), which overruled Sanders v. Broyhill Furniture Industries, 124 N.C. App. 637, 478 S.E.2d 223 (1996), which had required the commission to give deference to the credibility findings of the deputy commissioner, was to be applied retroactively to cases remanded by it to the Industrial Commission. Brice v. Sheraton Inn, 137 N.C. App. 131, 527 S.E.2d 323, 2000 N.C. App. LEXIS 258 (2000).

Full Commission of the North Carolina Industrial Commission was entitled to reverse a deputy commissioner’s determination of credibility, even if that reversal was based upon an examination of the cold record rather than live testimony; therefore, the Full Commission did not err by reassessing the evidence and, contrary to the deputy commissioner, finding that an injured employee’s fall at her home was a direct and natural result of the employee’s prior fall and injury at work. Brown v. Kroger Co., 169 N.C. App. 312, 610 S.E.2d 447, 2005 N.C. App. LEXIS 611 (2005).

Failure of Commission to Review Evidence. —

Without the depositions containing the medical evidence necessary to resolve the issues, the full Commission could not have determined what issues might have been raised by the evidence; therefore, before the full Commission attempted to address the merits of plaintiff’s claim it should have requested the parties to submit the missing depositions. Slatton v. Metro Air Conditioning, Inc., 117 N.C. App. 226, 450 S.E.2d 550, 1994 N.C. App. LEXIS 1203 (1994).

Plenary Powers of Commission to Review Awards. —

Giving the language of this section the liberal construction to which it is entitled, the powers which are granted therein to the full Commission to “review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award,” are plenary powers to be exercised in the sound discretion of the Commission. Lynch v. M.B. Kahn Constr. Co., 41 N.C. App. 127, 254 S.E.2d 236, 1979 N.C. App. LEXIS 2388, cert. denied, 298 N.C. 298, 259 S.E.2d 914, 1979 N.C. LEXIS 1590 (1979).

Under its plenary powers the Commission may adopt, modify, or reject the findings of fact of the hearing commissioner, and in doing so may weigh the evidence and make its own determination as to the weight and credibility of the evidence. Hobgood v. Anchor Motor Freight, 68 N.C. App. 783, 316 S.E.2d 86 (1984). In accord with second paragraph in the main volume. See Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

Whether “good ground be shown therefore” in any particular case is a matter within the sound discretion of the Commission, and the Commission’s determination in that regard will not be reviewed on appeal absent a showing of manifest abuse of discretion. Lynch v. M.B. Kahn Constr. Co., 41 N.C. App. 127, 254 S.E.2d 236, 1979 N.C. App. LEXIS 2388, cert. denied, 298 N.C. 298, 259 S.E.2d 914, 1979 N.C. LEXIS 1590 (1979); Thompson v. Burlington Indus., 59 N.C. App. 539, 297 S.E.2d 122, 1982 N.C. App. LEXIS 3137 (1982), cert. denied, 307 N.C. 582, 299 S.E.2d 650, 1983 N.C. LEXIS 1208 (1983).

Power to Resolve Conflicts. —

The Industrial Commission has the duty and authority to resolve conflicts in the testimony, whether medical or not, and the conflict should not always be resolved in favor of the claimant. Cauble v. Macke Co., 78 N.C. App. 793, 338 S.E.2d 320, 1986 N.C. App. LEXIS 1993 (1986).

Scope of Issues on Appeals to Full Commission. —

When a matter is “appealed” to the full North Carolina Industrial Commission pursuant to to G.S. 97-85, it was the duty and responsibility of the full Commission to decide all of the matters in controversy between the parties. Abernathy v. Sandoz Chems./Clariant Corp., 151 N.C. App. 252, 565 S.E.2d 218, 2002 N.C. App. LEXIS 724, cert. denied, 356 N.C. 432, 572 S.E.2d 421, 2002 N.C. LEXIS 1220 (2002).

North Carolina Industrial Commission’s decision that a workers’ compensation claimant had sustained a change in condition was reversed as an employer did not have notice that the Commission would address a change in condition or the claimant’s inability to comply with a mandated work schedule as the Commission had concluded that evidence that the claimant’s condition had worsened was not relevant. Branch v. Carolina Shoe Co., 172 N.C. App. 511, 616 S.E.2d 378, 2005 N.C. App. LEXIS 1802 (2005).

Where an employee who filed a total disability benefits claim in a North Carolina Industrial Commission (NCIC) proceeding died before the determination was made by the deputy commissioner, and the decedent’s estate administratrix filed a form in order to be substituted in and to seek death benefits, the issue of death benefits was properly before the NCIC for determination, as the necessary form for review was filed and pursuant to G.S. 97-85, the administratrix was entitled to have the full NCIC respond to the questions directly raised by the appeal from the commissioner’s determination; the employer and its insurer did not show that they were denied an opportunity to be heard, as they chose not to ask the NCIC for the opportunity to present additional evidence at a time when they were aware that death benefits would be at issue. Payne v. Charlotte Heating & Air Conditioning, 172 N.C. App. 496, 616 S.E.2d 356, 2005 N.C. App. LEXIS 1782 (2005).

Commission to Decide All Matters in Controversy. —

When the matter is “appealed” to the full commission pursuant to this section, it is the duty and responsibility of the full commission to decide all of the matters in controversy between the parties. Viergegge v. North Carolina State Univ., 105 N.C. App. 633, 414 S.E.2d 771, 1992 N.C. App. LEXIS 303 (1992).

Review of Findings of Hearing Commissioner. —

The full Commission, upon reviewing an award by the hearing commissioner, is not bound by findings of fact supported by the evidence, but may reconsider evidence and adopt or reject findings and conclusions of the hearing commissioner. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982); Pollard v. Krispy Waffle #1, 63 N.C. App. 354, 304 S.E.2d 762, 1983 N.C. App. LEXIS 3046 (1983); Godley v. Hackney & Sons, 65 N.C. App. 155, 308 S.E.2d 492, 1983 N.C. App. LEXIS 3388 (1983).

The plenary powers of the Commission are such that upon review, it may adopt, modify, or reject the findings of fact of the hearing commissioner, and in doing so may weigh the evidence and make its own determination as to the weight and credibility of the evidence. Hollar v. Montclair Furn. Co., 48 N.C. App. 489, 269 S.E.2d 667, 1980 N.C. App. LEXIS 3286 (1980); Pollard v. Krispy Waffle #1, 63 N.C. App. 354, 304 S.E.2d 762, 1983 N.C. App. LEXIS 3046 (1983).

The hearing officer is the best judge of the credibility of witnesses because he is a firsthand observer of witnesses whose testimony he must weigh and accept or reject. However, the full Commission has the power to review determinations made by deputy commissioners on the credibility of witnesses. Pollard v. Krispy Waffle #1, 63 N.C. App. 354, 304 S.E.2d 762, 1983 N.C. App. LEXIS 3046 (1983).

Only the findings of the Commission are conclusive, not those of the hearing officer. Hobgood v. Anchor Motor Freight, 68 N.C. App. 783, 316 S.E.2d 86, 1984 N.C. App. LEXIS 3431 (1984).

Workers’ compensation commissioners were entitled to absolute quasi-judicial immunity because their role as Deputy Commissioners was indisputably judicial in nature under G.S. 97-77, and safeguards in the form of appeals from Deputy Commissioners’ decisions to the full Industrial Commission and the North Carolina Courts were available under G.S. 97-85 and G.S. 97-86. Sherwin v. Piner, 2003 U.S. Dist. LEXIS 26855 (E.D.N.C. July 21, 2003), aff'd, 91 Fed. Appx. 312, 2004 U.S. App. LEXIS 6686 (4th Cir. 2004).

Plaintiff failed to argue that any specific findings of fact made by the Full Commission, G.S. 97-85, were not based upon sufficient evidence in the record. The findings of the Full Commission were thus binding on appeal. Treat v. Mecklenburg County, 194 N.C. App. 545, 669 S.E.2d 800, 2008 N.C. App. LEXIS 2233 (2008).

The Industrial Commission’s credibility determinations made in response to Sanders v. Broyhill Furn. Indus., 124 N.C. App. 637, 478 S.E.2d 223 cannot be the Court of Appeals’ basis for reversing the commission’s order absent other error; in other words, if the commission’s conclusions are otherwise supported by competent evidence, the court may not scrutinize the commission’s reasons for believing a witness while engaged in its fact-finding role and overturn its decision on the basis of those reasons. Deese v. Champion Int'l Corp., 352 N.C. 109, 530 S.E.2d 549, 2000 N.C. LEXIS 432 (2000).

The opinion and award of the Industrial Commission was valid where it was only signed and filed by two commissioners voting in the majority because the third commissioner participated in the review of the case before he retired prior to the filing of the decision. Tew v. E.B. Davis Elec. Co., 142 N.C. App. 120, 541 S.E.2d 764, 2001 N.C. App. LEXIS 30 (2001).

Findings Regarding Rejection of Credibility Determination. —

When the Industrial Commission rejects a credibility determination made by the Commissioner, it must enter findings showing why the credibility determination should be rejected. Holcomb v. Pepsi Cola Co., 128 N.C. App. 323, 494 S.E.2d 609, 1998 N.C. App. LEXIS 10 (1998).

Credibility Determinations. —

In reversing the deputy commissioner’s credibility findings, the full Commission is not required to demonstrate that sufficient consideration was paid to the fact that credibility may be best judged by a first-hand observer of the witness when that observer was the only one to see the witnesses. Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411, 1998 N.C. LEXIS 842 (1998).

Where the Industrial Commission weighed the evidence and determined the credibility of the witnesses before it and made findings of fact as to its award of temporary disability to an employee who had fallen at his workplace, this satisfied the fact-finding of G.S. 97-85; the finding that the employee suffered a back injury within G.S. 97-2(6) was presumed to be correct on appeal, pursuant to N.C. R. App. P. 10(b) where the employer did not preserve that issue for review by separately contesting each particular finding of fact. Johnson v. Herbie's Place, 157 N.C. App. 168, 579 S.E.2d 110, 2003 N.C. App. LEXIS 640 (2003).

Industrial Commission’s determination that an employee who suffered injury during a slip and fall was entitled to additional disability benefits was supported by the findings of fact and credibility determinations of the Commission, pursuant to G.S. 97-85, and where the conclusions of one treating doctor were found to be credible and not speculative, the Commission was entitled to rely on that evidence, despite the contrary conclusions of four other treating physicians. Whitfield v. Lab. Corp., 158 N.C. App. 341, 581 S.E.2d 778, 2003 N.C. App. LEXIS 1192 (2003).

North Carolina Industrial Commission is the sole judge of the credibility of the witnesses and the weight of the evidence, and the Commission’s findings of fact are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary. Davis v. Harrah's Cherokee Casino, 362 N.C. 133, 655 S.E.2d 392, 2008 N.C. LEXIS 30 (2008).

Rules promulgated by the Commission do not limit the power of the Commission to review, modify, adopt, or reject the findings of fact found by a deputy commissioner or by an individual member of the Commission when acting as a hearing commissioner. Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608, 1962 N.C. LEXIS 432 (1962).

In reviewing the findings found by a deputy commissioner or by an individual member of the Commission when acting as a hearing commissioner, the Commission may review, modify, adopt or reject the findings of fact found by the hearing commissioner. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976); Pollard v. Krispy Waffle #1, 63 N.C. App. 354, 304 S.E.2d 762, 1983 N.C. App. LEXIS 3046 (1983).

Substitution of Commissioners on Panel. —

Although there is no express statutory authority for the substitution of two Commissioners, neither is there a statutory provision in the Workers’ Compensation Act expressly prohibiting such action, and if the legislature intended such restrictions on the Commissioner’s authority, they would have expressly provided for such. Poe v. Raleigh/Durham Airport Auth., 121 N.C. App. 117, 464 S.E.2d 689, 1995 N.C. App. LEXIS 1038 (1995).

Construction with Other Sections. —

Where plaintiff’s motion for reconsideration was made after the 15 days allowed under this section, Rule 60(b) merely requires that a motion for relief from the judgment be filed within a reasonable time. Thus, the Commission should have considered the motion as a Rule 60(b) motion for relief from the judgment. Jones v. Yates Motor Co., 121 N.C. App. 84, 464 S.E.2d 479, 1995 N.C. App. LEXIS 958 (1995).

Power to Modify or Strike Out Findings of Fact. —

The power to review the evidence, reconsider it, receive evidence, rehear the parties or their representatives, and, if proper, to amend the award, carries with it the power to modify or strike out findings of fact made by the deputy commissioner or hearing commissioner if in the judgment of the Commission such findings are not proper. Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608, 1962 N.C. LEXIS 432 (1962); Lee v. F.M. Henderson & Assocs., 284 N.C. 126, 200 S.E.2d 32, 1973 N.C. LEXIS 810 (1973).

The power of the Commission to review and reconsider the evidence carries with it the power to modify or strike out findings of fact made by the hearing commissioner. Smith v. William Muirhead Constr. Co., 27 N.C. App. 286, 218 S.E.2d 717, 1975 N.C. App. LEXIS 1822 (1975).

The Industrial Commission has authority to review, modify, adopt, or reject findings of a hearing commissioner and may ex mero motu strike out a finding of the hearing commissioner and his conclusion of law based thereon in order to make the record comply with the law, even though there is no exception to the finding or conclusion. Garmon v. Tridair Indus., Inc., 14 N.C. App. 574, 188 S.E.2d 523, 1972 N.C. App. LEXIS 2179 (1972).

The power to review and reconsider evidence and amend awards carries with it the power to modify or strike out findings of fact and conclusions made by the deputy commissioner or hearing commissioner, even though no exception has been made by the parties. Nash v. Conrad Indus., Inc., 62 N.C. App. 612, 303 S.E.2d 373, 1983 N.C. App. LEXIS 2987, aff'd, 309 N.C. 629, 308 S.E.2d 334, 1983 N.C. LEXIS 1453 (1983).

The Industrial Commission erred in deciding not to review the record to determine whether plaintiff’s post-traumatic stress disorder caused an aggravation of his diabetes where the defendant’s application for review prevented the commissioner’s decision from becoming final, and the commission’s failed to satisfy its statutory duty when it held that res judicata barred the defendant’s appeal on that issue. Lewis v. North Carolina Dep't of Correction, 138 N.C. App. 526, 531 S.E.2d 468, 2000 N.C. App. LEXIS 616 (2000).

Taking of Additional Evidence on Review. —

The Industrial Commission, upon an appeal to it from an opinion and award of the hearing commissioner, has the discretionary authority to receive further evidence, regardless of whether it is newly discovered evidence. Harris v. Frank L. Blum Constr. Co., 10 N.C. App. 413, 179 S.E.2d 148, 1971 N.C. App. LEXIS 1644 (1971).

An appellant to the full Commission has no substantive right to require it to hear new additional testimony, but the Commission’s duty to do so applies only if good ground therefor be shown, and its rules in regard thereto, adopted pursuant to G.S. 97-80, are in accord with the decision of the Supreme Court relating to the granting of new trials for newly discovered evidence. Tindall v. American Furn. Co., 216 N.C. 306, 4 S.E.2d 894, 1939 N.C. LEXIS 153 (1939).

The plaintiff does not have a substantial right to require the Commission to hear additional testimony, and the duty to do so applies only if good ground therefor is shown. Eaton v. Klopman Mills, Inc., 2 N.C. App. 363, 163 S.E.2d 17, 1968 N.C. App. LEXIS 928 (1968).

The party against whom an award has been made does not have a substantive right to require the Full Commission to hear new or additional testimony. It may, and should, do so if the due administration of justice requires. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

The rules of the Industrial Commission, adopted pursuant to the act, relative to the introduction of new evidence at a review by the full Commission, are in accord with the decisions of the Supreme Court as to granting new trials on newly discovered evidence. Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965).

The Commission’s power to receive additional evidence is a plenary power to be exercised in the sound discretion of the Commission. Moore v. Davis Auto Serv., 118 N.C. App. 624, 456 S.E.2d 847, 1995 N.C. App. LEXIS 336 (1995).

In exercising its discretion to receive additional evidence, the Industrial Commission should consider all the circumstances of the case, including the delay involved in taking additional evidence, and should not encourage a lack of pre-deposition preparation by counsel or witnesses. Pittman v. International Paper Co., 132 N.C. App. 151, 510 S.E.2d 705, 1999 N.C. App. LEXIS 92, aff'd, 351 N.C. 42, 519 S.E.2d 524, 1999 N.C. LEXIS 1002 (1999).

Whether good ground is shown for the taking of further evidence is within the sound discretion of the Commission, and its ruling in that regard will not be reviewed on appeal absent a showing of manifest abuse of discretion. Guy v. Burlington Indus., 74 N.C. App. 685, 329 S.E.2d 685 (1985). In accord with the last paragraph in the main volume. See Chisholm v. Diamond Condominium Constr. Co., 83 N.C. App. 14, 348 S.E.2d 596, 1986 N.C. App. LEXIS 2634 (1986).

The question of whether to reopen a case for the taking of additional evidence is addressed to the sound discretion of the Commission, and its decision is not reviewable on appeal in the absence of a manifest abuse of that discretion. Pickrell v. Motor Convoy, Inc., 82 N.C. App. 238, 346 S.E.2d 164, 1986 N.C. App. LEXIS 2431 (1986), rev'd, 322 N.C. 363, 368 S.E.2d 582, 1988 N.C. LEXIS 375 (1988).

The Industrial Commission was not required to receive additional evidence and to overturn the findings of fact and conclusions of law reached by the deputy commissioner merely because it reconsidered the evidence considered by the deputy commissioner, where the Commission reached the same facts and conclusions as the deputy commissioner. Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 514 S.E.2d 517, 1999 N.C. App. LEXIS 332 (1999).

North Carolina Industrial Commission did not abuse its discretion and deprive a hospital and its insurance carrier of due process because the hospital and the carrier had the opportunity to, and did, cross-examine an injured nurse’s doctor during his deposition on review of the Deputy Commissioner’s decision; further, the hospital and the carrier never requested the opportunity to re-depose their witnesses, and the Commission did not rule that the hospital and the carrier could not present additional argument. Legette v. Scotland Mem'l Hosp., 181 N.C. App. 437, 640 S.E.2d 744, 2007 N.C. App. LEXIS 361 (2007).

Because the Deputy Commissioner of the North Carolina Industrial Commission determined that a nurse did not suffer an injury by accident, the nurse’s grounds for appeal focused on that determination; therefore, when the nurse made application to the Commission, the Commission had the discretion, pursuant to G.S. 97-85, to reopen the record to take additional evidence on the issue of causation, especially where the Deputy Commissioner did not reach that issue. Legette v. Scotland Mem'l Hosp., 181 N.C. App. 437, 640 S.E.2d 744, 2007 N.C. App. LEXIS 361 (2007).

Commission did not abuse its discretion in denying an executor’s motion to introduce the deposition of a doctor because the doctor was an outside consultant, and the employer had no reason to cross-examine him; even if the denial was in error, the executor failed to show prejudice. Wise v. Alcoa, Inc., 231 N.C. App. 159, 752 S.E.2d 172, 2013 N.C. App. LEXIS 1235 (2013).

It was not error to deny an employee’s request to depose a witness because the sole purpose of the deposition was to ask the Industrial Commission to reconsider a prior ruling. Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 758 S.E.2d 169, 2014 N.C. App. LEXIS 418 (2014).

It was error to deny an employee’s request to depose a witness because the Industrial Commission admitted and relied on the witness’s report. Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 758 S.E.2d 169, 2014 N.C. App. LEXIS 418 (2014).

Full North Carolina Industrial Commission’s decision to reopen the record was affirmed where the only opposing argument was that the decision gave the employee a second opportunity to prove her case, and such an argument failed to show that the Full Commission abused its discretion. Bishop v. Ingles Mkts., Inc., 233 N.C. App. 431, 756 S.E.2d 115, 2014 N.C. App. LEXIS 359 (2014).

New Evidence Not Required. —

The Industrial Commission is not required to receive new evidence and may simply decide a case on the record before the Deputy Commissioner; however, the commission is required to consider that the Deputy Commissioner is in a better position to judge the credibility of the witnesses. Holcomb v. Pepsi Cola Co., 128 N.C. App. 323, 494 S.E.2d 609, 1998 N.C. App. LEXIS 10 (1998).

Commission may decide to exclude evidence which it has previously seen fit to hear, where the decision to take additional evidence is discretionary in nature and neither party has put forth good cause for such evidence to be considered. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

Where it was within the Commission’s power to ask for additional medical evidence, it was also within its power to exclude such evidence. Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362, 1992 N.C. App. LEXIS 758 (1992).

Refusal to Remand Upheld. —

The Industrial Commission did not abuse its discretion and did not commit error in denying plaintiff ’s motion to remand to the hearing commissioner for the purpose of taking testimony which was not newly discovered evidence. Harris v. Frank L. Blum Constr. Co., 10 N.C. App. 413, 179 S.E.2d 148, 1971 N.C. App. LEXIS 1644 (1971).

Denial of Motion Upheld. —

Where new evidence, testimony by a private investigator, was the same type of evidence that defendants introduced at the first hearing and the testimony did not provide any new revelations regarding plaintiff’s disability, defendants suffered no prejudice by the Commission’s denial of their motion to consider the new evidence. Andrews v. Fulcher Tire Sales & Serv., 120 N.C. App. 602, 463 S.E.2d 425, 1995 N.C. App. LEXIS 901 (1995).

Plaintiff ’s contention that the Commission erred in remanding the proceeding for further hearing was waived by the plaintiff when she stipulated the questions to be determined at that hearing. Grigg v. Pharr Yarns, Inc., 15 N.C. App. 497, 190 S.E.2d 285, 1972 N.C. App. LEXIS 1948 (1972).

Party moving to reopen case must show good grounds for allowance of the motion. Pickrell v. Motor Convoy, Inc., 82 N.C. App. 238, 346 S.E.2d 164, 1986 N.C. App. LEXIS 2431 (1986), rev'd, 322 N.C. 363, 368 S.E.2d 582, 1988 N.C. LEXIS 375 (1988).

Rehearing on Grounds of Newly Discovered Evidence. —

The Industrial Commission has the power to grant a rehearing of a proceeding before it and in which it has made an award on the grounds of newly discovered evidence. Harris v. Frank L. Blum Constr. Co., 10 N.C. App. 413, 179 S.E.2d 148, 1971 N.C. App. LEXIS 1644 (1971).

Where an issue has been fairly litigated, with proof offered by both parties upon an issue, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result. Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965).

In view of the fact that the act does not require all damages to be assessed at one time and awarded in a lump sum, the rules in regard to res judicata are not to be so strictly enforced as in civil cases generally, and an award will not preclude a review for newly discovered evidence relating to the extent of disability, particularly when claimant, because of his disability and the circumstances of the case, could not reasonably have obtained the additional evidence at the time of the hearing. Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965).

Objection to the admission of incompetent evidence should be made before the hearing commissioner, and objection taken for the first time at the hearing before the full Commission on appeal is too late. Maley v. Thomasville Furn. Co., 214 N.C. 589, 200 S.E. 438, 1939 N.C. LEXIS 386 (1939).

Preservation of Issue of Attorney’s Fees. —

Where the motion of the husband of a murdered employee for attorney’s fees was denied by the deputy commissioner, the issue of entitlement to attorney’s fees was preserved, although it was not raised as an assignment of error on appeal to the Industrial Commission from the deputy commissioner’s denial of benefits. Hauser v. Advanced Plastiform, Inc., 133 N.C. App. 378, 514 S.E.2d 545, 1999 N.C. App. LEXIS 507 (1999).

Failure of Employer to File Notice of Appeal. —

Defendant carrier filed apt notice of appeal to the full Commission and later to the superior court. The employer failed to file such notice. It was held that the employer’s liability, he not being a party to the appeal, would not have been affected even if the case were reversed. McPherson v. Henry Motor Sales Corp., 201 N.C. 303, 160 S.E. 283, 1931 N.C. LEXIS 225 (1931).

Judicial Review of Findings of Fact of Hearing Commissioner. —

A finding of fact by a hearing commissioner or by a deputy commissioner never reaches the superior court or the Supreme Court unless it has been affirmed by the Commission. Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608, 1962 N.C. LEXIS 432 (1962).

When Application for Review Is Timely. —

Application by an employer for review of an award by the Industrial Commission is timely when the application is mailed to the full Commission within 15 days from the date when notice of the award is received. Hubbard v. Burlington Indus., 76 N.C. App. 313, 332 S.E.2d 746, 1985 N.C. App. LEXIS 3861 (1985).

North Carolina Industrial Commission erred in awarding plaintiff a 10 percent late payment penalty, pursuant to G.S. 97-18(g), for defendants alleged late payment of temporary total disability benefits because defendants timely appealed the decision by a deputy commissioner to the full Commission, pursuant to G.S. 97-85, the full Commission issued an opinion and award on April 27, 2010, and defendants timely paid the award to plaintiff on June 2, 2010, which was within 10 days after the 30 days permitted to appeal the Commission’s decision to the appellate court, in accordance with G.S. 97-18(e) and G.S. 97-86. Norman v. Food Lion, LLC, 213 N.C. App. 587, 713 S.E.2d 507, 2011 N.C. App. LEXIS 1480 (2011).

Time for Appeal Based on Presumption of Correct Notice. —

Though this section requires that appeal from an opinion and award of a Deputy Commissioner be taken within 15 days from the date a party is notified of the Deputy Commissioner’s opinion and award, this requirement is based on the presumption that the notice given was correct. Crawford v. McLaurin Trucking Co., 78 N.C. App. 219, 336 S.E.2d 647, 1985 N.C. App. LEXIS 4247 (1985).

Industrial Commission Did Not Err in Sending Notice of Opinion and Award Through Email. —

North Carolina Industrial Commission did not err in notifying an employee’s attorney through email of the deputy commissioner’s opinion and award denying the employee’s claim for additional benefits because G.S. 97-85 only required notice of the opinion and award, and there was no rule expressly prohibiting the use of email for notification purposes; although there is nothing in the Worker’s Compensation Act, or in the Commission’s Rules for Workers’ Compensation cases, that allows the Commission to serve opinions and awards on parties or their counsel by way of email, there is no rule prohibiting transmission of an opinion and award by way of email. Egen v. Excalibur Resort Prof'l, 191 N.C. App. 724, 663 S.E.2d 914, 2008 N.C. App. LEXIS 1469 (2008).

Incorrect Notice Did Not Affect Right to Appeal. —

Since the law permits appeals only from actual rather than supposed decisions, the incorrect notice of a decision that had not been made had no effect on plaintiff’s right to appeal from the decision that was made. Crawford v. McLaurin Trucking Co., 78 N.C. App. 219, 336 S.E.2d 647, 1985 N.C. App. LEXIS 4247 (1985).

Motion for New Hearing on Ground That Notice Not Given. —

Since the North Carolina Industrial Commission has no rule comparable to G.S. 1A-1, Rule 60(b), and because the Rules of Civil Procedure are applicable, the Industrial Commission should have treated defendant’s motion pursuant to this section and Industrial Commission Rule XXI for a new hearing on the ground that he had not received notice of hearing in which plaintiff was awarded compensation as one made pursuant to G.S. 1A-1, Rule 60(b) to be relieved from a judgment. Long v. Reeves, 77 N.C. App. 830, 336 S.E.2d 98, 1985 N.C. App. LEXIS 4388 (1985).

Waiver of Right to Remand. —

Where plaintiff had not assigned as error the failure of the Industrial Commission to afford him the review to which he was entitled under this section, and where plaintiff failed to argue that he was prejudiced in any way by any error upon the part of the full Commission, remand was not required. Faircloth v. North Carolina DOT, 106 N.C. App. 303, 416 S.E.2d 409, 1992 N.C. App. LEXIS 464 (1992).

Remand for Misapprehension of Law. —

Where facts were found by the Commission under the misapprehension that the law required a finding for the plaintiff if there was any competent evidence to support such a finding, the Court of Appeals was empowered to remand the case so that the evidence could be considered in its true legal light. Cauble v. Macke Co., 78 N.C. App. 793, 338 S.E.2d 320, 1986 N.C. App. LEXIS 1993 (1986).

Failure of Commission to Make Findings and Conclusions. —

The Industrial Commission failed to carry out its statutory duties pursuant to this section by not making its own findings of fact and conclusions of law to support its disposition of plaintiff’s claim. However, despite the failure of the Commission to make its own findings and conclusions, there was no prejudice to plaintiff. Jauregui v. Carolina Vegetables, 112 N.C. App. 593, 436 S.E.2d 268, 1993 N.C. App. LEXIS 1199 (1993).

Full Commission of the North Carolina Industrial Commission did not abuse its discretion by reserving its decision regarding the issue of an injured employee’s wage-earning capacity because the full extent of the employee’s injuries had not yet been determined, and the employee was entitled to an opportunity to gather that information necessary to determine which of her conditions was causing her continuing incapacity for work. Brown v. Kroger Co., 169 N.C. App. 312, 610 S.E.2d 447, 2005 N.C. App. LEXIS 611 (2005).

In a workers’ compensation case wherein the employee was awarded compensation after being found permanently and totally disabled, the North Carolina Industrial Commission erred by failing to expressly rule on whether the employer was required to reimburse the employee for past out-of-pocket medical expenses; while it appeared from the emphasis in the Commission’s opinion and award, which ordered the employer to pay medical expenses as well as from its decision not to hold the employer in civil contempt, that the Commission implicitly ruled that the employee did not timely submit his request for reimbursement of $1,965.13 in past out-of-pocket medical expenses, the better approach for the Commission was to expressly respond to the issues raised by the employee’s appeal. Bolick v. ABF Freight Sys., 188 N.C. App. 294, 654 S.E.2d 793, 2008 N.C. App. LEXIS 81 (2008).

For preferred format of Industrial Commission’s review of awards by deputy commissioner, see Crump v. Independence Nissan, 112 N.C. App. 587, 436 S.E.2d 589, 1993 N.C. App. LEXIS 1208 (1993).

Excusable Neglect. —

The commission has the inherent power and authority, in its discretion, to consider defendant’s motion for relief due to excusable neglect. Allen v. Food Lion, Inc., 117 N.C. App. 289, 450 S.E.2d 571, 1994 N.C. App. LEXIS 1204 (1994).

The Industrial Commission had authority to grant relief from a judgment entered against the employee, even though the employee filed his notice of appeal after expiration of the time limit, where he showed excusable neglect in that his counsel was on vacation when the workers’ compensation opinion arrived, the opinion was filed by the attorney’s clerical staff, and no entry was made on the office calendar showing the date the opinion arrived. Murray v. Ahlstrom Indus. Holdings, Inc., 131 N.C. App. 294, 506 S.E.2d 724, 1998 N.C. App. LEXIS 1325 (1998).

North Carolina Industrial Commission erred in granting an employer’s motion to dismiss an employee’s appeal of the deputy commissioner’s award denying his claim for additional benefits because the failure of the employee’s attorney to file the appeal within the 15 day period required by G.S. 97-85 was excusable neglect due to the actions of the attorney’s agent; based upon the lack of any Commission rules regarding the use of email to announce an award, which could have put the attorney on notice that an opinion and award could arrive by email, it was excusable neglect for the agent to conclude that the attorney had been sent a copy of the award via email and for her not to realize that the employee’s right to appeal would depend upon her delivery of the email to the attorney. Egen v. Excalibur Resort Prof'l, 191 N.C. App. 724, 663 S.E.2d 914, 2008 N.C. App. LEXIS 1469 (2008).

North Carolina Industrial Commission did not have jurisdiction to hear an employee’s appeal as it lacked the inherent authority sometimes obtained through excusable neglect; defense counsel’s action in failing to confirm, and merely assuming, a notice of appeal had been filed did not amount to excusable neglect, and failing to definitively determine whether a notice of appeal was filed did not demonstrate due diligence. Sellers v. FMC Corp., 216 N.C. App. 134, 716 S.E.2d 661, 2011 N.C. App. LEXIS 2154 (2011).

Excusable Neglect Not Shown. —

The Industrial Commission erred by concluding that excusable neglect existed where plaintiff represented himself before the deputy commissioner and was unacquainted with the complexities of the Workers’ Compensation Act; furthermore, the Commission did not have the authority, under Industrial Commission Rule 801, to excuse plaintiff from complying with this section and thus disregard the holdings of the appellate court as to what constituted “excusable neglect.” Moore v. City of Raleigh, 135 N.C. App. 332, 520 S.E.2d 133, 1999 N.C. App. LEXIS 1042 (1999).

Employer’s Appeal Dismissed as Untimely. —

Panel of the North Carolina Industrial Commission which heard an employer’s appeal from a decision by a deputy commissioner which awarded workers’ compensation benefits to an employee was not barred from finding that the appeal was untimely because the chairman of the Commission had denied the employee’s motion to dismiss the appeal, and the record supported the panel’s findings that the appeal was untimely because it was filed more than 15 days after the deputy commissioner faxed his decision to a law firm that represented the employer and that counsel’s failure to file the appeal on time should not be excused under the doctrine of excusable neglect. Cornell v. Western & Southern Life Ins. Co., 162 N.C. App. 106, 590 S.E.2d 294, 2004 N.C. App. LEXIS 4 (2004).

Payment of Settlement Award. —

To calculate the date a compromise settlement award becomes due under the Workers’ Compensation Act, a party must: (1) allow the 15 day appeal time of this section; (2) then add ten days pursuant to G.S. 97-18(e); and (3) finally, add 14 days as required under G.S. 97-18(g); thus, a paying party liable under a compromise settlement has 39 days from the date the compromise settlement is approved to tender payment, with liability for non-payment attaching on the fortieth day. Felmet v. Duke Power Co., 131 N.C. App. 87, 504 S.E.2d 815, 1998 N.C. App. LEXIS 1232 (1998).

Competent evidence supported the Full Commission of the North Carolina Industrial Commission’s findings of fact that an employee’s hearing loss in her left ear was not an occupational disease under G.S. 97-53(28), because two doctors testified that, given the employee’s greater loss of hearing in lower frequencies, her hearing loss was not likely due to noise exposure. Strezinski v. City of Greensboro, 187 N.C. App. 703, 654 S.E.2d 263, 2007 N.C. App. LEXIS 2562 (2007).

Where an employee worked as a teacher and sought workers’ compensation benefits, arguing that the employee’s generalized anxiety disorder (GAD) was an occupational disease caused by a hostile and abusive classroom environment, the North Carolina Industrial Commission properly concluded that the employee’s GAD was not an occupational disease because, although it was inappropriate to imply that the employee’s fault played a role in determining compensability, the employee failed to prove either that the employee’s work increased the risk of GAD or significantly contributed to it, and the Commission did not ignore the testimony of the employee’s expert. Hassell v. Onslow County Bd. of Educ., 362 N.C. 299, 661 S.E.2d 709, 2008 N.C. LEXIS 498 (2008).

Commissioner Holding Over After Expiration of Term Until Successor Sworn In. —

Although an industrial commissioner had been notified that his service was at an end and that his successor had been appointed, participation in a decision awarding workers’ compensation benefits was within the commissioner’s authority because it was made before the successor had taken the oath of office. Because the commissioner’s authority continued until the successor was sworn in, the opinion and award of the Full Commission in which the commissioner concurred stood as a valid exercise of that authority. Baxter v. Danny Nicholson, Inc., 363 N.C. 829, 690 S.E.2d 265, 2010 N.C. LEXIS 202 (2010).

Determination Upheld. —

Insurer’s pre-term cancellation of an insured’s workers’ compensation coverage was both valid and effective pursuant to G.S. 58-36-105 because, although the insured had requested a premium reduction, it did not make any part of the installment payment by the due date; even after the adjustment, the insured still owed an outstanding balance as of the due date, and by the terms of the Rate Bureau table, it owed an installment payment of one-third of that amount, yet it paid nothing by the due date, and competent evidence in the record supported the commission’s findings and conclusions. Bell v. Hype Mfg., LLC, 210 N.C. App. 235, 705 S.E.2d 926, 2011 N.C. App. LEXIS 299 (2011).

Res Judicata or Law of the Case Effect of Unappealed Decision. —

Employer was barred from relitigating the issue of its workers’ compensation insurance coverage in later proceedings because the employer did not appeal a deputy commissioner’s initial finding that it did not have coverage pursuant to G.S. 97-85 even though it was entitled to do so; under either res judicata or the law of the case doctrine, since the employer did not appeal the deputy commissioner’s initial opinion and award finding that it did not have workers’ compensation insurance coverage on the date of the accident, it was barred from relitigating that issue in subsequent proceedings. In any event, the employer did not challenge the later finding of the Full North Carolina Industrial Commission that no grounds existed to set aside the initial finding and conclusion that the employer did not have insurance coverage. Boje v. D.W.I.T., L.L.C., 195 N.C. App. 118, 670 S.E.2d 910, 2009 N.C. App. LEXIS 59 (2009).

§ 97-86. Award conclusive as to facts; appeal; certified questions of law.

The award of the Industrial Commission, as provided in G.S. 97-84, if not reviewed in due time, or an award of the Commission upon such review, as provided in G.S. 97-85, shall be conclusive and binding as to all questions of fact; but either party to the dispute may, within 30 days from the date of the award or within 30 days after receipt of notice to be sent by any class of U.S. mail that is fully prepaid or electronic mail of the award, but not thereafter, appeal from the decision of the Commission to the Court of Appeals for errors of law under the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions. The procedure for the appeal shall be as provided by the rules of appellate procedure.

The Industrial Commission of its own motion may certify questions of law to the Court of Appeals for decision and determination by the Court. In case of an appeal from the decision of the Commission, or of a certification by the Commission of questions of law, to the Court of Appeals, the appeal or certification shall operate on a supersedeas except as provided in G.S. 97-86.1, and no employer shall be required to make payment of the award involved in the appeal or certification until the questions at issue therein shall have been fully determined in accordance with the provisions of this Article. If the employer is a noninsurer, then the appeal of the employer shall not act as a supersedeas and the plaintiff in such case shall have the same right to issue execution or to satisfy the award from the property of the employer pending the appeal as obtains to the successful party in an action in the superior court.

When any party to an appeal from an award of the Commission is unable, by reason of the party’s poverty, to make the deposit or to give the security required by law for the appeal, any member of the Commission or any deputy commissioner shall enter an order allowing the party to appeal from the award of the Commission without giving security therefor. The party appealing from the judgment shall, within 30 days from the filing of the appeal from the award, make an affidavit that the party is unable by reason of the party’s poverty to give the security required by law. The request shall be passed upon and granted or denied by a member of the Commission or deputy commissioner within 20 days from receipt of the affidavit.

History. 1929, c. 120, s. 60; 1947, c. 823; 1957, c. 1396, s. 9; 1959, c. 863, s. 4; 1967, c. 669; 1971, c. 1189; 1975, c. 391, s. 15; 1977, c. 521, s. 1; 1993 (Reg. Sess., 1994), c. 679, s. 10.5; 1995 (Reg. Sess., 1996), c. 552, s. 1; 2017-57, s. 15.17.

Effect of Amendments.

Session Laws 2017-57, s. 15.17, effective July 1, 2017, substituted “any class of U.S. mail that is fully prepaid or electronic mail” for “registered mail or certified mail” in the first sentence of the first paragraph; and, in the last paragraph, substituted “the party’s poverty” for “his poverty” in two places, substituted “the party is unable” for “he is unable”, substituted “affidavit” for “affidavit specified above”, and made stylistic changes.

Legal Periodicals.

For note on “jurisdictional fact” review by superior courts, see 37 N.C.L. Rev. 219 (1959).

For survey of case law as to findings of jurisdictional facts upon judicial review of decisions of Industrial Commission, see 44 N.C.L. Rev. 892 (1966).

For case law survey as to judicial review of decisions of administrative agencies, see 45 N.C.L. Rev. 816 (1967).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

CASE NOTES

Analysis

I.In General

Editor’s Note. —

Many of the cases below were decided before the 1967 amendment gave appellate jurisdiction over decisions of the Industrial Commission to the Court of Appeals. Formerly the superior court had appellate jurisdiction.

Remedy Is Exclusive. —

The remedy provided by this section and G.S. 97-83 through 97-85 is exclusive. Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504, 1948 N.C. LEXIS 357 (1948).

Effect of Appeal on Commission’s Jurisdiction. —

An appeal of an award of the Industrial Commission does not suspend that agency’s authority to accept notification of an employee’s decision to select his own doctor; neither does an appeal deprive the Commission of its jurisdiction to accept the submission of a claim. It may well be that the determination of the particular claim will be delayed until the outcome of the appeal. Nevertheless, the Commission has jurisdiction to receive the claim and is, in fact, the only agency vested with that jurisdiction. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56, 1980 N.C. LEXIS 985 (1980).

Modification of Award Under G.S. 97-17 Is Not Subject to Collateral Attack. —

The action of the Industrial Commission in modifying an award pursuant to G.S. 97-17 is a quasi-judicial act which cannot be collaterally attacked in an independent action. In the absence of a direct appeal, the modified order of the Industrial Commission is conclusively presumed to be correct and cannot be collaterally attacked. Travelers Ins. Co. v. Rushing, 36 N.C. App. 226, 243 S.E.2d 420, 1978 N.C. App. LEXIS 2453 (1978).

