Today's Workers' Compensation Decisions by the North Carolina Court of Appeals

Alston v. Federal Express is another decision on workers' compensation liens, and how they are handled by superior courts under N.C.G.S. 97-10.2(j). In a 10.2(j) action, “the judge shall determine, in his discretion, the amount, if any, of the employer's lien, whether based on accrued or prospective workers' compensation benefits, and the amount of cost of the third-party litigation to be shared between the employee and employer.” The Court held that "cost" of third-party litigation does not include attorney fees, following the general rule that attorney fees are not included in "costs" unless expressly mentioned. The Court also found that the trial court had failed to make adequate findings on why it reduced the defendant's lien to $50,000. Accordingly, the Court reversed and remanded for additional findings.

The Court also issued two unpublished opinions, O'Neal v. Dreams Unlimited and Peters v. Onslow County School District. In both cases, the Court upheld the findings of the Industrial Commission becasue the Commission is the primary fact-finder in workers' compensation cases, and its decisions on the facts will be upheld on appeal if supported by any competent evidence in the record, a fairly minimal standard. The former case involved whether the plaintiff's workplace injury was aggravated by a subsequent car accident and whether back surgery was reasonably necessary. The latter case involved whether the plaintiff's spinal condition was causally related to a fall at work. In both cases, the Commission's decision was affirmed.

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