The North Carolina Court of Appeals has issued two workers' compensation cases of note in its latest batch of decisions. The first, Woodliff v. Fitzpatrick, concerned whether the plaintiff's employer had three or more employees. An employer is subject to the Workers' Compensation Act only if it "regularly employs" three or more employees. See N.C. Gen. Stat. § 97-2(1). "The term ‘regularly employed’ connotes employment of the same number of persons throughout the period with some constancy." The plaintiff was a framing carpenter who worked for a general contractor. The Court found that the plaintiff could not sufficiently prove that two other people worked with him on a regular basis, and also could not show that the other people who worked with him were employees rather than independent contractors. Nor is there any presumption of jurisdiction even though the plaintiff proved that at least he was an employee rather than contractor. Because the plaintiff could not meet his burden of proving that there were three or more employees, the Court concluded that Industrial Commission did not have jurisdiction over the claim.
The second case, Shupe v. City of Charlotte, concerned a police officer who injured her knee during her employment. Her knee did not recover, and it was eventually determined that she arthroscopic surgery. Charlotte opposed the surgery, which required the plaintiff to get an order from the Industrial Commission ordering the surgery. Unfortunately, by the time this order was obtained, plaintiff was diagnosed with pancreatic cancer. Her oncologist concluded that she could not have knee surgery because it would interfere with her cancer treatment. Without the knee surgery, plaintiff could not return to work. The Court affirmed the Industrial Commission's award of temporary total disability benefits to plaintiff because her inability to work was caused by a combination of the compensable right knee injury, her subsequent inability to obtain corrective surgery because of her cancer, and the effects of her cancer treatments. “Our courts have held that 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 G.S. § 97-29.” The Court also would not let Charlotte escape liability by creating a temporary light-duty position for the plaintiff. Because this position was a make-work temporary position, and not ordinarily available, it does not constitute suitable employment for the plaintiff to return to.