Recovery in Wrongful Death Action Not Exempt from Disbursement by Commission. —

There is no authority either in the statutes or in case law for holding that recovery in a wrongful death action is exempt from disbursement by the Industrial Commission if the act is applicable to the injured employee. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

II.Review, Generally

Appeal Lies Only from Final Order of Commission. —

No appeal lies from an interlocutory order of the Industrial Commission. Only from a final order or decision of the Commission is there an appeal of right to the appellate court. Lynch v. M.B. Kahn Constr. Co., 41 N.C. App. 127, 254 S.E.2d 236, 1979 N.C. App. LEXIS 2388, cert. denied, 298 N.C. 298, 259 S.E.2d 914, 1979 N.C. LEXIS 1590 (1979).

Only from a final order or decision of the Industrial Commission is there an appeal of right to the Court of Appeals. Ledford v. Asheville Hous. Auth., 125 N.C. App. 597, 482 S.E.2d 544, 1997 N.C. App. LEXIS 171 (1997).

Employer’s appeal of a commission’s opinion and award in employee’s worker compensation claim was dismissed because under G.S. 97-86 the same terms and conditions that governed civil appeals governed worker’s compensation appeals, and the appeal was interlocutory; the opinion and award reserved pending issues regarding the amount of the compensation award and the worker had moved to amend the wage loss benefit portion of the award. Evans v. Hendrick Auto. Group, 210 N.C. App. 247, 708 S.E.2d 99, 2011 N.C. App. LEXIS 301 (2011).

Appeal Served as Supersedeas. —

When a party appealed a decision of the Industrial Commission to the Court of Appeals of North Carolina, said appeal served as a supersedeas to maintain the status quo between the parties. Thus, an employee’s argument that neither the order entered by the Deputy Commissioner nor the ensuing order by Chairman was a final, enforceable award allowing the employer to cease payments lacked merit. Roberts v. Dixie News, Inc., 189 N.C. App. 495, 658 S.E.2d 684, 2008 N.C. App. LEXIS 654 (2008).

Dismissal of Appeal as Interlocutory. —

Appeal must be dismissed as interlocutory where the Industrial Commission determines only that plaintiff sustained an injury by accident and no final award has been entered. Fisher v. E.I. Du Pont De Nemours, 54 N.C. App. 176, 282 S.E.2d 543, 1981 N.C. App. LEXIS 2781 (1981).

In a workers’ compensation proceeding, an appeal by an employer and its insurance carrier was dismissed as interlocutory where the North Carolina Industrial Commission specifically reserved the issue of the amount of the compensation award for the employee. Watts v. Hemlock Homes of the Highlands, Inc., 160 N.C. App. 81, 584 S.E.2d 97, 2003 N.C. App. LEXIS 1666 (2003).

Motion to Dismiss Appeal as Interlocutory Denied. —

Therapist’s motion to dismiss defendants’ appeal of an award of benefits for medical treatment as interlocutory was denied because the order resolved all issues surrounding the disputed medical treatment, and thus the order was appealable pursuant to G.S. 97-86. Cash v. Lincare Holdings, 181 N.C. App. 259, 639 S.E.2d 9, 2007 N.C. App. LEXIS 92 (2007).

Procedure Provided by Section Must Be Followed. —

When the applicable statute provides an appeal from an administrative agency, the procedure provided in the Act must be followed. McDowell v. Town of Kure Beach, 251 N.C. 818, 112 S.E.2d 390, 1960 N.C. LEXIS 365 (1960).

Hence, a writ of certiorari cannot be used as a substitute for an appeal either before or after the time of appeal has expired. McDowell v. Town of Kure Beach, 251 N.C. 818, 112 S.E.2d 390, 1960 N.C. LEXIS 365 (1960).

Conclusive Effect of Award Which Is Not Timely Appealed. —

An award of the Commission, if not reviewed in due time as provided in the Act, is conclusive and binding as to all questions of fact. Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857, 1965 N.C. LEXIS 1333 (1965).

Because the North Carolina Industrial Commission’s finding that an employee gave an employer notice of a car accident were unchallenged by the employer, they were binding on review. Easter-Rozzelle v. City of Charlotte, 370 N.C. 286, 807 S.E.2d 122, 2017 N.C. LEXIS 946 (2017).

Dismissal Where Notice of Appeal Is Untimely. —

Defendant’s purported appeal from a workers’ compensation proceeding would be dismissed where notice of appeal was filed after expiration of the 30-day period provided by this section. Fisher v. E.I. Du Pont De Nemours, 54 N.C. App. 176, 282 S.E.2d 543, 1981 N.C. App. LEXIS 2781 (1981).

Exceptions and Objections. —

Where appellant on appeal to the superior court (now the Court of Appeals) does not except to any finding of the Industrial Commission or to the award, but merely gives notice of appeal for review as to errors of law, the single question presented to the court is whether the facts found were sufficient to support the award. Likewise, a sole exception to the judgment of the court presents only the question of whether the facts found support the judgment. Wyatt v. Sharp, 239 N.C. 655, 80 S.E.2d 762, 1954 N.C. LEXIS 630 (1954).

Questions of law which appellant desires the Supreme Court to review, including questions of whether specific findings of fact are supported by the evidence, must be presented by exceptions duly taken and assignments of error duly made which point out specifically and distinctly the alleged error; the Supreme Court, upon a broadside exception, will not make a voyage of discovery through the record to ascertain if error was committed at some time in some way during the progress of the trial or case. Worsley v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467, 1954 N.C. LEXIS 608 (1954).

The effect of an exception to the judgment of the Industrial Commission is only to challenge the correctness of the judgment, and presents the single question of whether the facts found are sufficient to support the judgment. Hatchell v. Cooper, 266 N.C. 345, 146 S.E.2d 62, 1966 N.C. LEXIS 1341 (1966).

Certification of Questions of Law. —

When employers and insurers objected to paying hospitals certain amounts which had been approved by the Industrial Commission, in workers’ compensation claims, and the employers and insurers challenged the constitutionality of the statute under which these amounts were approved, the Industrial Commission could have certified the question of the statute’s constitutionality to the appellate court before making its final decision. Carolinas Med. Ctr. v. Emplrs & Carriers Listed in Exhibit A, 172 N.C. App. 549, 616 S.E.2d 588, 2005 N.C. App. LEXIS 1773 (2005).

When the North Carolina Industrial Commission exceeded its authority by finding a prior version of G.S. 97-26(b) unconstitutional, the question of the statute’s constitutionality was not properly presented to an appellate court on appeal of the Commission’s decision because, among other reasons, no party filed a certiorari petition, pursuant to N.C. R. App. P. 21, nor did a party seek suspension of the Rules of Appellate Procedure, under N.C. R. App. P. 2, nor did the Commission certify the question to the appellate court, under G.S. 97-86. Carolinas Med. Ctr. v. Emplrs & Carriers Listed in Exhibit A, 172 N.C. App. 549, 616 S.E.2d 588, 2005 N.C. App. LEXIS 1773 (2005).

Fact Finding Prerogative Extends to Credibility Determinations. —

The Industrial Commission’s credibility determinations made in response to Sanders v. Broyhill Furn. Indus., 124 N.C. App. 637, 478 S.E.2d 223 cannot be the Court of Appeals’ basis for reversing the commission’s order absent other error; in other words, if the commission’s conclusions are otherwise supported by competent evidence, the court may not scrutinize the commission’s reasons for believing a witness while engaged in its fact-finding role and overturn its decision on the basis of those reasons. Deese v. Champion Int'l Corp., 352 N.C. 109, 530 S.E.2d 549, 2000 N.C. LEXIS 432 (2000).

Judgment Should Refer to Specific Assignments of Error. —

Where, upon an appeal from the Industrial Commission, the exceptions point out specific assignments of error, the judgment in the superior court (now the Court of Appeals) thereon properly should overrule or sustain respectively each of the exceptions on matters of law thus designated. And where the judgment merely decrees that the award be in all respects affirmed, the Supreme Court will presume that the judge below considered each of the assignments of error and overruled them. Fox v. Cramerton Mills, 225 N.C. 580, 35 S.E.2d 869, 1945 N.C. LEXIS 371 (1945).

III.Jurisdiction

A jurisdictional question may be raised at any stage of the proceeding. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280, 1965 N.C. LEXIS 1144 (1965).

The Commission’s jurisdiction may be questioned at any stage and even where an appeal, by stipulation, raises only the question of who was claimant’s employer. If the record fails to show by testimony or admission that appellant had the requisite number of employees, the Commission is not shown to have acquired jurisdiction. The making of a stipulation that there was only one question at issue would not serve as an admission of the jurisdictional fact. Chadwick v. North Carolina Dep't of Conservation & Dev., 219 N.C. 766, 14 S.E.2d 842, 1941 N.C. LEXIS 145 (1941).

The reviewing court is not bound by the findings of jurisdictional facts by the Industrial Commission, and must make its own finding from a consideration of all the evidence in the case. Lloyd v. Jenkins Context Co., 46 N.C. App. 817, 266 S.E.2d 35, 1980 N.C. App. LEXIS 2910 (1980).

Where the jurisdiction of the Industrial Commission to hear and consider a claim for compensation is challenged by an employer on the ground that he is not subject to the provisions of the act, the findings of fact made by the Commission, on which its jurisdiction is dependent, are not conclusive on the superior court (now the Court of Appeals). The court has both the power and the duty, on the appeal of either party to the proceeding, to consider all the evidence in the record, and to find therefrom the jurisdictional facts, without regard to the finding of such facts by the Commission. Aycock v. Cooper, 202 N.C. 500, 163 S.E. 569, 1932 N.C. LEXIS 144 (1932); Aylor v. Barnes, 242 N.C. 223, 87 S.E.2d 269, 1955 N.C. LEXIS 492 (1955).

The Commission’s findings of jurisdictional facts are not conclusive on appeal, even if they are supported by competent evidence. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280, 1965 N.C. LEXIS 1144 (1965); Patterson v. L.M. Parker & Co., 2 N.C. App. 43, 162 S.E.2d 571, 1968 N.C. App. LEXIS 870 (1968); Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257, 1976 N.C. LEXIS 1243 (1976).

Notwithstanding this section, the finding of a jurisdictional fact by the Industrial Commission is not conclusive upon appeal, even if there is evidence in the record to support such finding. The reviewing court has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record. Dockery v. McMillan, 85 N.C. App. 469, 355 S.E.2d 153, 1987 N.C. App. LEXIS 2617 (1987).

The court has the right and the duty to make its own independent findings of jurisdictional facts from its consideration of all the evidence in the record. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645, 1965 N.C. LEXIS 1279 (1965); Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280, 1965 N.C. LEXIS 1144 (1965); Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257, 1976 N.C. LEXIS 1243 (1976).

Where the judge is of the opinion, upon a fair and impartial consideration of the evidence in the record, that the Commission’s findings of jurisdictional facts lead to an improper assumption or rejection of jurisdiction by the Commission, he has the duty to make independent findings of jurisdictional facts and to set them out in the judgment. Patterson v. L.M. Parker & Co., 2 N.C. App. 43, 162 S.E.2d 571, 1968 N.C. App. LEXIS 870 (1968).

If a party to the proceedings requests the court to make independent findings of jurisdictional facts, it is error to fail to do so. Patterson v. L.M. Parker & Co., 2 N.C. App. 43, 162 S.E.2d 571, 1968 N.C. App. LEXIS 870 (1968).

Ordinarily, the findings of fact of the Commission are binding on appeal if supported by any competent evidence. However, where a party challenges the jurisdiction of the Commission, the findings of fact are not conclusive and the reviewing court may consider all of the evidence in the record and make its own findings of fact. Weston v. Sears Roebuck & Co., 65 N.C. App. 309, 309 S.E.2d 273, 1983 N.C. App. LEXIS 3462 (1983).

Certification of Questions of Law. —

G.S. 97-86 allows an appellate court to consider questions of law certified to it by the Industrial Commission, but it does not presume to allow the court to certify matters to itself for review and consideration. Carolinas Med. Ctr. v. Emplrs & Carriers Listed in Exhibit A, 172 N.C. App. 549, 616 S.E.2d 588, 2005 N.C. App. LEXIS 1773 (2005).

Findings of the Commission that employee received notice from competent medical authority that she had an occupational disease on June 25, 1977, at an occupational respiratory problem screening clinic and that her claim, filed on July 11, 1980, was barred by the two-year statute of limitations, G.S. 97-58, were jurisdictional findings of fact and were fully reviewable by the Court of Appeals. Dawkins v. Mills, 74 N.C. App. 712, 329 S.E.2d 688, 1985 N.C. App. LEXIS 3555 (1985).

The award should be set aside if the fact found by the Commission was jurisdictional and there was no evidence tending to support such finding. Poole v. Sigmon, 202 N.C. 172, 162 S.E. 198, 1932 N.C. LEXIS 455 (1932).

Dismissal for Lack of Jurisdiction Where Notice of Appeal Untimely. —

Employer’s appeal regarding the denial of its costs and attorney fees was dismissed because the appellate court did not obtain jurisdiction over the appeal under G.S. 97-86 since the employer’s notice of appeal was filed more than 30 days after the decision by the Full Commission of the North Carolina Industrial Commission. Strezinski v. City of Greensboro, 187 N.C. App. 703, 654 S.E.2d 263, 2007 N.C. App. LEXIS 2562 (2007).

IV.Findings of Commission

Findings Required on Crucial Facts. —

While the Commission is not required to make findings as to each fact presented by the evidence, it is required to make specific findings with respect to crucial facts upon which the question of plaintiff ’s right to compensation depends. Gaines v. L.D. Swain & Son, 33 N.C. App. 575, 235 S.E.2d 856, 1977 N.C. App. LEXIS 2254 (1977).

It is required that the Industrial Commission find all the crucial and specific facts upon which the right to compensation depends, in order that it may be determined on appeal whether an adequate basis exists for the ultimate findings as to whether plaintiff was injured by accident arising out of and in the course of his employment, but it is not required that the Commission make a finding as to each detail of the evidence or as to every shade of meaning to be drawn therefrom. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596, 1955 N.C. LEXIS 387 (1955). See also, Clark v. Gastonia Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354, 1964 N.C. LEXIS 448 (1964).

Findings Must Be Specific and Definite. —

It is the duty of the Commission to make such specific and definite findings upon the evidence as will enable the court to determine whether its general findings or conclusions should stand. Singleton v. Durham Laundry Co., 213 N.C. 32, 195 S.E. 34, 1938 N.C. LEXIS 6 (1938).

The Industrial Commission is required to make specific findings as to the facts upon which a compensation claim is based, including the extent of a claimant’s disability. Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

The findings of fact should tell the full story of the event giving rise to the claim for compensation. They must be sufficiently positive and specific to enable the court on appeal to determine whether they are supported by the evidence and whether the law has been properly applied to them. Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706, 1952 N.C. LEXIS 449 (1952); Gaines v. L.D. Swain & Son, 33 N.C. App. 575, 235 S.E.2d 856, 1977 N.C. App. LEXIS 2254 (1977).

Mere recitals of medical opinion are not sufficiently specific to enable a reviewing court to judge the propriety of the Commission’s order, and therefore cannot properly form the basis for a conclusion of law as to compensation. Harrell v. J.P. Stevens & Co., 54 N.C. App. 582, 284 S.E.2d 343, 1981 N.C. App. LEXIS 2926 (1981).

Finding Held Too Indefinite to Serve as Basis for Valid Award. —

Where it was found by the Commission that the deceased was killed while acting either as deputy sheriff or jailer, the court held that the finding was too indefinite to serve as a basis for a valid award. Gowens v. Alamance County, 214 N.C. 18, 197 S.E. 538, 1938 N.C. LEXIS 248 (1938) (decided prior to the 1939 amendment to G.S. 97-2) .

V.Scope of Review

Certain Matters Are Not Reviewable. —

There are completely unreviewable matters in compensation procedures, just as there are in ordinary judicial procedure. Morse v. Curtis, 6 N.C. App. 620, 170 S.E.2d 491, 1969 N.C. App. LEXIS 1245 (1969).

Review of Questions of Fact and of Law Distinguished. —

When the assignments of error bring up for review the findings of fact of the Commission, the court will review the evidence to determine as a matter of law whether there is any competent evidence tending to support the findings; if so, the findings of fact are conclusive on the court. If a finding of fact is a mixed question of fact and law, it is conclusive also, if there is sufficient evidence to sustain the facts involved. If a question of law alone, it is reviewable. Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410, 1954 N.C. LEXIS 457 (1954).

An appeal from the Industrial Commission is permitted only on matters of law. The appellate court has jurisdiction to review only for errors of law. Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff'd, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969). See also, Byrd v. Gloucester Lumber Co., 207 N.C. 253, 176 S.E. 572, 1934 N.C. LEXIS 433 (1934).

Fox v. Cramerton Mills, 225 N.C. 580, 35 S.E.2d 869, 1945 N.C. LEXIS 371 (1945).

No review of fact findings by Commission. —

On appeal from the Industrial Commission, the court has no power to review the findings of fact by the Commission. It can consider only errors of law appearing in the record, as certified by the Commission. Winslow v. Carolina Conference Ass'n, 211 N.C. 571, 191 S.E. 403, 1937 N.C. LEXIS 154 (1937).

Conclusive and binding effect of award. —

While findings of fact by the Industrial Commission, when supported by competent evidence, are conclusive, the rulings of the Commission are subject to review on questions of law, i.e., whether the Industrial Commission has jurisdiction, whether the findings are supported by evidence, and whether upon the facts established the decision is correct. Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730, 1946 N.C. LEXIS 390 (1946).

As to review of errors of law prior to 1967 amendment, see Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706, 1952 N.C. LEXIS 449 (1952).

The award of the Industrial Commission is conclusive and binding as to all questions of fact, and the appeal to the court is for error of law only. Ballenger Paving Co. v. North Carolina State Hwy. Comm'n, 258 N.C. 691, 129 S.E.2d 245, 1963 N.C. LEXIS 452 (1963).

The Court of Appeals has appellate jurisdiction to review an award of the Industrial Commission for errors of law when a party to the proceeding in which the appeal is made appeals to it. Morgan v. Thomasville Furn. Indus., 2 N.C. App. 126, 162 S.E.2d 619, 1968 N.C. App. LEXIS 883 (1968).

Appellate review of opinions and awards of the Commission is strictly limited to the discovery and correction of legal errors. Godley v. County of Pitt, 306 N.C. 357, 293 S.E.2d 167, 1982 N.C. LEXIS 1459 (1982).

Discretion to Consider Excusable Neglect. —

The commission has the inherent power and authority, in its discretion, to consider defendant’s motion for relief due to excusable neglect. Allen v. Food Lion, Inc., 117 N.C. App. 289, 450 S.E.2d 571, 1994 N.C. App. LEXIS 1204 (1994).

The Commission’s legal conclusions are subject to court review. Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865, 1968 N.C. LEXIS 717 (1968); Porterfield v. RPC Corp., 47 N.C. App. 140, 266 S.E.2d 760, 1980 N.C. App. LEXIS 2975 (1980); Peeler v. State Hwy. Comm'n, 48 N.C. App. 1, 269 S.E.2d 153, 1980 N.C. App. LEXIS 3199 (1980), aff'd, 302 N.C. 183, 273 S.E.2d 705, 1981 N.C. LEXIS 1039 (1981); Pollard v. Krispy Waffle #1, 63 N.C. App. 354, 304 S.E.2d 762, 1983 N.C. App. LEXIS 3046 (1983); Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

Workers’ compensation commissioners were entitled to absolute quasi-judicial immunity because their role as Deputy Commissioners was indisputably judicial in nature under G.S. 97-77, and safeguards in the form of appeals from Deputy Commissioners’ decisions to the full Industrial Commission and the North Carolina Courts were available under G.S. 97-85 and G.S. 97-86. Sherwin v. Piner, 2003 U.S. Dist. LEXIS 26855 (E.D.N.C. July 21, 2003), aff'd, 91 Fed. Appx. 312, 2004 U.S. App. LEXIS 6686 (4th Cir. 2004).

Even If Denominated “Findings of Fact”. —

A conclusion of law is made no less reviewable by virtue of the fact that it is denominated a “finding of fact”. Walston v. Burlington Indus., 49 N.C. App. 301, 271 S.E.2d 516, 1980 N.C. App. LEXIS 3403 (1980), rev'd, 304 N.C. 670, 285 S.E.2d 822, 1982 N.C. LEXIS 1239 (1982).

As Conclusions of Law Are Not Binding on the Court. —

Conclusions of law entered by the Industrial Commission are not binding on the Court of Appeals, and are reviewable for purposes of determining their evidentiary basis and the reasonableness of the legal inferences made therefrom. Walston v. Burlington Indus., 49 N.C. App. 301, 271 S.E.2d 516, 1980 N.C. App. LEXIS 3403 (1980), rev'd, 304 N.C. 670, 285 S.E.2d 822, 1982 N.C. LEXIS 1239 (1982).

Where the facts are not in dispute, the effect to be given such facts is a matter of law reviewable on appeal. Perkins v. Sprott, 207 N.C. 462, 177 S.E. 404, 1934 N.C. LEXIS 495 (1934).

Findings of fact made by the Commission are, when supported by any evidence, conclusive on appeal. But when all the evidence and the inferences to be drawn therefrom result in only one conclusion, liability is a question of law subject to review. Hensley v. Farmers Fed'n Coop., 246 N.C. 274, 98 S.E.2d 289, 1957 N.C. LEXIS 413 (1957).

In passing upon an appeal from an award of the Commission, the reviewing court is limited to two questions of law, namely: (1) Whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether the findings of fact of the Commission justify its legal conclusions and decisions. Brice v. Robertson House Moving, Wrecking & Salvage Co., 249 N.C. 74, 105 S.E.2d 439, 1958 N.C. LEXIS 440 (1958); Moore v. Adams Elec. Co., 259 N.C. 735, 131 S.E.2d 356, 1963 N.C. LEXIS 610 (1963); Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969); Waggoner v. North Carolina Bd. of Alcoholic Control, 7 N.C. App. 692, 173 S.E.2d 548, 1970 N.C. App. LEXIS 1759 (1970); Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 232 S.E.2d 449, 1977 N.C. LEXIS 1054 (1977); Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, 1980 N.C. LEXIS 1080 (1980); King v. Forsyth County, 45 N.C. App. 467, 263 S.E.2d 283, 1980 N.C. App. LEXIS 2641 (1980); Walston v. Burlington Indus., 49 N.C. App. 301, 271 S.E.2d 516, 1980 N.C. App. LEXIS 3403 (1980), rev'd, 304 N.C. 670, 285 S.E.2d 822, 1982 N.C. LEXIS 1239 (1982); Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101, 1981 N.C. LEXIS 1336 (1981); Buck v. Procter & Gamble Mfg. Co., 52 N.C. App. 88, 278 S.E.2d 268, 1981 N.C. App. LEXIS 2320 (1981); Chandler v. Nello L. Teer Co., 53 N.C. App. 766, 281 S.E.2d 718, 1981 N.C. App. LEXIS 2724 (1981), aff'd, 305 N.C. 292, 287 S.E.2d 890, 1982 N.C. LEXIS 1264 (1982); Hilliard v. Apex Cabinet Co., 54 N.C. App. 173, 282 S.E.2d 828, 1981 N.C. App. LEXIS 2782 (1981), rev'd, 305 N.C. 593, 290 S.E.2d 682, 1982 N.C. LEXIS 1331 (1982); Anderson v. A.M. Smyre Mfg. Co., 54 N.C. App. 337, 283 S.E.2d 433, 1981 N.C. App. LEXIS 2841 (1981); Rutledge v. Tultex Corp., 56 N.C. App. 345, 289 S.E.2d 72, 1982 N.C. App. LEXIS 2425 (1982), aff'd in part and rev'd in part, 308 N.C. 85, 301 S.E.2d 359, 1983 N.C. LEXIS 1129 (1983); Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766, 1982 N.C. App. LEXIS 2714 (1982); Dolbow v. Holland Indus., Inc., 64 N.C. App. 695, 308 S.E.2d 335, 1983 N.C. App. LEXIS 3338 (1983); Roper v. J.P. Stevens & Co., 65 N.C. App. 69, 308 S.E.2d 485, 1983 N.C. App. LEXIS 3386 (1983); Mills v. Mills, 68 N.C. App. 151, 314 S.E.2d 833, 1984 N.C. App. LEXIS 3201 (1984); Sanderson v. Northeast Constr. Co., 77 N.C. App. 117, 334 S.E.2d 392, 1985 N.C. App. LEXIS 4051 (1985); McBride v. Peony Corp., 84 N.C. App. 221, 352 S.E.2d 236, 1987 N.C. App. LEXIS 2491 (1987).

In appeals from the Industrial Commission, the superior court (now the Court of Appeals) may determine upon proper exceptions that the facts found by the Industrial Commission were or were not supported by competent evidence and that the findings so supported do or do not sustain the legal conclusions and the award of the Industrial Commission. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

The role of the appellate court in reviewing an appeal from the Industrial Commission is limited to a determination of (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are supported by the findings. Guy v. Burlington Indus., 74 N.C. App. 685, 329 S.E.2d 685 (1985). In accord with third paragraph in the main volume. See Woodell v. Starr Davis Co., 77 N.C. App. 352, 335 S.E.2d 48, 1985 N.C. App. LEXIS 4073 (1985).

Court May Determine Whether There Is Any Evidence to Support Commission’s Findings. —

The findings of fact of the Industrial Commission are conclusive on appeal only when supported by evidence, and the court, on appeal, may review the evidence to determine as a matter of law whether there is any evidence tending to support the findings. Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173, 1951 N.C. LEXIS 558 (1951); Eller v. Porter-Hayden Co., 48 N.C. App. 610, 269 S.E.2d 284, 1980 N.C. App. LEXIS 3285 (1980).

When the party aggrieved appeals to court from a decision of the full Commission on the theory that the underlying findings of fact of the full Commission are not supported by competent evidence, the court does not retry the facts. The court merely determines from the proceedings had before the Commission whether there was sufficient competent evidence before the Commission to support the findings of fact of the full Commission. Moses v. Bartholomew, 238 N.C. 714, 78 S.E.2d 923, 1953 N.C. LEXIS 620 (1953).

It is the duty of the court to determine whether, in any reasonable view of the evidence, such evidence is sufficient to support the critical findings necessary to permit an award of compensation. Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342, 1963 N.C. LEXIS 539 (1963).

The court’s duty in a compensation case goes no further than to determine whether the record contains any evidence tending to support the finding. Anderson v. Lincoln Constr. Co., 265 N.C. 431, 144 S.E.2d 272, 1965 N.C. LEXIS 1002 (1965); Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874, 1968 N.C. LEXIS 584 (1968); Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 232 S.E.2d 449, 1977 N.C. LEXIS 1054 (1977); Ivory v. Greer Bros., 45 N.C. App. 455, 263 S.E.2d 290, 1980 N.C. App. LEXIS 2639 (1980); Taylor v. M.L. Hatcher Pick-Up & Delivery Serv., 45 N.C. App. 682, 263 S.E.2d 788, 1980 N.C. App. LEXIS 2698 (1980); Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389, 1980 N.C. LEXIS 1048 (1980).

Conclusions of law are reviewable by the Court of Appeals to determine their evidentiary basis. Lucas v. Thomas Built Buses, Inc., 88 N.C. App. 587, 364 S.E.2d 147, 1988 N.C. App. LEXIS 50 (1988).

A review of the record indicated there was competent evidence to support the Commission’s findings of fact, and the findings of fact justified the Commission’s legal conclusions. Lowe v. BE & K Constr. Co., 121 N.C. App. 570, 468 S.E.2d 396, 1996 N.C. App. LEXIS 121 (1996).

Although an employee testified that he sustained his back injury in a work-related accident, there was enough evidence in the record to support the North Carolina Industrial Commission’s conclusion that the employee sustained the injury while he was on vacation, and the court of appeals upheld the Commission’s decision denying the employee’s claim for workers’ compensation benefits. Holcomb v. Butler Mfg. Co., 158 N.C. App. 267, 580 S.E.2d 376, 2003 N.C. App. LEXIS 1048 (2003).

And Whether Findings Support Commission’s Conclusions and Decision. —

On appeal from an award of the Industrial Commission the jurisdiction of the courts is limited to the questions of law as to whether there was competent evidence before the Commission to support its findings of fact and whether such findings justify the legal conclusions and decision of the Commission. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760, 1950 N.C. LEXIS 478 (1950); Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706, 1952 N.C. LEXIS 449 (1952); Green v. Eastern Constr. Co., 1 N.C. App. 300, 161 S.E.2d 200, 1968 N.C. App. LEXIS 1066 (1968); Gaines v. L.D. Swain & Son, 33 N.C. App. 575, 235 S.E.2d 856, 1977 N.C. App. LEXIS 2254 (1977); King v. Exxon Co., 46 N.C. App. 750, 266 S.E.2d 37, 1980 N.C. App. LEXIS 2908 (1980); Peeler v. State Hwy. Comm'n, 48 N.C. App. 1, 269 S.E.2d 153, 1980 N.C. App. LEXIS 3199 (1980), aff'd, 302 N.C. 183, 273 S.E.2d 705, 1981 N.C. LEXIS 1039 (1981); McLean v. Roadway Express, Inc., 307 N.C. 99, 296 S.E.2d 456, 1982 N.C. LEXIS 1598 (1982); Keller v. City of Wilmington Police Dep't, 65 N.C. App. 675, 309 S.E.2d 543, 1983 N.C. App. LEXIS 3525 (1983).

When called upon to review the findings of fact, conclusions of law, and awards of the Industrial Commission in compensation cases, the courts determine as a matter of law whether the facts found support the Commission’s conclusions, and whether they justify the awards. McRae v. Wall, 260 N.C. 576, 133 S.E.2d 220, 1963 N.C. LEXIS 771 (1963).

If the findings of fact of the Industrial Commission are supported by competent evidence and are determinative of all of the questions at issue in the proceeding, the court must accept such findings as final truth and merely determine whether they justify the legal conclusions and decision of the Commission. Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747, 1963 N.C. LEXIS 707 (1963); Morgan v. Thomasville Furn. Indus., 2 N.C. App. 126, 162 S.E.2d 619, 1968 N.C. App. LEXIS 883 (1968); Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff'd, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969); Hollar v. Montclair Furn. Co., 48 N.C. App. 489, 269 S.E.2d 667, 1980 N.C. App. LEXIS 3286 (1980).

While findings of fact of the Industrial Commission are conclusive on appeal when supported by evidence, the courts must review the reasonableness of the inferences of fact deduced from the basic facts found, and the conclusions of law predicated upon them. Evans v. Tabor City Lumber Co., 232 N.C. 111, 59 S.E.2d 612, 1950 N.C. LEXIS 430 (1950); Crawley v. Southern Devices, Inc., 31 N.C. App. 284, 229 S.E.2d 325, 1976 N.C. App. LEXIS 1969 (1976), cert. denied, 292 N.C. 467, 234 S.E.2d 2, 1977 N.C. LEXIS 1115 (1977).

On appeal from an award of the Industrial Commission, the appellate court’s review is limited to the questions of whether the findings made by the Commission are supported by competent evidence in the record and whether these findings support the conclusions of law drawn by the Commission. Little v. Penn Ventilator Co., 75 N.C. App. 92, 330 S.E.2d 276, 1985 N.C. App. LEXIS 3588 (1985), aff'd in part and rev'd in part, 317 N.C. 206, 345 S.E.2d 204, 1986 N.C. LEXIS 2782 (1986).

While the Commission’s findings of fact are conclusive, the reviewing court’s function is to determine whether the Commission’s findings of fact are supported by competent evidence and whether the conclusions of law are correct. Lucas v. Thomas Built Buses, Inc., 88 N.C. App. 587, 364 S.E.2d 147, 1988 N.C. App. LEXIS 50 (1988).

In making its determinations, the North Carolina Industrial Commission is not required to find facts as to all credible evidence, but must find those facts which are necessary to support its conclusions of law; the evidence supported findings that a worker had not reached maximum medical improvement, and that he had not refused suitable employment. Walker v. Lake Rim Lawn & Garden, 155 N.C. App. 709, 575 S.E.2d 764, 2003 N.C. App. LEXIS 384 (2003).

Court May Not Find Facts Itself. —

In no event may the superior court (now the Court of Appeals) or the Supreme Court consider the evidence in a proceeding involving an appeal from the Industrial Commission for the purpose of finding the facts for itself. Reed v. Lavender Bros., 206 N.C. 898, 172 S.E. 877, 1934 N.C. LEXIS 340 (1934); Walker v. J.D. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89, 1937 N.C. LEXIS 385 (1937); Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706, 1952 N.C. LEXIS 449 (1952); Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747, 1963 N.C. LEXIS 707 (1963); Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff'd, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

The court cannot consider the evidence in the proceeding in any event for the purpose of finding the facts for itself. If the findings of fact of the Industrial Commission are supported by competent evidence and are determinative of all the questions at issue in the proceeding, the court must accept such findings as final truth and merely determine whether or not they justify the legal conclusions and decision of the Commission. But if the findings of fact of the Industrial Commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the proceeding must be remanded to the Commission for proper findings. Brice v. Robertson House Moving, Wrecking & Salvage Co., 249 N.C. 74, 105 S.E.2d 439, 1958 N.C. LEXIS 440 (1958); Gamble v. Borden, Inc., 45 N.C. App. 506, 263 S.E.2d 280, 1980 N.C. App. LEXIS 2647 (1980).

The Court of Appeals may neither find facts nor adjudicate matters within the jurisdiction of the Industrial Commission. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

When reviewing an appeal from an award of the full Commission, the appellate court does not retry the facts, but instead, determines whether there was any competent evidence before the Commission to support its findings of fact. Bailey v. Smoky Mt. Enters., Inc., 65 N.C. App. 134, 308 S.E.2d 489, 1983 N.C. App. LEXIS 3387 (1983).

Or Receive Evidence Not Considered Below. —

Neither the superior court (now the Court of Appeals) nor the Supreme Court may receive or consider any evidence not introduced in the hearings before the hearing commissioner or the full Commission. Huffman v. Douglass Aircraft Co., 260 N.C. 308, 132 S.E.2d 614, 1963 N.C. LEXIS 689 (1963), cert. denied, 379 U.S. 850, 85 S. Ct. 93, 13 L. Ed. 2d 53, 1964 U.S. LEXIS 636 (1964).

The appellate court may not receive or consider new evidence not introduced in the hearing before the Commission. Byers v. North Carolina State Hwy. Comm’n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff’d, 275 N.C. 229, 166 S.E.2d 649 (1969).

The scope of review is limited to the record as certified by the Commission and to the questions of law therein presented. Penland v. Bird Coal Co., 246 N.C. 26, 97 S.E.2d 432, 1957 N.C. LEXIS 359 (1957); Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff'd, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

On appeal from a judgment of the superior court (now the Court of Appeals) affirming or reversing an award of the Industrial Commission, the Supreme Court acts upon the record that was before the court and upon that alone; if the record was defective, it should have been amended in the superior court. Penland v. Bird Coal Co., 246 N.C. 26, 97 S.E.2d 432, 1957 N.C. LEXIS 359 (1957).

Matters which were not in the record before the superior court (now the Court of Appeals), but which were sent up with the transcript to the Supreme Court, are no more a part of the record in the Supreme Court than they were in the superior court (now the Court of Appeals), and may not be made so by certificate of the court below. Penland v. Bird Coal Co., 246 N.C. 26, 97 S.E.2d 432, 1957 N.C. LEXIS 359 (1957).

Under G.S. 97-86, an appeal from an opinion and award of the North Carolina Industrial Commission is taken under the same terms and conditions as govern appeals from the superior court to the Court of Appeals of North Carolina in ordinary civil actions, and the procedure for the appeal shall be as provided by the rules of appellate procedure, N.C. R. App. P. 10(a) which provides that the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal. McGrady v. Olsten Corp., 159 N.C. App. 643, 583 S.E.2d 371, 2003 N.C. App. LEXIS 1520 (2003).

The court does not have the right to weigh the evidence in a workers’ compensation case and decide the issue on the basis of its weight. Anderson v. Lincoln Constr. Co., 265 N.C. 431, 144 S.E.2d 272, 1965 N.C. LEXIS 1002 (1965); Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874, 1968 N.C. LEXIS 584 (1968); Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 232 S.E.2d 449, 1977 N.C. LEXIS 1054 (1977).

Upon review of an order of the Industrial Commission, the Supreme Court does not weigh the evidence but may only determine whether there is evidence in the record to support the finding made by the Commission. Russell v. Pharr Yarns, Inc., 18 N.C. App. 249, 196 S.E.2d 571, 1973 N.C. App. LEXIS 1827 (1973); Willis v. Reidsville Drapery Plant, 29 N.C. App. 386, 224 S.E.2d 287, 1976 N.C. App. LEXIS 2486 (1976).

Upon review of the opinion and award of the full Commission, the Court of Appeals does not weigh the evidence, but may only determine whether there is evidence in the record to support the findings made by the Commission. If there is any evidence of substance which directly or by reasonable inference tends to support the findings, this court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary. Porterfield v. RPC Corp., 47 N.C. App. 140, 266 S.E.2d 760, 1980 N.C. App. LEXIS 2975 (1980).

It is not for a reviewing court to weigh the evidence before the Industrial Commission in a workers’ compensation case. Mayo v. City of Washington, 51 N.C. App. 402, 276 S.E.2d 747, 1981 N.C. App. LEXIS 2259 (1981).

It is not the function of any appellate court to retry the facts found by the Commission or weigh the evidence received by it and decide anew the issue of compensability of an employee’s claim. Buck v. Procter & Gamble Mfg. Co., 52 N.C. App. 88, 278 S.E.2d 268, 1981 N.C. App. LEXIS 2320 (1981).

Commission Is Sole Judge of Weight and Credibility of Testimony. —

The Industrial Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Anderson v. Lincoln Constr. Co., 265 N.C. 431, 144 S.E.2d 272, 1965 N.C. LEXIS 1002 (1965); Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874, 1968 N.C. LEXIS 584 (1968); Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 232 S.E.2d 449, 1977 N.C. LEXIS 1054 (1977); McNinch v. Henredon Indus., Inc., 51 N.C. App. 250, 276 S.E.2d 756, 1981 N.C. App. LEXIS 2261 (1981); Yelverton v. Kemp Furn. Co., 51 N.C. App. 675, 277 S.E.2d 441, 1981 N.C. App. LEXIS 2294 (1981); Woodell v. Starr Davis Co., 77 N.C. App. 352, 335 S.E.2d 48, 1985 N.C. App. LEXIS 4073 (1985); Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

By authority of this section the Commission is the sole judge of the credibility and weight to be accorded to the evidence and testimony before it. Its findings of fact may be set aside on appeal only when there is a complete lack of competent evidence to support them. Mayo v. City of Washington, 51 N.C. App. 402, 276 S.E.2d 747, 1981 N.C. App. LEXIS 2259 (1981).

The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Thus, the Commission may assign more weight and credibility to certain testimony than to other testimony. Moreover, if the evidence before the Commission is capable of supporting two contrary findings, the determination of the Commission is conclusive on appeal. Dolbow v. Holland Indus., Inc., 64 N.C. App. 695, 308 S.E.2d 335, 1983 N.C. App. LEXIS 3338 (1983).

Argument that finding was contrary to the greater weight of the evidence was irrelevant; determining the weight and credibility of evidence was the province of the commission, the fact finder, which could accept or reject different parts of a witness’ testimony as it saw fit. Fowler v. B.E. & K. Constr., Inc., 92 N.C. App. 237, 373 S.E.2d 878, 1988 N.C. App. LEXIS 1021 (1988).

North Carolina Industrial Commission is the sole judge of the credibility of the witnesses and the weight of the evidence, and the Commission’s findings of fact are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary. Davis v. Harrah's Cherokee Casino, 362 N.C. 133, 655 S.E.2d 392, 2008 N.C. LEXIS 30 (2008).

Authority to Find Facts Is Vested Exclusively in Industrial Commission. —

The authority to find facts necessary for an award pursuant to the provisions of the act is vested exclusively in the Industrial Commission. Moore v. Adams Elec. Co., 259 N.C. 735, 131 S.E.2d 356, 1963 N.C. LEXIS 610 (1963); Anderson v. Lincoln Constr. Co., 265 N.C. 431, 144 S.E.2d 272, 1965 N.C. LEXIS 1002 (1965).

The Industrial Commission is the sole trier of the facts. Hall v. W.A. Davis Milling Co., 1 N.C. App. 380, 161 S.E.2d 780, 1968 N.C. App. LEXIS 1084 (1968).

This section vests the Industrial Commission with full authority to find essential facts. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874, 1968 N.C. LEXIS 584 (1968); Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 232 S.E.2d 449, 1977 N.C. LEXIS 1054 (1977).

The Industrial Commission is vested with the judicial function and the authority and duty to determine whether, under the established facts and applicable law, the plaintiff has a compensable claim. Nello L. Teer Co. v. North Carolina State Hwy. Comm'n, 265 N.C. 1, 143 S.E.2d 247, 1965 N.C. LEXIS 937 (1965).

The Commission is the sole fact-finding agency in cases in which it has jurisdiction. Yelverton v. Kemp Furn. Co., 51 N.C. App. 675, 277 S.E.2d 441, 1981 N.C. App. LEXIS 2294 (1981).

