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					    RISK ALERT
      THE MONTHLY BULLETIN FOR WORKERS’ COMPENSATION RISK MANAGERS


                                        CASE LAW UPDATE                                defendants acted reasonably in defending
                                                                                       against Burnham’s claim for rental payments.
                                        Attorney’s Fees Award; Reasonableness          Although Burnham argued that case law
                                              of Decision to Deny Claim                established that defendants had no valid
                                                                                       legal basis for resisting his request for
workers’ compensation                 Nicholas R. Burnham was paralyzed below          assistance with his rental expenses, the Court
employment law                     the waist when a log rolled off of a truck          disagreed concluding that neither case on
                                   and landed on him while he was working for          point specifically addressed the issue and
premises liability
                                   McGee Brothers. After his accident, Burnham         that defendants had provided modifications
insurance law and coverage         could not climb stairs and was forced to find       to the house where he lived and advanced
Business & commercial litigation   a     handicapped-accessible,      two-bedroom      payments to claimant for him to relocate but
civil litigation                   apartment, as he previously shared a third floor    had reasonably questioned their remaining
                                   apartment which was accessible only by stairs.      responsibility for his living conditions. The
construction litigation
                                   Defendants paid about $15,000.00 to modify          Court also rejected Burnham’s argument that
environmental law                  a house where Burnham lived until he was            defendants’ evidence did not demonstrate the
governmental & municipal Law       capable of living alone. Burnham alleged that he    existence of a valid legal issue and noted that
medical malpractice                needed a two-bedroom apartment so that he had       while the evidence may not have been directly
                                   an extra bedroom to store equipment, medical        on point, it did not justify a reversal of the
motor vehicle negligence
                                   supplies, and mobility assistance devices that he   Commissioner’s decision.
nursing home litigation            needed as a result of his accident. The parties
products liability                 disagreed as to the extent, if any, to which           Policy cancellation ineffective, carriers
professional liability             defendants should contribute to the ongoing                 for principal contractor and
                                   rental costs of a two-bedroom, handicapped-                   subcontractor both liable
real estate litigation
                                   accessible apartment for Burnham.
trucking & commercial                                                                      Jose Clemente Hernandez Gonzalez had
  transportation Law                   After a hearing, Deputy Commissioner            worked for Worrell Construction as a carpenter
                                   Houser granted Burnham’s request for housing        and then crew leader for about ten years. On
                                   assistance and awarded attorney’s fees pursuant     March 24, 2009, he rode home from a job site
please contact
                                   to N.C.G.S. § 97-88.1. Defendants appealed          as a passenger in defendant Worrell’s vehicle.
the attorneys at                   and the Full Commission found that, under the       Defendant Lamm was the general contractor
tcdg with questions                circumstances, it was reasonable for defendants     for the project and defendant Worrell was the
concerning the                     to pay for half of Burnham’s costs in renting       sub-contractor. On the way home, another
                                   a     handicapped-accessible,     two-bedroom       employee drove defendant Worrell’s vehicle
articles in this
                                   apartment because the need for an additional        off the road and into a tree. As a result
newsletter                         bedroom to store his various supplies and           of the accident, Gonzalez was rendered a
                                   equipment from his general living quarters was      quadriplegic. Defendant Worrell was insured
raleigh                            medical compensation under N.C.G.S. § 97-25,        by Cincinnati Insurance Co., and defendant
                                   but denied Burnham’s claim for attorney’s fees.     Lamm was insured by Builders Mutual.
919-873-0166
                                   Burnham appealed the Commission’s denial of
                                   attorney’s fees.                                       The matter was initially heard by
asheville                                                                              Deputy Commissioner Adrian Phillips, who
828-254-4515                          On June 19, 2012, in Burnham v. McGee            found defendants Worrell/Cincinnati and
                                   Bros. Co., Inc., the Court concluded that the       defendants Lamm/Builders Mutual jointly
                                   Commission did not err in determining that          and severally liable to Gonzalez for his injury.
www.tcdg.com
           JULY          2012               VOLUME                  14                 NUMBER                   6
Both defendants filed separate Motions for          the testimony of a postal worker that the          Risk Handing Hint: Insurers need to take
Reconsideration: Cincinnati on the basis that       cancellation had been delivered, the Court         great care to ensure that policies are properly
it had cancelled its policy with Worrell and        noted that Cincinnati could only establish         and completely cancelled according to
Lamm/Builders Mutual seeking to have the            that cancellation had started but not that it      N.C.G.S. § 58-36-105(b) to avoid liability,
Deputy Commissioner modify the award, both          was completed. There was also evidence that        including obtaining the “green card” showing
of which were denied. Defendants appealed           Worrell continued to pay premiums and that         that the cancellation has been delivered. It is
to the Full Commission who affirmed the             Cincinnati had failed to provide a non-renewal     not enough to establish that the cancellation
Deputy Commissioner’s award but held that           notice. As a result, the policy was in effect      process was initiated; completion of the
defendant Lamm/Builders Mutual would only           on the date of the accident and Cincinnati was     process is critical.
be liable for disability benefits if defendant      jointly and severally liable to Gonzalez for his
Cincinnati defaulted in payments. Defendant         injury.
Cincinnati appealed to the Court of Appeals,                                                                       Asbestosis; Coverage
and defendant Lamm/Builders Mutual filed a              The Court also found that the Commission
cross-appeal.                                       did not err in finding defendants Lamm/                On June 14, 2012, the Supreme Court
                                                    Builders Mutual liable because of their failure    reversed in part and remanded the Court
    On June 19, 2012 in Gonzalez v. Worrell         to obtain a certificate of insurance. Defendants   of Appeals decision Mauldin v. A.C.
et al., the Court of Appeals concluded that the     Lamm and Builders Mutual became liable to          Corporation which was originally included
Commission did not err in finding defendant         the same extent as the subcontractor under         in the December 2011 edition of Risk Alert.
Cincinnati jointly and severally liable to          N.C.G.S. § 97-19 by failing to obtain the          For the reasons stated in Judge Beasley’s
Gonzalez. The Commission relied on N.C.G.S.         certificate of insurance for the project that      dissenting opinion, the Supreme Court
§§ 58-36-105(b) and 58-36-110(b) and found          resulted in Gonzalez’s injury. The Court further   reversed the Court of Appeal’s finding that the
Cincinnati’s policy was still in effect at the      held defendants Lamm/Builders Mutual liable        Commission properly found and concluded
time of the accident. Cincinnati was unable         in the event that Cincinnati defaulted on its      that Argonaut was the carrier on the risk for
to produce a “green card” or other proof of         payments was not against legislative intent or     Mauldin’s asbestosis and remanded the case
service of the cancellation notice. Despite         public policy.                                     to the Full Commission.


