Is Cancer a Compensable Workers’ Compensation Claim?

Sometimes prospective clients ask whether they developed cancer as a result of their job. Most claims arise from accidents and obviously cancer is a slowly developing process. However, cancer can be an occupational-related disease for which medical and disability benefits may be awarded under the North Carolina Workers’ Compensation Act. A doctor must give his or her medical opinion to a reasonable degree of medical probability that the patient was at an increased risk of developing the disease (i.e. cancer) as compared to the general population, and did in fact develop the disease as a result of exposure to a cancer causing substance at work.


Case in point:  in September, a Texas firefighter was awarded workers’ compensation benefits after he developed lung, colon, and liver cancer. In the firefighter’s case, he had been a firefighter for over 20 years and was exposed to “carcinogens such as firetruck exhaust, heat, smoke, and chemicals.” The Texas administrative law judge awarded benefits, but keep in mind “Texas has a presumptive disability law that says firefighters and other first responders are presumed to have developed cancer while on the job under certain conditions.” Unfortunately, North Carolina does not have this presumption for our first responders and firefighters, and the burden of proof is more difficult in this state.


Here is a link to the OSHA website containing standards that apply to substances that are classified as carcinogens or potential carcinogens according to the National Toxicity Program.

Number of Workplace Fatalities Higher In 2014

According to a recent article published by the U.S. Department of Labor, workplace fatalities have increased from 4,585 in 2013 to 4,679 in 2014. This is the highest number of workplace fatalities since 2008 when 5,214 deaths were reported to the Department of Labor.

The most shocking rise in workplace deaths occurred in the oil-and-gas industry. There were 142 workers that died in the oil fields in 2014 which was 27% higher than the 112 workers that died in the fields in 2013. Other industries that saw a sharp incline in the number of employee deaths include construction, agriculture, manufacturing and mining. Female employee deaths also rose 13% from the previous year, mostly due to road accidents and homicides.

U.S. Secretary of Labor Thomas E. Perez issued the following statement: “Far too many people are still killed on the job — 13 workers every day taken from their families tragically and unnecessarily. These numbers underscore the urgent need for employers to provide a safe workplace for their employees as the law requires.”


Read more here: 

The Wall Street Journal: U.S. Workplace Fatalities Likely at Highest Level Since 2008 from Secretary of Labor on Fatal Occupational Injuries in 2014


Sometimes You Need Help

Last month our firm held a planning retreat in the beautiful town of Chapel Hill. We reaffirmed our firm’s slogan: “Accidents Happen, Sometimes You Need Help.”

Frequently we speak to injured workers during our free consultation about getting medical treatment. It’s frustrating and scary for an injured person to have to wait for authorization for surgery or a medical referral. Treatment delays are inefficient for everyone. It delays the recovery and, as a result, the return to work. Our goal is to expedite medical care when possible by following up with the workers’ compensation adjuster to have treatment approved and, if necessary, file a motion with the North Carolina Industrial Commission.

In a case I had last year, we were hired because the insurance company was dragging its feet authorizing an orthopaedic back doctor. After several communications, the adjuster agreed the referral to an orthopaedic back doctor was authorized. Sadly, the “orthopaedic doctor” that was authorized by the adjuster was actually a gynolcologist-obstetrician for my male client! Furthermore, it took several additional contacts to finally correct the situation and get my client to the appropriate doctor. Finally, my client was evaluated by an orthopaedic doctor, received medical treatment, and was also able to continue working.

Our firm sees these problems every day. I believe we (injured workers’ lawyers and insurance companies) should have a common goal:  Recovery and return to work. But “sometimes you need help” to get to that point.


Public Financing Makes Our Justices More Fair

A study titled “Does Public Financing Affect Judicial Behavior?…” was recently published by three political scientists who looked at North Carolina’s Supreme Court. From 2001 until 2013 (for eleven years) North Carolina had an optional public financing system, making it the perfect case study. The conclusion of the study? Yes. Public financing made justices on our Supreme Court more moderate and impartial= better. Specifically, the study showed that justices who opted-in to public financing for their campaigns were 60% less likely to vote in favor of donors who contributed to their campaigns than before they opted-in. That’s a notable change.

The foundation of our judicial system is impartiality and a fair day in court; and according to this recent study, when private donors fund judicial campaigns it threatens that impartiality and fairness. In 2009 the U.S. Supreme Court issued an opinion in Caperton v. Massey Coal Co. Inc., saying that an appellate judge in West Virginia who had recently accepted $3 million from the Massey Coal’s chairman and principal officer in his reelection campaign should have declined to participate in ruling on whether Massey should have to pay a $50 million jury verdict in a lawsuit for fraud. Surprisingly, this was a 5-4 decision. It seems pretty obvious to me that the West Virginia judge’s participation in Massey’s fate was questionable, whether or not he was fair, the appearance of his impartiality is what mattered.

Obviously, from this study it appears that public financing is the better method of judicial elections. Further studies need to be done to confirm the outcome and if this trend is accurate and continues, the legislature should change the election process.


We Need More People Like The Wright Brothers

Leonard Jernigan & Betsy Jernigan with David McCullough

My wife and I recently attended a presentation in Raleigh, N.C. by David McCullough, the Pulitzer Prize winning author and narrator of Ken Burns’ The Civil War, about his most recent book, The Wright Brothers. He explained that although neither Wilbur nor Orville had a college degree they were nevertheless well-read, intelligent, and extremely disciplined. They were also confident and did not let criticism get in their way.