The factual determinations of the Industrial Commission are conclusive on appeal to the superior court (now the Court of Appeals) and in the Supreme Court. Brown v. Carolina Aluminum Co., 224 N.C. 766, 32 S.E.2d 320, 1944 N.C. LEXIS 243 (1944).

Under the Workers’ Compensation Act the Industrial Commission is made the fact-finding body, and the findings of fact made by the Commission are conclusive on appeal. McMahan v. Hickey's Supermarket, 24 N.C. App. 113, 210 S.E.2d 214, 1974 N.C. App. LEXIS 1944 (1974); Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 232 S.E.2d 449, 1977 N.C. LEXIS 1054 (1977).

When Supported by Competent Evidence. —

The findings of fact of the Industrial Commission are conclusive and binding upon appeal when supported by competent evidence. Fox v. Cramerton Mills, 225 N.C. 580, 35 S.E.2d 869, 1945 N.C. LEXIS 371 (1945); Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760, 1950 N.C. LEXIS 478 (1950); Williams v. Ornamental Stone Co., 232 N.C. 88, 59 S.E.2d 193, 1950 N.C. LEXIS 394 (1950); Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173, 1951 N.C. LEXIS 558 (1951); Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265, 1951 N.C. LEXIS 604 (1951); McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658, 1951 N.C. LEXIS 333 (1951); Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706, 1952 N.C. LEXIS 449 (1952); Rice v. Thomasville Chair Co., 238 N.C. 121, 76 S.E.2d 311, 1953 N.C. LEXIS 380 (1953); Moses v. Bartholomew, 238 N.C. 714, 78 S.E.2d 923, 1953 N.C. LEXIS 620 (1953); Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220, 1953 N.C. LEXIS 632 (1953); Osborne v. Colonial Ice Co., 249 N.C. 387, 106 S.E.2d 573, 1959 N.C. LEXIS 360 (1959); McGinnis v. Old Fort Finishing Plant, 253 N.C. 493, 117 S.E.2d 490, 1960 N.C. LEXIS 696 (1960); Byrd v. Farmers Fed'n Coop., 260 N.C. 215, 132 S.E.2d 348, 1963 N.C. LEXIS 668 (1963); Huffman v. Douglass Aircraft Co., 260 N.C. 308, 132 S.E.2d 614, 1963 N.C. LEXIS 689 (1963), cert. denied, 379 U.S. 850, 85 S. Ct. 93, 13 L. Ed. 2d 53, 1964 U.S. LEXIS 636 (1964); McRae v. Wall, 260 N.C. 576, 133 S.E.2d 220, 1963 N.C. LEXIS 771 (1963); Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643, 1964 N.C. LEXIS 630 (1964); Evans v. Topstyle, Inc., 270 N.C. 134, 153 S.E.2d 851, 1967 N.C. LEXIS 1310 (1967); Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865, 1968 N.C. LEXIS 717 (1968); Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102, 1968 N.C. App. LEXIS 1014 (1968); Green v. Eastern Constr. Co., 1 N.C. App. 300, 161 S.E.2d 200, 1968 N.C. App. LEXIS 1066 (1968); Stewart v. North Carolina Dep't of Cors., 29 N.C. App. 735, 225 S.E.2d 336, 1976 N.C. App. LEXIS 2638 (1976); Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977); Long v. Asphalt Paving Co., 47 N.C. App. 564, 268 S.E.2d 1, 1980 N.C. App. LEXIS 3151 (1980); Walston v. Burlington Indus., 49 N.C. App. 301, 271 S.E.2d 516, 1980 N.C. App. LEXIS 3403 (1980), rev'd, 304 N.C. 670, 285 S.E.2d 822, 1982 N.C. LEXIS 1239 (1982); McNinch v. Henredon Indus., Inc., 51 N.C. App. 250, 276 S.E.2d 756, 1981 N.C. App. LEXIS 2261 (1981); McLean v. Roadway Express, Inc., 307 N.C. 99, 296 S.E.2d 456, 1982 N.C. LEXIS 1598 (1982); Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982); Sanderson v. Northeast Constr. Co., 77 N.C. App. 117, 334 S.E.2d 392, 1985 N.C. App. LEXIS 4051 (1985).

The Industrial Commission’s findings of fact, except jurisdictional findings, are conclusive on appeal if supported by competent evidence. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280, 1965 N.C. LEXIS 1144 (1965); Nello L. Teer Co. v. North Carolina State Hwy. Comm'n, 265 N.C. 1, 143 S.E.2d 247, 1965 N.C. LEXIS 937 (1965); Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874, 1968 N.C. LEXIS 584 (1968); Thompson v. Burlington Indus., 59 N.C. App. 539, 297 S.E.2d 122, 1982 N.C. App. LEXIS 3137 (1982), cert. denied, 307 N.C. 582, 299 S.E.2d 650, 1983 N.C. LEXIS 1208 (1983).

If the evidence and the stipulations, viewed in the light most favorable to claimant, support the findings of the Industrial Commission, the courts are bound by them. Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432, 1966 N.C. LEXIS 1357 (1966).

The Commission occupies a position analogous to that of a referee, the difference being that the findings of fact by the Commission are binding, if there is any evidence to support them, while those of a referee are not. Singleton v. Durham Laundry Co., 213 N.C. 32, 195 S.E. 34, 1938 N.C. LEXIS 6 (1938). See also, Maley v. Thomasville Furn. Co., 214 N.C. 589, 200 S.E. 438, 1939 N.C. LEXIS 386 (1939) (as to the hearing commissioner) .

The court was required to affirm the finding of the North Carolina Industrial Commission where competent evidence supported it pursuant to G.S. 97-86. Harrison v. Lucent Techs., 156 N.C. App. 147, 575 S.E.2d 825, 2003 N.C. App. LEXIS 80 (2003).

Insurer’s pre-term cancellation of an insured’s workers’ compensation coverage was both valid and effective pursuant to G.S. 58-36-105 because, although the insured had requested a premium reduction, it did not make any part of the installment payment by the due date; even after the adjustment, the insured still owed an outstanding balance as of the due date, and by the terms of the Rate Bureau table, it owed an installment payment of one-third of that amount, yet it paid nothing by the due date, and competent evidence in the record supported the commission’s findings and conclusions. Bell v. Hype Mfg., LLC, 210 N.C. App. 235, 705 S.E.2d 926, 2011 N.C. App. LEXIS 299 (2011).

Even If Evidence Would Also Have Supported Contrary Findings. —

If there is any competent evidence to support a finding of fact of the Industrial Commission, such finding is conclusive on appeal, even though there is evidence that would have supported a finding to the contrary. Riddick v. Richmond Cedar Works, 227 N.C. 647, 43 S.E.2d 850, 1947 N.C. LEXIS 490 (1947); Johnson v. Erwin Cotton Mills Co., 232 N.C. 321, 59 S.E.2d 828, 1950 N.C. LEXIS 504 (1950); Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109, 1951 N.C. LEXIS 545 (1951); Hawes v. Mutual Benefit Health & Accident Ass'n, 243 N.C. 62, 89 S.E.2d 739, 1955 N.C. LEXIS 693 (1955); Champion v. Hardin-Dixon Tractor Co., 246 N.C. 691, 99 S.E.2d 917, 1957 N.C. LEXIS 511 (1957); Osborne v. Colonial Ice Co., 249 N.C. 387, 106 S.E.2d 573, 1959 N.C. LEXIS 360 (1959); Humphrey v. Quality Cleaners & Laundry, 251 N.C. 47, 110 S.E.2d 467, 1959 N.C. LEXIS 507 (1959); Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218, 1962 N.C. LEXIS 702 (1962); Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342, 1963 N.C. LEXIS 539 (1963); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865, 1963 N.C. LEXIS 717 (1963); Crawford v. Central Bonded Whse., 263 N.C. 826, 140 S.E.2d 548, 1965 N.C. LEXIS 1384 (1965); Jones v. Myrtle Desk Co., 264 N.C. 401, 141 S.E.2d 632, 1965 N.C. LEXIS 1203 (1965); Eaton v. Klopman Mills, Inc., 2 N.C. App. 363, 163 S.E.2d 17, 1968 N.C. App. LEXIS 928 (1968); Hales v. North Hills Constr. Co., 5 N.C. App. 564, 169 S.E.2d 24, 1969 N.C. App. LEXIS 1396 (1969); Benfield v. Troutman, 17 N.C. App. 572, 195 S.E.2d 75, 1973 N.C. App. LEXIS 1409, cert. denied, 283 N.C. 392, 196 S.E.2d 274, 1973 N.C. LEXIS 976 (1973); Hardin v. A.D. Swann Trucking Co., 29 N.C. App. 216, 223 S.E.2d 840, 1976 N.C. App. LEXIS 2445 (1976); Schofield v. Great Atl. & Pac. Tea Co., 32 N.C. App. 508, 232 S.E.2d 874, 1977 N.C. App. LEXIS 1985, cert. denied, 292 N.C. 641, 235 S.E.2d 62, 1977 N.C. LEXIS 1156 (1977); Gaines v. L.D. Swain & Son, 33 N.C. App. 575, 235 S.E.2d 856, 1977 N.C. App. LEXIS 2254 (1977); Hansel v. Sherman Textiles, 49 N.C. App. 1, 270 S.E.2d 585, 1980 N.C. App. LEXIS 3328 (1980), rev'd, 304 N.C. 44, 283 S.E.2d 101, 1981 N.C. LEXIS 1336 (1981); Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101, 1981 N.C. LEXIS 1336 (1981); Yelverton v. Kemp Furn. Co., 51 N.C. App. 675, 277 S.E.2d 441, 1981 N.C. App. LEXIS 2294 (1981); Fann v. Burlington Indus., 59 N.C. App. 512, 296 S.E.2d 819, 1982 N.C. App. LEXIS 3138 (1982); Carter v. Frank Shelton, Inc., 62 N.C. App. 378, 303 S.E.2d 184, 1983 N.C. App. LEXIS 2932 (1983); Pollard v. Krispy Waffle #1, 63 N.C. App. 354, 304 S.E.2d 762, 1983 N.C. App. LEXIS 3046 (1983); Bailey v. Smoky Mt. Enters., Inc., 65 N.C. App. 134, 308 S.E.2d 489, 1983 N.C. App. LEXIS 3387 (1983); Sanderson v. Northeast Constr. Co., 77 N.C. App. 117, 334 S.E.2d 392, 1985 N.C. App. LEXIS 4051 (1985); Woodell v. Starr Davis Co., 77 N.C. App. 352, 335 S.E.2d 48, 1985 N.C. App. LEXIS 4073 (1985).

The findings of fact of the Industrial Commission are conclusive on the courts when the findings are supported by any competent evidence, notwithstanding the fact that the court, if it had been the fact-finding body, might have reached a different conclusion, the finding of facts from the evidence being the exclusive function of the Industrial Commission. McGill v. Lumberton, 218 N.C. 586, 11 S.E.2d 873, 1940 N.C. LEXIS 54 (1940). See Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 1949 N.C. LEXIS 379 (1949).

If there is any evidence of substance which directly or by reasonable inference tends to support the findings, the court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary. Russell v. Pharr Yarns, Inc., 18 N.C. App. 249, 196 S.E.2d 571, 1973 N.C. App. LEXIS 1827 (1973); Willis v. Reidsville Drapery Plant, 29 N.C. App. 386, 224 S.E.2d 287, 1976 N.C. App. LEXIS 2486 (1976).

If the totality of the evidence, viewed in the light most favorable to the complainant, tends directly or by reasonable inference to support the Commission’s findings, these findings are conclusive on appeal even though there may be plenary evidence to support findings to the contrary. Mayo v. City of Washington, 51 N.C. App. 402, 276 S.E.2d 747, 1981 N.C. App. LEXIS 2259 (1981).

For other examples of the application of the rule that when supported by competent legal evidence, the findings of fact of the Commission are conclusive even though they may be contrary to the opinion of the appellate court, see Williams v. Thompson, 200 N.C. 463, 157 S.E. 430, 1931 N.C. LEXIS 360 (1931); Wimbish v. Home Detective Co., 202 N.C. 800, 164 S.E. 344, 1932 N.C. LEXIS 226 (1932); Moore v. Summers Drug Co., 206 N.C. 711, 175 S.E. 96, 1934 N.C. LEXIS 287 (1934); Johnson v. Foreman-Blades Lumber Co., 216 N.C. 123, 4 S.E.2d 334, 1939 N.C. LEXIS 111 (1939); Blythe v. Welborn, 223 N.C. 857, 25 S.E.2d 555 (1943).

But facts found by the Commission under a misapprehension of law are not binding on appeal. Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109, 1948 N.C. LEXIS 254 (1948); Cooper v. Colonial Ice Co., 230 N.C. 43, 51 S.E.2d 889, 1949 N.C. LEXIS 549 (1949); Hawes v. Mutual Benefit Health & Accident Ass'n, 243 N.C. 62, 89 S.E.2d 739, 1955 N.C. LEXIS 693 (1955).

Findings May Be Set Aside Only for Complete Lack of Competent Evidence. —

Industrial Commission’s findings of fact are binding on a reviewing court if supported by competent evidence, and may be set aside on appeal only when there is a complete lack of competent evidence to support them. Carrington v. Housing Auth., 54 N.C. App. 158, 282 S.E.2d 541, 1981 N.C. App. LEXIS 2780 (1981).

The findings of the Commission are conclusive only if there is evidence to show that the facts are as found. Hildebrand v. McDowell Furn. Co., 212 N.C. 100, 193 S.E. 294, 1937 N.C. LEXIS 249 (1937).

The court may set aside a finding of fact of the Industrial Commission only upon the ground that it lacks evidentiary support. McRae v. Wall, 260 N.C. 576, 133 S.E.2d 220, 1963 N.C. LEXIS 771 (1963); Anderson v. Lincoln Constr. Co., 265 N.C. 431, 144 S.E.2d 272, 1965 N.C. LEXIS 1002 (1965); Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 232 S.E.2d 449, 1977 N.C. LEXIS 1054 (1977).

As an Award Not Supported by Evidence Cannot Be Upheld. —

The rule that the findings of fact made by the Industrial Commission, when supported by any competent evidence, are conclusive on appeal, does not mean that the conclusions of the Commission from the evidence are in all respects unexceptionable. If those findings, involving mixed questions of law and fact, are not supported by evidence, the award cannot be upheld. Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298, 1948 N.C. LEXIS 257 (1948).

The findings of fact of the Industrial Commission, when supported by competent evidence, are binding upon the courts upon appeal, but findings not supported by competent evidence are not conclusive and must be set aside. Logan v. Johnson, 218 N.C. 200, 10 S.E.2d 653, 1940 N.C. LEXIS 121 (1940); Penland v. Bird Coal Co., 246 N.C. 26, 97 S.E.2d 432, 1957 N.C. LEXIS 359 (1957).

But if the findings of fact are supported by the evidence, the decision of the full Commission must be affirmed. Brown v. J.P. Stevens & Co., 49 N.C. App. 118, 270 S.E.2d 602, 1980 N.C. App. LEXIS 3332 (1980).

As a general rule, an opinion and award of the Industrial Commission is conclusive on appeal if its findings of fact are supported by any competent evidence and the conclusions of law are supported by the findings. Priddy v. Cone Mills Corp., 58 N.C. App. 720, 294 S.E.2d 743, 1982 N.C. App. LEXIS 2815 (1982).

Conclusions of the Commission will not be disturbed if justified by findings of fact. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982).

Ruling Undisturbed Even Though Facts Justified Setting Aside Dismissal. —

Commission’s refusal to set aside dismissal was not an abuse of discretion. While there was much in the case which would have justified its setting aside dismissal, Commission’s decision was supported by reason. Hogan v. Cone Mills Corp., 326 N.C. 476, 390 S.E.2d 136, 1990 N.C. LEXIS 160 (1990).

An opinion and award entered by the Commission may not be disturbed on appeal unless a patent error of law exists therein. Hoffman v. Ryder Truck Lines, 306 N.C. 502, 293 S.E.2d 807, 1982 N.C. LEXIS 1487 (1982); Carter v. Frank Shelton, Inc., 62 N.C. App. 378, 303 S.E.2d 184, 1983 N.C. App. LEXIS 2932 (1983).

Commission’s legal interpretation of a particular provision is persuasive, although not binding, and should be accorded some weight on appeal and not idly cast aside, since that administrative body hears and decides all questions arising under the Workers’ Compensation Act in the first instance. Deese v. Southern Lawn & Tree Expert Co., 306 N.C. 275, 293 S.E.2d 140, 1982 N.C. LEXIS 1457 (1982).

A finding based on incompetent testimony is not conclusive. Plyler v. Charlotte Country Club, 214 N.C. 453, 199 S.E. 622, 1938 N.C. LEXIS 374 (1938); Penland v. Bird Coal Co., 246 N.C. 26, 97 S.E.2d 432, 1957 N.C. LEXIS 359 (1957).

Where the record specifically discloses that the Commission’s findings of fact are based upon incompetent testimony, such as the direct testimony of a witness who refused to be cross-examined or the transcript of previous testimony given in a criminal action, the findings are not only not conclusive, but there is error and the cause will be remanded. Citizens Bank & Trust Co. v. Reid Motor Co., 216 N.C. 432, 5 S.E.2d 318, 1939 N.C. LEXIS 9 (1939).

Effect of Admission of Incompetent Evidence Where Competent Evidence Supports Findings. —

Where each of the essential facts found by the Industrial Commission is supported by competent evidence, the findings are conclusive on appeal, even though some incompetent evidence was also admitted upon the hearing. Carlton v. Bernhardt-Seagle Co., 210 N.C. 655, 188 S.E. 77, 1936 N.C. LEXIS 188 (1936). See Tomlinson v. Town of Norwood, 208 N.C. 716, 182 S.E. 659, 1935 N.C. LEXIS 108 (1935); Swink v. Carolina Asbestos Co., 210 N.C. 303, 186 S.E. 258, 1936 N.C. LEXIS 92 (1936); Porter v. Noland Co., 215 N.C. 724, 2 S.E.2d 853, 1939 N.C. LEXIS 358 (1939); Baxter v. W.H. Arthur Co., 216 N.C. 276, 4 S.E.2d 621, 1939 N.C. LEXIS 143 (1939); Tindall v. American Furn. Co., 216 N.C. 306, 4 S.E.2d 894, 1939 N.C. LEXIS 153 (1939); Stallcup v. Carolina Wood Turning Co., 217 N.C. 302, 7 S.E.2d 550, 1940 N.C. LEXIS 227 (1940); MacRae v. Unemployment Comp. Comm'n, 217 N.C. 769, 9 S.E.2d 595, 1940 N.C. LEXIS 344 (1940); Blevins v. Teer, 220 N.C. 135, 16 S.E.2d 659, 1941 N.C. LEXIS 489 (1941); Miller v. Caudle, 220 N.C. 308, 17 S.E.2d 487, 1941 N.C. LEXIS 531 (1941); Haynes v. Feldspar Producing Co., 222 N.C. 163, 22 S.E.2d 275, 1942 N.C. LEXIS 56 (1942); Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570, 1942 N.C. LEXIS 77 (1942); Kearns v. Biltwell Chair & Furn. Co., 222 N.C. 438, 23 S.E.2d 310, 1942 N.C. LEXIS 119 (1942); Archie v. Greene Bros. Lumber Co., 222 N.C. 477, 23 S.E.2d 834, 1943 N.C. LEXIS 354 (1943); Penland v. Bird Coal Co., 246 N.C. 26, 97 S.E.2d 432, 1957 N.C. LEXIS 359 (1957).

The introduction of incompetent evidence cannot be held prejudicial where the record contains sufficient competent evidence to support the findings. Eaton v. Klopman Mills, Inc., 2 N.C. App. 363, 163 S.E.2d 17, 1968 N.C. App. LEXIS 928 (1968).

Adoption of Findings by Reference. —

If the court’s findings are in agreement with those of the Commission, it may by reference in the judgment adopt the latter as its own. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280, 1965 N.C. LEXIS 1144 (1965); Patterson v. L.M. Parker & Co., 2 N.C. App. 43, 162 S.E.2d 571, 1968 N.C. App. LEXIS 870 (1968).

VI.Review of Particular Findings

The relationship of employer and employee created by the facts found by the Commission is a question of law and the conclusion of the Commission based on those facts is reviewable. Hawes v. Mutual Benefit Health & Accident Ass'n, 243 N.C. 62, 89 S.E.2d 739, 1955 N.C. LEXIS 693 (1955).

The finding of the Industrial Commission that deceased was an employee of defendant at the time of his fatal injury is conclusive on the courts if supported by competent evidence, notwithstanding that the court might have reached a different conclusion if it had been the fact-finding body. Cloinger v. Ambrosia Cake Bakery Co., 218 N.C. 26, 9 S.E.2d 615, 1940 N.C. LEXIS 94 (1940). But see, Francis v. Wood Turning Co., 204 N.C. 701, 169 S.E. 654, 1933 N.C. LEXIS 242 (1933) (wherein it was held that the finding by the Commission on the question of whether the claimant was an employee was one of jurisdiction and was not conclusive on appeal) .

The question of whether claimant was employed by defendant or by an independent subcontractor, as contended, was one of law, and reviewable, once the facts to the arrangements between the parties and their actions with reference to it had been determined by the Commission. Farmer v. Bemis Lumber Co., 217 N.C. 158, 7 S.E.2d 376, 1940 N.C. LEXIS 195 (1940).

Finding of fact that the superior of an injured worker was a supervisory employee and not an independent contractor is conclusive on appeal when supported by competent evidence. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425, 1950 N.C. LEXIS 410 (1950).

Whether an accident arises out of and in the course of employment is a mixed question of law and fact, and the appellate court may review the record to determine if the findings and conclusions are supported by sufficient evidence. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529, 1977 N.C. LEXIS 1099 (1977); Williams v. Hydro Print, Inc., 65 N.C. App. 1, 308 S.E.2d 478, 1983 N.C. App. LEXIS 3385 (1983); Spratt v. Duke Power Co., 65 N.C. App. 457, 310 S.E.2d 38, 1983 N.C. App. LEXIS 3524 (1983).

On Which the Commission’s Finding Is Conclusive If Supported by Evidence. —

Whether an accident arises out of the employment is a mixed question of fact and law, and the finding of the Commission is conclusive if supported by any competent evidence. Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594, 1930 N.C. LEXIS 55 (1930); Perdue v. State Bd. of Equalization, 205 N.C. 730, 172 S.E. 396, 1934 N.C. LEXIS 51 (1934); Marsh v. Bennett College for Women, 212 N.C. 662, 194 S.E. 303, 1937 N.C. LEXIS 397 (1937); Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 S.E. 342, 1938 N.C. LEXIS 86 (1938); McNeill v. C.A. Ragland Constr. Co., 216 N.C. 744, 6 S.E.2d 491, 1940 N.C. LEXIS 384 (1940); Ashley v. F-W Chevrolet Co., 222 N.C. 25, 21 S.E.2d 834, 1942 N.C. LEXIS 8 (1942); Hegler v. Cannon Mills Co., 224 N.C. 669, 31 S.E.2d 918, 1944 N.C. LEXIS 445 (1944); Fox v. Cramerton Mills, 225 N.C. 580, 35 S.E.2d 869, 1945 N.C. LEXIS 371 (1945); DeVine v. Dave Steel Co., 227 N.C. 684, 44 S.E.2d 77, 1947 N.C. LEXIS 506 (1947); Stubblefield v. Watson Elec. Constr. Co., 277 N.C. 444, 177 S.E.2d 882, 1970 N.C. LEXIS 630 (1970); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 1976 N.C. LEXIS 1056 (1976).

Commission Made Findings on All Ultimate Facts. —

As competent evidence supported the Industrial Commission’s finding that a carrier failed to prove a mutual mistake by the carrier and the employer, its refusal to reform the workers’ compensation policy to exclude the employee and its award of benefits to the employee were affirmed; as the Commission made findings on all ultimate facts, no additional findings of fact were required. Smith v. First Choice Servs., 158 N.C. App. 244, 580 S.E.2d 743, 2003 N.C. App. LEXIS 1039 (2003).

Where the evidence is conflicting, the Commission’s finding of causal connection is conclusive. Anderson v. Lincoln Constr. Co., 265 N.C. 431, 144 S.E.2d 272, 1965 N.C. LEXIS 1002 (1965).

Reversal Where Findings of Fact Lead to Opposite Conclusion. —

Whether an accident grew out of the employment within the purview of the act is a mixed question of law and fact, which the court has the right to review on appeal, and when the detailed findings of fact force a conclusion opposite that reached by the Commission, it is the duty of the court to reverse the Commission. Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869, 1957 N.C. LEXIS 400 (1957).

Findings as to Disability. —

Although evidence supported the finding that an employer’s insurer was responsible for an injured employee’s neck and back conditions related to the first of two auto accidents, because there was no evidence that the employee was totally unable to work following the second accident, after the employer’s insurance had expired, and because the employee failed to show that the employee was incapable of earning wages, benefits were not extended beyond the date of the second accident, which resulted in a mere flare-up of the employee’s conditions. Stippich v. Reese's Transit, Inc., 260 N.C. App. 430, 817 S.E.2d 615, 2018 N.C. App. LEXIS 693 (2018).

Whether an accident was proximately caused by the violation of a safety statute is a question for the fact-finding body. Osborne v. Colonial Ice Co., 249 N.C. 387, 106 S.E.2d 573, 1959 N.C. LEXIS 360 (1959).

Finding as to Cause of Death. —

Determination of the Industrial Commission that the additional hazard created by artificial heat was the direct and superinducing cause of plaintiff ’s intestate’s death was conclusive on appeal. Fields v. Tompkins-Johnston Plumbing Co., 224 N.C. 841, 32 S.E.2d 623, 1945 N.C. LEXIS 235 (1945).

Whether an accident was proximately caused by the violation of a safety statute is a question for the fact-finding body. Osborne v. Colonial Ice Co., 249 N.C. 387, 106 S.E.2d 573, 1959 N.C. LEXIS 360 (1959).

A finding by the Commission that the claimant sustained a compensable injury is conclusive upon an appeal to the courts if, but only if, the Commission had before it competent evidence sufficient to support such a finding. Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1, 1967 N.C. LEXIS 1247 (1967).

Marriage of Deceased Employee. —

Findings by the Commission upon competent evidence that the deceased employee and the femme claimant were married and lived together as husband and wife until the husband’s death, thereby entitling the wife to an award of compensation, was binding upon the reviewing court, even though there was evidence that the wife’s first marriage had not been dissolved. Green v. Eastern Constr. Co., 1 N.C. App. 300, 161 S.E.2d 200, 1968 N.C. App. LEXIS 1066 (1968).

Whether evidence shows a “reasonable ground” to defend is a matter reviewable by Court of Appeals. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982).

General Anxiety Disorder of Teacher. —

Where an employee worked as a teacher and sought workers’ compensation benefits, arguing that the employee’s generalized anxiety disorder (GAD) was an occupational disease caused by a hostile and abusive classroom environment, the North Carolina Industrial Commission properly concluded that the employee’s GAD was not an occupational disease because, although it was inappropriate to imply that the employee’s fault played a role in determining compensability, the employee failed to prove either that the employee’s work increased the risk of GAD or significantly contributed to it, and the Commission did not ignore the testimony of the employee’s expert. Hassell v. Onslow County Bd. of Educ., 362 N.C. 299, 661 S.E.2d 709, 2008 N.C. LEXIS 498 (2008).

Late Payment Penalty. —

North Carolina Industrial Commission erred in awarding plaintiff a 10 percent late payment penalty, pursuant to G.S. 97-18(g), for defendants alleged late payment of temporary total disability benefits because defendants timely appealed the decision by a deputy commissioner to the full Commission, pursuant to G.S. 97-85, the full Commission issued an opinion and award on April 27, 2010, and defendants timely paid the award to plaintiff on June 2, 2010, which was within 10 days after the 30 days permitted to appeal the Commission’s decision to the appellate court, in accordance with G.S. 97-18(e) and G.S. 97-86. Norman v. Food Lion, LLC, 213 N.C. App. 587, 713 S.E.2d 507, 2011 N.C. App. LEXIS 1480 (2011).

VII.Remand and Rehearing

As to the jurisdiction of the court to reverse and remand, see Perkins v. Sprott, 207 N.C. 462, 177 S.E. 404, 1934 N.C. LEXIS 495 (1934).

Remand Where Findings Insufficient. —

When the findings of the Industrial Commission are insufficient for a proper determination of the question involved, the proceeding will be remanded to the Industrial Commission for additional findings. Farmer v. Bemis Lumber Co., 217 N.C. 158, 7 S.E.2d 376, 1940 N.C. LEXIS 195 (1940); Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706, 1952 N.C. LEXIS 449 (1952); Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747, 1963 N.C. LEXIS 707 (1963).

In case the findings are insufficient upon which to determine the rights of the parties, the Court of Appeals may remand the proceeding to the Industrial Commission for additional findings. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969); Hales v. North Hills Constr. Co., 5 N.C. App. 564, 169 S.E.2d 24, 1969 N.C. App. LEXIS 1396 (1969); Crawford v. Pressley, 6 N.C. App. 641, 171 S.E.2d 197, 1969 N.C. App. LEXIS 1253 (1969); Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766, 1982 N.C. App. LEXIS 2714 (1982); Priddy v. Cone Mills Corp., 58 N.C. App. 720, 294 S.E.2d 743, 1982 N.C. App. LEXIS 2815 (1982).

If the findings of fact of the Commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the proceeding must be remanded to the end that the Commission may make proper findings. Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747 (1963); Byers v. North Carolina State Hwy. Comm’n, 3 N.C. App. 139, 164 S.E.2d 535 (1968), aff’d, 275 N.C. 229, 166 S.E.2d 649 (1969); Morgan v. Thomasville Furn. Indus., 2 N.C. App. 126, 162 S.E.2d 619 (1968); Gaines v. L.D. Swain & Son, 33 N.C. App. 575, 235 S.E.2d 856 (1977); Walston v. Burlington Indus., 49 N.C. App. 301, 271 S.E.2d 516 (1980), rev’d on other grounds, 304 N.C. 670, 285 S.E.2d 822 (1982). In accord with third paragraph in the main volume. See Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327, 1985 N.C. App. LEXIS 4076 (1985).

Remand Where Commission Fails to Find Facts. —

Where the Commission fails to find facts, and justice so demands, the cause will be remanded. Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570, 1942 N.C. LEXIS 77 (1942).

Where the Industrial Commission failed to find the facts necessary for a determination of the rights of the parties, the judgment of the superior court (now the Court of Appeals) was reversed in order that it could remand to the Industrial Commission with directions to make necessary findings of fact on which the rights of the parties could be determined. Moore v. Adams Elec. Co., 259 N.C. 735, 131 S.E.2d 356, 1963 N.C. LEXIS 610 (1963).

Remand for Specific Findings. —

Stipulations to the effect that plaintiff employee became disabled while at work are insufficient alone to support an award of compensation, and a case is properly remanded to the Industrial Commission for specific findings from the evidence and stipulations as to whether claimant was injured by accident. Hargus v. Select Foods, Inc., 271 N.C. 369, 156 S.E.2d 737, 1967 N.C. LEXIS 1198 (1967).

Remand for More Complete Findings. —

Where the Commission’s findings of fact are supported by competent evidence, the superior court (now the Court of Appeals) has no power to remand for more complete findings. Blevins v. Teer, 220 N.C. 135, 16 S.E.2d 659, 1941 N.C. LEXIS 489 (1941).

Remand Where Facts Found Under Misapprehension of Law. —

Where it appears that the Industrial Commission has found the facts under a misapprehension of the law, the cause will be remanded for findings by the Commission upon consideration of the evidence in its true legal light. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, 1939 N.C. LEXIS 364 (1939); Nello L. Teer Co. v. North Carolina State Hwy. Comm'n, 265 N.C. 1, 143 S.E.2d 247, 1965 N.C. LEXIS 937 (1965); Cauble v. Macke Co., 78 N.C. App. 793, 338 S.E.2d 320, 1986 N.C. App. LEXIS 1993 (1986).

When facts are found or the Industrial Commission fails to find facts under a misapprehension of the law, a remand may be necessary so that the evidence may be considered in its true legal light; the proper procedure on appeal is to remand a case when the Commission’s findings of fact are insufficient to determine the rights of parties upon a claim for compensation. Mills v. Mills, 68 N.C. App. 151, 314 S.E.2d 833, 1984 N.C. App. LEXIS 3201 (1984).

Remand for Taking of Additional Evidence. —

Ordinarily the limited authority of the reviewing court does not permit it to order remand of the case for the taking of additional evidence. Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff'd, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

As to the power of the court to remand on ground of newly discovered evidence, see Byrd v. Gloucester Lumber Co., 207 N.C. 253, 176 S.E. 572, 1934 N.C. LEXIS 433 (1934); McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467, 1966 N.C. LEXIS 1376 (1966); Hall v. W.A. Davis Milling Co., 1 N.C. App. 380, 161 S.E.2d 780, 1968 N.C. App. LEXIS 1084 (1968).

The burden is upon the applicant for a rehearing to rebut the presumption that the award is correct and that there has been a lack of due diligence. McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467, 1966 N.C. LEXIS 1376 (1966); Hall v. W.A. Davis Milling Co., 1 N.C. App. 380, 161 S.E.2d 780, 1968 N.C. App. LEXIS 1084 (1968).

Applicant makes out “a proper case” for granting a new hearing for newly discovered evidence only when it appears by affidavit: (1) That the witness will give the newly discovered evidence; (2) that it is probably true; (3) that it is competent, material, and relevant; (4) that due diligence has been used, or that there have been no laches, in procuring the testimony at the trial; (5) that it is not merely cumulative; (6) that it does not tend only to contradict a former witness or to impeach or discredit him; (7) that it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail. McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467, 1966 N.C. LEXIS 1376 (1966); Hall v. W.A. Davis Milling Co., 1 N.C. App. 380, 161 S.E.2d 780, 1968 N.C. App. LEXIS 1084 (1968).

The appellate court may remand a cause to the Industrial Commission on the ground of newly discovered evidence only when a proper case is made to appear by affidavit meeting the seven requirements set out in Johnson v. Seaboard Air Line Ry., 163 N.C. 431, 79 S.E. 690, 1915B Ann. Cas. 598 (1913); Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff'd, 275 N.C. 229, 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

It is error for the court to direct an award for compensation. The correct procedure is to remand the case to the Industrial Commission. Francis v. Wood Turning Co., 204 N.C. 701, 169 S.E. 654, 1933 N.C. LEXIS 242 (1933) (decided prior to the 1967 amendment) .

Surrender of Jurisdiction by Court upon Remand. —

When a proceeding is remanded to the Commission for a specific purpose, the superior court (now the Court of Appeals) surrenders jurisdiction and the Commission acquires it for all purposes. Butts v. Montague Bros., 208 N.C. 186, 179 S.E. 799, 1935 N.C. LEXIS 353 (1935).

§ 97-86.1. Payment of award pending appeal in certain cases.

  1. When any appeal or certification to the Court of Appeals is pending, and it appears to the Commission that any part of the award appealed from is not appealed by the issues raised by such appeal, the Commission may, on action or of its own motion, render a judgment directing compliance with any portion of such award not affected by such appeal; or, if the only issue raised by such appeal is the amount of the average weekly wage, the Commission shall, on motion of the claimant, direct the payment of such portion of the compensation payable under its award as is not in dispute, if any, pending final adjudication of the undisputed portion thereof.
  2. In any claim under the provisions of this Chapter where it is conceded by all parties that the employee’s claim is a compensable one and the amount is not disputed and where the only issue is which employer or employers, carrier or carriers are liable, the Commission may, where an appeal from a hearing commissioner or the full Commission is taken by one or more parties, order payment made to the employee pending outcome of the case on appeal. The order of payment shall contain the provision that if the employer or carrier ordered to pay is not ultimately liable for the amount paid, the employer or carrier will be reimbursed by the employer or carrier ultimately held liable.
  3. No payment made pursuant to the provisions of this section shall in any manner operate as an admission of liability or estoppel to deny liability by an employer or carrier.
  4. In any claim under the provisions of this Chapter wherein one employer or carrier has made payments to the employee or his dependents pending a final disposition of the claim and it is determined that different or additional employers or carriers are liable, the Commission may order any employers or carriers determined liable to make repayment in full or in part to any employer or carrier which has made payments to the employee or his dependents.

History. 1977, c. 521, s. 2.

Legal Periodicals.

For survey of 1977 worker’s compensation law, see 56 N.C.L. Rev. 1166 (1978).

CASE NOTES

Credit for Overpayment. —

There was no basis, under G.S. 97-86.1(d), for denying a first employer a credit for benefits overpaid to an employee where the employee’s disability was attributable to the exacerbation of his occupational disease, first contracted while working for the first employer, while working for a second employer. Shockley v. Cairn Studios, Ltd., 149 N.C. App. 961, 563 S.E.2d 207, 2002 N.C. App. LEXIS 363 (2002).

No Reimbursement for Compensation Paid Under Order of Another State. —

North Carolina Industrial Commission did not err in denying the insurance company reimbursement for workers’ compensation already paid to the employees pursuant to the Virginia Workers’ Compensation Act because G.S. 97-86.1(d) did not permit repayment for compensation paid under the order of another state. Tovar-Mauricio v. T.R. Driscoll, 231 N.C. App. 147, 753 S.E.2d 337, 2013 N.C. App. LEXIS 1295 (2013), aff'd, 368 N.C. 68, 772 S.E.2d 239, 2015 N.C. LEXIS 454 (2015).

Order of Reimbursement Upheld. —

In a third-party administrator’s appeal of an opinion and award of the North Carolina Industrial Commission, an order requiring the third-party administrator to reimburse the employer’s workers’ compensation carrier for underpayments and compensation paid to a claimant was upheld as G.S. 97-86.1(d) provided the Commission with the authority to order the payment. The payment of compensation to the claimant, pursuant to Form 60, was not a final award of the Commission and was subject to amendment, including the ordered reimbursement that was made. Starr v. Gaston County Bd. of Educ., 191 N.C. App. 301, 663 S.E.2d 322, 2008 N.C. App. LEXIS 1311 (2008).

§ 97-86.2. Interest on awards after hearing.

In any workers’ compensation case in which an order is issued either granting or denying an award to the employee and where there is an appeal resulting in an ultimate award to the employee, the insurance carrier or employer shall pay interest on the final award or unpaid portion thereof from the date of the initial hearing on the claim, until paid at the legal rate of interest provided in G.S. 24-1. If interest is paid it shall not be a part of, or in any way increase attorneys’ fees, but shall be paid in full to the claimant.

History. 1981, c. 242, s. 1; 1985, c. 598; 1987, c. 729, s. 16.

Legal Periodicals.

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

CASE NOTES

Legislative Intent. —

An order directing defendants to forthwith comply with the opinion and award has the import of an affirmance under this section. A contrary holding would permit circumvention of the compensation statutes by appeals taken but subsequently abandoned upon calendaring for review; carriers, through frivolous appeals, could temporarily deprive injured employees of awards while retaining the earnings thereon. The General Assembly, in the enactment of this section, did not intend to permit such a result. Suggs v. Kelly Springfield Tire Co., 71 N.C. App. 428, 322 S.E.2d 441, 1984 N.C. App. LEXIS 3842 (1984) (decided prior to 1985 amendment) .

Award Entered Prior to Effective Date of Section. —

The initial award of permanent partial disability entered on January 14, 1980 by the deputy commissioner, and not the award of total permanent disability made by the full Industrial Commission on October 28, 1982, was controlling in the application of this section; as such award was entered prior to the effective date of this section, the plaintiff was not entitled to interest on the award. Peoples v. Cone Mills Corp., 86 N.C. App. 227, 356 S.E.2d 801, 1987 N.C. App. LEXIS 2678 (1987).

Standing. —

Under G.S. 97-86.2, a claimant is entitled to interest on medical compensation only where there is an appeal resulting in an ultimate award to the employee, and the possibility of a favorable decision on appeal is not an invasion of a legally protected interest that is either concrete and particularized, or actual or imminent; an estate and a widow had no standing to bring a claim against an employer and its carrier for full payment of their decedent’s medical expenses where the healthcare provider had accepted a reduced amount as payment in full, and there was no debt left to be collected. Estate of Apple v. Commer. Courier Express, Inc., 168 N.C. App. 175, 607 S.E.2d 14, 2005 N.C. App. LEXIS 173 (2005).

Initial Hearing. —

Under G.S. 97-86.2, an initial hearing included a hearing that resulted in a workers’ compensation award due to the employer’s untimely denial of compensability. Although that award was vacated, a later full hearing resulted in another award, and interest on that award had to be calculated from the date of the initial hearing. Puckett v. Norandal USA, Inc., 211 N.C. App. 565, 710 S.E.2d 356, 2011 N.C. App. LEXIS 842 (2011).

Employee Not Entitled to Interest on Amounts Reimbursable to Health Insurer. —

Language “final award or unpaid portion thereof” in G.S. 97-86.2 does not include amounts of medical compensation for which the employee was indemnified by his health insurer and which were reimbursable to the health insurer because the legislative purpose was not to create a penalty to the employer nor a windfall for the employee; denial of an employee’s claim for interest on amounts reimbursable to his health insurance carrier was proper. Sprinkle v. Lilly Indus., 193 N.C. App. 694, 668 S.E.2d 378, 2008 N.C. App. LEXIS 2024 (2008).

