Your work injury won’t be covered if it doesn’t meet NC’s definition of an ‘accident’

Deborah Lewis was on a stepladder, reaching overhead for products to stock shelves at a Lowe’s north of Asheville, when a 30-pound box of nails started to slip from her grasp.

At once, Lewis says, she hollered a warning to those below and felt a pop in her right shoulder as she maneuvered the box onto the nearest shelf.

The injury on Feb. 11, 2015, turned out to be a torn rotator cuff – the muscles and tendons that hold the arm in its socket. It required two surgeries.

It also landed Lewis in North Carolina’s workers’ compensation system, an experience that left her bitter and incredulous. Her attempt to recover tens of thousands of dollars in medical costs and lost pay ran smack into a 90-year-old state law that is one of the harshest in the nation.

Her total recovery from the workers’ compensation system: Zero.

The law borrows language from a late-1800s British statute – language that was interpreted far more favorably for 19th century English workers than it has been in North Carolina for the last 60 years. Under North Carolina’s law, employers and their insurers are spared the costs of on-the-job injuries unless a worker was hurt as the result of an “accident,” such as a slip, trip or fall.

A panel of the state Industrial Commission, which adjudicates disputed workers compensation claims, found that Lewis wasn’t hurt in an accident because she did not tell her supervisor that her shoulder popped after she moved the box. Thus, she was hurt while doing her normal job and was ineligible for benefits to cover her medical costs and lost pay, the commissioners found.

What’s covered, what’s not

The recognition that large numbers of ailing workers were being denied compensation under a court interpretation of the law dating to 1957 prompted the legislature to exempt back and neck injuries in 1983, hernias in 1987 and later some repetitive motion injuries defined as diseases.

But Lewis and other North Carolina workers who injured a shoulder, knee, hand or limb at workplaces ranging from a bridal shop to a Goodyear tire factory haven’t gotten a dime from a no-fault system that was supposed to aid them if they got hurt on the job.

“If you’re a furniture mover removing a piece of furniture after 1983, and you throw your back out, that’s compensable. However, if you’re the same furniture mover and you tear up your knees, that’s not compensable,” said Will Snyder, a Winston-Salem plaintiffs’ attorney who has studied the history of North Carolina’s statute.

How many injured workers are denied benefits on grounds they were hurt while doing their normal jobs is an elusive figure. Data is not publicly available on the number of times that employers or their disability insurers deny claims for this reason, and the state Industrial Commission does not break out how many claims it denies each year because the workers’ injuries didn’t result from an accident.

The impact on some workers has been profound.

Lewis, who also has battled back problems, said her first-ever shoulder injury rang up $30,000 in medical costs. She initially won her workers’ compensation claim in 2016 before an Industrial Commission hearing officer who found that losing control of the box involved “an unusual exertion,” but the next year a panel of the commission reversed the decision.

Lewis lost a year’s wages from her $11.50-an-hour job, to which she could not return because of medical restrictions. Eventually, she couldn’t pay her rent. With collection agencies hovering, Lewis said she is still pressing for her health insurer to pay her medical costs.

Now, at age 56, Lewis is living with her parents while collecting a monthly check from the railroad industry for total disability, stemming from a back injury she suffered years ago. Without her parents’ help, she said, she would be living near the poverty line.

Now, at age 56, Lewis is living with her parents while collecting a monthly check from the railroad industry for total disability, awarded after she left Lowe’s for a back injury she suffered years ago. Without her parents’ help, she said, she would be living near the poverty line.

“You’re working for them and protecting their merchandise,” Lewis said of Lowe’s. “But they’re not protecting you.”

Lewis’ attorney, Louise Root, said she spent hundreds of hours on the case and lost thousands of dollars.

Steve Salazar, a spokesman for Lowe’s Companies, Inc., the national home improvement retailer headquartered in Mooresville, said that “as this is related to litigation, the company has no comment at this time.”

One of the toughest laws

The flow of claim denials by the Industrial Commission on grounds that workers were injured while doing their normal jobs – decisions usually upheld by North Carolina’s appeals court and the state Supreme Court – has drawn sharp criticism from those representing the workers.