Although they valued privacy they eventually became two of the most famous people in the world. They were thrown into a glamorous crowd as they demonstrated the ability to fly their plane in Paris, London and New York, and as they walked among the wealthy they commented that never in their lives “had they been among so many who, by all signs, had little to do but amuse themselves.”  

Wilbur died of typhoid fever in 1917 when he was just 45 years old. In 1932 (28 years after the original 1903 flight) Orville attended the ceremony in Kitty Hawk, N.C. that dedicated the impressive Wright Memorial. He died of a heart attack in 1948 at age 77, and approximately 25,000 people passed by his coffin out of respect. Both men were wealthy when they died and Orville had an estate worth about $10 million in today’s dollars, although wealth was never a motivating factor for them. They followed the wisdom of their father who said: “All the money anyone needs is just enough to prevent one from being a burden to others.” David McCullough’s book speaks volumes about their character, and leaves the reader wondering where such men are today.   

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Workplace Relationships

NY Times article “Friends at Work? Not So Much”

The New York Times recently published an op-ed claiming that the amount of people who seek or maintain friendships in the workplace has dropped in recent decades. Where people once looked to the workplace as a main source of long-term friendships, by 2004 only 30% of Americans said they had a close friend at work. The article cites several studies that show we communicate better and are more productive when we work with friends.


In workers’ compensation, we represent employees who have been injured on the job. More often than not when an injured worker calls our office they are upset by how they have been treated by their employer once they were injured, especially if they have worked there for a long time. If an employee develops a close relationship with their coworkers and their boss, when they get hurt on the job, they suddenly feel like those relationships were one-sided because they feel they are tossed aside as soon as they get hurt (oftentimes for no fault of their own).


Injuries at work can change workplace relationships. The employer often must hire a replacement, which requires additional expenses, and co-workers might feel they are caught in the middle. We often ask workers who call our office whether they are on good terms with their employer because when they are, things tend to go a lot easier. If you have friends at work and get injured, will that make the process better or worse? Would you feel that your employer and co-workers will go to bat for you or will you feel more hurt because people might distance themselves from you? I like to think the former. Either way it’s a safe bet for all parties to be open and honest with each other and most of all, be kind to each other- no one wants to get hurt.



Employee Injured during Employer Sponsored Laser Tag Event = Compensable.

One question that comes up frequently, or at least routinely, in North Carolina workers’ compensation claims involves employees injured while playing or participating in recreational activities while on-the-clock or part of an employer-sponsored team building event.


The North Carolina Supreme Court clearly answered this question in Frost v. Salter Path Fire & Rescue, 361 N.C. 181, 185, 639 S.E.2d 429, 433 (2007) when it held that the N.C. Workers’ Compensation Act applied to “injuries occurring during recreational and social activities related to employment” and that this “well established in the jurisprudence of North Carolina.”


Most recently, this issue again arose before the North Carolina Court of Appeals in Holliday v. Tropical Nut & Fruit Co., No. COA14-1030. In Holliday, the employee was attending an out-of-town mandatory sales and marketing conference. One of the activities that was part of the conference was a laser tag activity which was assigned by the employer to the employee. While Plaintiff was “covering the floor [of the laser tag arena],” he felt a sharp pain in his leg and had to stop playing the game. He immediately informed his manager of the injury.


The Court of Appeals affirmed the North Carolina Industrial’s Commission decision finding that Holliday’s leg injury “arose out of his employment” and accordingly awarded him medical and disability benefits. In its analysis, the Court of Appeals considered six factors: 


  1. Did the employer in fact sponsor the event?
  2. To what extent was attendance voluntary?
  3. Was there some degree of encouragement to attend?
  4. Did the employer finance the occasion to a substantial extent?
  5. Did the employees regard it as an employment benefit to which they were entitled as of right?
  6. Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through such tangible advantages as having an opportunity to make speeches and awards?


In the Holliday case, the Court of Appeals found that the employer financially sponsored the laser tag event, expressly mandated employee attendance, took attendance at the events, and benefited from the event. As a result, the injury was found to arise out of the employment and disability and medical benefits were awarded.



Recovering From A Torn Ligament: The Story of Tommy John

A sports agent called me recently about a baseball player who was about to have “Tommy John surgery” and asked whether it would be covered under workers’ compensation. I had heard about this surgery for years but never knew much about it, so I asked Elayna Slocum, a paralegal in my office, to do some research.

Tommy John was a professional pitcher for the Los Angeles Dodgers who, in 1974, damaged his ulnar collateral ligament (a thick band of tissue similar to a very strong rubber band that works with the lateral collateral ligament to stabilize and strengthen the elbow). Throwing activities place unusual levels of stress on the elbow, making injury to the area more likely in baseball players, but it also seen in other sports such as softball, football, tennis and golf. In 1974, this type of injury was considered to be a career-ending event for a professional baseball pitcher. However, Tommy John decided to have an Ulnar Collateral Ligament Reconstruction (UCLR), a procedure that was experimental at the time, to replace the injured ligament with a tendon from his other arm. Less commonly, a donor tendon may be utilized in lieu of the patient’s own tendon.

He was not expected to be able to pitch again, but after a year of rehabilitating his arm, the results were extraordinary. John was able to return to pitching in 1976 and went on to pitch professionally for thirteen more years. Thus, the UCLR procedure became commonly known as “Tommy John surgery.” Many athletes who have had this procedure report feeling that their arm is actually stronger than prior to surgery. The vast majority make a complete recovery and yes, it should be covered by workers’ compensation.

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