Interest Properly Awarded. —

Industrial Commission did not err in awarding interest on plaintiff’s outstanding medical expenses pursuant to this section. Childress v. Trion, Inc., 125 N.C. App. 588, 481 S.E.2d 697, 1997 N.C. App. LEXIS 131 (1997).

Industrial commission properly awarded interest on retroactive attendant care for a comatose worker pursuant to G.S. 97-86.2, as that statute allowed for an award of interest pursuant to G.S. 24-1 on outstanding medical expenses, and the fact that the money was going directly to two relatives who were taking care of a worker in a vegetative state, rather than the worker himself, did not preclude the commission from awarding interest. Palmer v. Jackson, 161 N.C. App. 642, 590 S.E.2d 275, 2003 N.C. App. LEXIS 2266 (2003).

Payment of Interest. —

Interest awarded must be paid in full to plaintiffs and cannot be used to calculate the attorney’s fees. Strickland v. Carolina Classics Catfish, Inc., 127 N.C. App. 615, 492 S.E.2d 362, 1997 N.C. App. LEXIS 1132 (1997).

Plaintiffs were not entitled to receive interest on entire award (commuted and uncommuted portions) from the date of the initial hearing because the plaintiffs were not entitled to the full uncommuted award at the time of the initial hearing. Strickland v. Carolina Classics Catfish, Inc., 127 N.C. App. 615, 492 S.E.2d 362, 1997 N.C. App. LEXIS 1132 (1997).

North Carolina Industrial Commission erred as a matter of law when it denied interest to an injured employee on the award of unpaid attendant care, accruing from the date of the initial hearing until paid by the employer, as the payment of such interest was mandatory pursuant to G.S. 97-86.2. Chandler v. Atl. Scrap & Processing, 217 N.C. App. 417, 720 S.E.2d 745, 2011 N.C. App. LEXIS 2601 (2011), aff'd, 367 N.C. 160, 749 S.E.2d 278, 2013 N.C. LEXIS 1159 (2013).

Pursuant to G.S. 97-86.2, the North Carolina Industrial Commission erred when it failed to award plaintiff interest after she was awarded attendant care, as defendants appealed and that award was affirmed, there was no evidence plaintiff was compensated or indemnified by a third party insurer, and an award of interest furthered the purpose of the statute. Boylan v. Verizon Wireless, 224 N.C. App. 436, 736 S.E.2d 773, 2012 N.C. App. LEXIS 1467 (2012).

Workers’ compensation benefits claimant should have been paid interest on the unpaid portion of benefits that were awarded in a May 23, 2013, opinion and an award from the date of the initial hearing in this dispute because the use of the word “shall” compelled the North Carolina Industrial Commission to award such interest, and the claimant was unable to use the full amount of his lump sum monetary award since it was not paid while an appeal was pending. The Commission erred by finding that none of the claimant’s award was past due; it did not matter that weekly payments were made to the claimant during the pendency of the appeal and that none of those payments were past due. Lewis v. N.C. Dep't of Corr., 234 N.C. App. 376, 760 S.E.2d 15, 2014 N.C. App. LEXIS 610 (2014).

Attorney’s Fees. —

Employee was entitled to appellate attorneys’ fees because the statute’s requirements were met, as an employer and insurer unsuccessfully appealed the employee’s award of interest on unpaid attendant services and the North Carolina Industrial Commission’s decision to award the employee compensation was affirmed. Chandler v. Atl. Scrap & Processing, 244 N.C. App. 155, 780 S.E.2d 575, 2015 N.C. App. LEXIS 988 (2015).

§ 97-87. Judgments on awards.

  1. As used in this section, “award” includes the following:
    1. A form filed, or an award arising, under G.S. 97-18(b), 97-18(d), or 97-82(b).
    2. A memorandum of agreement approved by the Commission.
    3. An order or decision of the Commission.
    4. An award of the Commission from which there has been no appeal.
    5. An award of the Commission affirmed on appeal.
  2. When an award or portion of an award provides for a sum certain or for a sum that can by computation be made certain, and that sum is due and payable as of the date of the award, a judgment may be docketed as provided in subsection (d) of this section, in an amount equal to that sum.
  3. When an award or portion of an award provides for periodic payments to be made on or after the date of the award, a judgment may be docketed as provided in subsection (d) of this section, in an amount equal to the sum stated in any Certificate of Accrued Arrearages that is issued by the Commission under this subsection. If any payment that has accrued after the date of the award, or after the date specified in the most recent Certificate of Accrued Arrearages issued under this subsection, is not received by the claimant when due, the following procedure is available for obtaining a Certificate of Accrued Arrearages:
    1. The claimant may file with the Commission a Statement of Accrued Arrearages, on a form approved by the Commission, and shall serve a copy on all parties against whom judgment is sought and their attorney of record.
    2. Any party against whom judgment is sought may, within 15 days of the date of service of a Statement of Accrued Arrearages, file with the Commission proof of any payments that have been made or other responsive pleadings.
    3. If no proof or other responsive pleading is filed within 15 days of the date of service of the Statement, the Commission shall immediately issue a Certificate of Accrued Arrearages.
    4. If proof of payment or other responsive pleading is filed, the Commission shall, within seven days, either issue a Certificate of Accrued Arrearages that shall state the sum of payments due or decline to issue a Certificate of Accrued Arrearages. The Commission shall notify the claimant, the party against whom judgment is sought, and their attorney of record of the Commission’s decision.
    5. If any party disputes the decision of the Commission entered under subdivision (c)(4) of this section, the party may appeal to the full Commission within 10 days of the entry of the decision of the Commission. The nonappealing party may file a response within 10 days of receiving notice of appeal. The notice of appeal shall request one of the following:
      1. The Commission reconsider the decision entered based on the record and any additional evidence that parties submit with the notice and response.
      2. A de novo evidentiary hearing before the full Commission.
    6. The Commission shall grant the request for an evidentiary hearing under sub-subdivision (c)(5)b. of this section if a material issue of fact exists whose resolution is necessary to determine the appeal.
    7. If a notice of appeal is given under sub-subdivision (c)(5)a. of this section, the Commission shall issue its decision within 10 days of the filing of the response under subdivision (c)(5)b. of this section. If a notice of appeal is given under sub-subdivision (c)(5) of this section, the Commission shall either conduct an evidentiary hearing and issue its decision on the appeal within 90 days of the filing of the response under subdivision (c)(5) of this section or deny the request for the evidentiary hearing and issue its decision within 10 days of the filing of the response under subdivision (c)(5) of this section. Further appeals are governed by G.S. 97-86.
    8. Each award and each Certificate of Accrued Arrearages shall include the following information:
      1. The names and addresses of the parties.
      2. The sum of all principal amounts that have accrued and remain unpaid since the date of the award or since the date of the most recent prior Certificate of Accrued Arrearages.
      3. The total of any interest that has accrued on the award, as of the date of the Certificate of Accrued Arrearages, since the date of the award or since the date of the most recent prior Certificate of Accrued Arrearages.
      4. Any costs, penalties, or monetary sanctions included in the award.
  4. Any party in interest may file a certified copy of an award described in subsection (b) of this section, or of a Certificate of Accrued Arrearages, in the office of the clerk of superior court of the county in which the defendant has a place of business or has property, or in which an injury occurred, or in Wake County. An award shall be accompanied by the party’s affidavit stating that the award has become final and the time for making the first payment under the award has expired.
  5. Promptly after a certified copy of an award or of a Certificate of Accrued Arrearages is filed, the clerk shall docket and index a judgment as provided in Chapter 1 of the General Statutes. The principal amount in the award or in the Certificate of Accrued Arrearages shall bear interest at the judgment rate from the date the judgment is docketed. The judgment may be enforced in the same manner as a judgment docketed under Chapter 1 of the General Statutes.
  6. The filing of an award, or of a Certificate of Accrued Arrearages, for docketing as a judgment under this section shall be treated as a civil action for record-keeping purposes. The amount in which the judgment is docketed shall determine the amount of the costs to be collected at the time of filing and assessed pursuant to G.S. 7A-305.
  7. Nothing in this section shall be construed to limit the Commission’s authority to impose any other remedy provided by law.

History. 1929, c. 120, s. 61; 2001-477, s. 1.

Editor’s Note.

Session Laws 2001-477, s. 1, which amended G.S. 1-209 and G.S. 97-87 to provide for agreements, orders and final awards under the Workers’ Compensation Act to be entered as judgments by the clerk of the superior court, provides in s. 3: “This act becomes effective June 1, 2002, and applies to all forms filed and awards arising under G.S. 97-18(b), 97-18(d), or 97-82(b) that are filed or that arise before, on, or after that date; all agreements approved by the North Carolina Industrial Commission under the Workers’ Compensation Act, Article 1 of Chapter 97 of the General Statutes, that are approved before, on, or after that date; all orders or decisions of the North Carolina Industrial Commission under the Workers’ Compensation Act that are entered before, on, or after that date; and all awards of the North Carolina Industrial Commission unappealed from or affirmed upon appeal under the Workers’ Compensation Act that are awarded before, on, or after that date, and to all Certificates of Accrued Arrearages that are issued on and after that date.”

CASE NOTES

Editor’s Note. —

Most of the cases below were decided prior to the 2001 amendment of this section, providing for agreements, orders and final awards under the Workers’ Compensation Act to be entered as judgments by the clerk of the superior court.

Remedy Exclusive. —

The Act does not provide for the enforcement of an award of the Industrial Commission by execution or otherwise. Nor does it authorize or contemplate the institution and maintenance of a civil action based on such award. The exclusive remedy of claimant in a proceeding under the Act is that provided by this section. Bryant v. Poole, 261 N.C. 553, 135 S.E.2d 629, 1964 N.C. LEXIS 539 (1964).

Pleading. —

A worker’s complaint demanding entry of judgment against his employer for the sums due under an Industrial Commission Form 60 was an acceptable method for asserting a claim, where the complaint failed to state that the claimant was seeking judgment under this section, but he pled facts sufficient to alert the employer that relief was being sought under this section. Calhoun v. Wayne Dennis Heating & Air Conditioning, 129 N.C. App. 794, 501 S.E.2d 346, 1998 N.C. App. LEXIS 772 (1998).

Procedure Where No Appeal Is Taken. —

The procedure for the enforcement of an award of the Industrial Commission when no appeal is taken therefrom is by filing a certified copy of the award in the superior court, whereupon said court shall render judgment in accordance therewith and notify the parties. Champion v. Vance County Bd. of Health, 221 N.C. 96, 19 S.E.2d 239, 1942 N.C. LEXIS 399 (1942).

Section Refers to Judgment of Superior Court. —

The text of this section is clear. The judgment referred to is a judgment of the superior court, not an award of the Industrial Commission. Bryant v. Poole, 261 N.C. 553, 135 S.E.2d 629, 1964 N.C. LEXIS 539 (1964).

Mandamus to Compel County Board of Health to Pay Award. —

Mandamus to compel a municipal corporation, governmental agency or public officer to pay a claim is equivalent to execution, and therefore a suit to compel a county board of health to pay an award rendered against it by the Industrial Commission from which no appeal was taken will not lie until judgment on the award has been rendered by the superior court in accordance with the procedure outlined by this section. Champion v. Vance County Bd. of Health, 221 N.C. 96, 19 S.E.2d 239, 1942 N.C. LEXIS 399 (1942).

An agreement for the payment of compensation, when approved by the Commission, is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal. Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109, 1951 N.C. LEXIS 545 (1951); Tabron v. Gold Leaf Farms, Inc., 269 N.C. 393, 152 S.E.2d 533, 1967 N.C. LEXIS 1080 (1967); Hedgecock v. Frye, 1 N.C. App. 369, 161 S.E.2d 647, 1968 N.C. App. LEXIS 1081 (1968).

The employer’s execution of Industrial Commission Form 60 constitutes an award of the Commission and thus entitles the employee to seek the imposition of a judgment, which in turn entitles him to seek execution for past due installments and future installments as they become due. Calhoun v. Wayne Dennis Heating & Air Conditioning, 129 N.C. App. 794, 501 S.E.2d 346, 1998 N.C. App. LEXIS 772 (1998).

Presumption Additional Medical Treatment Related to Compensable Condition. —

Presumption Additional Medical Treatment Related to * Compensable =csyear 2017 =cntext Court of appeals properly vacated the North Carolina Industrial Commission’s finding that an employee failed to establish that his anxiety and depression were a result of his work-related accident because the employee was entitled to a presumption that additional medical treatment was related to his compensable conditions; the Commission did not apply any presumption, and instead placed the initial burden on the employee to prove causation for any medical compensation he sought. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838, 2017 N.C. LEXIS 407 (2017).

§ 97-88. Expenses of appeals brought by insurers.

If the Industrial Commission at a hearing on review or any court before which any proceedings are brought on appeal under this Article, shall find that such hearing or proceedings were brought by the insurer and the Commission or court by its decision orders the insurer to make, or to continue payments of benefits, including compensation for medical expenses, to the injured employee, the Commission or court may further order that the cost to the injured employee of such hearing or proceedings including therein reasonable attorney’s fee to be determined by the Commission shall be paid by the insurer as a part of the bill of costs.

History. 1929, c. 120, s. 62; 1931, c. 274, s. 11; 1971, c. 500.

Cross References.

As to the assessment of costs incurred in hearings brought without reasonable grounds, see G.S. 97-88.1.

CASE NOTES

Construction with Other Sections. —

This section and G.S. 97-88.1 are supplementary in nature. This section allows an injured employee to move that its attorney’s fees be paid whenever an insurer appeals to the Full Commission, or to a court of the appellate division, and the insurer is required to make payments to the injured employee. By contrast, an award of attorney’s fees under G.S. 97-88.1 requires that the litigation be brought, prosecuted, or defended without reasonable ground. Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 464 S.E.2d 481, 1995 N.C. App. LEXIS 957 (1995).

The statutory requirements for awarding attorney’s fees to plaintiff under G.S. 97-88 are met when defendant appeals the Industrial Commission’s order directing that defendant pay additional benefits to plaintiff, and that order is affirmed; there is no proviso that “reasonable ground” be found lacking, which applies to fees sought under G.S. 97.88.1, at the original hearing before the commission. Brown v. Public Works Comm'n, 122 N.C. App. 473, 470 S.E.2d 352, 1996 N.C. App. LEXIS 453 (1996).

Validity. —

This section is valid. Russell v. Western Oil Co., 206 N.C. 341, 174 S.E. 101, 1934 N.C. LEXIS 179 (1934).

And Constitutes Only Statutory Authority to Award Fees. —

Although the Commission is authorized to approve fees received by attorneys for services rendered in workers’ compensation matters (G.S. 97-90), the only statutory authority to award fees as a part of the costs is contained in this section. Bowman v. Comfort Chair Co., 271 N.C. 702, 157 S.E.2d 378, 1967 N.C. LEXIS 1267 (1967).

Fees Only for Portion of Case Attributable to Appeal. —

Under this section, the Commission is empowered to award to the injured employee attorney’s fees only for the portion of the case attributable to the insurer’s appeal(s). Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 464 S.E.2d 481, 1995 N.C. App. LEXIS 957 (1995).

The statutory requirements for awarding attorney’s fees to plaintiff under this section are met when defendant appeals the Industrial Commission’s order directing that defendant pay additional benefits to plaintiff and that order is affirmed; there is no proviso that “reasonable ground” be found lacking, which applies to fees sought under GS 97.88.1, at the original hearing before the Commission. Brown v. Public Works Comm'n, 122 N.C. App. 473, 470 S.E.2d 352, 1996 N.C. App. LEXIS 453 (1996).

This section includes carriers, self insurers, and noninsurers. Morris v. Laughlin Chevrolet Co., 217 N.C. 428, 8 S.E.2d 484, 1940 N.C. LEXIS 254 (1940).

Standing. —

Under G.S. 97-88 and G.S. 97-88.1, an award of attorney’s fees is a discretionary decision made by the North Carolina Industrial Commission, and the possibility of an attorney’s fees award is not an invasion of a legally protected interest that is concrete and particularized, or actual or imminent; an estate and a widow had no standing to bring a claim against an employer and its carrier for full payment of their decedent’s medical expenses where the healthcare provider had accepted a reduced amount as payment in full, and there was no debt left to be collected. Estate of Apple v. Commer. Courier Express, Inc., 168 N.C. App. 175, 607 S.E.2d 14, 2005 N.C. App. LEXIS 173 (2005).

When Section Is Applicable. —

The better interpretation of this statute is that the Commission, in its discretion, can award attorneys’ fees only when an appeal is before it to review a hearing commissioner’s decision. Suggs v. Kelly Springfield Tire Co., 71 N.C. App. 428, 322 S.E.2d 441, 1984 N.C. App. LEXIS 3842 (1984).

This section is applicable only when proceedings are brought by the insurer and the court orders the insurer to make or to continue payments of compensation to the injured employee. Bowman v. Comfort Chair Co., 271 N.C. 702, 157 S.E.2d 378, 1967 N.C. LEXIS 1267 (1967).

This section authorizes reasonable attorneys’ fees as a part of the bill of costs only when the decision orders the insurer to make, or to continue, payments of compensation to the injured employee. Ashley v. Rent-A-Car Co., 1 N.C. App. 171, 160 S.E.2d 521, 1968 N.C. App. LEXIS 1034 (1968).

This section requires that there be a hearing or proceeding brought by the insurer from which the insurer is ordered to pay an award. Taylor v. J.P. Stevens Co., 57 N.C. App. 643, 292 S.E.2d 277, 1982 N.C. App. LEXIS 2695 (1982), modified, aff'd, 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

Requirements of G.S. 97-88 were satisfied, and a worker’s request for an award of costs on appeal was granted where the employer and the carrier appealed a deputy commissioner’s decision that temporary total disability compensation be paid to the worker; the North Carolina Industrial Commission had affirmed the award of temporary total disability compensation — which decision the employer and the carrier had appealed to the appellate court, and the appellate court affirmed the decision that the worker’s disability compensation be reinstated. Brooks v. Capstar Corp., 168 N.C. App. 23, 606 S.E.2d 696, 2005 N.C. App. LEXIS 175 (2005).

Employee Failed to Move for Expenses and Fees. —

Employee’s request to the Court of Appeals of North Carolina for an award of fees pursuant to G.S. 97-88 was not properly raised as a cross-assignment of error, pursuant to N.C. R. App. P. 10(d), and as such, the employee failed to show any entitlement to an award; moreover, even assuming that the employee had properly moved for expenses and fees under G.S. 97-88, the appeals court declined to issue an order. Roset-Eredia v. F.W. Dellinger, Inc., 190 N.C. App. 520, 660 S.E.2d 592, 2008 N.C. App. LEXIS 1019 (2008).

When Section Is Inapplicable. —

The portion of this section requiring defendant carrier to pay plaintiff’s costs, including attorneys’ fees, incident to the appeal by defendants from the Commission to the superior court does not apply when the Supreme Court finds error in the Commission’s decision in respect to the sole controversy presented by the appeal. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790, 1956 N.C. LEXIS 489 (1956); Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479, 1966 N.C. LEXIS 1364 (1966).

Payments in Addition to Medicaid Prohibited. —

Intervenor was not entitled to attorneys’ fees under this section, where intervenor had accepted Medicaid as payment for injured employee’s medical care under Medicaid, Title XIX of the Social Security Act, 42 U.S.C. § 1396-1396v, and in conjunction with North Carolina’s Medicaid program as set out in G.S. 108A-54 through 108A-70.5, and, thereby, gave up its right to hold injured employee liable for any costs associated with that care aside from the standard deductible, coinsurance or copayment required. Pearson v. C.P. Buckner Steel Erection, 139 N.C. App. 394, 533 S.E.2d 532, 2000 N.C. App. LEXIS 912 (2000).

Where defendants appealed to full Commission and were ordered to compensate plaintiff, the prerequisites for an award pursuant to this section were fulfilled. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982).

“Commission” and “Court” Not Used Interchangeably. —

Use of the wording “Commission or court” on three separate occasions does not mean that the Commission and the court are interchangeable, nor that the Commission can award attorneys’ fees for services rendered before the Court of Appeals, while the Court of Appeals can award such fees for services rendered before the Industrial Commission. Buck v. Procter & Gamble Mfg. Co., 58 N.C. App. 804, 295 S.E.2d 243, 1982 N.C. App. LEXIS 2845 (1982), cert. denied, 308 N.C. 543, 304 S.E.2d 236, 1983 N.C. LEXIS 1357 (1983). But see Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

The costs may be assessed either by the Commission or by the court. Morris v. Laughlin Chevrolet Co., 217 N.C. 428, 8 S.E.2d 484, 1940 N.C. LEXIS 254 (1940).

Award of Attorneys’ Fees Is Within Discretion of Commission. —

The language of both this section and G.S. 97-88.1 clearly indicates that an award of attorneys’ fees is not required to be granted. Such language places the decision of whether to award attorneys’ fees within the sound discretion of the Industrial Commission. Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

In a workers’ compensation case involving a Department of Corrections (now Division of Adult Correction of the Department of Public Safety) officer’s claim for salary continuation, the Industrial Commission could in its discretion award reasonable attorney’s fees under G.S. 143-166.19. Ruggery v. North Carolina Dep't of Corrs., 135 N.C. App. 270, 520 S.E.2d 77, 1999 N.C. App. LEXIS 1043 (1999).

Where the Industrial Commission had failed to determine whether an employee was entitled to her attorney’s fees, pursuant to G.S. 97-88.1, as a result of an appeal taken by the employer and insurer from the Commission’s award of additional benefits to her due to her back injury as a result of a slip and fall, the matter was remanded to the Commission for proper findings on the issue of the appropriateness of the employer’s grounds; however, the court awarded the employee her attorney’s fees as costs of the appeal, pursuant to G.S. 97-88, because much of the disability benefits that had been awarded were affirmed. Whitfield v. Lab. Corp., 158 N.C. App. 341, 581 S.E.2d 778, 2003 N.C. App. LEXIS 1192 (2003).

North Carolina Industrial Commission did not abuse its discretion in denying an injured city employee attorney’s fees where the Commission on remand reversed its decision to credit a city, which was self-insured, for disability retirement benefits paid to the employee because the decision to award attorneys fees was consigned to the discretion of the Commission. Cox v. City of Winston-Salem, 171 N.C. App. 112, 613 S.E.2d 746, 2005 N.C. App. LEXIS 1161 (2005).

And the Commission’s decision must be upheld unless there is an abuse of discretion. Taylor v. J.P. Stevens Co., 57 N.C. App. 643, 292 S.E.2d 277, 1982 N.C. App. LEXIS 2695 (1982), modified, aff'd, 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

The power given the court under this section to order that the costs to the injured employee of such proceedings, including a reasonable attorneys’ fee to be determined by the Commission, shall be paid by the insurer as part of the bill of costs is within the discretion of the court, and an order appearing in the judgment will not be reviewed by the Supreme Court. Perdue v. State Bd. of Equalization, 205 N.C. 730, 172 S.E. 396, 1934 N.C. LEXIS 51 (1934).

The Commission, in its discretion, can award attorneys’ fees only when an appeal is before it to review a hearing commissioner’s decision. In such a situation, the amount of the award for attorney fees is limited to the value of those services rendered on the appeal taken to the Industrial Commission. Buck v. Procter & Gamble Mfg. Co., 58 N.C. App. 804, 295 S.E.2d 243, 1982 N.C. App. LEXIS 2845 (1982), cert. denied, 308 N.C. 543, 304 S.E.2d 236, 1983 N.C. LEXIS 1357 (1983). But see Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

Fees Not Awarded Where Only Claimant Appeals. —

In its sound discretion, the Industrial Commission may award claimant attorneys’ fees in cases in which defendant insurer appealed. However, the Industrial Commission may not award attorneys’ fees pursuant to this section in cases in which only the claimant appealed. Harwell v. Thread, 78 N.C. App. 437, 337 S.E.2d 112, 1985 N.C. App. LEXIS 4333 (1985).

Industrial Commission did not abuse its discretion when it refused to assess attorney’s fees against defendants in appeal brought by plaintiff. Valles de Portillo v. D.H. Griffin Wrecking Co., 134 N.C. App. 714, 518 S.E.2d 555, 1999 N.C. App. LEXIS 904 (1999).

Expenses and Fees Incurred at Appellate Court Level. —

Where defendant/insurer appealed deputy commissioner’s decision, and then appealed the full Commission’s decision, and the court affirmed the prior decisions, the requirements of this section were satisfied and the court granted the plaintiff’s request for expenses incurred on appeal, including attorney’s fees. Flores v. Stacy Penny Masonry Co., 134 N.C. App. 452, 518 S.E.2d 200, 1999 N.C. App. LEXIS 807 (1999).

Employee’s motion for fees and expenses on appeal was not properly raised as a cross-assignment of error; moreover, even if it had been properly raised, an appellate court declined in its discretion to issue such an order. Guerrero v. Brodie Contrs., Inc., 158 N.C. App. 678, 582 S.E.2d 346, 2003 N.C. App. LEXIS 1226 (2003).

Where the city appealed the deputy commissioner’s decision that temporary total disability compensation be paid to the police officer, on appeal the North Carolina Industrial Commission unanimously affirmed the award of temporary total disability compensation, and the city unsuccessfully appealed to the court, the statutory requirements were satisfied and the court, in its discretion, granted the officer’s request for expenses incurred in the appeal; the matter was remanded for the commission to determine the proper fees. Rose v. City of Rocky Mount, 180 N.C. App. 392, 637 S.E.2d 251, 2006 N.C. App. LEXIS 2413 (2006).

Sister, who was awarded death benefits and additional benefits upon the death of an employee, was entitled upon the exercise of the appellate court’s discretion to an award of attorney’s fees on remand because payments for death benefits were required to continue to be made to the sister, even though the appellate court did not affirm all the benefits that the North Carolina Industrial Commission awarded to the sister. Kelly v. Duke Univ., 190 N.C. App. 733, 661 S.E.2d 745, 2008 N.C. App. LEXIS 1073 (2008).

Where the employer and insurer unreasonably appealed an award by the North Carolina Industrial Commission to an injured employee, the employee was entitled to attorneys’ fees incurred during the pendency of the appeal. Chandler v. Atl. Scrap & Processing, 217 N.C. App. 417, 720 S.E.2d 745, 2011 N.C. App. LEXIS 2601 (2011), aff'd, 367 N.C. 160, 749 S.E.2d 278, 2013 N.C. LEXIS 1159 (2013).

This section provides the commission with authority to allow attorneys’ fees for work done in furtherance of an appeal before an appellate court; however, the decision to grant or deny a request for such an award will not be disturbed in the absence of an abuse of discretion. Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

The Commission may exercise limited discretion when the Court of Appeals approves an award of attorneys’ fees but certifies its decision to the Commission with instructions to decide the exact amount to be awarded. In such a case, the Commission may determine only the amount of the award and not whether the award should be made at all. It follows that the Court of Appeals is the only body which can decide whether to allow attorneys’ fees for services rendered on an appeal taken to the Court of Appeals. Buck v. Procter & Gamble Mfg. Co., 58 N.C. App. 804, 295 S.E.2d 243, 1982 N.C. App. LEXIS 2845 (1982), cert. denied, 308 N.C. 543, 304 S.E.2d 236, 1983 N.C. LEXIS 1357 (1983). But see Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

Fees Improperly Awarded. —

Attorney’s fees were improperly awarded to a workers’ compensation claimant under this section since defendants were not insurers and were not self-insurers as they were not licensed by the North Carolina Commissioner of Insurance. Allred v. Exceptional Landscapes, Inc., 227 N.C. App. 229, 743 S.E.2d 48, 2013 N.C. App. LEXIS 531 (2013).

Awards Upheld. —

The allowance of attorneys’ fees to claimant’s attorneys’ in a proceeding under the act was held authorized by this section. Brooks v. Carolina Rim & Wheel Co., 213 N.C. 518, 196 S.E. 835, 1938 N.C. LEXIS 124 (1938); Gant v. Crouch, 243 N.C. 604, 91 S.E.2d 705, 1956 N.C. LEXIS 595 (1956).

Affirmance by the full Commission of the hearing commissioner’s findings of fact, conclusions, and award, and approval of a fee of $150.00 for claimant’s counsel, in addition to the fee for claimant’s counsel approved by the hearing commissioner, and an order that such fee be assessed against defendant as a part of the costs of the appeal in accordance with the provisions of this section was not error. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570, 1962 N.C. LEXIS 687 (1962).

Industrial Commission properly awarded attorney’s fees upon finding defendants in violation of rules by terminating compensation without the Commission’s approval, and by refusing to resume immediate payments following the deputy commissioner’s order. Hieb v. Howell's Child Care Ctr., Inc., 123 N.C. App. 61, 472 S.E.2d 208, 1996 N.C. App. LEXIS 571 (1996).

Industrial Commission did not abuse its discretion in awarding plaintiff attorney fees for successfully defending his appeal. Childress v. Trion, Inc., 125 N.C. App. 588, 481 S.E.2d 697, 1997 N.C. App. LEXIS 131 (1997).

Because evaluation of the unreasonableness of a defense claim was not a statutory factor to be weighed in granting appellate attorney’s fees under G.S. 97-88 for an employee defending an appeal, a Supreme Court decision that the employer’s defense was not unreasonable, although it barred an award of fees under G.S. 97-88.1, did not bar the award of fees under G.S. 97-88. D'Aquisto v. Mission St. Joseph's Health Sys., 198 N.C. App. 674, 680 S.E.2d 249, 2009 N.C. App. LEXIS 1340 (2009).

Fee Upheld Even Where Appeal Was Made on Reasonable Grounds. —

An award of fees under this section is permitted even if the insurer who institutes the proceeding has reasonable grounds, provided the insurer is ordered as a result of the proceeding to make or continue making benefit payments to the injured worker. Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 526 S.E.2d 671, 2000 N.C. App. LEXIS 257 (2000).

Award Modified on Appeal to Require Defendant to Pay Costs. —

Where plaintiff ultimately prevailed against the defendants, and since costs follow the final judgment, the opinion and award of the Commission in which it was provided that “Each side shall pay its own costs as the same relate to the appeal” was modified so as to require the defendants to pay the costs of the appeal. Grigg v. Pharr Yarns, Inc., 15 N.C. App. 497, 190 S.E.2d 285, 1972 N.C. App. LEXIS 1948 (1972).

Remand for Determination of Attorneys’ Fees. —

Where the language in the Commission’s order regarding this section was so ambiguous as to preclude review as to whether the Commission believed it lacked authority to award attorneys’ fees where both the insurer and the claimant appealed, the case could be remanded to the Commission for a discretionary determination as to an award of attorneys’ fees to claimant. Harwell v. Thread, 78 N.C. App. 437, 337 S.E.2d 112, 1985 N.C. App. LEXIS 4333 (1985).

Although evidence in the record supported the North Carolina Industrial Commission’s judgment that an employee’s cancer was accelerated by injuries the employee sustained in a work-related accident, and the appellate court affirmed the Commission’s decision to award temporary total disability benefits to the employee, the court remanded the case to the Commission for further proceedings because the record did not explain how the Commission determined the employee’s average weekly wage, a determination that was central to its award of benefits, and because there was conflicting evidence in the record which raised questions about the Commission’s findings that a city which employed the employee was entitled to a credit for long-term disability benefits it paid the employee, and that the employee was not entitled to an award of attorney’s fees. Cox v. City of Winston-Salem, 157 N.C. App. 228, 578 S.E.2d 669, 2003 N.C. App. LEXIS 535 (2003).

Case was remanded for clarification of whether the attorney fees awarded by the North Carolina Industrial Commission were for the original workers’ compensation hearing under G.S. 97-88.1 or for the appeal of the deputy commissioner’s decision under G.S. 97-88 as different standards applied. Price v. Piggy Palace, 205 N.C. App. 381, 696 S.E.2d 716, 2010 N.C. App. LEXIS 1304 (2010).

Employee Was Entitled to Have Employer Pay Attorney’s Fees. —

Where an employer had no reasonable basis for appealing the decision of the Deputy Commissioner to the Full Commission and requiring employee to appeal to the court of appeals to obtain the benefits under settlement agreement approved by the Industrial Commission, the employee was entitled to have his attorneys’ fees paid by the employer. Mullinax v. Fieldcrest Cannon, Inc., 100 N.C. App. 248, 395 S.E.2d 160, 1990 N.C. App. LEXIS 927 (1990).

Where defendant appealed the initial award of benefits from the deputy commissioner to the full Commission and then to the Court of Appeals, and both affirmed the award of benefits, the requirements of this section were satisfied, and the Commission could award plaintiff the costs, including attorney’s fees, of defending those appeals to the full Commission and to the Court of Appeals. Estes v. North Carolina State Univ., 117 N.C. App. 126, 449 S.E.2d 762, 1994 N.C. App. LEXIS 1165 (1994).

Employee was entitled to appellate attorneys’ fees because the statute’s requirements were met, as an employer and insurer unsuccessfully appealed the employee’s award of interest on unpaid attendant services and the North Carolina Industrial Commission’s decision to award the employee compensation was affirmed. Chandler v. Atl. Scrap & Processing, 244 N.C. App. 155, 780 S.E.2d 575, 2015 N.C. App. LEXIS 988 (2015).

Failure to Address Fee Request. —

North Carolina Industrial Commission awarded a claimant the ordinary contingent fee under G.S. 97-90, and erred by not addressing the claimant’s motion seeking additional attorney’s fees pursuant G.S. 97-88 or G.S. 97-88.1. Clawson v. Phil Cline Trucking, Inc., 168 N.C. App. 108, 606 S.E.2d 715, 2005 N.C. App. LEXIS 152 (2005).

Commission’s Failure to Address Issues Appealed. —

North Carolina Industrial Commission erred in failing to address the attorney’s fees issue, although attorney’s fees was the only issue appealed as the Commission could not violate Workers’ Comp. R. N.C. Indus. Comm’n Ann. R. 701 by addressing different issues that those appealed; the appellate court could not address the parties’ claims as to attorney’s fees under G.S. 97-88 and G.S. 97-90, as neither the Commission nor the superior court addressed those issues. Hurley v. Wal-Mart Stores, Inc., 219 N.C. App. 607, 723 S.E.2d 794, 2012 N.C. App. LEXIS 441 (2012).

Inadequate Findings. —

When the Industrial Commission ordered the payment of attorney’s fees pursuant to G.S. 97-88, that order was reversed because the Commission (1) did not find whether, as required by G.S. 97-88, the proceedings were brought by an insurer, (2) ordered “defendants” to pay the fees without specifying to which of three possible defendants the order applied, and (3) summarily granted a request to remove an insurance guaranty association, which could have been liable for attorney’s fees, from the case caption without explaining why the request was granted or determining the association’s attorney’s fees liability. Swift v. Richardson Sports Ltd Partners, 188 N.C. App. 82, 658 S.E.2d 674, 2008 N.C. App. LEXIS 78 (2008).

§ 97-88.1. Attorney’s fees at original hearing.

If the Industrial Commission shall determine that any hearing has been brought, prosecuted, or defended without reasonable ground, it may assess the whole cost of the proceedings including reasonable fees for defendant’s attorney or plaintiff ’s attorney upon the party who has brought or defended them.

History. 1979, c. 268, s. 1.

Legal Periodicals.

For survey of 1982 law on workers’ compensation, see 61 N.C.L. Rev. 1243 (1983).

CASE NOTES

Legislative Intent. —

The General Assembly did not intend to deter an employer with legitimate doubt regarding the employee’s credibility, based on substantial evidence of conduct by the employee inconsistent with his alleged claim, from compelling the employee to sustain his burden of proof. Sparks v. Mountain Breeze Restaurant & Fish House, Inc., 55 N.C. App. 663, 286 S.E.2d 575, 1982 N.C. App. LEXIS 2263 (1982).

The language of this section clearly shows the legislature did not intend to require that attorneys’ fees be awarded. Instead the statute was written to enable the Industrial Commission to award attorneys’ fees in those cases it deems proper. Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

Purpose. —

The evident purpose of this section is to deter stubborn, unfounded litigiousness, which is inharmonious with the primary consideration of the Workers’ Compensation Act, namely, compensation for injured employees. Sparks v. Mountain Breeze Restaurant & Fish House, Inc., 55 N.C. App. 663, 286 S.E.2d 575, 1982 N.C. App. LEXIS 2263 (1982).

The purpose of this section is to prevent stubborn, unfounded litigiousness which is inharmonious with the primary purpose of the Workers’ Compensation Act to provide compensation to injured employees. Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 464 S.E.2d 481, 1995 N.C. App. LEXIS 957 (1995).

Construction with Other Sections. —

G.S. 97-88 and this section are supplementary in nature. G.S. 97-88 allows an injured employee to move that its attorney’s fees be paid whenever an insurer appeals to the Full Commission, or to a court of the appellate division, and the insurer is required to make payments to the injured employee. By contrast, an award of attorney’s fees under this section requires that the litigation be brought, prosecuted, or defended without reasonable grounds. Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 464 S.E.2d 481, 1995 N.C. App. LEXIS 957 (1995).

The statutory requirements for awarding attorney’s fees to plaintiff under G.S. 97-88 are met when defendant appeals the Industrial Commission’s order directing that defendant pay additional benefits to plaintiff, and that order is affirmed; there is no proviso that “reasonable ground” be found lacking, which applies to fees sought under G.S. 97.88.1, at the original hearing before the commission. Brown v. Public Works Comm'n, 122 N.C. App. 473, 470 S.E.2d 352, 1996 N.C. App. LEXIS 453 (1996).

When an employer appealed the Industrial Commission’s order directing the payment of attorney’s fees pursuant to G.S. 97-88, the employer did not waive the issue by failing to raise the issue in a prior appeal because the prior appeal concerned liability for attorney’s fees pursuant to G.S. 97-88.1; thus, the applicability of G.S. 97-88 was not pertinent to the prior appeal. Swift v. Richardson Sports Ltd Partners, 188 N.C. App. 82, 658 S.E.2d 674, 2008 N.C. App. LEXIS 78 (2008).

Because evaluation of the unreasonableness of a defense claim was not a statutory factor to be weighed in granting appellate attorney’s fees under G.S. 97-88 for an employee defending an appeal, a Supreme Court decision that the employer’s defense was not unreasonable, although it barred an award of fees under G.S. 97-88.1, did not bar the award of fees under G.S. 97-88. D'Aquisto v. Mission St. Joseph's Health Sys., 198 N.C. App. 674, 680 S.E.2d 249, 2009 N.C. App. LEXIS 1340 (2009).

Discretion of Industrial Commission. —

The language of both G.S. 97-88 and this section clearly indicates that an award of attorneys’ fees is not required to be granted. Such language places the decision of whether to award attorneys’ fees within the sound discretion of the Industrial Commission. Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681, 1983 N.C. LEXIS 1087 (1983).

Although the court of appeals held that the full commission did not abuse its discretion in awarding costs and attorney’s fees as its findings were not manifestly unsupported by reason, the Supreme Court held that based upon the specific facts of this case, defendant’s defense of plaintiff’s claims was not without reasonable ground. Presbyterian Hosp. v. N.C. HHS, 177 N.C. App. 780, 630 S.E.2d 213, 2006 N.C. App. LEXIS 1184 (2006).

Decision whether to award or deny attorney’s fees rests within the sound discretion of the North Carolina Industrial Commission and will not be overturned absent a showing that the decision was manifestly unsupported by reason; the commission did not abuse its discretion in refusing to award attorney’s fees to an employee based on her claim seeking payment for the treatment rendered to her by an unauthorized physician. Thompson v. Fed. Express Ground, 175 N.C. App. 564, 623 S.E.2d 811, 2006 N.C. App. LEXIS 184 (2006).

Industrial Commission’s decision not to award fees to an employee was not an abuse of discretion under N.C. R. App. P. 28(b)(6) where the full commission was not bound by a contrary decision of a deputy commissioner and the employee failed to show that his employer and its insurance carrier did not mount an unreasonable defense of his workers’ compensation claim. Raper v. Mansfield Sys., 189 N.C. App. 277, 657 S.E.2d 899, 2008 N.C. App. LEXIS 540 (2008).

North Carolina Industrial Commission did not abuse its discretion in taxing attorney’s fees under G.S. 97-88.1 against an employer as the employer did not have reasonable grounds for prosecuting its claim as it did not introduce any evidence that would have proven a change in condition for a workers’ compensation claimant; it was suspected that the employer was concerned about the claimant’s possible death and being liable for G.S. 97-38 benefits since the claimant had developed life threatening conditions after the claimant’s previous surgery. Meares v. Dana Corp., 193 N.C. App. 86, 666 S.E.2d 819, 2008 N.C. App. LEXIS 1753 (2008).

Necessity of Findings of Fact and Conclusions of Law. —

Award of attorney fees was error where the workers’ compensation award and opinion did not contain findings of fact or conclusions of law pertaining to attorney fees; the Commission was instructed to specifically state the statute it relied upon in making the award and to make the necessary findings of fact and conclusions of law supporting the award. Swift v. Richardson Sports, Ltd., 173 N.C. App. 134, 620 S.E.2d 533, 2005 N.C. App. LEXIS 1898 (2005).