Doug Berger, a former Democratic state senator who worked previously as a commission hearing officer, described as “immoral” a 1957 Supreme Court interpretation of the law that still holds today. The legislature should have fixed it long ago, he said.

“There’s no moral logic to the interpretation,” said Berger, now a plaintiffs’ attorney specializing in workers’ compensation cases for the law firm of James Scott Farrin. “It’s an irrational law, and the only reason it continues to exist is the power that big industry and insurers wield.”

At least 33 states have adopted what are known as injury-by-accident standards, but some consider an injury itself to be an accident. North Carolina’s law stood alone as the toughest, until 2005, when Missouri backed off a shift to a more moderate interpretation.

The laws reflect a longstanding attempt by businesses to screen out claims for injuries that would have afflicted workers regardless of their jobs.

Henry Byrum, a longtime Charlotte defense lawyer in workers’ comp cases, said the burden on workers to prove something unusual caused their accidental injuries was in place when he started practicing workers’ compensation cases in the early 1980s.

“The law says that’s the way it is,” he said.

Just doing their jobs

The cases can hinge on a worker’s account of what happened in a span of a second or two.

“The cases are always fact-specific,” Byrum said, “and then you have to add in the element of credibility — whom the Industrial Commission is ultimately going to believe.”

Byrum emphasized that the disputes over causation represent a small slice of the roughly 70,000 workers compensation claims filed each year.

“An overwhelming majority of claims are just processed and handled without it ever moving into litigation,” he said.

But scattered among records of some 5,000 cases adjudicated each year are decisions denying coverage for workers injured while just doing their jobs, seemingly the purpose of the workers’ compensation system.

Jasmine Lea, at the time a 25-year-old stylist for David’s Bridal of Greensboro, tore the meniscus cartilage in her right knee on Oct. 6, 2014, while kneeling to pull a size 12, mermaid-style wedding dress over the hips of a woman she described as a “curvy bride” who normally wore a size 16. In 2017, a panel of the full commission denied her claim for medical costs, including surgery, and eight months’ lost pay, finding no evidence of an accident.

State employee Christopher Lampkins, a correctional officer for the Dan River Prison Work Farm near the Virginia border, tore his rotator cuff in January 2016 during a routine drill in which he and other guards practiced procedures for extracting a prisoner from his cell. The full commission found that Lampkins failed to show his injury “resulted from a fortuitous event, an interruption of his work routine or an unusual task.”

Court rulings

At the Goodyear Tire and Rubber Co.’s Fayetteville plant, where many of the 2,000 workers routinely lift and pull tire tread, dyes and other tire components weighing 40 to 100 pounds, machine operator Timothy Butler tore a tendon in his left bicep and strained his shoulder on April 8, 2015.

Butler, who had worked at the plant for 18 years, reported his injury but continued to work over the next six weeks until he felt a pop in his shoulder, leading to surgery. In denying his claim, a panel of the full commission found Butler was doing his normal job when he was hurt and did not claim, until later, that he also felt pain in his biceps when he jumped back because a hole in his safety gloves exposed him to high heat.

Numerous employees at the Goodyear plant have been unable to collect benefits over the years due to the “accident” requirement, Terry Brewington said in a phone interview earlier this year before stepping down as president of United Steelworkers Local 959, which represents most of the plant’s employees. Brewington, who served on state Labor Commissioner Cherie Berry’s 11-member Occupational Safety and Health Advisory Council, said he complained about the issue to state legislators at a luncheon.

“(Union) members come to me every week who didn’t get coverage because they didn’t slip, trip or fall,” he said. “I had to call an attorney to help them get money that they are entitled to. ... It has been a battle.”

North Carolina’s law was shaped in a series of state Supreme Court rulings that swung back and forth between its 1929 passage and 1957 as the justices struggled to address the statute’s failure to define what constitutes an “accident.”

The court initially took a liberal posture, emphasizing the law’s remedial purpose and saying benefits should not be denied due to “technical, narrow and strict interpretation.” Effectively it aligned with Britain’s original interpretation: that an on-the-job injury is itself an unexpected event that qualifies as an accident, according to a 1980 North Carolina University Law Review article by Daniel Pollitt.

