Industrial Commission Rule Changes Effective Dec. 1, 2018

By Holland Ferguson

The North Carolina Industrial Commission enacted rule changes effective Dec. 1, 2018.  The Commission issued a one-page overview of these changes.  In this one-page overview, the Commission highlighted the changes for filing medical motions and the requirement for insurance carriers, third-party administrators, and self-insured employers to have a primary contact person designated for all workers’ compensation matters.  That person’s contact information must be submitted to the Commission annually on July 1.  A copy of the annotated rule changes can be found here.

Appeal Dismissed for Procedural Errors

By Tara Muller

When appealing a workers’ compensation case, beware of hidden procedural traps. Workers’ compensation rules and appellate rules are two very different animals, according to the North Carolina Court of Appeals in Bradley v. Cumberland County (Zachary, J., November 20, 2018). Although the workers’ compensation rules of the Industrial Commission allow service by email when filing a document via its electronic data filing portal (EDFP), not so once the case is elevated to the appellate level. In Bradley, plaintiff filed his Notice of Appeal through the EDFP we all know and love. Understandably, (since nearly all workers’ compensation filings may be served electronically now), the plaintiff then served opposing counsel with the Notice of Appeal via email. However, according to the Court of Appeals, because the appellate rules – not the workers’ compensation rules – apply to appeals, service of the Notice of Appeal by email, and without a proper certificate of service or proof of receipt, was fatal. Appeal dismissed.

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Interested In Assisting With CLE? Let Us Know By Friday

By Holland Ferguson

Dear Section Members,

I hope everyone has had a wonderful summer. As many of you may know, we are in the process of planning two CLEs for our section. Click here for information on the Nov. 30 CLE. Details regarding the other CLE are forthcoming.

In addition, the NCBA has asked if our Section would be interested in assisting in planning a CLE related to social security disability. This CLE is currently set for Jan. 18, 2019 at the Bar Center in Cary. It is not anticipated that this CLE will be an advanced course as it will likely explore new rules/updates, hearing protocol, and hopefully include an ALJ or a panel to answer questions and provide best practices for social security disability. There is some overlap in practice between workers’ compensation and social security disability, so we wanted to inquire and see if anyone in the section was interested in co-planning this social security disability CLE. If you are interested, please reach out to either myself or Kate M. Leahy, Continuing Legal Education Manager for the North Carolina Bar, by Friday, Aug. 31, 2018.

Sincerely,

Holland B. Ferguson

 

Forget To Identify an Issue? No Problem!

By Tara Muller

Question: When a brief writer is drafting Contentions or a Full Commission brief and identifies a compelling argument about an issue which was never raised, what can she do?

Answer: Argue it anyway!

Thanks to the North Carolina Court of Appeals in Haulcy v. Goodyear Tire & Rubber (June 5, 2018), parties who fail to raise an issue in the Pre-Trial Agreement or even in the Form 44 to the Full Commission enjoy some well-deserved leniency, if the Industrial Commission deems the issue to be relevant.

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NC Court of Appeals Issues Decisions Analyzing Disability Post-Wilkes

By Elizabeth Ligon

 The Court of Appeals recently released two decisions that analyzed issues relating to disability – specifically, the burden of proving futility – post-Wilkes v. City of Greenville. In Adame v. Aerotek, an unpublished decision, Plaintiff sustained a low back injury in June 2013. After receiving conservative treatment with multiple doctors, Plaintiff was ultimately released with permanent work restrictions of no lifting over 40 pounds, with frequent lifting and carrying of objects weighing up to 25 pounds. Plaintiff sought ongoing temporary total disability benefits, but the Industrial Commission found he was not entitled to indemnity benefits or vocational assistance because Plaintiff failed to meet his burden of proving disability. Plaintiff appealed to the North Carolina Court of Appeals.

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Chair’s Comments: A New Blog, A Successful CLE and Annual Meeting On the Horizon

By Julie Hooten

On behalf of the Workers’ Compensation Section Council, I’d like to welcome you to the new Bar year and our new blog format! The Workers’ Compensation Section has transitioned from the Course & Scope newsletter to this new format. Our editors, Mark Atkinson and Heather Baker, have worked hard to make this transition as seamless as possible. The Course and Scope provided great articles for our Section members but we believe the new blog format will enable us to publish relevant material more quickly and in a format that is more accessible. Mark, Heather and I strongly encourage all Section members to submit articles and posts for our new blog. After all, our blog is only as meaningful as the content we provide.

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