Authority of Commission. —

The Commission is authorized under this section to assess attorney’s fees, and other costs, for the entire case, against a party prosecuting or defending a hearing without reasonable grounds. Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 464 S.E.2d 481, 1995 N.C. App. LEXIS 957 (1995).

Standing. —

Under G.S. 97-88 and G.S. 97-88.1, an award of attorney’s fees is a discretionary decision made by the North Carolina Industrial Commission, and the possibility of an attorney’s fees award is not an invasion of a legally protected interest that is concrete and particularized, or actual or imminent; an estate and a widow had no standing to bring a claim against an employer and its carrier for full payment of their decedent’s medical expenses where the healthcare provider had accepted a reduced amount as payment in full, and there was no debt left to be collected. Estate of Apple v. Commer. Courier Express, Inc., 168 N.C. App. 175, 607 S.E.2d 14, 2005 N.C. App. LEXIS 173 (2005).

Test. —

The test is not whether the defense prevails, but whether it is based in reason rather than in stubborn, unfounded litigiousness. Sparks v. Mountain Breeze Restaurant & Fish House, Inc., 55 N.C. App. 663, 286 S.E.2d 575, 1982 N.C. App. LEXIS 2263 (1982); Donnell v. Cone Mills Corp., 60 N.C. App. 338, 299 S.E.2d 436, 1983 N.C. App. LEXIS 2463 (1983).

Defendants did not have reasonable grounds to appeal opinion and award of the deputy commissioner, and the full Commission did not abuse its discretion in awarding costs to plaintiff under this section; no evidence indicated that defendants were informed by an employer that plaintiff had returned to work, consistent with plaintiff’s claim that she had not returned to work. Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 526 S.E.2d 671, 2000 N.C. App. LEXIS 257 (2000).

Finding of lack of reasonable grounds upheld. —

Finding that an employer’s application to suspend or terminate benefits, based on a worker’s refusal to accept suitable employment after being released to full-duty work status was brought and prosecuted without reasonable grounds, was correct; the employer terminated the worker’s offer of employment before the worker could receive a functional capacity evaluation, and subsequently filed a form to suspend or terminate payment based on the worker’s failure to accept employment. Byrd v. Ecofibers, Inc., 182 N.C. App. 728, 645 S.E.2d 80, 2007 N.C. App. LEXIS 784 (2007).

Funding of Fees. —

Although a trial court had authority under G.S. 97-88.1, 97-90(c), 97-91, and Workers’ Comp. R. N.C. Indus. Comm’n 407(1), 2003 Ann. R. N.C. 829 to award attorneys’ fees based on the amount of a worker’s medical compensation, the trial court could not reduce the amount of compensation paid to the medical providers in order to fund the fee award. Palmer v. Jackson, 157 N.C. App. 625, 579 S.E.2d 901, 2003 N.C. App. LEXIS 930 (2003).

Payment of Fees By Counsel. —

The Industrial Commission erred in ordering that defendant’s costs and attorney’s fees be paid by plaintiff’s counsel. Evans v. Young-Hinkle Corp., 123 N.C. App. 693, 474 S.E.2d 152, 1996 N.C. App. LEXIS 863 (1996).

The statutory language of this section does not expressly provide the Industrial Commission with the authority to assess costs and fees against a party’s counsel. Evans v. Young-Hinkle Corp., 123 N.C. App. 693, 474 S.E.2d 152, 1996 N.C. App. LEXIS 863 (1996).

Whether the evidence shows a “reasonable ground” to defend is a matter reviewable by the Court of Appeals. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144, 1982 N.C. App. LEXIS 2710 (1982).

North Carolina Industrial Commission erred in failing to determine whether a worker was entitled to sanctions against a self-insured employer and an administering agency under G.S. 97-88.1, because once the issue was properly raised before the Commission, it was error for the Commission to fail to rule on whether sanctions should be awarded. Moore v. Fed. Express, 162 N.C. App. 292, 590 S.E.2d 461, 2004 N.C. App. LEXIS 127 (2004).

Failure to Address Fee Request. —

In reviewing an award by the Industrial Commission, a deputy commissioner of the Industrial Commission found that the full commission erred in failing to address the employee’s request for attorney’s fees for the employer’s denial of her claim without reasonable investigation and its failure to accept the claim when liability became reasonably clear. Cialino v. Wal-Mart Stores, 156 N.C. App. 463, 577 S.E.2d 345, 2003 N.C. App. LEXIS 203 (2003).

North Carolina Industrial Commission awarded a claimant the ordinary contingent fee under G.S. 97-90, and erred by not addressing the claimant’s motion seeking additional attorney’s fees pursuant to G.S. 97-88 or G.S. 97-88.1. Clawson v. Phil Cline Trucking, Inc., 168 N.C. App. 108, 606 S.E.2d 715, 2005 N.C. App. LEXIS 152 (2005).

Failure to Make Findings of Fact to Support Award. —

Decision by the North Carolina Industrial Commission to award attorney fees was error where the Commission failed to specifically state the statute it relied upon in making the award and failed to make the necessary findings of fact and conclusions of law to support the award; the Commission’s opinion contained no findings of fact or conclusions of law pertaining to attorney fees. Swift v. Richardson Sports, Inc., 2005 N.C. App. LEXIS 725 (N.C. Ct. App. Apr. 5, 2005).

Case was remanded for clarification of whether the attorney fees awarded by the North Carolina Industrial Commission were for the original workers’ compensation hearing under G.S. 97-88.1 or for the appeal of the deputy commissioner’s decision under G.S. 97-88 as different standards applied. Price v. Piggy Palace, 205 N.C. App. 381, 696 S.E.2d 716, 2010 N.C. App. LEXIS 1304 (2010).

Improper Grounds. —

In a workers’ compensation case, an employer’s discovery violation provided a legal basis for attorneys’ fees; however, a remand was necessary because the North Carolina Industrial Commission improperly relied upon two grounds in imposing the award. A payment without prejudice provision and its corresponding 90-day response requirement did not apply to a medical benefits-only claim, pursuant to the instructions in a government-issued form, and the claimant did not assert a notice defense. Campbell v. Garda USA, Inc., 247 N.C. App. 249, 785 S.E.2d 443, 2016 N.C. App. LEXIS 499 (2016).

Fees Upheld. —

Industrial Commission properly awarded attorney’s fees upon finding defendants in violation of rules by terminating compensation without the Commission’s approval, and by refusing to resume immediate payments following the deputy commissioner’s order. Hieb v. Howell's Child Care Ctr., Inc., 123 N.C. App. 61, 472 S.E.2d 208, 1996 N.C. App. LEXIS 571 (1996).

Competent evidence supported the Industrial Commission’s conclusion that the employer was responsible for the employee’s costs and attorney fees, where the employer refused to comply with the Workers’ Compensation Act and the Commission’s rules and regulations, the claimant was required to incur substantial travel and housing expenses to attend a hearing, and his counsel was forced to expend extra time in handling the matter. Tucker v. Workable Co., 129 N.C. App. 695, 501 S.E.2d 360, 1998 N.C. App. LEXIS 779 (1998).

An attorney’s fee award of 25% of awarded benefits was warranted based on the failure of the employer of an employee who was murdered by a former co-employee to disclose during discovery that the employee had gone to a restaurant to take work-related information on unemployment benefits to the former co-employee. Hauser v. Advanced Plastiform, Inc., 133 N.C. App. 378, 514 S.E.2d 545, 1999 N.C. App. LEXIS 507 (1999).

Where employee sought treatment from other physicians for a legitimate injury because the employer-approved physician refused to see him, and where the Industrial Commission subsequently approved this medical treatment within a reasonable time, the Court of Appeals upheld the Commission’s finding that the employer unreasonably defended the case and, therefore, should pay an attorney’s fee of five hundred dollars. Ruggery v. North Carolina Dep't of Corrs., 135 N.C. App. 270, 520 S.E.2d 77, 1999 N.C. App. LEXIS 1043 (1999).

The Commission’s award of attorney’s fees was neither arbitrary nor unreasoned, where it was undisputed that plaintiff suffered a compensable injury in 1994, compensation for which defendant employer was ultimately responsible, and defendant’s refusal to compensate plaintiff pending the outcome of its litigation with defendant insurer with respect to coverage prevented plaintiff for approximately six years from receiving the full amount of compensation to which he was entitled. Harrison v. Tobacco Transp., Inc., 139 N.C. App. 561, 533 S.E.2d 871, 2000 N.C. App. LEXIS 996 (2000).

The Industrial Commission did not abuse its discretion in awarding defendants attorney’s fees “incurred as a result of plaintiff’s unfounded litigiousness,” pursuant to this section, where the plaintiff argued that the defendant failed to rebut the presumption of continuing disability in his favor but the defendant presented witness testimony, videotaped surveillance of plaintiff, as well as medical evidence and strong evidence of fraud in rebuttal. Johnson v. Lowe's Cos., 143 N.C. App. 348, 546 S.E.2d 616, 2001 N.C. App. LEXIS 296, aff'd, 354 N.C. 358, 554 S.E.2d 336, 2001 N.C. LEXIS 1082 (2001).

The North Carolina Industrial Commission properly awarded employee attorneys’ fees under G.S. 97-88.1 where there was no indication that the Commission relied upon unsupported findings of fact or improperly relied on its conclusions of law in an earlier award of attorneys’ fees. Bryson v. Phil Cline Trucking, 150 N.C. App. 653, 564 S.E.2d 585, 564 S.E.2d 591, 2002 N.C. App. LEXIS 675 (2002).

Where the Industrial Commission had failed to determine whether an employee was entitled to her attorney’s fees, pursuant to G.S. 97-88.1, as a result of an appeal taken by the employer and insurer from the Commission’s award of additional benefits to her due to her back injury as a result of a slip and fall, the matter was remanded to the Commission for proper findings on the issue of the appropriateness of the employer’s grounds; however, the court awarded the employee her attorney’s fees as costs of the appeal, pursuant to G.S. 97-88, because much of the disability benefits that had been awarded were affirmed. Whitfield v. Lab. Corp., 158 N.C. App. 341, 581 S.E.2d 778, 2003 N.C. App. LEXIS 1192 (2003).

North Carolina Industrial Commission did not abuse its discretion under G.S. 97-88.1 by ordering an employer who filed a frivolous appeal from a deputy commissioner’s decision awarding an employee temporary total disability benefits to pay the employee’s attorney an amount equal to 25 percent of all compensation paid to the employee as reasonable attorney fees. Chavis v. Thetford Prop. Mgmt., Inc., 155 N.C. App. 769, 573 S.E.2d 920, 2003 N.C. App. LEXIS 3 (2003).

Finding that an employer unreasonably denied and defended a workers’ compensation claim and an award of attorneys’ fees to the worker were proper where the record reflected that (1) the employer objected to the worker receiving additional medical examinations and treatment, (2) the employer denied that his injury arose in and out of the course of his employment, (3) the worker testified that he never received a copy of Form 19, which the law required employers to provide to injured employees, (4) after the injury, the worker had to take frequent breaks at work, had to leave work regularly for doctors’ appointments, and had, according to doctors’ reports, an extreme limp and abnormal gait, and (3) although the employer must have been aware of the worker’s disability, it failed to pay even temporary or partial compensation until ordered to do so almost four years later. Allen v. SouthAg Mfg., 167 N.C. App. 331, 605 S.E.2d 209, 2004 N.C. App. LEXIS 2187 (2004).

Where the Full Commission concluded that an employer’s refusal to comply with its order to reinstate temporary partial disability compensation to the employee and the employer’s denial of psychological treatment were made without any reasonable basis, Commission’s conclusion that the employer’s refusals were based on unfounded litigiousness was based on sufficient evidence such that its decision to award reasonable attorney’s fees was appropriate. Haley v. ABB, Inc., 174 N.C. App. 469, 621 S.E.2d 180, 2005 N.C. App. LEXIS 2496 (2005).

North Carolina Industrial Commission did not err in denying an employee’s request for attorney’s fees under the Workers’ Compensation Act, G.S. 97-88.1, because an employer’s defense of the employee’s claim was supported by evidence and rational arguments; with respect to the question of a set off for the wages the employer paid to the employee, there was a substantial issue that the employer reasonably litigated, and with respect to the suitability of the employee’s part-time position, the employer’s choice to litigate the issue was not based on stubborn, unfounded litigiousness. Clayton v. Mini Data Forms, Inc., 199 N.C. App. 410, 681 S.E.2d 544, 2009 N.C. App. LEXIS 1485 (2009).

Employee was entitled to attorney fees where there was competent evidence before the North Carolina Industrial Commission that the employer denied the employee’s claim despite evidence of a compensable work-related injury. Javorsky v. New Hanover Reg'l Med. Ctr., 208 N.C. App. 644, 703 S.E.2d 761, 2010 N.C. App. LEXIS 2283 (2010).

Because the only argument made before the North Carolina Industrial Commission was that an employee’s claim should be denied because the employee did not know the cause of the employee’s fall, an argument that had been rejected in controlling precedent, the denial of the employee’s claim and the decision to pursue the action was unreasonable; thus, the Commission did not abuse its discretion in awarding attorney fees to the employee. Hedges v. Wake County Pub. Sch. Sys., 206 N.C. App. 732, 699 S.E.2d 124, 2010 N.C. App. LEXIS 1646 (2010).

North Carolina Industrial Commission properly awarded an injured employee attorney fees pursuant to G.S. 97-88.1 where the employer unreasonably defended against her claim, as the unchallenged findings of fact indicated that the employee’s extensive cognitive impairments were attributable to her workplace accident. Chandler v. Atl. Scrap & Processing, 217 N.C. App. 417, 720 S.E.2d 745, 2011 N.C. App. LEXIS 2601 (2011), aff'd, 367 N.C. 160, 749 S.E.2d 278, 2013 N.C. LEXIS 1159 (2013).

North Carolina Industrial Commission did not err in awarding attorney’s fees to an employee, pursuant to G.S. 97-88.1, because the employer presented no evidence contrary to expert medical testimony, including that of the employer’s medical expert, that the employee was disabled as a result of asbestosis, and, as such, the testimony demonstrated there was no genuine basis for the employer’s denial or defense of the employee’s claim. Ensley v. FMC Corp., 222 N.C. App. 386, 731 S.E.2d 855, 2012 N.C. App. LEXIS 1026 (2012).

North Carolina Industrial Commission was not precluded on remand from altering the amount of attorney’s fees awarded to an employee in its original opinion because the original award lacked any findings of fact and conclusions of law, and after making the necessary findings of fact, the Commission acted within its discretion in reducing the amount of fees awarded, pursuant to G.S. 97-88.1. Ensley v. FMC Corp., 222 N.C. App. 386, 731 S.E.2d 855, 2012 N.C. App. LEXIS 1026 (2012).

North Carolina Industrial Commission did not err by imposing a sanction against an employer and insurer for unfounded litigiousness where they had not directed the court’s attention to any legal or factual basis for their denial of the compensability of the medical conditions to which the Commission referred in its award, and in regard to their denial of the Commission’s jurisdiction, that issue had been previously resolved in court opinions that were, in all material respects, indistinguishable from the instant case and therefore constituted binding precedent. Hall v. United States Xpress, Inc., 256 N.C. App. 635, 808 S.E.2d 595, 2017 N.C. App. LEXIS 1016 (2017).

Fees Denied. —

Because the parties brought, prosecuted, or defended this matter with reasonable grounds, the Commission properly declined to award attorney’s fees in this matter. Shaw v. UPS, 116 N.C. App. 598, 449 S.E.2d 50, 1994 N.C. App. LEXIS 1080 (1994), aff'd, 342 N.C. 189, 463 S.E.2d 78, 1995 N.C. LEXIS 554 (1995).

The statutory requirements for awarding attorney’s fees to plaintiff under G.S. 97-88 are met when defendant appeals the Industrial Commission’s order directing that defendant pay additional benefits to plaintiff and that order is affirmed; there is no proviso that “reasonable ground” be found lacking, which applies to fees sought under this section, at the original hearing before the Commission. Brown v. Public Works Comm'n, 122 N.C. App. 473, 470 S.E.2d 352, 1996 N.C. App. LEXIS 453 (1996).

The employer had reasonable ground to defend against a claim for permanent partial disability benefits, and thus attorneys’ fees should have been denied, where there was some evidence that the clawed position in which the defendant held her hand was not a result of her arm injury and could not be explained physiologically, and the claimant presented no evidence that she obtained work at a lesser wage or that a search for work would have been futile. Cooke v. P.H. Glatfelter/Ecusta, 130 N.C. App. 220, 502 S.E.2d 419, 1998 N.C. App. LEXIS 915 (1998).

Award of travel expenses for employee was erroneous where the evidence showed that the employer had reasonable grounds for its motion to suspend compensation. Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11, 510 S.E.2d 388, 1999 N.C. App. LEXIS 2 (1999).

North Carolina Industrial Commission properly refused to award a workers’ compensation claimant attorney’s fees where: (1) although an employer was obligated to modify the claimant’s house, the claimant lived out of state and was trying to sell the house and did not return to the house and contact the employer about the modifications until about one month before she filed a Form 33, (2) the claimant had not been billed for some unpaid medical expenses, and (3) the claimant advised the provider that other visits were unrelated to workers’ compensation, and they, in fact, were for degenerative arthritis, which was not a compensable injury. Clark v. Sanger Clinic, P.A., 175 N.C. App. 76, 623 S.E.2d 293, 2005 N.C. App. LEXIS 2742 (2005).

Where the record showed that an employer challenged an employee’s credibility and the cause of her fibromyalgia, sanctions were properly denied since there was sufficient reason for a defense of the claim. Singletary v. N.C. Baptist Hosp., 174 N.C. App. 147, 619 S.E.2d 888, 2005 N.C. App. LEXIS 2303 (2005).

North Carolina Industrial Commission did not err in denying the employee’s motion for attorney fees in his request for interest on amounts paid to his third-party health insurer. Sprinkle v. Lilly Indus., 193 N.C. App. 694, 668 S.E.2d 378, 2008 N.C. App. LEXIS 2024 (2008).

North Carolina Industrial Commission did not abuse its discretion under G.S. 97-88.1 when it denied a request by an employer and the statutory insurer for attorney’s fees; although the evidence plainly indicated that an employee’s condition was permanent and total, it was the employer and the insurer that had requested that determination rather than the employee. Pait v. Southeastern Gen. Hosp., 219 N.C. App. 403, 724 S.E.2d 618, 2012 N.C. App. LEXIS 389 (2012).

Injured worker was not entitled to an award of attorney’s fees, under G.S. 97-88.1, after the worker prevailed on the worker’s claim for the ongoing rental expenses of a second bedroom in the worker’s apartment because the worker’s employer and its insurance carrier did not act unreasonably in defending against the worker’s claim for rental payments. Burnham v. McGee Bros. Co., 221 N.C. App. 341, 727 S.E.2d 724, 2012 N.C. App. LEXIS 758 (2012), cert. denied, 366 N.C. 437, 737 S.E.2d 106, 2013 N.C. LEXIS 161 (2013).

Industrial Commission erred in awarding attorney’s fees pursuant to G.S. 97-88.1 to an employee who suffered a compensable work injury, as the New York State Insurance Fund, which covered the employer, reasonably denied the claim due to the extraterritorial exclusion provisions of its policy; further, coverage was only determined based on principles of estoppel . Smith v. Denross Contr., United States, Inc., 224 N.C. App. 480, 737 S.E.2d 392, 2012 N.C. App. LEXIS 1435 (2012).

North Carolina Industrial Commission lacked the authority to tax the claimant’s employer with attorneys’ fees under this section because the claimant offered no evidence of a stubborn or unfounded litigiousness. Espinosa v. Tradesource, Inc., 231 N.C. App. 174, 752 S.E.2d 153, 2013 N.C. App. LEXIS 1232 (2013).

North Carolina Industrial Commission did not err in failing to make an award of attorney’s fees because the employer had reasonable grounds to defend the employee’s claims. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180, 2015 N.C. App. LEXIS 50 (2015).

Industrial Commission considered the award of attorney fees and costs and denied them, as was within its discretion, because the Commission reasoned that an employer’s defense was not grounded in unfounded litigiousness, and the employee was not entitled to attorney’s fees. Bell v. Goodyear Tire & Rubber Co., 252 N.C. App. 268, 798 S.E.2d 143, 2017 N.C. App. LEXIS 176 (2017).

Denial of Fees Reversed. —

Workers’ compensation claimant was entitled to attorney fees under G.S. 97-88.1 for the time spent responding to an employer’s Forms 61 and 63, but not for the time spent responding to the claims that her subsequent surgeries were due to pre-existing conditions, as when the employer filed a Form 63 under G.S. 97-18(d), it was still gathering information and had no evidence contradicting the claimant’s application. Bradley v. Mission St. Joseph's Health Sys., 180 N.C. App. 592, 638 S.E.2d 254, 2006 N.C. App. LEXIS 2501 (2006).

North Carolina Industrial Commission should have taxed an employer and its insurer with an injured employee’s attorney fees pursuant to G.S. 97-88.1 for failing to cease denying a claim and continuing to defend based on a lack of causation once they learned that their theory lacked any medical basis. Blalock v. Southeastern Material, 209 N.C. App. 228, 703 S.E.2d 896, 2011 N.C. App. LEXIS 79 (2011).

North Carolina Industrial Commission erred in finding that the employer’s defense of a claim for ongoing temporary disability compensation was reasonable and in declining to award attorney’s fees as the evidence introduced at the hearing confirmed that the employer intentionally disregarded information identifying four clearly compensable work-related injuries sustained by the claimant and that the denial of compensation was not based on any mistaken opinion held by the adjuster, who made no effort to confirm the claimant’s report of an injury. While it was reasonable for an employer with a legitimate doubt regarding the employee’s credibility to defend a hearing based on substantial evidence of conduct by the employee inconsistent with his alleged claim, the overwhelming evidence in the case left no room for any legitimate doubt; rather, the employer’s intentional disregard of information indisputably known to it in the matter and its affirmative failure to investigate obvious avenues that would have clarified the events of the injuries were not reasonable. Cawthorn v. Mission Hosp., Inc., 211 N.C. App. 42, 712 S.E.2d 306, 2011 N.C. App. LEXIS 723 (2011).

It was error to deny an employee’s request for attorneys’ fees and costs after entering an interlocutory order because such a determination could only be made as part of a final disposition. Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 758 S.E.2d 169, 2014 N.C. App. LEXIS 418 (2014).

§ 97-88.2. Penalty for fraud.

  1. Any person who willfully makes a false statement or representation of a material fact for the purpose of obtaining or denying any benefit or payment, or assisting another to obtain or deny any benefit or payment under this Article, shall be guilty of a Class 1 misdemeanor if the amount at issue is less than one thousand dollars ($1,000). Violation of this section is a Class H felony if the amount at issue is one thousand dollars ($1,000) or more. The court may order restitution.
  2. When a person is convicted under subsection (a) of this section, the Commission may enter such orders as necessary to ensure that the person convicted does not benefit from the unlawful conduct.
  3. The Commission shall:
    1. Perform investigations regarding all cases of suspected fraud and all violations related to workers’ compensation claims, by or against insurers or self-funded employers, and refer possible criminal violations to the appropriate prosecutorial authorities;
    2. Conduct administrative violation proceedings; and
    3. Assess and collect civil penalties and restitution.The Commission may employ sworn law enforcement officers duly appointed and certified through the North Carolina Criminal Justice Education and Training Standards Commission to conduct the investigations mandated by this subsection.
  4. Any person who threatens an employee with criminal prosecution under the provisions of subsection (a) of this section for the purpose of coercing or attempting to coerce the employee into agreeing to compensation or agreeing to forgo compensation under this Article shall be guilty of a Class H felony.
  5. The Commission shall not be liable in a civil action for any action made in good faith under this section, including the identification and referral of a person for investigation and prosecution for an alleged administrative violation or criminal offense. Any person, including, but not limited to, an attorney, an employee, an employer, an insurer, and an employee of an insurer, who in good faith comes forward with information under this section, shall not be liable in a civil action.
  6. The Commission shall report annually to the General Assembly on the number and disposition of investigations involving claimants, employers, insurance company officials, officials of third-party administrators, insurance agents, attorneys, health care providers, and vocational rehabilitation providers.

History. 1993 (Reg. Sess., 1994), c. 679, s. 7.1; 1995, c. 507, s. 25(a); 1997-353, s. 1; 2005-448, s. 8; 2007-358, s. 1.

Effect of Amendments.

Session Laws 2005-448, s. 8, effective October 1, 2005, added subsection (a1).

Session Laws 2007-358, s. 1, effective September 1, 2007, added the last paragraph of subsection (b).

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 487.

§ 97-88.3. Penalty for health care providers.

  1. In addition to any liability under G.S. 97-88.2, any health care provider who willfully or intentionally undertakes the following acts is subject to an administrative penalty, assessed by the Commission, not to exceed ten thousand dollars ($10,000):
    1. Submitting charges for health care that was not furnished;
    2. Fraudulently administering, providing, and attempting to collect for inappropriate or unnecessary treatment or services; or
    3. Violating the provisions of Article 28 of Chapter 90 of the General Statutes.A penalty assessed by the Commission for a violation of subdivision (3) of this subsection is in addition to penalties assessed under G.S. 90-407.
  2. In addition to any liability under G.S. 97-88.2, any health care provider who willfully or intentionally undertakes the following acts is subject to an administrative penalty, assessed by the Commission, not to exceed one thousand dollars ($1,000):
    1. Failing or refusing to timely file required reports or records;
    2. Making unnecessary referrals; and
    3. Knowingly violating this Article or rules promulgated hereunder, including treatment guidelines, with intention to deceive or to gain improper advantage of a patient, employee, insurer, or the Commission.
  3. A health care provider who knowingly charges or otherwise holds an employee financially responsible for the cost of any services provided for a compensable injury under this Article is guilty of a Class 1 misdemeanor.
  4. Any person, including, but not limited to, an employer, an insurer, and an employee of an insurer, who in good faith comes forward with information under this section, shall not be liable in a civil action.
  5. Information relating to possible violations under this section shall be reported to the Commission which shall refer the same to the appropriate licensing or regulatory board or authority for the health care provider involved.
  6. A hospital that relies in good faith on a written order of a physician in performing health care services shall not be subject to an administrative penalty in violation of this section.

History. 1993 (Reg. Sess., 1994), c. 679, s. 7.2.

CASE NOTES

Estate and Widow Lacked Standing to Bring Claim. —

Under G.S. 97-88.3(c), it is a class 1 misdemeanor for a healthcare provider to knowingly hold an employee responsible for medical expenses incurred as a result of a compensable injury; thus an estate and a widow had no standing to bring a claim against an employer and its carrier for full payment of their decedent’s medical expenses where the healthcare provider had accepted reduced amount as payment in full, and there was no debt left to be collected. Estate of Apple v. Commer. Courier Express, Inc., 168 N.C. App. 175, 607 S.E.2d 14, 2005 N.C. App. LEXIS 173 (2005).

§ 97-89. Commission may appoint qualified physician to make necessary examinations; expenses; fees.

The Commission or any member thereof may, upon the application of either party, or upon its own motion, appoint a disinterested and duly qualified physician or surgeon to make any necessary medical examination of the employee, and to testify in respect thereto. Said physician or surgeon shall be allowed traveling expenses and a reasonable fee to be fixed by the Commission. The fees and expenses of such physician or surgeon shall be paid by the employer.

History. 1929, c. 120, s. 63; 1931, c. 274, s. 12; 1973, c. 520, s. 3.

CASE NOTES

This section does not provide for examination by an additional physician. Clark v. Burlington Indus., 49 N.C. App. 269, 271 S.E.2d 101, 1980 N.C. App. LEXIS 3365 (1980), cert. denied, 301 N.C. 719, 276 S.E.2d 283, 1981 N.C. LEXIS 1112 (1981).

§ 97-90. Legal and medical fees to be approved by Commission; misdemeanor to receive fees unapproved by Commission, or to solicit employment in adjusting claims; agreement for fee or compensation.

  1. Fees for attorneys and charges of health care providers for medical compensation under this Article shall be subject to the approval of the Commission; but no physician or hospital or other medical facilities shall be entitled to collect fees from an employer or insurance carrier until he has made the reports required by the Commission in connection with the case. Except as provided in G.S. 97-26(g), a request for a specific prior approval to charge shall be submitted to the Commission for each such fee or charge.
  2. Any person (i) who receives any fee, other consideration, or any gratuity on account of services so rendered, unless such consideration or gratuity is approved by the Commission or the court, as provided in subsection (c), or (ii) who makes it a business to solicit employment for a lawyer or for himself in respect of any claim or award for compensation, shall be guilty of a Class 1 misdemeanor.
  3. If an attorney has an agreement for fee or compensation under this Article, he shall file a copy or memorandum thereof with the hearing officer or Commission prior to the conclusion of the hearing. If the agreement is not considered unreasonable, the hearing officer or Commission shall approve it at the time of rendering decision. If the agreement is found to be unreasonable by the hearing officer or Commission, the reasons therefor shall be given and what is considered to be reasonable fee allowed. If within five days after receipt of notice of such fee allowance, the attorney shall file notice of appeal to the full Commission, the full Commission shall hear the matter and determine whether or not the attorney’s agreement as to a fee or the fee allowed is unreasonable. If the full Commission is of the opinion that such agreement or fee allowance is unreasonable and so finds, then the attorney may, by filing written notice of appeal within 10 days after receipt of such action by the full Commission, appeal to the senior resident judge of the superior court in the county in which the cause of action arose or in which the claimant resides; and upon such appeal said judge shall consider the matter and determine in his discretion the reasonableness of said agreement or fix the fee and direct an order to the Commission following his determination therein. The Commission shall, within 20 days after receipt of notice of appeal from its action concerning said agreement or allowance, transmit its findings and reasons as to its action concerning such agreement or allowance to the judge of the superior court designated in the notice of appeal. In all other cases where there is no agreement for fee or compensation, the attorney or claimant may, by filing written notice of appeal within five days after receipt of notice of action of the full Commission with respect to attorneys’ fees, appeal to the senior resident judge of the superior court of the district of the county in which the cause arose or in which the claimant resides; and upon such appeal said judge shall consider the matter of such fee and determine in his discretion the attorneys’ fees to be allowed in the cause. The Commission shall, within 20 days after notice of appeal has been filed, transmit its findings and reasons as to its action concerning such fee or compensation to the judge of the superior court designated in the notice of appeal; provided that the Commission shall in no event have any jurisdiction over any attorneys’ fees in any third-party action. In any case in which an attorney appeals to the superior court on the question of attorneys’ fees, the appealing attorney shall notify the Commission and the employee of any and all proceedings before the superior court on the appeal, and either or both may appear and be represented at such proceedings.The Commission, in determining an allowance of attorneys’ fees, shall examine the record to determine the services rendered. The factors which may be considered by the Commission in allowing a reasonable fee include, but are not limited to, the time invested, the amount involved, the results achieved, whether the fee is fixed or contingent, the customary fee for similar services, the experience and skill level of the attorney, and the nature of the attorney’s services.In making the allowance of attorneys’ fees, the Commission shall, upon its own motion or that of an interested party, set forth findings sufficient to support the amount approved.The Commission may deny or reduce an attorney’s fees upon proof of solicitation of employment in violation of the Rules of Professional Conduct of the North Carolina State Bar.
  4. Provided, that nothing contained in this section shall prevent the collection of such reasonable fees of physicians and charges for hospitalization as may be recovered in an action, or embraced in settlement of a claim, against a third-party tort-feasor as described in G.S. 97-10.2.
  5. A health care provider shall not pursue a private claim against an employee for all or part of the costs of medical treatment provided to the employee by the provider unless the employee’s claim or the treatment is finally adjudicated not to be compensable or the employee fails to request a hearing after denial of liability by the employer. Notwithstanding subsequent denial of liability or adjudication that the condition treated was not compensable, the insurer shall be liable as provided in G.S. 97-26 to providers whose services have been authorized by the insurer or employer. The statute of limitations applicable to a provider’s claim for payment shall be tolled during the period the compensability of a claim or liability for particular treatment remains an issue in a compensation case.
  6. If a dispute arises between an employee’s current and past attorney or attorneys regarding the division of a fee as approved by the Commission pursuant to this section, the Commission shall hear any dispute after the Commission has approved the settlement agreement. The Commission shall give notice to each of the employee’s current and past attorneys of record of the total amount of the approved fee prior to determining how the fee shall be divided between those attorneys. An attorney who is an interested party to an action under this subsection shall have the same rights of appeal as outlined in subsection (c) of this section.

History. 1929, c. 120, s. 64; 1955, c. 1026, s. 4; 1959, cc. 1268, 1307; 1973, c. 520, s. 4; 1981, c. 521, s. 4; 1991, c. 703, s. 6; 1993, c. 539, s. 680; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 679, s. 9.1; 2013-278, s. 1; 2017-124, s. 2.

Cross References.

For related subject in reference to fees of physicians and hospital charges, see G.S. 97-26.

As to attorneys’ fees as costs in certain appeals, see G.S. 97-88.

As to the assessment of attorneys’ fees incurred in hearings brought without reasonable ground, see G.S. 97-88.1.

Editor’s Note.

The preamble to Session Laws 2017-124, provides: “Whereas, in 2011, the Workers’ Compensation Act was amended by S.L. 2011-287; and

“Whereas, the North Carolina Supreme Court issued a decision in Wilkes v. City of Greenville (No. 368PA15) on June 9, 2017; and

“Whereas, prior to the Supreme Court’s decision in Wilkes , employees were not required to prove entitlement to additional medical treatment for the injuries determined to be compensable by the Commission; and

“Whereas, prior to the Supreme Court’s decision in Wilkes , employees could seek medical treatment for future symptoms allegedly related to the original compensable injury; and

“Whereas, the Wilkes decision held that once an employer issues direct payment to an employee pursuant to G.S. 97-82(b), the employee is entitled to a presumption that additional medical treatment is causally related to the employee’s compensable injury unless the employer rebuts this presumption with evidence that the condition or treatment is not causally related to the compensable injury; and

“Whereas, an employee bears the burden of proving that the employee’s future symptoms or conditions that the employee alleges are related to the compensable injury but that were not enumerated on a Form 60 or Form 63 pursuant to G.S. 97-18(b) or G.S. 97-18(d), respectively, are causally related to the compensable injury; Now, therefore,”

Session Laws 2017-124, s. 3, made the rewriting of subsection (f) of this section by Session Laws 2017-124, s. 2, effective July 20, 2017, and applicable to claims pending on or after that date.

Effect of Amendments.

Session Laws 2013-278, s. 1, effective July 18, 2013, added subsection (f). For applicability, see editor’s note.

Session Laws 2017-124, s. 2, rewrote subsection (f). For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Primary Issues in Compensation Litigation,” see 17 Campbell L. Rev. 443 (1995).

CASE NOTES

The clear intent of this section and judicial opinions is to assure that medical and related expenses incurred by an injured employee for which the employer or his insurance carrier is to be liable shall be kept within reasonable and appropriate limits, and the responsibility for the enforcement of these limits rests upon the Industrial Commission. Morse v. Curtis, 20 N.C. App. 96, 200 S.E.2d 832, 1973 N.C. App. LEXIS 1483 (1973), cert. denied, 285 N.C. 86, 203 S.E.2d 58, 1974 N.C. LEXIS 909 (1974).

The authority to approve hospital charges under subsection (a) is provided to ensure that hospitals do not provide services not reasonably required to effect a cure or give relief or tend to lessen the period of disability, and that hospital charges therefor do not exceed the prevailing community charge described therein. Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716, 1994 N.C. LEXIS 240, dismissed, 336 N.C. 305, 443 S.E.2d 733, 1994 N.C. LEXIS 231 (1994).

Employer’s Liability for Medical Expense Not Preempted by Federal Law. —

The obligation of an employer to pay claimant’s reasonable and necessary medical expenses, and the ability of health-care providers to accept such payment, was not controlled or preempted by federal Medicaid statutes or regulations. Pearson v. C.P. Buckner Steel Erection Co., 348 N.C. 239, 498 S.E.2d 818, 1998 N.C. LEXIS 220 (1998).

An employer who denied liability but was ordered to pay medical expenses under the Workers’ Compensation Act was required to pay health-care providers the difference between the amount covered by Medicaid and the full amount authorized by the Commission’s fee schedule. Pearson v. C.P. Buckner Steel Erection Co., 348 N.C. 239, 498 S.E.2d 818, 1998 N.C. LEXIS 220 (1998).

Appropriate Treatment Is Within Exclusive Jurisdiction of Commission. —

What treatment is appropriate for a particular employee is a matter within the exclusive jurisdiction of the Industrial Commission. North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312, 1988 N.C. App. LEXIS 230 (1988).

No Jurisdiction Over Dispute Between Attorney’s Over Division of Fees. —

There is no statutory authority that would extend commission’s jurisdiction to cover dispute between plaintiff’s attorneys over division of attorneys’ fees. Eller v. J & S Truck Servs., Inc., 100 N.C. App. 545, 397 S.E.2d 242, 1990 N.C. App. LEXIS 1063 (1990).

Attorney did not claim that Industrial Commission failed to compensate him for his efforts on behalf of employee, or that the Commission found a reasonable fee to be unreasonable, but that the Commission refused to divide fee award between attorneys with competing claims to it. Commission had no statutory authority to resolve this dispute. Eller v. J & S Truck Servs., Inc., 100 N.C. App. 545, 397 S.E.2d 242, 1990 N.C. App. LEXIS 1063 (1990).

Compensation of Medical Providers Cannot Be Reduced to Pay Attorney’s Fees. —

Although a trial court had authority under G.S. 97-88.1, 97-90(c), 97-91, and Workers’ Comp. R. N.C. Indus. Comm’n 407(1), 2003 Ann. R. N.C. 829 to award attorneys’ fees based on the amount of a worker’s medical compensation, the trial court could not reduce the amount of compensation paid to the medical providers in order to fund the fee award. Palmer v. Jackson, 157 N.C. App. 625, 579 S.E.2d 901, 2003 N.C. App. LEXIS 930 (2003).

Jurisdiction of Industrial Commission. —

Where plaintiff sought enforcement of Industrial Commission’s previous order awarding him reasonable and necessary medical expenses after a dispute arose over what expenses defendants must pay the Commission was acting within its statutory mandate and had subject matter jurisdiction to hear and decide these issues. Pearson v. C.P. Buckner Steel Erection Co., 126 N.C. App. 745, 486 S.E.2d 723, 1997 N.C. App. LEXIS 630 (1997), aff'd in part and rev'd in part, 348 N.C. 239, 498 S.E.2d 818, 1998 N.C. LEXIS 220 (1998).

All Bills Must Be Submitted to and Approved by Commission. —

The superior court had no authority to order defendants to pay medical bills incurred by plaintiff for treatment of her work-related injury, though the Industrial Commission had ordered that defendants pay all such bills, where the bills in question had not been submitted to or approved by the Industrial Commission. Weydener v. Carolina Village, 45 N.C. App. 549, 263 S.E.2d 329, 1980 N.C. App. LEXIS 2642 (1980).

It would be a misdemeanor for any person to receive fees which were not approved by the Commission. Morse v. Curtis, 20 N.C. App. 96, 200 S.E.2d 832, 1973 N.C. App. LEXIS 1483 (1973), cert. denied, 285 N.C. 86, 203 S.E.2d 58, 1974 N.C. LEXIS 909 (1974).

Process of filing for approval does not result in notice to the claimant; the statute provides a penalty for noncompliance, and its purpose (to ensure that medical service providers are not overcharging for services and products) is unrelated to the employee’s claim. Knight v. Cannon Mills Co., 82 N.C. App. 453, 347 S.E.2d 832, 1986 N.C. App. LEXIS 2520 (1986).

Failure to obtain approval for payments of medical expenses does not raise an estoppel claim. Knight v. Cannon Mills Co., 82 N.C. App. 453, 347 S.E.2d 832, 1986 N.C. App. LEXIS 2520 (1986).

Agreement by Employee to Pay Balance to Physician Held Void. —

An agreement by an injured employee to pay the physician engaged by him any balance due on his account after application of the amount approved by the Industrial Commission for the services was unenforceable and void, since this section made the receipt of any fee for such services not approved by the Commission a misdemeanor. Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504, 1948 N.C. LEXIS 357 (1948).

Approval of Rehabilitation Services Not Required. —

Subsection (a) does not require approval of the Commission for rehabilitation services. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917, 1990 N.C. App. LEXIS 1223 (1990).

Pre-approval of Attendant Care Services by Employee’s Family Members Not Required. —

Employer and its insurer were required to pay retroactively for attendant care services provided by family members for an employee, who suffered from a back injury and needed assistance in dressing, bathing, preparing meals, and performing various household duties, because preapproval of such services was not required by G.S. 97-20(a) since the care was not provided by a physician, hospital, or medical facility. Boylan v. Verizon Wireless, 201 N.C. App. 81, 685 S.E.2d 155, 2009 N.C. App. LEXIS 1854 (2009).

North Carolina Industrial Commission properly awarded an injured employee compensation for attendant care services provided by the employee’s family members, as pursuant to G.S. 97-90(a), preauthorization for such attendant care services was not required. Chandler v. Atl. Scrap & Processing, 217 N.C. App. 417, 720 S.E.2d 745, 2011 N.C. App. LEXIS 2601 (2011), aff'd, 367 N.C. 160, 749 S.E.2d 278, 2013 N.C. LEXIS 1159 (2013).

