NC Court of Appeals' Latest Decisions on Workers' Compensation and Medical Malpractice

Earlier this month, the North Carolina Court of Appeals issued several notable decisions. In Soder v. Corvel Corp., the Court effectively reminded workers' compensation litigants to timely file their appeals to the Industrial Commission. In this case, after noticing his appeal of the Deputy Commissioner's decision to the Full Commission, the plaintiff missed his deadline for filing his brief and Form 44 setting out his grounds for appeal. The Full Commission dismissed the appeal because plaintiff's brief was ultimately filed 21 days late, and the Court upheld the dismissal. To make matters worse, plaintiff also failed to preserve his arguments that the Commission should have used its discretion to waive the deadline.

In Hawkins v. SSC Hendersonville Operating Company, the Court again addressed the locality rule for medical malpractice cases -- the requirement that the plaintiff must produce an expert witness who can testify to a familiarity with the standards of practice in the same or a similar community as the defendant. Although many medical fields effectively have a national standard of care, i.e. practices and standards that do not vary with geography, North Carolina remains bound to the old-fashioned locality rule. In this case, plaintiff sought to establish the standard of care applicable to the care provided to her 86-year-old husband by defendant nursing home through the testimony of three medical experts. Because these witnesses testified regarding a national standard of care rather than the standards of practice in the community in which defendant is located, the Court directed that judgment be entered for the defendant.

And in Pepper v. Norandal, USA, plaintiff appealed the denial of his workers' compensation claim that he contracted asbestosis as a result of exposure to asbestos in the course of his employment with Norandal. Several other co-employees had also brought similar claims, some of which were also decided by the Court on appeal too. Here, the Industrial Commission found that plaintiff had indeed been exposed to asbestos in his employment, but found that he had not yet developed asbestosis. The Court affirmed the decision.