    TCDG NEWS                                       disability benefits because he was allowed to
                                                    use a company vehicle to drive to and from
    TCDG’s George Pender and Courtney Britt         work. Plaintiff received an hourly wage
recently obtained a favorable decision from         from his employer prior to his injury and was
the Full Commission in a claim where Plaintiff      allowed to drive a company vehicle short
refused to return to her pre-injury position        distances. Unbeknownst to his employer,
                                                                                                        PLEASE CONTACT THE
with her employer. Defendants litigated the         Plaintiff had relocated and was actually               ATTORNEYS AT
employment refusal by first filing a Form 24        driving approximately 120 miles per day in the
and, later, defended the claim at two hearings      vehicle, a practice which was discovered upon
                                                                                                       TCDG WITH QUESTIONS
before Deputy Commissioner Stephenson and           review of the employer’s gas receipts.               CONCERNING THE
on plaintiff’s appeal to the Full Commission.
After the Form 24 was allowed and defendants            TCDG successfully argued that Plaintiff
                                                                                                          ARTICLES IN THIS
terminated benefits, plaintiff presented to a       failed to prove that his use of the vehicle was         NEWSLETTER
physician who had released her nine months          part of his wage contract and that his benefits
earlier, “tearful and persistent that she could     should be increased, prevailing on this issue
not return to her sedentary computer job.” In       before the Deputy Commissioner and Full                        RALEIGH
post-hearing depositions, an IME physician          Commission. Plaintiff also claimed that he
testified that plaintiff did not exhibit any pain   developed worsening headaches after his
                                                                                                                 919- 873-0166
or discomfort which would indicate she was          accepted right arm electrocution injury and/or
unable to work. Plaintiff also admitted at the      as a result of the implantation of a spinal cord
second hearing that she regularly drives three      stimulator to treat his arm pain. Plaintiff won
                                                                                                                  ASHEVILLE
hours each way to help care for her three           the right to depose a new headache specialist he             828-254-4515
grandchildren and had recently traveled twelve      saw after the initial hearing and the specialist
hours by car to board a five-day cruise to          testified that the headaches were related to
Mexico. The Full Commission affirmed Deputy         Plaintiff’s injury. Defendants asserted the             WWW.TCDG.COM
Commissioner Stephenson’s conclusion that           testimony of Plaintiff’s pain management
plaintiff unjustifiably refused the position        physician and treating neurologist. Ultimately,
offered by defendant-employer and allowed           the Full Commission ruled in favor of
defendants to suspend benefits beginning in         Defendants, concluded the headaches were
2009.                                               unrelated to the accepted work injury, and
                                                    ordered that Plaintiff resume vocational
    TCDG’s Courtney Britt recently obtained a       rehabilitation offered by Defendants. Plaintiff
favorable decision from the Full Commission         has chosen not to appeal the Full Commission’s
in a claim where Plaintiff argued he was owed       decision and has asked to reinitiate settlement
nearly $200 more per week in temporary total        discussions.

				
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