Attendant Care Services by Employee’s Family Members. —

North Carolina Industrial Commission properly awarded an injured employee compensation for attendant care services provided by the employee’s family members, as pursuant to G.S. 97-90(a), the famly members did not have to give up other employment to render the services to the injured employee. Chandler v. Atl. Scrap & Processing, 217 N.C. App. 417, 720 S.E.2d 745, 2011 N.C. App. LEXIS 2601 (2011), aff'd, 367 N.C. 160, 749 S.E.2d 278, 2013 N.C. LEXIS 1159 (2013).

It was no error to award an employee attendant care compensation because (1) a physician’s testimony supported a finding that the services were medically necessary, and (2) the testimony of the employee’s mother supported a finding that the services were reasonable, so the findings were conclusive on appeal. Reed v. Carolina Holdings, Wolseley Mgmt., 251 N.C. App. 782, 796 S.E.2d 102, 2017 N.C. App. LEXIS 37 (2017).

Pre-approval of Attendant Care Services by Employee’s Brother Not Required. —

Injured employee who was provided attendant care benefits by his brother was entitled to an award for the benefits in spite of the fact the employee did not seek pre-approval of the care by the North Carolina Industrial Commission before it was performed. Ruiz v. Belk Masonry Co., 148 N.C. App. 675, 559 S.E.2d 249, 2002 N.C. App. LEXIS 50 (2002).

Remedy Where Physician’s Bill Approved for Less than Full Amount. —

Where a physician has submitted his bill to the Industrial Commission for its approval, and received approval for less than the full amount, his remedy is to request a hearing before the Commission with the right of appeal to the courts under G.S. 97-83 through 97-86, and this remedy is exclusive. Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504, 1948 N.C. LEXIS 357 (1948). See Matros v. Owen, 229 N.C. 472, 50 S.E.2d 509, 1948 N.C. LEXIS 358 (1948).

Independent Action by Physician Against Employee. —

Where a physician has submitted his bill to the Industrial Commission for its approval and received approval for less than the full amount, and has failed to pursue his exclusive statutory remedy of a hearing before the Industrial Commission with the right of appeal to the courts under G.S. 97-83 through 97-86, he has no standing to attack the constitutionality of this section in an independent suit against the employee to recover for the medical services. Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504, 1948 N.C. LEXIS 357 (1948). See Matros v. Owen, 229 N.C. 472, 50 S.E.2d 509, 1948 N.C. LEXIS 358 (1948).

Refusal of Insurers to Provide Chiropractic Treatment as Workers’ Compensation Coverage. —

Plaintiff chiropractors alleging that defendant insurance companies had interfered with their contractual rights by refusing to honor employers’ choices of chiropractors as providers of health care treatment to employees under the Workers’ Compensation Act, that defendants had misrepresented to employer insureds that their workers’ compensation policies did not provide coverage for chiropractic treatment, that said misrepresentations were unfair and deceptive trade practices in violation of G.S. 75-1.1, and that defendants had conspired among themselves and with members of the medical profession to deprive plaintiffs of business opportunities by refusing to pay for chiropractic services provided in compliance with the act, an illegal restraint of trade in violation of G.S. 75-1 and 15 U.S.C. § 1, could not maintain their action in superior court without first seeking relief from the Industrial Commission. North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312, 1988 N.C. App. LEXIS 230 (1988) (remanding case to the trial court for entry of an order staying plaintiffs’ action pending a determination of the underlying workers’ compensation issues by the Commission) .

Less Than 100% Credit Was Within Commission’s Authority. —

Where the Commission’s award allowed the defendant credit for payments that they had already made through their private insurer less only the plaintiff’s reasonable attorney’s fees calculated and based upon the amount of the entire worker’s compensation award, the award was authorized by the statute since all credit given by the Commission in these circumstances is “subject to the approval” of the Industrial Commission. Church v. Baxter Travenol Labs., Inc., 104 N.C. App. 411, 409 S.E.2d 715, 1991 N.C. App. LEXIS 1057 (1991).

The Industrial Commission acted within its discretion, pursuant to G.S. 97-42, in reducing defendants’ credit for payments made under a disability insurance policy fully funded by defendants by 25% to provide plaintiff’s counsel additional fees, although the record on appeal contained no copy of a fee award filed with the Commission as required by this section. Cole v. Triangle Brick, 136 N.C. App. 401, 524 S.E.2d 79, 2000 N.C. App. LEXIS 11 (2000).

Fees in Special Hardship Cases. —

The fees prescribed by the Commission shall govern, except that in special hardship cases where sufficient reason therefor is demonstrated to the Commission, fees in excess of those published may be allowed. Wake County Hosp. Sys. v. North Carolina Indus. Comm'n, 8 N.C. App. 259, 174 S.E.2d 292, 1970 N.C. App. LEXIS 1529 (1970), overruled, Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716, 1994 N.C. LEXIS 240 (1994).

Failure to Address Other Statutory Grounds for Awarding Attorneys’ Fees. —

North Carolina Industrial Commission awarded a claimant the ordinary contingent fee under G.S. 97-90, and erred by not addressing the claimant’s motion seeking additional attorney’s fees pursuant G.S. 97-88 or G.S. 97-88.1. Clawson v. Phil Cline Trucking, Inc., 168 N.C. App. 108, 606 S.E.2d 715, 2005 N.C. App. LEXIS 152 (2005).

Authority to Review Attorneys’ Fees. —

The authority of the Industrial Commission and its hearing officers to review fees for attorneys is found in this section. Hardy v. Brantley Constr. Co., 87 N.C. App. 562, 361 S.E.2d 748, 1987 N.C. App. LEXIS 3277 (1987), rev'd in part, 322 N.C. 106, 366 S.E.2d 485, 1988 N.C. LEXIS 121 (1988).

Any disputes as to attorney’s fees had to be appealed according to the procedures set out in this section. Davis v. Trus Joist MacMillan, 148 N.C. App. 248, 558 S.E.2d 210, 2002 N.C. App. LEXIS 3 (2002).

Attorney’s failure to follow the procedures prescribed in G.S. 97-90(c) to seek review of the Industrial Commission’s award of attorney’s fees deprived the appellate court of jurisdiction to consider the issue. Russell v. Lab. Corp. of Am., 151 N.C. App. 63, 564 S.E.2d 634, 2002 N.C. App. LEXIS 644 (2002).

Court lacked authority to consider an employee’s challenge to a determination regarding an award of attorney’s fees because G.S. 97-90(c) required appeal of such a claim to a senior resident superior court judge. Boylan v. Verizon Wireless, 201 N.C. App. 81, 685 S.E.2d 155, 2009 N.C. App. LEXIS 1854 (2009).

Employer’s and insurer’s appeal of the North Carolina Industrial Commission’s (Commission) award of attorney’s fees from medical compensation was dismissed because the employer’s and insurer’s argument that the Commission lacked such authority was not raised before the Commission when the employer and insurer pled only a generalized assignment of error regarding the award. Reed v. Carolina Holdings, Wolseley Mgmt., 251 N.C. App. 782, 796 S.E.2d 102, 2017 N.C. App. LEXIS 37 (2017).

Applicability of Reasonableness Requirement. —

Under G.S. 97-10.2(f)(1)b, the attorneys’ fee taken from the employee’s share may not exceed one-third of the amount recovered, but it is not otherwise subject to the reasonableness requirement of subsection (c) of this section; the attorneys’ fee on the subrogation interest of the employer (or its carrier) is subject to the reasonableness requirement of subsection (c) of this section and may not exceed one-third of the amount recovered from the third party. Hardy v. Brantley Constr. Co., 87 N.C. App. 562, 361 S.E.2d 748, 1987 N.C. App. LEXIS 3277 (1987), rev'd in part, 322 N.C. 106, 366 S.E.2d 485, 1988 N.C. LEXIS 121 (1988).

Award of Attorneys’ Fees Proper. —

Finding that an employer unreasonably denied and defended a workers’ compensation claim and an award of attorneys’ fees to the worker were proper where the record reflected that (1) the employer objected to the worker receiving additional medical examinations and treatment, (2) the employer denied that his injury arose in and out of the course of his employment, (3) the worker testified that he never received a copy of Form 19, which the law required employers to provide to injured employees, (4) after the injury, the worker had to take frequent breaks at work, had to leave work regularly for doctors’ appointments, and had, according to doctors’ reports, an extreme limp and abnormal gait, and (3) although the employer must have been aware of the worker’s disability, it failed to pay even temporary or partial compensation until ordered to do so almost four years later. Allen v. SouthAg Mfg., 167 N.C. App. 331, 605 S.E.2d 209, 2004 N.C. App. LEXIS 2187 (2004).

North Carolina Industrial Commission, pursuant to G.S. 97-10.2(f)(1) and G.S. 97-90(c), did not exceed its subject matter jurisdiction by capping attorneys’ fees from a third-party case at one-third of the gross recovery. Tinsley v. City of Charlotte, 228 N.C. App. 744, 747 S.E.2d 145, 2013 N.C. App. LEXIS 820 (2013).

There is no indication that the Industrial Commission intended to modify the deputy commissioner’s approval of attorney’s fees to the employee’s counsel where the lack of findings in the opinion and award to justify a denial of attorneys fees was contrary to the contention of the employer and its insurer and the Commission’s assumption that the Commission in 2008 intended to deny the fee request. Adcox v. Clarkson Bros. Constr. Co., 241 N.C. App. 178, 773 S.E.2d 511, 2015 N.C. App. LEXIS 439 (2015).

It was improper for the court of appeals to vacate an order of attorney’s fees because it erred by reading strict limits into the statutory review to be conducted by the superior court, which had jurisdiction to consider additional evidence not previously considered by the North Carolina Industrial Commission; the superior court acted within the authority because it considered all the factors listed in subsection (c) and allowed a reasonable attorney’s fee. Saunders v. ADP TotalSource Fi Xi, Inc. (In re Fee Award of the N.C. Indus. Comm'n in N.C.I.C. Nos. W82780 & W98474), 372 N.C. 29, 822 S.E.2d 857, 2019 N.C. LEXIS 54 (2019).

Commission’s Failure to Address Issues Appealed. —

North Carolina Industrial Commission erred in failing to address the attorney’s fees issue, although attorney’s fees was the only issue appealed as the Commission could not violate Workers’ Comp. R. N.C. Indus. Comm’n Ann. R. 701 by addressing different issues than those appealed; the appellate court could not address the parties’ claims as to attorney’s fees under G.S. 97-88 and G.S. 97-90, as neither the Commission nor the superior court addressed those issues. Hurley v. Wal-Mart Stores, Inc., 219 N.C. App. 607, 723 S.E.2d 794, 2012 N.C. App. LEXIS 441 (2012).

North Carolina Industrial Commission’s silence on the issue of a deputy commissioner’s award of attorneys’ fees amounted to either an affirmance or a failure to address the issue, but not a denial of fees. When there was a failure to appeal, the deputy commissioner’s decision became the law of the case; moreover, any decision by the deputy commissioner to deny attorneys’ fees had to be supported by specific findings. Adcox v. Clarkson Bros. Constr. Co., 236 N.C. App. 248, 763 S.E.2d 792, 2014 N.C. App. LEXIS 1017 (2014), superseded, 241 N.C. App. 178, 773 S.E.2d 511, 2015 N.C. App. LEXIS 439 (2015).

Superior Court Authorized to Consider Additional Evidence. —

Plain language of the statute, committing the matter of attorney’s fees to the superior court judge to “consider the matter” of a fee and “determine it in his discretion,” sets forth a broad, de novo fact-finding role to be played by the superior court; subsection (c) authorizes the superior court to consider additional evidence and exercise its “discretion” in reviewing the reasonableness or setting the amount of attorney’s fees. Saunders v. ADP TotalSource Fi Xi, Inc. (In re Fee Award of the N.C. Indus. Comm'n in N.C.I.C. Nos. W82780 & W98474), 372 N.C. 29, 822 S.E.2d 857, 2019 N.C. LEXIS 54 (2019).

In accord with the authority given in subsection (c) to “consider the matter” of attorney’s fees and “in his discretion” fix the attorney’s fees to be allowed, the superior court judge may take and consider additional evidence not presented to the North Carolina Industrial Commission in order to properly consider the matter and exercise the superior court’s discretion. Saunders v. ADP TotalSource Fi Xi, Inc. (In re Fee Award of the N.C. Indus. Comm'n in N.C.I.C. Nos. W82780 & W98474), 372 N.C. 29, 822 S.E.2d 857, 2019 N.C. LEXIS 54 (2019).

Appellate Review. —

Subsection (c) is separate from the appellate review for errors of law that was formerly vested in the superior court and is now vested in the court of appeals; instead, a review under subsection (c) is a unique, fact-based avenue of review covering a limited subject matter that the legislature has chosen to vest in the superior court. Saunders v. ADP TotalSource Fi Xi, Inc. (In re Fee Award of the N.C. Indus. Comm'n in N.C.I.C. Nos. W82780 & W98474), 372 N.C. 29, 822 S.E.2d 857, 2019 N.C. LEXIS 54 (2019).

§ 97-90.1. Insurers that provide employee’s health benefit plans, disability income plans, or any other health insurance plans as real parties in interest; reimbursement.

An insurer that covers an employee under a health benefit plan as defined in G.S. 58-3-167, a disability income plan, or any other health insurance plan is not a real party in interest and shall not intervene or participate in any proceeding or settlement agreement under this Article to determine whether a claim is compensable under this Article or to seek reimbursement for medical payments under its plan. The insurer that covers an employee under a health benefit plan as defined in G.S. 58-3-167 or any other health insurance plan may seek reimbursement from the employee, employer, or carrier that is liable or responsible for the specific medical charge according to a final adjudication of the claim under this Article or an order of the Commission approving a settlement agreement entered into under this Article for health plan payments for that specific medical charge. Upon the admission or adjudication that a claim is compensable, the party or parties liable shall notify in writing any known health benefit plan covering the employee of the admission or adjudication.

History. 2001-216, s. 1; 2001-487, s. 102(b).

§ 97-91. Commission to determine all questions.

All questions arising under this Article if not settled by agreements of the parties interested therein, with the approval of the Commission, shall be determined by the Commission, except as otherwise herein provided.

History. 1929, c. 120, s. 65.

Legal Periodicals.

For article, “Primary Issues in Compensation Litigation,” see 17 Campbell L. Rev. 443 (1995).

CASE NOTES

This section is not limited in its application solely to questions arising out of an employer-employee relationship or in the determination of rights asserted by or on behalf of an injured employee. Wake County Hosp. Sys. v. North Carolina Indus. Comm'n, 8 N.C. App. 259, 174 S.E.2d 292, 1970 N.C. App. LEXIS 1529 (1970), overruled, Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716, 1994 N.C. LEXIS 240 (1994); Spivey v. Oakley's Gen. Contractors, 32 N.C. App. 488, 232 S.E.2d 454, 1977 N.C. App. LEXIS 1980 (1977).

The Act does not take away common law rights that are unrelated to the employer-employee relationship. North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312, 1988 N.C. App. LEXIS 230 (1988).

“Questions arising under this Article” would seem to consist primarily, if not exclusively, of questions for decision in the determination of rights asserted by or on behalf of an injured employee or his dependents. Clark v. Gastonia Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354, 1964 N.C. LEXIS 448 (1964).

The phrase in G.S. 97-91, “questions arising under this Article,” refers primarily to questions relating to the rights asserted by or on behalf of an injured employee or the employee’s dependents. N.C. State Bar v. Gilbert, 151 N.C. App. 299, 566 S.E.2d 685, 2002 N.C. App. LEXIS 782 (2002), aff'd, 357 N.C. 502, 586 S.E.2d 89, 2003 N.C. LEXIS 1100 (2003).

Jurisdiction of Commission Exclusive. —

In an action instituted in the superior court under the Declaratory Judgment Act or otherwise, when the pleadings disclose that an employee-employer relationship exists so as to make the parties subject to the provisions of the Workers’ Compensation Act, dismissal is proper, for the Industrial Commission has exclusive jurisdiction in such cases. Cox v. Pitt County Transp. Co., 259 N.C. 38, 129 S.E.2d 589, 1963 N.C. LEXIS 479 (1963).

The Declaratory Judgment Act may not be used to determine whether or not the employer’s insurance carrier is entitled to the right of subrogation against the funds received from the third-party tortfeasor under the provisions of G.S. 97-10.2, since the Industrial Commission has exclusive original jurisdiction to determine the question. Cox v. Pitt County Transp. Co., 259 N.C. 38, 129 S.E.2d 589, 1963 N.C. LEXIS 479 (1963).

By statute, the superior court is divested of original jurisdiction of all actions which come within the provisions of the Workers’ Compensation Act. Morse v. Curtis, 276 N.C. 371, 172 S.E.2d 495, 1970 N.C. LEXIS 691 (1970).

The amount, or rate, of compensation to which plaintiff is entitled, depending on a determination of his average weekly wage, is a question within the exclusive jurisdiction of the Industrial Commission; while the court has jurisdiction to enforce an award made pursuant to the execution of a Form 60, it cannot review the amount of compensation unless the Commission has first made that determination. Watts v. Hemlock Homes of the Highlands, Inc., 141 N.C. App. 725, 544 S.E.2d 1, 2001 N.C. App. LEXIS 22 (2001).

North Carolina Industrial Commission had jurisdiction over a workers’ compensation matter, even though the parties had entered into a settlement agreement at a mediation conference for what was believed to be a liability claim at law and the claimant could have filed an action at law, as once the Forms 18 and 33 were filed by the claimant, the Commission had exclusive jurisdiction over the workers’ compensation claim and all related matters; the Commission had not approved the settlement agreement. Allred v. Exceptional Landscapes, Inc., 227 N.C. App. 229, 743 S.E.2d 48, 2013 N.C. App. LEXIS 531 (2013).

Jurisdiction Over Employee’s Claim. —

North Carolina Industrial Commission, pursuant to G.S. 97-91, had jurisdiction over an employee’s claim after the employer sold the division for which the employee worked to a buyer that went bankrupt, and the sales agreement between the employer and the buyer, pursuant to G.S. 97-6, did not invalidate this jurisdiction by its terms for the transfer of liabilities; however, the method of handling the certificate of deposit belonging to the buyer that was deposited with the North Carolina Department of Insurance (DOI) fell within the ambit of the DOI’s jurisdiction. Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 615 S.E.2d 350, 2005 N.C. App. LEXIS 1315 (2005).

Jurisdiction Over Declaratory Judgment. —

Although the industrial commission had exclusive jurisdiction over matters arising under the Workers’ Compensation Act pursuant to G.S. 97-91, where an injured passenger’s declaratory judgment claim under G.S. 1-253 and G.S. 1-254 was based on his standing as a third-party intended beneficiary of a contract between his employer, a subcontractor, and a contractor, wherein the contractor was to provide workers’ compensation coverage to the subcontractor’s employees, the claim was within the jurisdiction of the trial court. Lowery v. Campbell, 185 N.C. App. 659, 649 S.E.2d 453, 2007 N.C. App. LEXIS 1948 (2007), aff'd, 362 N.C. 231, 657 S.E.2d 354, 2008 N.C. LEXIS 140 (2008).

Jurisdiction of Dispute as to Payment of Medical Expenses. —

Having determined that the employer was liable for claimant’s disability compensation and medical expenses, the Commission had jurisdiction to determine whether a health-care provider could receive payment pursuant to workers’ compensation laws after accepting payment from Medicaid. Pearson v. C.P. Buckner Steel Erection Co., 348 N.C. 239, 498 S.E.2d 818, 1998 N.C. LEXIS 220 (1998).

A dispute pertaining to the payment of medical expenses and case management hours that arose from a “custodial agreement” made after and in furtherance of a settlement agreement that was approved by the Industrial Commission fell within the exclusive jurisdiction of that administrative body. Coleman v. Medi-Bill, Inc., 2001 U.S. Dist. LEXIS 15285 (W.D.N.C. Sept. 21, 2001).

No Jurisdiction over Dispute Between Attorneys over Division of Legal Fees. —

There is no statutory authority that would extend commission’s jurisdiction to cover dispute between plaintiff’s attorneys over division of attorneys’ fees. Eller v. J & S Truck Servs., Inc., 100 N.C. App. 545, 397 S.E.2d 242, 1990 N.C. App. LEXIS 1063 (1990).

Funding of Attorney’s Fees. —

Although a trial court had authority under G.S. 97-88.1, 97-90(c), 97-91, and Workers’ Comp. R. N.C. Indus. Comm’n 407(1), 2003 Ann. R. N.C. 829 to award attorneys’ fees based on the amount of a worker’s medical compensation, the trial court could not reduce the amount of compensation paid to the medical providers in order to fund the fee award. Palmer v. Jackson, 157 N.C. App. 625, 579 S.E.2d 901, 2003 N.C. App. LEXIS 930 (2003).

Appropriate Treatment Within Exclusive Jurisdiction of Commission. —

What treatment is appropriate for a particular employee is a matter within the exclusive jurisdiction of the Industrial Commission. North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312, 1988 N.C. App. LEXIS 230 (1988).

The Commission has the duty to make specific findings of fact necessary to determine all questions relevant to the issues raised in a proceeding before it. Buchanan v. Mitchell County, 38 N.C. App. 596, 248 S.E.2d 399, 1978 N.C. App. LEXIS 2249 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 35, 1979 N.C. LEXIS 1207 (1979).

Prerogative of Commission to Determine Credibility and Weigh Evidence. —

The full Commission has the authority to make additional findings of fact, and where it found that plaintiff failed to prove that he was injured while making an arrest was supported by competent evidence, plaintiff’s case was left without a foundation. In not accepting plaintiff’s contrary version of the event involved, the Commission exercised its prerogative under the law to determine the credibility and weight of the evidence presented. Griffey v. Town of Hot Springs, 87 N.C. App. 290, 360 S.E.2d 457, 1987 N.C. App. LEXIS 3164 (1987).

The Industrial Commission is not required to find in accordance with plaintiff’s expert medical testimony if the defendant does not offer expert medical testimony to the contrary. Harvey v. Raleigh Police Dep't, 96 N.C. App. 28, 384 S.E.2d 549, 1989 N.C. App. LEXIS 941 (1989).

On appeal, the Commission’s findings of fact are conclusive and the role of the reviewing court is limited to ascertaining whether there was any competent evidence before the Commission to support its findings of fact and whether the findings of fact justify its legal conclusions and decision. Buchanan v. Mitchell County, 38 N.C. App. 596, 248 S.E.2d 399, 1978 N.C. App. LEXIS 2249 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 35, 1979 N.C. LEXIS 1207 (1979).

A health insurer may intervene as a real party in interest in a workers’ compensation proceeding when it alleges that it has paid medical expenses due to an employee’s compensable injury and is entitled to reimbursement, and liability is disputed by the employer. Hansen v. Crystal Ford-Mercury, Inc., 138 N.C. App. 369, 531 S.E.2d 867, 2000 N.C. App. LEXIS 628 (2000).

Questions Respecting Existence of Insurance and Liability of Insurance Carrier. —

The Commission is specifically vested by statute with jurisdiction to hear “all questions arising under” the act. This jurisdiction under the statute ordinarily includes the right and duty to hear and determine questions of fact and law respecting the existence of insurance coverage and the liability of the insurance carrier. Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488, 1952 N.C. LEXIS 611 (1952); Clark v. Gastonia Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354, 1964 N.C. LEXIS 448 (1964); Spivey v. Oakley's Gen. Contractors, 32 N.C. App. 488, 232 S.E.2d 454, 1977 N.C. App. LEXIS 1980 (1977).

The act does not confer upon the Commission, expressly or by implication, jurisdiction to determine, in a proceeding in which plaintiff asserts no claim against insurer, employer’s asserted right to reform the policy and to recover from insurer the amount of plaintiff ’s award. Clark v. Gastonia Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354, 1964 N.C. LEXIS 448 (1964).

Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488 (1952) may not be considered authority for the proposition that the Commission has equitable jurisdiction to determine whether a compensation insurance policy should be reformed. Clark v. Gastonia Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354, 1964 N.C. LEXIS 448 (1964).

After the employer had settled with the employee, the Commission had jurisdiction to determine whether policy of compensation insurance had been properly cancelled, or whether insurer was on the risk. Spivey v. Oakley's Gen. Contractors, 32 N.C. App. 488, 232 S.E.2d 454, 1977 N.C. App. LEXIS 1980 (1977).

Trial court lacked subject matter jurisdiction under N.C. R. Civ. P. 12(b)(1) over whether the insurance guaranty association was required by amendments to the Insurance Guaranty Association Act, G.S. 58-48-1 et seq., and the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., to defend and indemnify the workers’ compensation claims against the insolvent insurers, as the industrial commission had jurisdiction over the matter; not only was the association an insurer under G.S. 58-48-35(a)(2) over which the industrial commission had jurisdiction, but also, under G.S. 97-91, the industrial commission had jurisdiction to hear all questions arising under the Workers’ Compensation Act. N.C. Ins. Guar. Ass'n v. Int'l Paper Co., 152 N.C. App. 224, 569 S.E.2d 285, 2002 N.C. App. LEXIS 1092 (2002).

Refusal of Insurers to Provide Chiropractic Treatment as Workers’ Compensation Coverage. —

Plaintiff chiropractors alleging that defendant insurance companies had interfered with their contractual rights by refusing to honor employers’ choices of chiropractors as providers of health care treatment to employees under the Workers’ Compensation Act, that defendants had misrepresented to employer insureds that their workers’ compensation policies did not provide coverage for chiropractic treatment, that said misrepresentations were unfair and deceptive trade practices in violation of G.S. 75-1.1, and that defendants had conspired among themselves and with members of the medical profession to deprive plaintiffs of business opportunities by refusing to pay for chiropractic services provided in compliance with the act, an illegal restraint of trade in violation of G.S. 75-1 and 15 U.S.C. § 1, could not maintain their action in superior court without first seeking relief from the Industrial Commission. North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312, 1988 N.C. App. LEXIS 230 (1988) (remanding case to the trial court for entry of an order staying plaintiffs’ action pending a determination of the underlying workers’ compensation issues by the Commission) .

Where the North Carolina Industrial Commission invalidated a Form 26 agreement because no medical documentation was submitted, it was not obliged under G.S. 97-91 to determine whether the claimant had undergone a G.S. 97-47 change of condition. Clawson v. Phil Cline Trucking, Inc., 168 N.C. App. 108, 606 S.E.2d 715, 2005 N.C. App. LEXIS 152 (2005).

§ 97-92. Employer’s record and report of accidents; records of Commission not open to public; supplementary report upon termination of disability; penalty for refusal to make report; when insurance carrier liable.

  1. Every employer shall hereafter keep a record of all injuries, fatal or otherwise, received by his employees in the course of their employment on blanks approved by the Commission. Within five days after the occurrence and knowledge thereof as provided in G.S. 97-22 of an injury to an employee, causing his absence from work for more than one day or charges for medical compensation exceeding the amount set by the Commission, a report thereof shall be made in writing and mailed or transmitted to the Commission in the form approved by the Commission for this purpose.
  2. The records of the Commission that are not awards under G.S. 97-84 and that are not reviews of awards under G.S. 97-85, insofar as they refer to accidents, injuries, and settlements are not public records under G.S. 132-1 and shall not be open to the public, but only to the parties satisfying the Commission of their interest in such records and the right to inspect them, and to State and federal agencies pursuant to G.S. 97-81.
  3. Upon the termination of the disability of the injured employee, or if the disability extends beyond a period of 60 days, then, also, at the expiration of such period the employer shall make a supplementary report to the Commission on blanks to be procured from the Commission for the purpose.
  4. The said report shall contain the name, nature, and location of the business of the employer and name, age, sex, and wages and occupation of the injured employee, and shall state the date and hour of the accident causing injury, the nature and cause of the injury, and such other information as may be required by the Commission.
  5. Any employer who refuses or neglects to make the report required by this section shall be liable for a penalty of not less than five dollars ($5.00) and not more than twenty-five dollars ($25.00) for each refusal or neglect. The fine herein provided may be assessed by the Commission in an open hearing, with the right of review and appeal as in other cases. In the event the employer has transmitted the report to the insurance carrier for transmission by such insurance carrier to the Industrial Commission, the insurance carrier willfully neglecting or failing to transmit the report shall be liable for the said penalty.
  6. Any bill, report, application, and document of every nature and kind, which is required or permitted by Commission rules to be transmitted to the Commission by electronic media or is recorded among the Commission records on computer disk, optical disk, microfilm, or similar media and which is produced or reproduced in written form in the normal course of business or is certified as a true and accurate copy of the data recorded at the Commission in the normal course of its business shall be treated as a signed original in all uses before the Commission and as a duplicate within the meaning of Rule 1003 of the North Carolina Rules of Evidence.

History. 1929, c. 120, s. 66; 1945, c. 766; 1991, c. 703, s. 9; 1991 (Reg. Sess., 1992), c. 894, s. 3; 1993 (Reg. Sess., 1994), c. 679, s. 10.8; 2001-216, s. 3; 2001-487, s. 102(b).

Cross References.

As to tabulation and publication of employers’ reports in annual report of Commission, see G.S. 97-81(b).

CASE NOTES

Confidentiality of Records. —

Workers’ compensation claimant had no statutory right to bar the public disclosure of his workers’ compensation file because (1) the disclosure of documents that were not awards was statutorily prevented, (2) the general assembly did not exempt awards, (3) the physician-patient privilege was irrelevant, (4) the prohibition against disclosing mental health records did not apply, and (5) the Health Insurance Portability and Accountability Act did not apply to the Industrial Commission (Commission) and let physicians disclose health information to the Commission. Mastanduno v. Nat'l Freight Indus., 262 N.C. App. 77, 821 S.E.2d 592, 2018 N.C. App. LEXIS 1024 (2018), writ denied, 371 N.C. 785, 819 S.E.2d 559, 2018 N.C. LEXIS 982 (2018), cert. denied, 372 N.C. 52, 822 S.E.2d 636, 2019 N.C. LEXIS 109 (2019), cert. denied, 140 S. Ct. 269, 205 L. Ed. 2d 133, 2019 U.S. LEXIS 5952 (2019).

Report of Occupational Disease. —

Subsection (a) of this section requires an employer to report any injury by accident if it keeps the employee from work for more than one day. Presumably this would include notice of an occupational disease which is considered an injury by accident. Knight v. Cannon Mills Co., 82 N.C. App. 453, 347 S.E.2d 832, 1986 N.C. App. LEXIS 2520 (1986).

Filing of employer’s report (Form 19) is insufficient to invoke the jurisdiction of the Commission where the employee has not filed the claim required under G.S. 97-24. Perdue v. Daniel Int'l, Inc., 59 N.C. App. 517, 296 S.E.2d 845, 1982 N.C. App. LEXIS 3143 (1982).

The notice requirement of subsection (a) of this section does not invoke the jurisdiction of the Commission without the employee filing a claim. Knight v. Cannon Mills Co., 82 N.C. App. 453, 347 S.E.2d 832, 1986 N.C. App. LEXIS 2520 (1986).

For case in which report filed by employer upon verbal information elicited from the illiterate representative of the employee by its claim agent was treated as a claim, see Hanks v. Southern Pub. Util. Co., 210 N.C. 312, 186 S.E. 252, 1936 N.C. LEXIS 93 (1936).

Report as Evidence. —

The report signed by the manager of an incorporated employer and filed with the Industrial Commission, as required by this section, is competent upon the hearing, and statements contained therein not within the personal knowledge of the manager are competent as an admission against interest. Carlton v. Bernhardt-Seagle Co., 210 N.C. 655, 188 S.E. 77, 1936 N.C. LEXIS 188 (1936).

Employer’s failure to notify the Commission pursuant to subsection (a) of this section does not raise an estoppel claim. Knight v. Cannon Mills Co., 82 N.C. App. 453, 347 S.E.2d 832, 1986 N.C. App. LEXIS 2520 (1986).

§ 97-93. Employers required to carry insurance or prove financial ability to pay for benefits; employers required to post notice; self-insured employers regulated by Commissioner of Insurance.

  1. Every employer subject to the provisions of this Article relative to the payment of compensation shall either:
    1. Insure and keep insured his liability under this Article in any authorized corporation, association, organization, or in any mutual insurance association formed by a group of employers so authorized; or
    2. Repealed by Session Laws 1997-362, s. 5.
    3. Obtain a license from the Commissioner of Insurance under Article 5 of this Chapter or under Article 47 of Chapter 58 of the General Statutes.
  2. through (d) Repealed by Session Laws 1997-362, s. 5.
  3. Every employer who is in compliance with the provisions of subsection (a) of this section shall post in a conspicuous place in places of employment a notice stating that employment by this employer is subject to the North Carolina Workers’ Compensation Act and stating whether the employer has a policy of insurance against liability or qualifies as a self-insured employer. In the event the employer allows its insurance to lapse or ceases to qualify as a self-insured employer, the employer shall, within five working days of this occurrence, remove any notices indicating otherwise.

History. 1929, c. 120, s. 67; 1943, c. 543; 1973, c. 1291, s. 12; 1979, c. 345; 1983, c. 728; 1985, c. 119, s. 1; 1993, c. 120, ss. 1, 2; 1993 (Reg. Sess., 1994), c. 679, s. 8.2; 1995, c. 193, s. 64; c. 471, s. 1; 1997-362, s. 5.

Legal Periodicals.

For comment on the provisions of this and other sections in relation to the law of contracts, see 13 N.C.L. Rev. 102 (1935).

CASE NOTES

The manifest legislative intent is that the employer’s liability should be insured at all times. Moore v. Adams Elec. Co., 264 N.C. 667, 142 S.E.2d 659, 1965 N.C. LEXIS 1258 (1965) (decided under prior version of section).

Employer Primarily Liable. —

An award was entered in favor of the dependents of a deceased employee for payment of compensation in weekly installments for the death of the employee. After the insurance carrier had paid several installments, it defaulted in the payment of the balance because of insolvency. Under the provisions of the act, the employer is primarily liable to the employee, which obligation is unimpaired by its contract with an insurer for insurance protection, or by the insurer’s subrogation to the rights of the employer upon paying or assuming the payment of an award, and the employer is not relieved of its liability to the dependents of the deceased employee for the balance of the weekly payments because of the insolvency of the insurer. Roberts v. City Ice & Coal Co., 210 N.C. 17, 185 S.E. 438, 1936 N.C. LEXIS 3 (1936) (decided under prior version of section).

The employer, held liable for the balance of an award after the insolvency of the insurer, is not entitled to a credit for the amount paid the dependents out of the judgment against the third-person tortfeasor or for the amount paid plaintiff ’s attorneys in that action, the amount paid the dependents out of the judgment being an amount in addition to the award, and the award not being subject to reduction by such amount. Roberts v. City Ice & Coal Co., 210 N.C. 17, 185 S.E. 438, 1936 N.C. LEXIS 3 (1936) (decided under prior version of section).

General Contractor Liable for Subcontractor’s Injuries. —

Where, prior to the time of subcontracting the performance of roofing work, the general contractor did not require from the subcontractor, plaintiff, a certificate of insurance, and general contractor did not obtain from the Industrial Commission a certificate stating that plaintiff had complied with this section, the general contractor was liable for plaintiff’s injuries pursuant to G.S. 97-19 as it existed at the time of plaintiff’s accident. Southerland v. B.V. Hedrick Gravel & Sand Co., 345 N.C. 739, 483 S.E.2d 150, 1997 N.C. LEXIS 180 (1997).

General Contractor Liable for Failure to Bring Subcontractor into Compliance. —

Where defendant/contractor presented conflicting testimony regarding his knowledge of subcontractor’s lack of workers’ compensation insurance, the Industrial Commission’s findings and conclusions that he willfully neglected to bring the subcontractor into compliance with the requirements of this section would be upheld. Rivera v. Trapp, 135 N.C. App. 296, 519 S.E.2d 777, 1999 N.C. App. LEXIS 1058 (1999).

Industrial Commission could impose civil penalties on the owner pursuant to G.S. 97-94(d) regarding injuries sustained on a residential development project by the employees whose statutory employer was the owner’s general contractor despite the fact that they actually worked for the subcontractor. The civil penalty could be imposed on the owner because the owner as the owner of the general contractor was in a position of authority pursuant to G.S. 97-93 to see to it that the subcontractor carried workers’ compensation insurance, the owner failed to do so, and the employees were thus entitled to workers’ compensation benefits from the general contractor as the statutory employer due to the owners failure to make sure the subcontractor was properly insured. Putman v. Alexander, 194 N.C. App. 578, 670 S.E.2d 610, 2009 N.C. App. LEXIS 2 (2009).

Imposition of Fine Not Mandatory Against Corporate Officer of Employer. —

Imposition of administrative penalty against employer that failed to obtain workers’ compensation insurance or self-insurance was mandatory under G.S. 97-94(b), and the term “neglect to” secure insurance was construed to mean the same thing as “fails to secure” the necessary workers’ compensation insurance; imposition of a penalty against a corporate officer of the employer who could have obtained the compliance for the employer pursuant to G.S. 97-93 was not mandatory but the penalty was affirmed. Johnson v. Herbie's Place, 157 N.C. App. 168, 579 S.E.2d 110, 2003 N.C. App. LEXIS 640 (2003).

Self-insured Former Employer Required to Secure Its Obligation. —

North Carolina Industrial Commission properly exercised its authority in determining that the former employer of the employee was the employee’s employer, subject to the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., after the employer sold the division for which the employee worked to a buyer that later went bankrupt, and that the employer had to secure its obligation to the employee by one of the permitted statutory methods in order to accomplish the Commission’s opinion and disability award to the employee. Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 615 S.E.2d 350, 2005 N.C. App. LEXIS 1315 (2005).

Failure to Maintain Insurance. —

Taxi drivers were employees of a taxi service company for purposes of the Workers’ Compensation Act, not independent contractors, because they did not rent taxis from the company, could not set their own wages and were required to give the company 50 percent of their fares, could not set their work schedules, and, with a few exceptions, could not drive the taxi for personal use. J.D. Mills v. Triangle Yellow Transit, 230 N.C. App. 546, 751 S.E.2d 239, 2013 N.C. App. LEXIS 1218 (2013).

Cancellation of Policy. —

Employer’s insurance policy was cancellable on 10 days’ written notice. Notice was held effective from the time of receipt by insured, even though he mislaid it and never read it or knew its purport. Nor was the policy kept in force as to a later injured employee by failure of the carrier to give notice to the Industrial Commission or to the North Carolina Rating Bureau in accordance with their rules, even though the policy was made expressly subject to the law concerning cancellation notices. The rules of these bodies do not have the force of law as to such matters. Motsinger v. Perryman, 218 N.C. 15, 9 S.E.2d 511, 1940 N.C. LEXIS 93 (1940) (decided under prior version of section).

Third-Party Beneficiary. —

Employee stated a viable claim for unfair and deceptive trade practices because under the Workers’ Compensation Act, the employee was an intended third-party beneficiary of his employer’s insurance contract with an insurer; the insurer had an ongoing legal obligation to pay the employee as required by the Workers’ Compensation Commission’s opinion and award and the insurer’s own insurance policy with the employer. Seguro-Suarez v. Key Risk Ins. Co., 261 N.C. App. 200, 819 S.E.2d 741, 2018 N.C. App. LEXIS 888 (2018).

Costs Award Improper as Employer Was Not Self-Insurer. —

Attorney’s fees were improperly awarded to a workers’ compensation claimant under this section since defendants were not insurers and were not self-insurers as they were not licensed by the North Carolina Commissioner of Insurance. Allred v. Exceptional Landscapes, Inc., 227 N.C. App. 229, 743 S.E.2d 48, 2013 N.C. App. LEXIS 531 (2013).

§ 97-94. Employers required to give proof that they have complied with preceding section; penalty for not keeping liability insured; review; liability for compensation; criminal penalties for failure to secure payment of compensation.

