Latest COA Decisions on Workers’ Compensation

The North Carolina Court of Appeals published two decisions on workers’ compensation this month.  The first case, Kingston v. Lyon Construction, concerns workers’ compensation liens and third-party recoveries.  The plaintiff was exposed to asbestos on the job and developed illness as a result.  He was awarded workers’ compensation benefits, and brought and settled tort cases against manufacturers of the asbestos.  He then brought a motion to determine the workers’ compensation liens under N.C.G.S. § 97-10.2(j).  The Court of Appeals affirmed the trial court’s conclusions that the motion was proper even though only some of the third-party cases had been resolved, and that the workers’ compensation lien should be eliminated entirely because the third-party recoveries were reduced due to bankruptcies.

The second case, Nobles v. Coastal Power & Electric, concerns an issue of suitable employment.  The Industrial Commission had awarded temporary total disability benefits up to the time of the plaintiff’s maximum medical improvement, but did not find him disabled afterward.  The primary issue regarding disability concerned the defendant’s offer of a new position to plaintiff to accommodate his injury.

“The Workers’ Compensation Act provides that an injured employee is not entitled to compensation if he unjustifiably ‘refuses employment procured for him suitable to his capacity.'” N.C.G.S. § 97-32.  “Suitable employment is defined as any job that a claimant is capable of performing considering his age, education, physical limitations, vocational skills, and experience.”  However, “employers may not avoid paying compensation merely by creating for their injured employees makeshift positions not ordinarily available in the market.”  In this case, the Court upheld the Commission’s findings that the position offered to the plaintiff was suitable, and was not make-work because it had been offered previously and subsequently to others.