In a 1936 case, however, the court swung in the other direction, with a far-reaching finding that “there must be an accident followed by an injury” to be compensable, and the accident must stem from an external, “fortuitous” event.

The court wrestled further with the definition of accident in the ensuing years, reopening the door for more workers to recover benefits until 1957, when it reverted to the 1936 interpretation in a ruling that has stood up for more than 60 years.

Berger and other plaintiffs’ attorneys said that for years, they were able to skirt the law’s tough standard with creative arguments to sympathetic hearing officers at the Industrial Commission.

But the ideological leanings of the commission and most of its nearly two dozen deputy commissioners, who serve as hearing officers, took a rightward turn after pro-business Republicans seized control of the legislature in the 2010 election and the governorship in 2012. Eventually, most of the deputy commissioners and some commissioners were replaced, in some cases with former defense attorneys for insurers or others with pro-business leanings.

Durham attorney Matthew Harbin said he and other plaintiffs’ lawyers, recognizing the longer odds, still represent many workers whose injury claims have been denied. But hundreds of potential clients also have been turned away in recent years by attorneys across North Carolina out of concern they were hurt without the occurrence of an unusual event, said Harbin, also a partner at James Scott Farrin, which has a statewide workers’ compensation practice.

“It does have a chilling effect on which injured workers are able to find a lawyer to help them,” said Charlotte attorney Bobby Bollinger. “Without a competent lawyer to help them, there’s no way to get any relief.”

After an injury

Injured workers are often still tending to the pain when they are unknowingly drawn into a cat-and-mouse game between employers and plaintiffs’ attorneys seeking to frame facts around the accident standard.

Many of the injured are promptly referred to a disability insurer, whose adjusters typically record audio of an interview asking if anything unusual occurred.

Union leader Brewington said Goodyear moves even faster. Whenever an injury occurs at the plant, the affected worker is promptly asked to fill out a company form. On it, he said, workers frequently acknowledge that they were doing their usual jobs when they felt pain, without recognizing the statement’s importance.

Barbara Hatala, a corporate spokeswoman for Ohio-based Goodyear, said “safety is our number one priority at Goodyear, and we are committed to compliance with all applicable laws, including the North Carolina Workers’ Compensation Act.”

“Compensability determinations are made by our insurance provider in North Carolina, with each claim assessed on its individual merits,” she said.

But Harbin said the Goodyear plant has further compounded workers’ legal challenges by taking the position that many of its jobs are dangerous, meaning injuries are no accident.

Instead of creating a safer workplace, Harbin charged, Goodyear has “tried to write away their liability.”

“Goodyear is incentivized by the law to do little to fix a consistently dangerous environment,” so injuries can’t be blamed on accidents, he said. If working conditions are “occasionally dangerous, then the company is vulnerable” to workers compensation claims, Harbin said.

Goodyear did not respond to queries about that allegation.

Workers’ wins and losses

As for Lewis, a commission hearing officer ordered Lowe’s to cover her medical costs and to pay her $282 in weekly disability, though 25% of her award was allocated to her attorney. The company appealed and won. The state appeals court upheld the ruling.

A claim filed by Janet Thorne, a teacher at a Durham day care center, rested on whether a plump infant kicked in an unusual way while Thorne changed her diaper. Berger, who represented Thorne, said her arm was yanked across her body, tearing her rotator cuff.

The initial hearing examiner denied Thorne’s claim, but a commission appeals panel found that the baby’s forceful kick was unexpected, qualifying as an accident.

Thorne, a single mother, was sidelined for several months. She said she kept afloat by putting $18,000 in debts on four credit cards.

“I discovered I could buy food from Amazon,” she said.

Thorne said the episode so strained relations between her and her boss that she ultimately quit and took a job with another facility in September 2016.

“I think it’s so unfair,” she said of North Carolina’s law. “To learn that if you do the same task over and over, it has to be an extraordinary event for them to cover it? I felt betrayed.”

This story was originally published December 19, 2019 at 6:00 AM with the headline "Your work injury won’t be covered if it doesn’t meet NC’s definition of an ‘accident’."