  1. Every employer subject to the compensation provisions of this Article shall file with the Commission, in form prescribed by it, as often as the Commission determines to be necessary, evidence of its compliance with the provisions of G.S. 97-93 and all other provisions relating thereto.
  2. Repealed by Session Laws 2018-5, s. 22.1, effective July 1, 2018.
  3. Any employer required to secure the payment of compensation under this Article who refuses or neglects to secure such compensation shall be punished by a penalty of one dollar ($1.00) for each employee, but not less than twenty dollars ($20.00) nor more than one hundred dollars ($100.00), for each day of such refusal or neglect and until the same ceases.
  4. As an alternative to the penalty imposed in subsection (b1) of this section, the employer may submit to the Commission evidence that the employer has obtained workers’ compensation insurance coverage from either an insurer licensed to do business in North Carolina or the North Carolina Workers’ Compensation Insurance Plan. In addition to submitting such evidence, the employer shall submit to the Commission all payroll records for the period or periods of noncompliance. The Commission shall, after verifying the coverage and upon the request of the employer, rescind the penalty assessed under subsection (b1) of this section and impose a penalty by:
    1. First, determining the per employee cost of the current policy by dividing the cost of the policy by the number of employees covered by the policy.
    2. Second, determining the average number of employees during the period of noncompliance.
    3. Third, multiplying the per employee cost of the current policy by the average number of employees during the period of noncompliance and, to that total, by applying an additional penalty of ten percent (10%).The alternate penalty provided by this subsection is available only to an employer not previously penalized under this section.
  5. Any penalty imposed by this section may be assessed by the Industrial Commission administratively, with the right to a hearing if requested within 30 days after notice of the assessment of the penalty and the right of review and appeal as in other cases. For the purposes of assessing the penalties set forth in subsections (b1) and (b2) of this section, the penalty shall not apply to a period of noncompliance that occurred more than three years prior to the date the Industrial Commission first assessed the penalty. Enforcement of the penalty shall be made by the Office of the Attorney General. The clear proceeds of penalties provided for in this subsection shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.In addition to any penalty under this section, the employer shall be liable, during the continuance of the refusal or neglect, to an employee for compensation under this Article or at law at the election of the injured employee. The Industrial Commission shall prioritize the payment of any compensation due an injured employee under this Article over the payment of any penalty owed pursuant to this section.Any employer required to secure the payment of compensation under this Article who willfully fails to secure such compensation shall be guilty of a Class H felony. Any employer required to secure the payment of compensation under this Article who neglects to secure the payment of compensation shall be guilty of a Class 1 misdemeanor.
  6. Any person who, with the ability and authority to bring an employer in compliance with G.S. 97-93, willfully fails to bring the employer in compliance, shall be guilty of a Class H felony. Any person who, with the ability and authority to bring an employer in compliance with G.S. 97-93, neglects to bring the employer in compliance, shall be guilty of a Class 1 misdemeanor. Any person who violates this subsection may be assessed a civil penalty by the Commission in an amount up to one hundred percent (100%) of the amount of any compensation due the employer’s employees injured during the time the employer failed to comply with G.S. 97-93.
  7. Notwithstanding the provisions of G.S. 97-101, the Commission may suspend collection or remit all or part of any civil penalty imposed under this section on condition that the employer or person pays any compensation due and complies with G.S. 97-93.

History. 1929, c. 120, s. 68; 1945, c. 766; 1963, c. 499; 1973, c. 1291, s. 13; 1985, c. 119, s. 4; 1985 (Reg. Sess., 1986), c. 1027, s. 54; 1987, c. 729, s. 17; 1993, c. 539, s. 681; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 679, s. 8.1; 1997-353, s. 2; 1998-215, s. 115; 2018-5, s. 22.1.

Effect of Amendments.

Session Laws 2018-5, s. 22.1, effective July 1, 2018, deleted subsection (b), relating to penalty for not keeping liability insured; added subsections (b1) and (b2); added the first two paragraphs in subsection (c); and, in subsection (e), substituted “any compensation” for “the compensation.”

Legal Periodicals.

For survey, “The North Carolina Workers’ Compensation Act of 1994: A Step in the Direction of Restoring Balance,” see 73 N.C.L. Rev. 2502 (1995).

For 1997 legislative survey, see 20 Campbell L. Rev. 487.

CASE NOTES

This Section Does Not Grant the Court Jurisdiction Absent Proof of Noncompliance. —

A claim in which the plaintiff/employee alleges only that he sustained injuries due to defendant employer’s negligence while he was performing duties within the course and scope of his employment is within the exclusive jurisdiction of the Industrial Commission and cannot be heard by the court without further evidence that the employer refuses to accept the provisions of this Act. Reece v. Forga, 138 N.C. App. 703, 531 S.E.2d 881, 2000 N.C. App. LEXIS 790 (2000).

Claims Against Noncompliant Employers. —

While this section arguably permits a plaintiff to bring a claim at law, the Industrial Commission is not precluded from hearing claims against noncompliant employers. Seigel v. Patel, 132 N.C. App. 783, 513 S.E.2d 602, 1999 N.C. App. LEXIS 282 (1999).

Failure to Maintain Insurance. —

Taxi drivers were employees of a taxi service company for purposes of the Workers’ Compensation Act, not independent contractors, because they did not rent taxis from the company, could not set their own wages and were required to give the company 50 percent of their fares, could not set their work schedules, and, with a few exceptions, could not drive the taxi for personal use. J.D. Mills v. Triangle Yellow Transit, 230 N.C. App. 546, 751 S.E.2d 239, 2013 N.C. App. LEXIS 1218 (2013).

Subcontractor and the subcontractor’s principal were subject to penalties for not procuring workers’ compensation insurance because (1) nothing in N.C. Gen. Stat. ch. 97 relieved any employer from penalty for not performing a statutory duty, and (2) in interstate and intrastate trucking, G.S. 97-19.1 applied whether or not an employer employed three or more people. Atiapo v. Goree Logistics, Inc., 240 N.C. App. 1, 770 S.E.2d 684, 2015 N.C. App. LEXIS 219 (2015), cert. denied, 577 U.S. 1142, 136 S. Ct. 1198, 194 L. Ed. 2d 182, 2016 U.S. LEXIS 1479 (2016).

Authority of Industrial Commission. —

North Carolina Industrial Commission properly exercised its authority in determining that the former employer of the employee was the employee’s employer, subject to the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., after the employer sold the division for which the employee worked to a buyer that later went bankrupt, and that the employer had to secure its obligation to the employee by one of the permitted statutory methods in order to accomplish the Commission’s opinion and disability award to the employee. Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 615 S.E.2d 350, 2005 N.C. App. LEXIS 1315 (2005).

Industrial Commission could impose civil penalties on the owner pursuant to G.S. 97-94(d) regarding injuries sustained on a residential development project by the employees whose statutory employer was the owner’s general contractor despite the fact that they actually worked for the subcontractor. The civil penalty could be imposed on the owner because the owner as the owner of the general contractor was in a position of authority pursuant to G.S. 97-93 to see to it that the subcontractor carried workers’ compensation insurance, the owner failed to do so, and the employees were thus entitled to workers’ compensation benefits from the general contractor as the statutory employer due to the owners failure to make sure the subcontractor was properly insured. Putman v. Alexander, 194 N.C. App. 578, 670 S.E.2d 610, 2009 N.C. App. LEXIS 2 (2009).

North Carolina Industrial Commission had jurisdiction over a workers’ compensation matter, even though the parties had entered into a settlement agreement at a mediation conference for what was believed to be a liability claim at law and the claimant could have filed an action at law, as once the Forms 18 and 33 were filed by the claimant, the Commission had exclusive jurisdiction over the workers’ compensation claim and all related matters; the Commission had not approved the settlement agreement. Allred v. Exceptional Landscapes, Inc., 227 N.C. App. 229, 743 S.E.2d 48, 2013 N.C. App. LEXIS 531 (2013).

The Industrial Commission properly assessed a fine of $50.00 per day where it determined that defendant employer had failed to procure necessary insurance for its North Carolina operations, and thus was in violation of this section. Harrison v. Tobacco Transp., Inc., 139 N.C. App. 561, 533 S.E.2d 871, 2000 N.C. App. LEXIS 996 (2000).

Imposition of Fine Mandatory. —

Imposition of administrative penalty against employer that failed to obtain workers’ compensation insurance or self-insurance was mandatory under G.S. 97-94(b), and the term “neglect to” secure insurance was construed to mean the same thing as “fails to secure” the necessary workers’ compensation insurance; imposition of a penalty against a corporate officer of the employer who could have obtained the compliance for the employer pursuant to G.S. 97-93 was not mandatory but the penalty was affirmed. Johnson v. Herbie's Place, 157 N.C. App. 168, 579 S.E.2d 110, 2003 N.C. App. LEXIS 640 (2003).

§ 97-95. Actions against employers failing to effect insurance or qualify as self-insurer.

As to every employer subject to the provisions of this Article who shall fail or neglect to keep in effect a policy of insurance against compensation liability arising hereunder with some insurance carrier as provided in G.S. 97-93, or who shall fail to qualify as a self-insurer as provided in the Article, in addition to other penalties provided by this Article, such employer shall be liable in a civil action which may be instituted by the claimant for all such compensation as may be awarded by the Industrial Commission in a proceeding properly instituted before said Commission, and such action may be brought by the claimant in the county of his residence or in any county in which the defendant has any property in this State; and in said civil action, ancillary remedies provided by law in civil actions of attachment, receivership, and other appropriate ancillary remedies shall be available to plaintiff therein. Said action may be instituted before the award shall be made by the Industrial Commission in such case for the purpose of preventing the defendant from disposing of or removing from the State of North Carolina for the purpose of defeating the payment of compensation any property which the defendant may own in this State. In said action, after being instituted, the court may, after proper amendment to the pleadings therein, permit the recovery of a judgment against the defendant for the amount of compensation duly awarded by the North Carolina Industrial Commission and subject any property seized in said action for payment of the judgment so awarded. The institution of said action shall in no wise interfere with the jurisdiction of said Industrial Commission in hearing and determining the claim for compensation in full accord with the provisions of this Article. Nothing in this section shall be construed to limit or abridge the rights of an employee as provided in subsection (b) of G.S. 97-94.

History. 1941, c. 352.

CASE NOTES

Section Held Valid. —

This section was held valid as applied to a claim arising and an award made before its passage. Byrd v. Johnson, 220 N.C. 184, 16 S.E.2d 843, 1941 N.C. LEXIS 502 (1941).

Construction with G.S. 1-440.2. —

This section provides a further action in which attachment may be had, and which must be read in pari materia with G.S. 1-440.2. Nelson v. Hayes, 116 N.C. App. 632, 448 S.E.2d 848, 1994 N.C. App. LEXIS 1073 (1994).

An employer must pay benefits to its employees, whether the employer has the necessary insurance, is self-insured, or has no insurance at all. Ryles v. Durham Co. Hosp. Corp., 107 N.C. App. 455, 420 S.E.2d 487, 1992 N.C. App. LEXIS 728 (1992).

Employer’s lack of workers’ compensation insurance does not bar an employee’s remedy through workers’ compensation. Ryles v. Durham Co. Hosp. Corp., 107 N.C. App. 455, 420 S.E.2d 487, 1992 N.C. App. LEXIS 728 (1992).

This section affects procedure only and does not disturb any vested rights. It must be construed prospectively and not retrospectively. Byrd v. Johnson, 220 N.C. 184, 16 S.E.2d 843, 1941 N.C. LEXIS 502 (1941).

Attachment. —

The provisions of this section, in force from its ratification on March 15, 1941, were available to claimants who instituted a civil action alleging that the Industrial Commission had awarded them compensation in a stipulated sum on March 24, 1941, that defendant employer had failed and neglected to keep in effect a policy of compensation insurance and had failed to qualify as a self-insurer, and that defendant was disposing of and removing all his property from the State, and praying that a warrant of attachment issue against defendant’s property. The warrant of attachment was issued, and defendant’s exception to the refusal of the court to vacate it was held without merit. Byrd v. Johnson, 220 N.C. 184, 16 S.E.2d 843, 1941 N.C. LEXIS 502 (1941).

This section merely provides an avenue to allow for attachment where an employer (1) is uninsured or fails to qualify as a self-insurer, and (2) owns property in the State susceptible to disposal or removal; as such, plaintiff’s affidavit must meet one of the grounds for attachment listed in G.S. 1-440.2 and 1-440.11. Nelson v. Hayes, 116 N.C. App. 632, 448 S.E.2d 848, 1994 N.C. App. LEXIS 1073 (1994).

The rights of a plaintiff in an action under this section are the same as those of any other plaintiff in a civil action. Nelson v. Hayes, 116 N.C. App. 632, 448 S.E.2d 848, 1994 N.C. App. LEXIS 1073 (1994).

The opinion and award issued by the Industrial Commission did not violate a stay order issued by a federal court, where the stay order was issued with regard to the employer’s insolvent workers’ compensation insurance carrier, but the only issues determined by the Commission related to the employee’s claim for benefits from his employer, which is required to pay benefits when so ordered whether or not it has insurance. Tucker v. Workable Co., 129 N.C. App. 695, 501 S.E.2d 360, 1998 N.C. App. LEXIS 779 (1998).

§ 97-96. [Repealed]

Repealed by Session Laws 1997-362, s. 7.

§ 97-97. Insurance policies must contain clause that notice to employer is notice to insurer, etc.

All policies insuring the payment of compensation under this Article must contain a clause to the effect that, as between the employer and the insurer the notice to or acknowledgment of the occurrence of the injury on the part of the insured employer shall be deemed notice or knowledge as the case may be, on the part of the insurer; that jurisdiction of the insured for the purposes of this Article shall be jurisdiction of the insurer, that the insurer shall in all things be bound by and subject to the awards, judgments, or decrees rendered against such insured employer, and that insolvency or bankruptcy of the employer and/or discharge therein shall not relieve the insurer from the payment of compensation for disability or death sustained by an employee during the life of such policy or contract.

History. 1929, c. 120, s. 70.

Legal Periodicals.

For article, “North Carolina Construction Law Survey II,” see 22 Wake Forest L. Rev. 481 (1987).

CASE NOTES

Failure to File Claim Against Specific Insurer. —

Because plaintiff timely filed her claim for her back injury against defendant employer, the Industrial Commission erred in denying her claim due to her failure to file a claim against a specific insurance company. The employer was responsible for compensation for plaintiff’s back injury and plaintiff only had to notify the employer under G.S. 97-97. Hawkins v. Wilkes Reg'l Med. Ctr., 256 N.C. App. 695, 808 S.E.2d 505, 2017 N.C. App. LEXIS 1007 (2017).

§ 97-98. Policy must contain agreement promptly to pay benefits; continuance of obligation of insurer in event of default.

No policy of insurance against liability arising under this Article shall be issued unless it contains the agreement of the insurer that it will promptly pay to the person entitled to same all benefits conferred by this Article, and all installments of the compensation that may be awarded or agreed upon, and that the obligation shall not be affected by any default of the insured after the injury or by any default in giving notice required by such policy or otherwise. Such agreement shall be construed to be a direct promise by the insurer to the person entitled to compensation enforceable in his name.

History. 1929, c. 120, s. 71.

Cross References.

As to cancellation of policies, see note to G.S. 97-93.

As to The Stock Workers’ Compensation Security Fund, see G.S. 97-107.

CASE NOTES

Under this section, an employee has the right to enforce the insurance contract made for his benefit. Hartsell v. Thermoid Co., 249 N.C. 527, 107 S.E.2d 115, 1959 N.C. LEXIS 396 (1959).

Employee stated a viable claim for unfair and deceptive trade practices because under the Workers’ Compensation Act, the employee was an intended third-party beneficiary of his employer’s insurance contract with an insurer; the insurer had an ongoing legal obligation to pay the employee as required by the Workers’ Compensation Commission’s opinion and award and the insurer’s own insurance policy with the employer. Seguro-Suarez v. Key Risk Ins. Co., 261 N.C. App. 200, 819 S.E.2d 741, 2018 N.C. App. LEXIS 888 (2018).

Ambiguous provisions must be resolved against the carrier. Kenan v. Duplin Motor Co., 203 N.C. 108, 164 S.E. 729, 1932 N.C. LEXIS 317 (1932). See Williams v. Ornamental Stone Co., 232 N.C. 88, 59 S.E.2d 193, 1950 N.C. LEXIS 394 (1950).

Carrier Held Estopped to Deny Existence of Employment Relationship. —

Where defendant carrier, at the request of employer, attached a rider to its policy covering “S, logging contractor,” it was estopped to deny that plaintiff, who was working for S, was an employee of defendant. Greenway v. Riverside Mfg. Co., 206 N.C. 599, 175 S.E. 112, 1934 N.C. LEXIS 257 (1934).

Employee Paid in Part by State. —

Claimant was paid for janitorial work partly by the local board of education and partly by the State School Commission. He was injured while doing extra, after-hours work solely for and at the expense of the board. A stipulation in the insurance contract with the board reduced the carrier’s liability where part of the employee’s wage was paid by the State. This clause was held inapplicable to the instant case, since pay for the job in which he was injured was not shared by the State, even though the award was figured on the basis of his regular weekly wage which the State did share. Casey v. Board of Educ., 219 N.C. 739, 14 S.E.2d 853, 1941 N.C. LEXIS 134 (1941). See also, Callihan v. Board of Educ., 222 N.C. 381, 23 S.E.2d 297, 1942 N.C. LEXIS 104 (1942) (in which a somewhat similar liability-limiting indorsement on an insurance policy was held not applicable to relieve the carrier where a teacher of vocational education was paid in part with funds supplied by the State) .

Policy Covering “Operations Conducted from” Main Place of Business. —

Where a policy covered a Charlotte employer, inter alia, on “operations . . . conducted . . . from” its main place of business, it was proper for the Commission to find that an employee going daily to lay tile nearby in South Carolina, who was expected to report back at headquarters each evening and was killed in North Carolina on such return journey, was within the policy, even though the tile company had a policy in another company covering its operations in South Carolina and the North Carolina carrier did not receive any premium for the South Carolina job. Mion v. Atlantic Marble & Tile Co., 217 N.C. 743, 9 S.E.2d 501, 1940 N.C. LEXIS 339 (1940).

Injury at Quarry 40 Miles from Employer’s Main Plant. —

A policy designated the operations of the insured as “concrete products mfg. — shop or yard work only,” and gave as the location the address of the main plant of the insured. The policy covered injuries sustained by reason of the business operations, which were stated to include “all operations necessary, incident or appurtenant thereto . . . whether such operations are conducted at the work places defined . . . or elsewhere.” The policy further provided that no other business operations were covered. An injury received at defendant’s quarry, 40 miles from the main plant, was held to be covered by this policy; it was “one of the work places of the company.” Williams v. Ornamental Stone Co., 232 N.C. 88, 59 S.E.2d 193, 1950 N.C. LEXIS 394 (1950).

Quarrying Operations Carried on in Connection with Trucking Business. —

Defendant carrier’s policy covered defendant trucker’s employees, including specifically blacksmiths, and service away from the business headquarters. The employer not only hauled stone for others but, without disclosure to the carrier, operated a quarry from which he sold and delivered stone. Deceased employee, a blacksmith, worked at the quarry only, but repaired some shovels and other tools used in connection with the trucking as well as the quarry machinery. He was on the general payroll. The policy provided for adjustment of the premiums on a payroll check-over made at the end of the policy period. It was held that the Commission’s findings that the quarrying operations were carried on in connection with the trucking business and that the employee was covered by the policy were supported by competent evidence and were binding on the court. An award against the carrier was upheld. Miller v. Caudle, 220 N.C. 308, 17 S.E.2d 487, 1941 N.C. LEXIS 531 (1941).

Truck Driver Engaged in Unloading Logs. —

It was found that defendant motor company did log hauling as an incident to its regular business. A policy in terms covering injuries to drivers was held to cover plaintiff, a regularly employed truck driver, who was engaged in unloading logs for the motor company. The carrier had contended that injuries in this type of work were outside the policy. Kenan v. Duplin Motor Co., 203 N.C. 108, 164 S.E. 729, 1932 N.C. LEXIS 317 (1932).

Notice of Cancellation of Policy. —

Where policy provided for 10 days’ notice of cancellation, and plaintiff was injured within 10 days from the day the employer received notice of cancellation but more than 10 days after such notice was mailed, the carrier was liable, as the 10 days date from the time of receipt of the notice. Pettit v. Wood-Owen Trailer Co., 214 N.C. 335, 199 S.E. 279, 1938 N.C. LEXIS 340 (1938).

§ 97-99. Law written into each insurance policy; form of policy to be approved by Commissioner of Insurance; single catastrophe hazards.

  1. Every policy for the insurance of the compensation in this Article, or against liability therefor, shall be deemed to be made subject to the provisions of this Article. No corporation, association or organization shall enter into any such policy of insurance unless its form has been approved by the Commissioner of Insurance.
  2. This Article shall not apply to policies of insurance against loss from explosion of boilers or flywheels or other similar single catastrophe hazards: Provided, that nothing in this Article relieves an employer from liability for injury or death of an employee as a result of such an explosion or catastrophe.

History. 1929, c. 120, s. 72; 1943, c. 170; 1945, c. 381, s. 1; 1959, c. 863, s. 5; 1967, c. 1218; 1993, c. 504, s. 31; 2001-241, s. 1.

Cross References.

As to prohibition against certain workers’ compensation insurance policy cancellations, see G.S. 58-36-105.

As to notice of nonrenewal, premium rate increase, or change in workers’ compensation insurance coverage, see G.S. 58-36-110.

CASE NOTES

Editor’s Note. —

The cases below were decided prior to the 2001 amendment to this section, which deleted language relating to cancellation and notice thereof. See now G.S. 58-36-105 and G.S. 58-36-110.

Purpose of Notice. —

The statutory requirement of 30 days’ notice of intent to cancel was intended to assure an employer sufficient opportunity to procure other insurance. Moore v. Adams Elec. Co., 264 N.C. 667, 142 S.E.2d 659, 1965 N.C. LEXIS 1258 (1965).

This section applies to all workers’ compensation insurance. Moore v. Adams Elec. Co., 264 N.C. 667, 142 S.E.2d 659, 1965 N.C. LEXIS 1258 (1965).

There is no requirement that the notice of intent to cancel due to nonpayment of premium be sent by registered or certified mail. Wilson v. Claude J. Welch Bldrs. Corp., 115 N.C. App. 384, 444 S.E.2d 628, 1994 N.C. App. LEXIS 596 (1994).

Evidence of Receipt of Notice. —

In dispute between insurance companies where there was evidence that one insurer sent employer, by certified mail, a properly addressed, postage pre-paid notice of its intent to cancel the workers’ compensation insurance policy, however, there was no evidence that employer’s agent, his secretary whose duties included handling the mail, did not receive the letter, the inference created by the establishment of the prima facie case, that the letter was received, was not rebutted. Wilson v. Claude J. Welch Bldrs. Corp., 115 N.C. App. 384, 444 S.E.2d 628, 1994 N.C. App. LEXIS 596 (1994).

All relevant provisions of the Workers’ Compensation Act become a part of each policy of insurance procured pursuant to the act. Hartsell v. Thermoid Co., 249 N.C. 527, 107 S.E.2d 115, 1959 N.C. LEXIS 396 (1959).

Whether such insurance is evidenced by binder or by policy. See Moore v. Adams Elec. Co., 264 N.C. 667, 142 S.E.2d 659, 1965 N.C. LEXIS 1258 (1965).

A valid binder for workers’ compensation insurance cannot be terminated except by giving 30 days’ notice to the insured as required by this section for cancellation of a formal policy. Wiles v. Mullinax, 270 N.C. 661, 155 S.E.2d 246, 1967 N.C. LEXIS 1401 (1967).

Insurer is not obligated to notify insured of date specified in contract for termination. But where termination results from insurer’s affirmative action, he must give notice of the date when cancellation will become effective. Moore v. Adams Elec. Co., 264 N.C. 667, 142 S.E.2d 659, 1965 N.C. LEXIS 1258 (1965).

§ 97-100. Rates for insurance; carrier to make reports for determination of solvency; tax upon premium; wrongful or fraudulent representation of carrier punishable as misdemeanor; notices.

  1. The rates charged by all carriers of insurance, including the parties to any mutual insurance association writing insurance against the liability for compensation under this Article, shall be fair, reasonable, and adequate.
  2. Each insurance carrier shall report to the Commissioner of Insurance, in accordance with rules adopted by the Commissioner of Insurance, for the purpose of determining the solvency of the carrier and the adequacy of its rates; for this purpose the Commissioner of Insurance may inspect the books and records of any insurance carrier, and examine its agents, officers, and directors under oath.
  3. Every insurer under this Article, every employer carrying its own risk under G.S. 97-93, and every group of employers that has pooled the employers’ liabilities under G.S. 97-93 is subject to the premiums tax levied in Article 8B of Chapter 105 of the General Statutes.
  4. through (f). Repealed by Session Laws 1995, c. 360, s. 1.
  5. Any person who acts or assumes to act as agent for any insurance carrier whose authority to do business in this State has been suspended, while the suspension remains in force, who neglects or refuses to comply with any of the provisions of this section, or who willfully makes a false or fraudulent statement of the business or condition of any insurance carrier, is guilty of a Class 2 misdemeanor.
  6. Whenever by this Article, or the terms of any policy contract, any officer is required to give any notice to an insurance carrier, the notice may be given by delivery, or by mailing by registered letter properly addressed and stamped, to the principal office or general agent of the insurance carrier within this State, or to its home office, or to the secretary, general agent, or chief officer of the carrier in the United States, or to the Commissioner of Insurance.
  7. through (k). Repealed by Session Laws 1995, c. 360, s. 1.

History. 1929, c. 120, s. 73; 1931, c. 274, s. 13; 1947, c. 574; 1961, c. 833, s. 13; 1977, c. 828, s. 7; 1985, c. 119, s. 2; 1985 (Reg. Sess., 1986), c. 928, s. 13; 1989, c. 647, s. 1; 1993, c. 539, s. 682; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 360, s. 1(h).

Cross References.

As to the North Carolina Rate Bureau, see G.S. 58-36-1 et seq.

As to the regulation of insurance rates, see G.S. 58-40-1 et seq.

CASE NOTES

Clause Stating That Policy Is Subject to Rates Promulgated by Insurance Commissioner. —

Where a clause in an insurance policy stated that the policy was subject to the rates promulgated by the Insurance Commissioner, such clause would be enforced. Travelers' Ins. Co. v. Murdock, 208 N.C. 223, 179 S.E. 886, 1935 N.C. LEXIS 370 (1935).

Money Received Under Subsection (j). —

For case decided prior to the 1961 amendment, which added the last sentence to subsection (j), see North Carolina Indus. Comm'n v. O'Berry, 197 N.C. 595, 150 S.E. 44, 1929 N.C. LEXIS 308 (1929).

§ 97-101. Collection of fines and penalties.

The Industrial Commission shall have the power by civil action brought in its own name to enforce the collection of any fines or penalties provided by this Article.

History. 1931, c. 274, s. 14; 2015-264, s. 52.

Effect of Amendments.

Session Laws 2015-264, s. 52, effective October 1, 2015, deleted “, and fines or penalties collected by the Commission shall become a part of the maintenance fund referred to in subsection (j) of G.S. 97-100” following “by this Article”.

§ 97-101.1. Commission may issue writs of habeas corpus.

The Industrial Commission may issue a writ of habeas corpus ad testificandum under Article 8 of Chapter 17 of the General Statutes although it is not a court of record.

History. 1998-217, s. 31.1(a).

Article 2. Compensation Rating and Inspection Bureau. [Repealed]

§§ 97-102 through 97-104.6. [Repealed]

Repealed by Session Laws 1977, c. 828, s. 8, as amended by Session Laws 1979, c. 824, s. 8.

Cross References.

As to the North Carolina Rate Bureau, see G.S. 58-36-1 et seq.

As to the regulation of insurance rates, see G.S. 58-40-1 et seq.

Article 3. Security Funds. [Repealed]

§§ 97-105 through 97-122. [Repealed]

Repealed by Session Laws 1991 (Regular Session, 1992), c. 802, s. 12, as amended by Session Laws 1991 (Regular Session, 1992), c. 1030, s. 51.3.

Cross References.

As to disposition of funds in the Stock Workers’ Compensation Security Fund and the Mutual Workers’ Compensation Security Fund, see G.S. 58-48-105 through 58-48-130.

§§ 97-123 through 97-129.

Reserved for future codification purposes.

Article 4. North Carolina Self-Insurance Security Association.

§ 97-130. Definitions.

As used in this Article:

  1. “Association” means the North Carolina Self-Insurance Security Association established by G.S. 97-131.
  2. “Association Aggregate Security System” means the security system established by the Association under G.S. 97-133 whereby individual self-insurers collectively secure their aggregate self-insured workers’ compensation liabilities through the North Carolina Self-Insurance Security Association.
  3. “Board” means the Board of Directors of the Association established by G.S. 97-132.
  4. “Commissioner” means the North Carolina Commissioner of Insurance.
  5. “Covered claim” means an unpaid claim against an insolvent individual self-insurer or group self-insurer that relates to an injury that occurs while the individual self-insurer or group self-insurer is a member of the Association and that is compensable under this Chapter.
  6. “Fund” means the North Carolina Self-Insurance Security Fund established by G.S. 97-133.
  7. “Group” or “Group self-insurer” means a group self-insurer licensed by the Commissioner under Part 1, Article 47 of Chapter 58 of the General Statutes.
  8. “Individual self-insurer” means an individual employer licensed by the Commissioner under Article 5 of this Chapter.
  9. “Member self-insurer” or “member” means an individual self-insurer or group self-insurer that is required to be a member of the Association under this Article or Part 1, Article 47 of Chapter 58 of the General Statutes.
  10. “Plan” means the Plan of Operation authorized by G.S. 97-134.
  11. Repealed by Session Laws 2005-400, s. 1.2, effective January 1, 2006.
  12. “Servicing facility” means those persons delegated by the Board to settle or compromise claims and to expend Fund assets to pay claims.

History. 1985 (Reg. Sess., 1986), c. 1013, s. 1; 1987, c. 528, s. 1; 1997-362, s. 8; 2005-400, s. 1.2; 2011-196, s. 10.

Effect of Amendments.

Session Laws 2005-400, s. 1.2, effective January 1, 2006, substituted “Security” for “Guaranty” in the section heading and in subdivisions (1) and (5); added subdivisions (1a), (5a), (5b) and (9); inserted “individual self-insurer or group” preceding “self-insurer” in subdivision (4); rewrote subdivision (6) which read: “ ‘Member self-insurer’ or ‘member’ means a self-insurer which is authorized by the Commissioner to self-insure pursuant to G.S. 97-93 and G.S. 97-94”; and deleted former subdivision (8), which related to the definition of “Self-insurer.”

Session Laws 2011-196, s. 10, effective July 1, 2011, deleted “and approved by the Commissioner” following “Board” in subdivision (9).

CASE NOTES

Covered Claim. —

In two workers’ compensation cases relating to exposure to asbestos, employees did not have “covered claims” because their last injurious exposure to asbestos occurred before an insolvent employer was a member of the North Carolina Self-Insurance Security Association. The appellate court could not interpret a workers’ compensation statute in a manner contrary to its plain and unambiguous language, even if this interpretation barred recovery by the employees, who had no other recourse due to the employer’s bankruptcy. Ketchie v. Fieldcrest Cannon, Inc., 243 N.C. App. 324, 777 S.E.2d 129, 2015 N.C. App. LEXIS 808 (2015).

§ 97-131. Creation.

  1. There is created a nonprofit unincorporated legal entity to be known as the North Carolina Self-Insurance Security Association. The Association is to provide mechanisms for the payment of covered claims against member self-insurers, to avoid excessive delay in payment of covered claims, to avoid financial loss to claimants because of the insolvency of a member self-insurer, to assist the Commissioner in the detection of self-insurer insolvencies, to fund the Association Aggregate Security System, and to capitalize the Fund to ensure the availability of financial resources to pay covered claims and to fund the activities of the Association.
  2. All individual self-insurers and group self-insurers shall be and remain members of the Association as a condition of being licensed to self-insure in this State. The Association shall perform its functions under a Plan of Operation established or amended, or both, by the Board and shall exercise its powers through the Board.
    1. An individual self-insurer or a group self-insurer shall be deemed to be a member of the Association for purposes of another member’s insolvency, as defined in G.S. 97-135, when:
      1. The individual self-insurer or group self-insurer is a member of the Association when an insolvency occurs, or
      2. The individual self-insurer or group self-insurer has been a member of the Association at some point in time during the 12-month period immediately preceding the insolvency in question.
    2. An individual self-insurer or a group self-insurer shall be deemed to be a member of the Association for purposes of its own insolvency if it is a member when the compensable injury occurs.
    3. In determining the membership of the Association for the purposes of subdivisions (1) and (2) of this subsection for any date after the effective date of this Article, no individual self-insurer or group self-insurer may be deemed to be a member of the Association on any date after the effective date of this Article, unless that employer is on that date licensed as an individual self-insurer by the Commissioner under Article 5 of this Chapter or a group of employers is at that time licensed as a group self-insurer by the Commissioner under Article 47 of Chapter 58 of the General Statutes.

History. 1985 (Reg. Sess., 1986), c. 1013, s. 1; 1987, c. 528, s. 2; 1997-362, s. 9; 2005-400, s. 2; 2011-196, s. 10.

Effect of Amendments.

Session Laws 2005-400, s. 2, effective January 1, 2006, rewrote this section.

Session Laws 2011-196, s. 10, effective July 1, 2011, deleted “and approved by the Commissioner” following “by the Board” in the introductory paragraph of subsection (b).

CASE NOTES

Member of Association. —

In two workers’ compensation cases relating to exposure to asbestos, employees did not have “covered claims” because their last injurious exposure to asbestos occurred before an insolvent employer was a member of the North Carolina Self-Insurance Security Association. The appellate court could not interpret a workers’ compensation statute in a manner contrary to its plain and unambiguous language, even if this interpretation barred recovery by the employees, who had no other recourse due to the employer’s bankruptcy. Ketchie v. Fieldcrest Cannon, Inc., 243 N.C. App. 324, 777 S.E.2d 129, 2015 N.C. App. LEXIS 808 (2015).

§ 97-132. Board of directors.

The Board shall consist of not less than nine directors serving terms as established in the Plan. The directors shall be selected by the members of the Association and shall serve for three-year terms and until a successor is elected and qualified. There is no limitation on the number of terms a director may serve. Directors may be reimbursed from the assets of the Association for expenses incurred by them as directors.

History. 1985 (Reg. Sess., 1986), c. 1013, s. 1; 1987, c. 528, s. 3; 2005-400, s. 3; 2011-196, s. 10.

Effect of Amendments.

Session Laws 2005-400, s. 3, effective January 1, 2006, rewrote this section.

Session Laws 2011-196, s. 10, effective July 1, 2011, deleted “subject to the approval of the Commissioner” following “Association” in the second sentence, and deleted the former fourth sentence, which read: “In approving selections to the Board, the Commissioner shall consider, among other things, whether the individual self-insurers and group self-insurers are fairly represented.”

§ 97-133. Powers and duties of the Association.

  1. The Association shall:
    1. Repealed by Session Laws 1999-219, s. 7.2, effective June 25, 1999.
    2. Administer a fund, to be known as the North Carolina Self-Insurance Security Fund, which shall receive the assets of the North Carolina Self-Insurance Guaranty Fund previously established under subdivision (2) of this subsection, the assessments required by subdivisions (2a) and (3a) of this subsection and any other sums received by the Association. The costs of administering the Association shall be borne by the Fund. The Association is authorized to secure insurance, primary excess insurance, reinsurance, bonds, other insurance, financial guarantees and related financial instruments to effectuate the purposes of the Association. The Board will invest the Fund assets pursuant to an investment policy adopted by the Board and reviewed and approved annually by the Department of the State Treasurer. The earnings from investment of Fund assets shall be placed in or credited to the Fund.
    3. Repealed by Session Laws 2005-400, s. 4, effective January 1, 2006.
    4. Establish and operate the Association Aggregate Security System as defined in G.S. 97-130 and G.S. 97-165 as follows:
      1. The Association shall annually operate and provide an Association Aggregate Security System through a combination of cash on deposit in the Fund, securities, surety bonds, irrevocable letters of credit, insurance, reinsurance, or other financial instruments or guarantees owned or entered into by the Association. The Association shall assess the individual self-insurers that participate in the Association Aggregate Security System pursuant to subdivision (3a) of this subsection.
      2. through d. Repealed by Session Laws 2011-196, s. 10, effective July 1, 2011.
    5. Repealed by Session Laws 2005-400, s. 4, effective January 1, 2006.
    6. Assess members of the Association as follows:
      1. Association Aggregate Security System assessments. —  The Association shall assess each individual self-insurer participating in the Association Aggregate Security System a security system assessment. The amount of the security system assessment charged to each individual self-insurer participating in the Association Aggregate Security System shall be based on the Association’s reasonable consideration of all of the following factors:
        1. The total amount of assessments necessary to provide aggregate security for all participating individual self-insurers.
        2. The individual self-insurer’s total workers’ compensation liabilities under the Act.
        3. The financial strength and creditworthiness of the participating individual self-insurer.
        4. Any other relevant factors.
      2. Special assessment. —  In the event that there are covered claims against an insolvent member or members and the assets of the Fund are not sufficient to pay the obligations of the Association, then the Association may collect a special assessment from the members in an amount sufficient to pay the aggregate value of such covered claims. Each member’s special assessment shall be determined by the Board and shall be based on the proportion of the member’s total obligations under the Act to the aggregate total of all members’ obligations under the Act.
      3. Initial assessments. —  An individual self-insurer upon receiving its license from the Commissioner is a member of the Association and is required to pay an initial assessment to the Association in an amount and over a period as determined by the Board. A group self-insurer, upon receiving its license from the Commissioner, is a member of the Association and is required to pay an initial assessment to the Association in an amount and over a period as determined by the Board.
      4. Each member shall be notified of assessments no later than 30 days before the assessment is due.
      5. Delinquent assessments, except as otherwise provided, shall bear interest at a rate to be established by the Board.
      6. Group assessments. —  The Association may annually assess each member group self-insurer in an amount not to exceed two percent (2%) of the group self-insurer’s annual gross premiums for the preceding calendar year, as determined under G.S. 105-228.5(b), (b1), and (c).
    7. Be obligated to pay covered claims.
    8. After paying any covered claim, be subrogated to the rights of the injured employee and dependents and be entitled to enforce liability against the self-insurer or any third party by any appropriate action brought in its own name or in the name of the injured employee and dependents.
    9. Expend Fund assets in amounts necessary to pay all of the following:
      1. The obligations of the Association under this Article subsequent to an insolvency.
      2. The expenses of handling covered claims subsequent to an insolvency.
      3. The cost of examinations under G.S. 97-137.
      4. The costs of implementing and operating the Association Aggregate Security System.
      5. All other expenses authorized by this Article.
    10. Investigate claims brought against the Association and adjust, compromise, settle, and pay covered claims to the extent of the Association’s obligation; and deny all other claims. The Association may review settlements to which the insolvent member was a party to determine the extent to which such settlements may be properly contested.
    11. Notify such persons as the Commissioner directs under G.S. 97-136.
    12. Handle claims through its directors, its employees, or through one or more members or other persons designated as servicing facilities. Designation of a member as a servicing facility may be declined by such member.
    13. Reimburse each servicing facility for obligations of the Association paid by the facility and for expenses incurred by the facility while handling claims on behalf of the Association.
    14. Pay any other expenses of the Association authorized by this section.
    15. Repealed by Session Laws 2005-400, s. 4, effective January 1, 2006.
    16. Require each member to annually determine its total undiscounted workers’ compensation claims liability and require each member to notify the Association of this determination.
  2. The Association may:
    1. Employ or retain such persons, including, but not limited to, adjustors, brokers, accountants, attorneys, financial advisors, investment bankers, placement agents, and consultants, as the Board may determine are necessary to handle claims, perform other duties of, provide services to, and consult with the Association.
    2. Borrow funds necessary to effect the purposes of this Article in accord with the Plan, including entering into standby lines of credit.
    3. Sue or be sued.
    4. Negotiate and become a party to such contracts as are necessary to carry out the purpose of this section.
    5. Perform such other acts as are necessary or proper to effectuate the purpose of this section.
    6. Repealed by Session Laws 2011-196, s. 10, effective July 1, 2011.
  3. Repealed by Session Laws 2005-400, s. 4, effective January 1, 2006.
  4. The Association shall provide in its Plan that the functions of administration and adjusting claims shall not be performed by the same entity that provides legal representation to the Association for claims.
  5. Repealed by Session Laws 2005-400, s. 4, effective January 1, 2006.

e. If the Association determines it is not feasible or practical to operate the Association Aggregate Security System in any given year, it may terminate or suspend the Association Aggregate Security System and shall notify the Commissioner at least 90 days prior to the termination or suspension of the Association Aggregate Security System for that particular year. During any period that the Associate Aggregate Security System is terminated or suspended, every self-insurer shall deposit with the Commissioner, or continue to deposit, the amount required by G.S. 97-185(b3) in the manner prescribed by G.S. 97-185(c).

f. Group self-insurers shall not participate in the Association Aggregate Security System.

History. 1985 (Reg. Sess., 1986), c. 928, s. 1(a); 1985 (Reg. Sess., 1986), c. 1013, s. 1; 1987, c. 528, ss. 4-10; 1989, c. 485, s. 27; 1995, c. 533, s. 1; 1997-475, ss. 2.3, 2.4; 1999-219, s. 7.2; 2003-115, ss. 1, 2; 2005-400, s. 4; 2009-242, s. 1; 2011-196, s. 10; 2020-74, s. 24.

Effect of Amendments.

Session Laws 2005-400, s. 4, effective January 1, 2006, rewrote this section.

Session Laws 2009-242, s. 1, effective July 1, 2009, added subdivision (a)(3a)f.

Session Laws 2011-196, s. 10, effective July 1, 2011, deleted the former second and third sentences of subdivision (a)(1a), which pertained to the Board’s determination that the assets of the Fund be segregated; rewrote subdivision (a)(2a); deleted “of a servicing facility is subject to the approval of the Commissioner, but designation” following “Designation” in the last sentence of subdivision (a)(9); added subdivision (a)(13); and deleted subdivision (b)(6), which read: “Reimburse the Department of Insurance up to twenty thousand dollars ($20,000) for consultants retained by the Department to review the initial plan submitted pursuant to G.S. 97-133(a)(2a).”

Session Laws 2020-74, s. 24, effective July 1, 2020, rewrote sub-subdivision (a)(3a)c.

CASE NOTES

Payment of Claims. —

In two workers’ compensation cases relating to exposure to asbestos, employees did not have “covered claims” because their last injurious exposure to asbestos occurred before an insolvent employer was a member of the North Carolina Self-Insurance Security Association. The appellate court could not interpret a workers’ compensation statute in a manner contrary to its plain and unambiguous language, even if this interpretation barred recovery by the employees, who had no other recourse due to the employer’s bankruptcy. Ketchie v. Fieldcrest Cannon, Inc., 243 N.C. App. 324, 777 S.E.2d 129, 2015 N.C. App. LEXIS 808 (2015).

§ 97-134. Plan of Operation.

The Plan is as follows:

  1. The Board shall adopt a Plan of Operation and any amendments necessary or suitable to assure the fair, reasonable, and equitable administration of the Association.
  2. All member self-insurers shall comply with the Plan.
  3. The Plan shall:
    1. Establish the procedures whereby all the powers and duties of the Association under G.S. 97-133 will be performed.
    2. Establish procedures for investing and managing Fund assets.
    3. Adopt a reasonable mechanism and procedure to achieve equity in assessing members under G.S. 97-133.
    4. Establish the amount and method of reimbursing members of the Board under G.S. 97-132.
    5. Establish procedures by which claims may be filed with the Association and establish acceptable forms of proof of covered claims.
    6. Establish regular places and times for meetings of the Board.
    7. Establish procedures for records to be kept of all financial transactions of the Association, its agents, and the Board.
    8. Provide that any member self-insurer aggrieved by any final action or decision of the Association may appeal to the Commissioner within 30 days after the action or decision.
    9. Repealed by Session Laws 2011-196, s. 10, effective July 1, 2011.
    10. Contain additional provisions necessary or proper for the execution of the powers and duties of the Association.

History. 1985 (Reg. Sess., 1986), c. 1013, s. 1; 1987, c. 528, s. 11; 2005-400, s. 5; 2011-196, s. 10.

Effect of Amendments.

Session Laws 2005-400, s. 5, effective January 1, 2006, in subdivision (1), inserted “suitable” preceding “Plan or suitable” in the third sentence and substituted “The rules” for “Such rules” at the beginning of the last sentence; substituted “investing and managing Fund assets” for “handling assets of the Association” in subdivision (3)b.; substituted “members under G.S. 97-133” for “the funds required in G.S. 97-133. Consideration shall be given to adjustments for audited payroll, differential effects caused by rate changes, and other relevant factors” in subdivision (3)c.; deleted the former second sentence in subdivision (3)e., which read: “A list of such claims shall be periodically submitted to the Association”; and made minor punctuation and stylistic changes.

Session Laws 2011-196, s. 10, effective July 1, 2011, rewrote subdivision (1); and deleted subdivision (3)i., which read: “Establish the procedures whereby selections for the Board shall be submitted to the Commissioner.”

§ 97-135. Insolvency.

A member self-insurer shall be insolvent for the purposes of this Article under any of the following circumstances:

  1. Determination of insolvency by a court of competent jurisdiction.
  2. Institution of bankruptcy proceedings by or regarding the member self-insurer.
  3. The Board determines that the member self-insurer’s total liabilities exceed its total assets or the member self-insurer is unable or ceases to pay its debts as they fall due or in the ordinary course of business.
  4. A member self-insurer is deemed to be insolvent, bankrupt, or in default as defined by the terms of any security instrument created pursuant to the Association Aggregate Security System.

History. 1985 (Reg. Sess., 1986), c. 1013, s. 1; 1987, c. 528, s. 12; 2005-400, s. 6.1.

Effect of Amendments.

Session Laws 2005-400, s. 6.1, effective January 1, 2006, inserted “any of” preceding “the following” in the first paragraph; inserted “member” twice preceding “self-insurer’s” in subdivision (3); added subdivision (4); and made minor stylistic and punctuation changes.

§ 97-136. Powers and duties of the Commissioner.

  1. The Commissioner shall:
    1. Notify the Association of the existence of an insolvent member self-insurer not later than 30 days after he receives notice of an insolvency pursuant to the standards set forth in G.S. 97-135.
    2. Repealed by Session Laws 2011-196, s. 10, effective July 1, 2011.
  2. The Commissioner may:
    1. Require that the Association notify the insureds of the insolvent member self-insurer and any other interested parties of the insolvency and of their rights under this Article. The notifications shall be by mail at their last known addresses, where available; but if required information for notification is not available, notice by publication in a newspaper of general circulation in this State shall be sufficient; and
    2. Revoke the designation of any servicing facility if the Commissioner finds claims are being handled unsatisfactorily.

History. 1985 (Reg. Sess., 1986), c. 1013, s. 1; 2005-400, s. 6.2; 2011-196, s. 10.

Effect of Amendments.

Session Laws 2005-400, s. 6.2, effective January 1, 2006, substituted “shall” for “shall notify” in the first paragraph of subsection (a); inserted the subdivision (a)(1) designation; inserted “Notify” at the beginning of present subdivision (a)(1); added subdivision (a)(2); substituted “The notifications” for “Such notifications” at the beginning of the second sentence in subdivision (b)(1); and substituted “the Commissioner” for “he” in subdivision (b)(2).

Session Laws 2011-196, s. 10, effective July 1, 2011, deleted subdivision (a)(2), which read: “Approve or disapprove the plan for an Association Aggregate Security System as required under G.S. 97-133(a)(2a)b. and notify the Association of the information required under G.S. 97-133(a)(2a)c.”

§ 97-137. Examination of the Association.

The Association shall be subject to examination and regulation by the Commissioner. The Board shall submit, not later than June 1 of each year, a financial report for the preceding calendar year in a form approved by the Commissioner.

History. 1985 (Reg. Sess., 1986), c. 1013, s. 1; 2011-196, s. 10.

Effect of Amendments.

Session Laws 2011-196, s. 10, effective July 1, 2011, substituted “June 1” for “March 30.”

§ 97-138. Tax exemption.

The Association shall be exempt from payment of all fees and all taxes levied by this State or any of its political subdivisions, except taxes levied on real or personal property.

History. 1985 (Reg. Sess., 1986), c. 928, s. 1(b).

§ 97-139. Immunity.

There shall be no liability on the part of and no cause of action of any nature may arise against any member self-insurer, the Association, or its agents or employees, the Board or its individual members, or the Commissioner or his representatives for any acts or omissions taken by them in the performance of their powers and duties under this Article. The immunity established by this section shall not extend to willful neglect or malfeasance that would otherwise be actionable.

History. 1985 (Reg. Sess., 1986), c. 1013, s. 1.

§ 97-140. Nonduplication of recovery.

Any person having a covered claim that may be recovered under more than one insurance or self-insurance guaranty or security association or its equivalent shall seek recovery first from the association of the place or residence of the claimant. Any recovery under this Article shall be reduced by the amount of recovery from any other insurance guaranty or security association or its equivalent.

History. 1985 (Reg. Sess., 1986), c. 1013, s. 1; 2005-400, s. 7.

Effect of Amendments.

Session Laws 2005-400, s. 7, effective January 1, 2006, inserted “or security” twice preceding “association or its equivalent.”

§ 97-141. Stay of proceedings.

All claims or proceedings under this Chapter to which the insolvent member self-insurer is a party either before the Industrial Commission or a court in this State and the running of all time periods against either the insolvent member self-insurer or the Association under this Chapter shall be stayed for 60 days from the later of the date of notice to the Association of the insolvency or the date the Association is notified of a claim or proceeding under this Chapter in order to permit the Association to investigate, prosecute, or defend properly any petition, claim, or appeal under this Chapter, provided that the payment of weekly compensation for incapacity is made whenever time periods or proceedings affecting the payment of weekly compensation are stayed.

History. 1985 (Reg. Sess., 1986), c. 1013, s. 1; 2003-115, s. 6.

§ 97-142. Disposition of assets upon dissolution.

In the event of dissolution of the Association, all assets remaining after provision for satisfaction of all outstanding claims shall be distributed to the State Treasurer for establishment of a reserve to satisfy potential claims against the Association and, all such claims being satisfied, for inclusion in the general fund of the State.

History. 1985 (Reg. Sess., 1986), c. 1013, s. 1.

§ 97-143. Use of deposits made by insolvent member self-insurers.

After the Commissioner has notified the Association, under G.S. 97-136(a), that a member is insolvent, the Commissioner shall assign and deliver to the Association, and the Association is authorized to expend any deposit made by the insolvent member under G.S. 58-47-90 or G.S. 97-185, to the extent the deposit is needed by the Association to pay covered claims against the insolvent member as required by this Article, and to the extent the deposit is needed to pay expenses of the Association relating to covered claims against the insolvent member. For insolvent individual member self-insurers that participate in the Association Aggregate Security System, the Association is authorized to pursue recovery under every instrument, contract, and form of security comprising the composite security. The Association shall account to the Commissioner and the insolvent member or its successor for all deposits received from the Commissioner under this section.

History. 1991, c. 644, s. 25; 1997-362, s. 6; 2005-400, s. 8.

Effect of Amendments.

Session Laws 2005-400, s. 8, effective January 1, 2006, substituted “any deposit” for “the deposit” in the first sentence; and added the second sentence.

§§ 97-144 through 97-164.

Reserved for future codification purposes.

Article 5. Individual Employers.

§ 97-165. Definitions.

As used in this Article:

  1. “Act” means the Workers’ Compensation Act established in Article 1 of this Chapter.
  2. “Affiliate of” or “person affiliated with” a specific person means a person that indirectly through one or more intermediaries or directly controls, is controlled by, or is under common control with the person specified.
  3. “Association Aggregate Security System” means the security system established pursuant to G.S. 97-133 whereby individual self-insurers collectively secure their aggregate self-insured workers’ compensation liabilities under the Act through the North Carolina Self-Insurance Security Association.
  4. “Certified audit” means an audit on which a certified public accountant or a foreign registered public accounting firm expresses his or her professional opinion that the accompanying statements fairly present the financial position of the self-insurer or the guarantor, in conformity with accounting principles generally accepted in the United States or prepared in accordance with International Financial Reporting Standards.
  5. “Certified public accountant” or “CPA” means a CPA who is in good standing with the American Institute of Certified Public Accountants and in all states in which the CPA is licensed to practice. A CPA shall be recognized as independent as long as the CPA conforms to the standards of the profession, as contained in the Code of Professional Ethics of the American Institute of Certified Public Accountants and Rules and Regulations and Code of Ethics and Rules of Professional Conduct of the North Carolina State Board of Certified Public Accountant Examiners, or similar code. The Commissioner may hold a hearing to determine whether a CPA is independent and, considering the evidence presented, may rule that the CPA is not independent for purposes of expressing an opinion on financial statements prepared in accordance with United States Generally Accepted Accounting Principles or International Financial Reporting Standards. The Commission may require the self-insurer or the guarantor to replace the CPA with another whose relationship with the self-insurer or the guarantor is independent within the meaning of this definition.
  6. “Commissioner” means the Commissioner of Insurance.
  7. “Control”, “controlling”, “controlled by”, and “under common control with” mean the direct or indirect possession of the power to direct or cause the direction of the management and policies of a person through ownership of or through proxies for voting of greater than fifty percent (50%) of the voting securities, or in the case of a not-for-profit entity, the power to direct or cause the direction of the management and policies of the entity.
  8. “Corporate surety” means an insurance company authorized by the Commissioner to write surety business in this State.
  9. “Financial statement” means a financial statement as defined by accounting principles generally accepted in the United States or a financial statement prepared in accordance with International Financial Reporting Standards.
  10. “Foreign registered public accounting firm” means a public accounting firm that is organized and operates under the laws of a non-United States jurisdiction, government, or political subdivision and is registered and in good standing with the Public Company Accounting Oversight Board and authorized by the Board to prepare or issue any audit report with respect to any issuer.
  11. “Guarantor” means a person within the same holding company system who controls the applicant, whose financial statement is used by the applicant to become a self-insurer under the Act, and who has guaranteed the payment of the self-insurer’s liability under the Act.
  12. “Hazardous financial condition” means that, based on its present or reasonably anticipated financial condition, a self-insurer or guarantor is insolvent or, although not yet financially impaired or insolvent, is unlikely to be able to meet its obligations with respect to known claims and reasonably anticipated claims or to pay other obligations in the normal course of business.
  13. “Holding company system” means an entity comprising two or more affiliated persons.
  14. “Management” means those persons who are authorized to direct or control the operations of a self-insurer.
  15. “Person” means an individual, corporation, partnership, limited liability company, association, joint stock company, trust, unincorporated organization, or any similar entity or any combination of the foregoing acting in concert.
  16. “Qualified actuary” means a member in good standing of the Casualty Actuarial Society or a member in good standing of the American Academy of Actuaries, who has been approved as qualified for signing casualty loss reserve opinions by the Casualty Practice Council of the American Academy of Actuaries, and is in compliance with G.S. 58-2-171.
  17. “Self-insurer” means an individual self-insurer as defined by G.S. 97-130(5b).
  18. “Subsidiary of” a specific person means an affiliate controlled by such person indirectly through one or more intermediaries or an affiliate directly controlled by such person.

History. 1997-362, s. 4; 1999-132, s. 13.5; 2004-199, s. 20(h); 2005-400, s. 9; 2009-172, s. 5.

Effect of Amendments.

Session Laws 2004-199, s. 20(h), effective August 17, 2004, substituted “an employer” for “a single employer” in subdivision (10).

Session Laws 2005-400, s. 9, effective January 1, 2006, added subdivisions (1a), (1b), (4a), (6a), (7a), (8a), and (11); substituted “self-insurer or the guarantor, in conformity with accounting principles generally accepted in the United States” for “self-insurer, in conformity with generally accepted accounting principles” in subdivision (2); substituted “self-insurer or the guarantor to replace the CPA with another whose relationship with the self-insurer or the guarantor” for “individual to replace the CPA with another whose relationship with the individual” in subdivision (3); substituted “accounting principles generally accepted in the United States” for “generally accepted accounting principles” in subdivision (6); in subdivision (7), inserted “or guarantor” preceding “is insolvent” and “its” preceding “obligations with respect”; and substituted “individual self-insurer as defined by G.S. 97-130(5b)” for “employer who retains liability under the Act and is licensed under this Article” in subdivision (10).

Session Laws 2009-172, s. 5, effective October 1, 2009, in subdivision (2), inserted “or a foreign registered public accounting firm” near the beginning, and added “or prepared in accordance with International Financial Reporting Standards” at the end; in subdivision (3), substituted “financial statements prepared in accordance with United States Generally Accepted Accounting Principles or International Financial Reporting Standards. The Commission may require” for “the GAAP financial statement and require” in the last two sentences; renumbered former subdivision (6) as subdivision (5a); rewrote subdivision (5a); and added present subdivision (6).

§ 97-170. License applications; required information.

  1. No employer shall self-insure its workers’ compensation liabilities under the Act unless it is licensed by the Commissioner under this Article. This subsection does not apply to an employer authorized to self-insure its workers’ compensation liabilities under the Act prior to December 1, 1997, whose authority to self-insure its workers’ compensation liabilities under the Act has not terminated after that date.
  2. An applicant for a license as a self-insurer shall file with the Commissioner the information required by subsection (d) of this section on a form prescribed by the Commissioner at least 90 days before the proposed licensing date. No application is complete until the Commissioner has received all required information. A copy of the application shall also be filed with the North Carolina Self-Insurance Security Association at the same time the application is filed with the Commissioner.
  3. Only an applicant whose total fixed assets amount to five hundred thousand dollars ($500,000) or more may apply for a license. In judging the applicant’s financial strength and liquidity relative to its ability to comply with the Act, the Commissioner shall consider all of the following relative to the applicant:
    1. Organizational structure and management.
    2. Financial strength.
    3. Source and reliability of financial information.
    4. Risks to be retained.
    5. Workers’ compensation loss history.
    6. Number of employees.
    7. Claims administration.
    8. Excess insurance.
    9. Access to excess insurance.
  4. The license application shall be comprised of the following information:
    1. Applicant name; organizational structure of the applicant, including any controlling entity, subsidiaries, or affiliates; location of principal office; contact person; organization date; type of operations within this State; management background; and addresses of all plants or offices in this State.
    2. Certified audited financial statements prepared by a CPA or submitted by a foreign registered public accounting firm for the two most recent years. The financial statement presentation shall facilitate application of ratio and trend analysis.
    3. Evidence of the insurance required by G.S. 97-190.
    4. Repealed by Session Laws 1999-132, s. 13.7, effective June 4, 1999.
    5. For applicants with 20 or more full-time employees, a certificate or other evidence of safety inspection, satisfactory to the Commissioner, that certifies that all safety requirements of the Department of Labor have been met.
    6. Summary of workers’ compensation benefits paid for the last three calendar years and the total liability for all open claims within 30 days or some other period acceptable to the Commissioner not to exceed 90 days, before the filing of the application.
    7. Summary, by risk classification, of annual payroll and number of employees within the State.
    8. Repealed by Session Laws 2005-400, s. 10, effective January 1, 2006.
    9. Proof of compliance with the claims administration provisions of Article 47 of Chapter 58 of the General Statutes.
    10. A letter of approval for membership by the North Carolina Self-Insurance Security Association.
  5. Every applicant shall execute and file with the Commissioner an agreement, as part of the application, in which the applicant agrees to participate in the Association Aggregate Security System, or if excluded from the Association Aggregate Security System, to deposit with the Commissioner pursuant to G.S. 97-185 cash, acceptable securities, an irrevocable letter of credit in a form acceptable to the Commissioner issued by a bank acceptable to the Commissioner, or a surety bond issued by a corporate surety, or a combination thereof, that will guarantee the applicant’s compliance with this Article and the Act.

History. 1997-362, s. 4; 1999-132, ss. 13.6, 13.7; 2003-212, s. 25; 2005-400, s. 10; 2009-172, s. 6; 2019-179, s. 10.

Effect of Amendments.

Session Laws 2005-400, s. 10, effective January 1, 2006, added the last sentence to subsection (b); substituted “all of the following relative to the applicant” for “the applicant’s” in subsection (c); substituted “be comprised of” for “comprise” in subsection (d); rewrote subdivision (d)(1); substituted “presentation” for “formulation” in subdivision (d)(2); substituted “years and” for “years, as well as” in subdivision (d)(6); deleted former subdivision (d)(8), which read: “Book value of fixed assets located within the State.”; rewrote subdivision (d)(10); rewrote subsection (e); and made minor stylistic and punctuation changes.

Session Laws 2009-172, s. 6, effective October 1, 2009, in subdivision (d)(2), in the first sentence, deleted “GAAP” preceding “financial statements” near the beginning, and inserted “or submitted by a foreign registered public accounting firm” near the middle.

Session Laws 2019-179, s. 10, effective July 26, 2019, in the last sentence of subsection (b), substituted “shall” for “must” near the beginning, and “at the same time the application is filed with the Commissioner” for “at least 90 days before the proposed licensing date” at the end.

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 487.

§ 97-175. License.

  1. After the review of the application and all supporting materials, the Commissioner shall either grant or deny a license. If a license is denied, the Commissioner shall notify the applicant of the denial and inform the applicant of the deficiencies that constitute the basis for denial.
  2. If the deficiencies are resolved within 60 days after the Commissioner’s notice of denial, the applicant shall be granted a license. The applicant may be granted additional time to remedy the deficiencies in its application. A request for an extension of time shall be made in writing by the applicant within 30 days after notice of denial by the Commissioner. If the requirements of this Article have not been met, the application shall be withdrawn or denied.

History. 1997-362, s. 4.

§ 97-177. License covering applicant and any subsidiary or applicant relying on a guarantor; procedure; requirements.

  1. The Commissioner may, in the Commissioner’s discretion, upon request by an applicant, issue a license to an applicant or to an applicant and one or more of its subsidiaries if all of the following requirements are satisfied:
    1. The applicant or a guarantor of the applicant executes a guaranty agreement, in a form prescribed by the Commissioner, for the payment of all workers’ compensation liabilities covered under the Act. For any applicant or guarantor that is a corporation, there shall be submitted, along with the guaranty agreement, a board of directors’ resolution from the respective corporation authorizing the guaranty of the liabilities of the subsidiary company or companies and granting signature authority to each person or officer executing the agreement.
    2. The applicant or guarantor files a statement with the Commissioner that lists the percentage of ownership of voting securities or proxies representing voting securities owned or held by the applicant or guarantor for each subsidiary, or in the case of a not-for-profit entity, documentation acceptable to the Commissioner evidencing control.
    3. The applicant and its guarantor or the applicant and its subsidiaries, whichever applies, satisfy the requirements of G.S. 97-170(c).
    4. All other applicable requirements for licensure under the Act are satisfied.
  2. A license issued by the Commissioner pursuant to this section shall include the name of the applicant, the name of each licensed subsidiary, and the date of issuance for each licensed subsidiary.
  3. If a self-insurer requests to add a subsidiary to its license, the Commissioner shall review the request in accordance with this section. Upon approval, the Commissioner shall issue to the self-insurer a new license that includes the newly licensed subsidiary and the date of license issuance for the newly licensed subsidiary, and the self-insurer shall return the original license to the Commissioner.
  4. A self-insurer shall neither include nor delete a subsidiary from its license without the Commissioner’s prior written approval.
  5. If a controlling relationship or guaranty agreement terminates, the self-insurer shall retain all liabilities under the Act that were incurred by the self-insurer during the period of self-insurance and shall account for all such liabilities until discharged, as evidenced by reports filed with the Commissioner. Termination of a guaranty agreement does not affect the guarantor’s liability for payment of liabilities arising prior to termination of the agreement.

History. 2005-400, s. 11.

§ 97-180. Reporting and records.

  1. Every self-insurer shall submit, within 120 days after the end of its fiscal year, a certified audited financial statement, prepared by a CPA or submitted by a foreign registered public accounting firm, for that fiscal year. The financial statement presentation shall facilitate the application of ratio and trend analysis. If the self-insurer was issued a license pursuant to G.S. 97-177, the financial statement required under this subsection shall be that of the guarantor.
  2. Every self-insurer shall submit within 120 days after the end of its fiscal year a report from a qualified actuary setting forth an opinion certifying the loss and loss adjustment expense reserves for workers’ compensation obligations in North Carolina. The report shall show liabilities, excess insurance carrier and other qualifying credits, if any, and net retained workers’ compensation liabilities.
  3. Every self-insurer shall submit within 120 days after the end of its fiscal year a report in the form of a sworn statement prescribed by the Commissioner, setting forth the total workers’ compensation benefits paid in the previous fiscal year, and the total outstanding workers’ compensation liabilities for each loss year, recorded at the close of its fiscal year for the net retained liability.
  4. Upon the request of the Commissioner, every self-insurer shall submit a report of its annual payroll information. The report shall summarize payroll, by annual amount paid, and the number of employees, by classification, using the rules, classifications, and rates in the most recently approved Workers’ Compensation and Employers’ Liability Insurance Manual governing the audits of payrolls and the adjustments of premiums. Every self-insurer shall maintain true and accurate payroll records. These payroll records shall be maintained to allow for verification of the completeness and accuracy of the annual payroll report.
  5. Every self-insurer shall report promptly to the Commissioner changes in the name or address of the self-insurer or guarantor; significant changes in the financial condition of the self-insurer, guarantor, or any affiliate, including bankruptcy filings; and changes in its organizational structure, including its subsidiaries and affiliates. Any change shall be reported in writing to the Commissioner within 10 days after the effective date of the change. Upon request by the Commissioner, a self-insurer shall provide the Commissioner copies of documents or information deemed necessary to determine whether any change has affected the privilege of the employer to self-insure.

History. 1997-362, s. 4; 1999-132, ss. 13.8, 13.9; 2005-400, s. 12; 2009-172, s. 7.

Effect of Amendments.

Session Laws 2005-400, s. 12, effective January 1, 2006, in subsection (a), substituted “presentation” for “formulation” preceding “shall facilitate” in the second sentence and added the last sentence; rewrote subsections (b) and (e); and substituted “and” for “as well as” preceding “the total outstanding” in subsection (c).

Session Laws 2009-172, s. 7, effective October 1, 2009, in subsection (a), deleted “GAAP” preceding “financial statement” and inserted “or submitted by a foreign registered public accounting firm.”

§ 97-185. Deposits; surety bonds; letters of credit.

  1. Repealed by Session Laws 2005-400, s. 13, effective January 1, 2006.
  2. All individual self-insurers as defined in G.S. 97-130(5b) shall participate in the Association Aggregate Security System established under G.S. 97-131 unless excluded by the Board of Directors of the North Carolina Self-Insurance Security Association. The Board of Directors of the North Carolina Self-Insurance Security Association shall exclude all of the following from the Association Aggregate Security System:
    1. Individual self-insurers whose licenses have previously been revoked by the Commissioner.
    2. Individual self-insurers with a debt rating as established by Standard & Poor’s Rating Service or by Moody’s Investor Service, below the minimum Standard & Poor’s or Moody’s ratings if a minimum debt rating has been established by the Board of Directors of the North Carolina Self-Insurance Security Association for the Association Aggregate Security System.
    3. Individual self-insurers that have defaulted on the payment of their self-insured workers’ compensation liabilities.
    4. Individual self-insurers that fail to submit sufficient financial information to enable the Association to determine their total outstanding workers’ compensation liabilities, or their creditworthiness, or both.The Board of Directors of the North Carolina Self-Insurance Security Association shall notify the Commissioner of the individual self-insurers that are excluded from participating in the Association Aggregate Security System.
  3. Repealed by Session Laws 2003-115, s. 3, effective January 1, 2004.
  4. Repealed by Session Laws 2005-400, s. 13, effective January 1, 2006.
  5. An individual self-insurer that is excluded from participation in the Association Aggregate Security System, including individual self-insurers that are granted a license to self-insure after the North Carolina Self-Insurance Security Association annually implements the Association Aggregate Security System, shall deposit with the Commissioner an amount not less than one hundred percent (100%) of the individual self-insurer’s total undiscounted outstanding claims liability per the most recent report from a qualified actuary as required by G.S. 97-180(b), but not less than five hundred thousand dollars ($500,000), or such greater amount as the Commissioner prescribes based on, but not limited to, the financial condition of the individual self-insurer and the risk retained by the individual self-insurer.
  6. During any period of time that no Association Aggregate Security System is in effect, individual self-insurers with a debt rating of BBB or better from Standard & Poor’s Rating Service, a division of McGraw Hill, Inc., or an equivalent rating from another national rating agency shall deposit with the Commissioner an amount not less than fifty percent (50%) of the individual self-insurer’s total undiscounted outstanding claims liability per the most recent report from a qualified actuary as required by G.S. 97-180(b), but not less than five hundred thousand dollars ($500,000). An individual self-insurer licensed pursuant to G.S. 97-177 may utilize the debt rating of its guarantor for the purpose of establishing the application of this subsection. The Commissioner shall consider and may, in the Commissioner’s discretion, increase or reduce the deposit to a greater or lesser percentage of the individual self-insurer’s claims liability based on the financial strength of the individual self-insurer and other financial information submitted by the individual self-insurer. All other individual self-insurers shall deposit with the Commissioner an amount not less than one hundred percent (100%) of the individual self-insurer’s total undiscounted outstanding claims liability per the most recent report from a qualified actuary as required by G.S. 97-180(b), but not less than five hundred thousand dollars ($500,000), or such greater amount as the Commissioner prescribes based on, but not limited to, the financial condition of the individual self-insurer and the risk retained by the individual self-insurer.
  7. Deposits received, changes to existing deposits, or deposits exchanged after the effective date of this section, shall be comprised of one or more of the following:
    1. Interest-bearing bonds of the United States of America.
    2. Interest-bearing bonds of the State of North Carolina, or of its cities or counties.
    3. Certificates of deposit issued by any solvent bank domesticated in the State of North Carolina that have a maturity of one year or greater.
    4. Surety bonds in a form acceptable to the Commissioner and issued by a corporate surety. A surety bond deposited pursuant to this subsection shall require that the surety reimburse the Commissioner, or his successors, assigns, or transferees, for any costs incurred in the collection of the proceeds of the surety bond, including reasonable attorneys’ fees, and any costs incurred in administering the insolvent self-insurer’s workers’ compensation claims.
    5. Irrevocable letters of credit in a form acceptable to the Commissioner issued by a bank acceptable to the Commissioner. An irrevocable letter of credit deposited pursuant to this subsection shall require that the bank reimburse the Commissioner, or his successors, assigns, or transferees for any costs incurred in the collection of the proceeds of the letter of credit, including reasonable attorneys’ fees.
    6. The reimbursement of attorneys’ fees and collections cost provided for in subdivisions (4) and (4a) of this subsection shall be no greater than fifteen percent (15%) of the penal amount of the bond and shall not come from the proceeds of the bond or the letter of credit but shall be in addition to the proceeds of the bond or the letter of credit.
    7. Any other investments that are approved by the Commissioner.
  8. All bonds or securities that are posted as a security deposit shall be valued annually at market value. If the market value is less than the face value, the Commissioner may require the self-insurer to post additional securities. In making this determination, the Commissioner shall consider the self-insurer’s or guarantor’s financial condition, the amount by which market value is less than face value, and the likelihood that the securities will be needed to provide benefits.
  9. Securities deposited under this section shall be assigned to the Commissioner, the Commissioner’s successors, assigns, or trustees, on a form prescribed by the Commissioner in a manner that renders the securities negotiable by the Commissioner. If a self-insurer or guarantor is deemed by the Commissioner to be in a hazardous financial condition, the Commissioner may sell or collect, or both, such amounts that will yield sufficient funds to meet the self-insurer’s obligations under the Act. In the case of a letter of credit, the Commissioner may draw the full amount of a letter of credit if the letter of credit is not renewed within 90 days prior to its expiration or at any time that the bank issuing the letter of credit is no longer acceptable to the Commissioner. Interest accruing on any negotiable security deposited under this Article shall be collected and transmitted to the self-insurer if the self-insurer or guarantor is not in a hazardous financial condition.
  10. No judgment creditor, other than a claimant entitled to benefits under the Act, may levy upon any deposits made under this section.
  11. Pursuant to the provisions of this section and with the approval of the Commissioner, deposits held by the Commissioner may be replaced with other acceptable forms of deposit in amount determined by the Commissioner. Any deposit to be replaced with another form of deposit shall not be released until the approved replacement deposit is received by the Commissioner.
  12. Any self-insurer that ceases to self-insure, whether by voluntary termination or by revocation of license, shall continue to secure and be liable for its obligations under the Act and shall continue to report to the Commissioner pursuant to G.S. 97-180. Upon the request of the Commissioner, a self-insurer that ceases to self-insure shall submit filings, as prescribed in G.S. 97-180, to determine whether the deposit is sufficient to satisfy those workers’ compensation obligations incurred during the period that the self-insurer was licensed as a self-insurer. The Commissioner may require an increase in the deposit amount or may grant a reduction in the deposit amount to ensure that the deposit is sufficient to cover all existing and future obligations incurred by the self-insurer while subject to the provisions of the Act.
  13. An endorsement to a surety bond shall be filed with the Commissioner within 90 days after the effective date of the endorsement.

History. 1997-362, s. 4; 2003-115, ss. 3, 4, 5; 2005-400, s. 13; 2009-242, ss. 2, 3, 4; 2011-196, s. 11.

Effect of Amendments.

Session Laws 2003-115, s. 3, effective January 1, 2004, rewrote the section heading; in subsection (a), substituted “not less than fifty percent (50%)” for “equal to twenty-five percent (25%)” and inserted “greater”; repealed subsection (b) regarding compliance of self-insurer; added subsection (b1); added the second sentence in subdivision (c)(4); added subdivisions (c)(4a) and (c)(4b); and inserted the present third sentence in subsection (e).

Session Laws 2003-115, s. 4, effective January 1, 2005, in subsection (a), as amended by s. 3, substituted “not less than seventy-five percent (75%)” for “not less than fifty percent (50%).”

Session Laws 2003-115, s. 5, effective January 1, 2006, in subsection (a), as amended by ss. 3 and 4, substituted “not less than one hundred percent (100%)” for “not less than seventy-five percent (75%).”

Session Laws 2005-400, s. 13, effective January 1, 2006, deleted subsections (a) and (b1); added subsections (a1), (b2), and (b3); rewrote subsections (g) and (h); and made minor stylistic changes.

Session Laws 2009-242, ss. 2 through 4, effective July 1, 2009, in subdivision (a1)(3), substituted “their” for “it’s” near the middle, and deleted “from participation in the Association Aggregate Security System” from the end; added subdivision (a1)(4); and in subsection (b3), substituted “fifty percent (50%)” for “twenty-five percent (25%)” in the first sentence.

Session Laws 2011-196, s. 11, effective July 1, 2011, in subdivision (a1)(2), substituted “or Moody’s ratings if a minimum debt rating has been established by the Board of Directors of the North Carolina Self-Insurance Security Association” for “and Moody’s ratings established in the written plan” and deleted “submitted by the Association and approved by the Commissioner under G.S. 97-133(a)(2a)” from the end.

CASE NOTES

Surety bond of an employee’s former employer was improperly released by the North Carolina Department of Insurance, pursuant to G.S. 97-185(h), because the employer had not secured its obligations under the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., when it sold the division for which the employee worked to a buyer that later went bankrupt, in a manner compliant with G.S. 97-185(g); therefore, the North Carolina Industrial Commission could order the employer to pay the employee’s disability award. Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 615 S.E.2d 350, 2005 N.C. App. LEXIS 1315 (2005).

§ 97-190. Excess insurance.

  1. Every self-insurer, as a prerequisite for licensure under this Article, shall maintain specific and aggregate excess loss coverage through an insurance policy. A self-insurer shall maintain limits and retentions commensurate with its risk. A self-insurer’s retention shall be the lowest retention suitable for the self-insurer’s exposures and level of annual premium. The Commissioner may require different levels, or waive the requirement, of specific and aggregate excess loss coverage consistent with the market availability of excess loss coverage, the self-insurer’s claims experience, and the self-insurer’s or guarantor’s financial condition.
  2. An excess insurance policy required by this section shall be issued by either an insurance company licensed in this State, a captive insurance company licensed in this State, or an eligible surplus lines insurer as defined in G.S. 58-21-10 and shall:
    1. Provide for at least 30 days’ written notice of cancellation by registered or certified mail, return receipt requested, to the self-insurer and to the Commissioner.
    2. Be renewable automatically at its expiration, except upon 30 days’ written notice of nonrenewal by certified mail, return receipt requested, to the self-insurer and to the Commissioner.
  3. Every self-insurer shall provide to the Commissioner evidence of coverage and any amendments within 30 days after their effective dates. Every self-insurer shall, at the request of the Commissioner, furnish copies of its excess insurance policies and amendments.

History. 1997-362, s. 4; 2005-400, s. 14; 2013-116, s. 5.

Editor’s Note.

Session Laws 2013-116, s. 8, provides: “Nothing in this act shall be construed to obligate the General Assembly to appropriate funds to implement the provisions of this act. This act becomes effective July 1, 2013, if funds are appropriated for the 2013-2015 fiscal biennium to provide the Department with regulatory staff and resources to license and regulate captive insurance companies. If no funds are appropriated, then this act shall not become effective until July 1 of a year in which the General Assembly appropriates funds to implement it.” Funds were appropriated for the 2013-2015 fiscal biennium during the 2013 Regular Session of the General Assembly.

Effect of Amendments.

Session Laws 2005-400, s. 14, effective January 1, 2006, inserted “or guarantor’s” preceding “financial condition” in subsection (a); and substituted “an insurance company licensed in this State or an eligible surplus lines insurer as defined in G.S. 58-21-10” for “a licensed insurance company or an approved surplus lines insurance company” in subsection (b).

Session Laws 2013-116, s. 5, inserted “, a captive insurance company licensed in this State,” in the introductory language of subsection (b). For effective date, see editor’s note.

§ 97-195. Revocation, suspension or restriction of license.

  1. Repealed by Session Laws 2005-400, s. 15, effective January 1, 2006.
  2. The Commissioner may, upon at least 45 days notice and opportunity for a hearing, revoke, suspend, or restrict the license of a self-insurer if any of the following apply:
    1. The self-insurer fails or refuses to comply with any law, order, or rule applicable to the self-insurer.
    2. There is a determination of insolvency by a court of competent jurisdiction.
    3. The self-insurer is in a hazardous financial condition.
    4. The self-insurer has experienced a material loss or deteriorating operating trends, or has reported a deficit financial position.
    5. Any affiliate or subsidiary is insolvent, threatened with insolvency, or delinquent in payment of its monetary or any other obligation.
    6. The self-insurer has failed to pay premium taxes pursuant to Article 8B of Chapter 105 of the General Statutes.
    7. Contingent liabilities, pledges, or guaranties that either individually or collectively involve a total amount that in the Commissioner’s opinion may affect a self-insurer’s solvency.
    8. The management of a self-insurer has failed to respond to the Commissioner’s inquiries about the condition of the self-insurer or has furnished false and misleading information in response to an inquiry by the Commissioner.
    9. The management of a self-insurer has filed any false or misleading sworn financial statement, has released a false or misleading financial statement to a lending institution or to the general public, or has made a false or misleading entry or omitted an entry of material amount in the filed financial information.
    10. The self-insurer has experienced, or will experience in the foreseeable future, cash flow or liquidity problems.
    11. The self-insurer has failed to make proper and timely payment of claims, as required by this Article.
    12. Failure to pay any North Carolina Self-Insurance Security Association assessments made pursuant to G.S. 97-133.
    13. Failure to participate in the Association Aggregate Security System or, if excluded from participation in the Association Aggregate Security System, failure to provide and maintain the deposit required by G.S. 97-185.
  3. Repealed by Session Laws 2005-400, s. 15, effective January 1, 2006.
  4. Any self-insurer subject to license revocation, suspension, or restriction under subsection (a1) of this section may request an administrative hearing before the Commissioner to review that order. If a hearing is requested, a notice of hearing shall be served, and the notice shall state the time and place of hearing and the conduct, condition, or ground on which the Commissioner based the order. Unless mutually agreed upon between the Commissioner and the self-insurer, the hearing shall occur not less than 10 days nor more than 30 days after notice is served and shall be either in Wake County or in some other place designated by the Commissioner. The Commissioner shall hold all hearings under this section privately unless the self-insurer requests a public hearing, in which case the hearing shall be public. The request for a hearing shall not stay the effect of the order.

History. 1997-362, s. 4; 2003-221, s. 15; 2005-400, s. 15.

Effect of Amendments.

Session Laws 2005-400, s. 15, effective January 1, 2006, rewrote this section.

§ 97-196. Civil penalties or restitution for violations; administrative procedure.

  1. Whenever the Commissioner has reason to believe that a self-insurer has violated any of the provisions of this Article, and the violation subjects the license of the self-insurer to suspension or revocation, the Commissioner may, after notice and opportunity for a hearing, proceed under the appropriate subsections of this section.
  2. If the Commissioner finds a violation of this Article, the Commissioner may, in addition to or instead of suspending or revoking the license, order the payment or a monetary penalty as provided in subsection (c) of this section or petition the Superior Court of Wake County for an order directing payment of restitution as provided in subsection (d) of this section, or both. Each day during which a violation occurs constitutes a separate violation.
  3. If the Commissioner orders the payment of a monetary penalty pursuant to subsection (b) of this section, the penalty shall not be less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000). In determining the amount of the penalty, the Commissioner shall consider the degree and extent of harm caused by the violation, the amount of money that inured to the benefit of the violator as a result of the violation, whether the violation was committed willfully, and the prior record of the violator in complying or failing to comply with laws, rules, or orders applicable to the violator. The clear proceeds of the penalty shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2. Payment of the civil penalty under this section shall be in addition to payment of any other penalty for a violation of the criminal laws of this State.
  4. Upon petition of the Commissioner, the court may order the self-insurer who committed a violation specified in subsection (b) of this section to make restitution in an amount that would make whole any person harmed by the violation. The petition may be made at any time, and the petition may be made in any appeal of the Commissioner’s order.
  5. Restitution to any State agency for extraordinary administrative expenses incurred in the investigation and hearing of the violation may also be ordered by the court in such amount that would reimburse the agency for the expenses.
  6. Nothing in this section prevents the Commissioner from negotiating a mutually acceptable agreement with any self-insurer as to the status of the self-insurer’s license or as to any civil penalty or restitution.
  7. Unless otherwise specifically provided for, all administrative proceedings under this Article are governed by Chapter 150B of the General Statutes. Appeals of the Commissioner’s orders under this section shall be governed by G.S. 58-2-75.

History. 2005-400, s. 16.

§ 97-200. Claims administration.

  1. A self-insurer shall not utilize any claims adjuster unless the adjuster is licensed under G.S. 58-33-26.
  2. Every self-insurer shall comply with the provisions of Article 47 of Chapter 58 of the General Statutes that are related to claims administration.

History. 1997-362, s. 4; 2015-264, s. 53.

Effect of Amendments.

Session Laws 2015-264, s. 53, effective October 1, 2015, substituted “G.S. 58-33-26” for “G.S. 58-33-25” at the end of subsection (a).