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  1. #1
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    Default Charlotte Observer Criticizes Our North Carolina "Injury by Accident" Rule

    Here is an article that ran today in the Charlotte paper, and last week in the Raleigh paper, discussing NC's big "trap for the unwary"- our "injury by accident" rule.

    I long ago lost count of how many injured workers I had talked to who got their cases denied when they gave a recorded statement to the insurance or to the employer and failed to mention the little details that described the "accident." The investigators don't ask for these details; they only want enough from you to justify denying the claim.

    This article talks about an accident being a "slip, trip or fall" and that is correct as far as it goes, but an accident can also be something much more subtle. But you will need a good lawyer to win if it is more subtle than a "slip, trip or fall."

    https://www.charlotteobserver.com/ne...238385643.html
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  2. #2
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    Default Re: Charlotte Observer Criticizes Our North Carolina "Injury by Accident" Rule

    complwyr
    This article talks about an accident being a "slip, trip or fall"
    To be fair, it does say "such as a slip, trip or fall" not "being a "slip, trip or fall" - a big difference.
    They're not defining an accident as a "slip, trip or fall" but saying that's one example.

    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.
    https://www.charlotteobserver.com/ne...238385643.html

    The interpretation of the law cited in that article defines accident to be "an unlooked for and untoward event which is not expected or designed by the person who suffers the injury"
    In other words an intentional act isn't an accident.

    The Workmen's Compensation Act was enacted in 1929. At the Spring Term 1930 the word "accident," as used in the Act, was defined. Justice Adams said: "The word `accident,' as used here, has been defined as an unlooked for and untoward event which is not expected or designed by the person who suffers the injury." Conrad v. Cook-Lewis Foundry Company, 198 N.C. 723, 153 S.E. 266, 268.
    https://law.justia.com/cases/north-c...957/94-24.html

    I can think of a few dozen ways someone could be injured at work and none of them fall under that description, in fact a small percentage of industrial accidents are caused by a "slip, trip or fall"
    For them to attempt to limit the definition of an accident to a single cause is a perversion of the law - that's like saying a car crash isn't an accident unless you hit a tree, the idea is ridiculous.

    Causes of Industrial Accidents: 18 Major Causes
    Some of the causes of industrial accidents are:-
    1. Unsafe Conditions 2. Unsafe Acts 3. Machine Factors 4. Non-Machine Factors 5. Inherent Hazards or Nature of Job 6. Slipping, Tripping or Falling on the Floor 7. Collision and Obstruction 8. Equipments and Machines 9. Fire Hazards 10. Physical Causation Factors 11. Underlying Causation Factors 12. Poor Physical Conditions 13. Psychological Climate at the Workplace 14. Work Schedules 15. Technical Causes 16. Human Causes 17. Environmental Causes 18. Miscellaneous Causes.
    http://www.economicsdiscussion.net/i...r-causes/31631

    Tony
    Last edited by tony; 12-31-2019 at 07:33 AM.
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  3. #3
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    Default Re: Charlotte Observer Criticizes Our North Carolina "Injury by Accident" Rule

    Yeah, Tony, the law here in NC has developed over the years such that a minor, fairly subtle detail can sometimes constitute the "accident." But the courts still cite that exact definition you quoted from 1930.

    For example, I won a case a couple years ago for a man who was the "cheese specialist" at a supermarket deli, who tore up his shoulder lifting a heavy box of cheese in the cooler. The box was not marked, and he had not encountered that particular package of bulk cheese before, so he had no idea how much it weighed. But, moving the cheese in the cooler was part of his job. When he picked it up off the floor, the unexpected weight of it took him by surprise and he tore his rotator cuff. The carrier denied it-- "no injury by accident" -- But I litigated it and won the case for him. The unexpected weight of the box was enough to qualify as the necessary accident.

    Injured workers in NC often lose their cases when they report the injury to the employer and its carrier, or when they tell the initial medical provider how they got hurt, because they do not give the details of the "accident" in their initial reports and statements. Later, after they get denied, they talk to a lawyer, who cross-examines them privately to get them to disclose all the details, and then when they get to court and add in those other details to the story, they are viewed as not being credible because they did not tell all the facts at the beginning. It is a big problem and I am constantly trying to educate working people here in NC about it.
    Last edited by complwyr; 12-31-2019 at 02:19 PM.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  4. #4
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    Default Re: Charlotte Observer Criticizes Our North Carolina "Injury by Accident" Rule

    complwyr
    here in NC has developed over the years such that a minor, fairly subtle detail can sometimes constitute the "accident." But the courts still cite that exact definition you quoted from 1930.
    That definition of what constitutes an accident as an "unlooked for and untoward event which is not expected or designed by the person who suffers the injury." is flawed.
    It assumes that we are all perfect, we never overlook anything, that we are 100% all the time - this flawed theory is known as the "Zero Accident Vision"
    Here's a good blog on this topic.

    Defining Accidents and Incidents
    The difference between accidents and incidents is like the difference between fingers and thumbs. Remember the old saying "All thumbs are fingers, but not all fingers are thumbs"? Well, incidents and accidents are kinda like that.
    Accidents are defined as: ...an unexpected event that may result in property damage, and does result in an injury or illness to an employee.
    Incidents, on the other hand, are:... an unexpected event that may result in property damage, but does not result in an injury or illness. Incidents are also called, "near misses," or "near hits."
    So both events are unplanned, both can present damage to places or things, but only accidents result in illness or injury to a person.
    Basically, by definition, all accidents are incidents, but not all incidents are accidents.


    Zero Accident Vision
    Organizations who follow the all accidents are preventable philosophy, also known as Zero Accident Vision, will avoid using the word accident and be proactive in their safety approach.
    Their core safety belief is that no one is injured in an accident. There may be flaws in a system or human error at play, but injuries and illnesses can be prevented by identifying and anticipating hazards before any harm occurs. Policies and procedures are implemented based on either past incidents, incidents in similar workplaces, and most importantly, from near misses/hits in their own organization.

    In an article for OHSonline.com, Larry Wilson suggests that zero accidents is not within the scope of human reality:
    The problem with "All injuries can be prevented" is that in order for this statement to be true, everybody would have to be watching what they were doing and thinking about what they were doing whenever they were moving. Because once they move or start to move, the only thing that tells them what they could be moving into is their eyes or their mind, with the exception of planes and ships that also use radar and sonar.
    But most of us aren't using radar or sonar when we are walking, working, or driving; we're using our eyes and our minds, though none of us do it 100 percent of the time.

    As much as we all like to think we have planned and prepared for every worst case scenario, the truth is that everyone overlooks something at some point. It is almost impossible to anticipate every single mistake or flaw that could lead to an illness or injury, regardless of how long organizations spend thinking of ways to make their workers safer.
    https://blog.safetysync.com/whats-th...-and-accidents

    True Story
    I know of a case where a machine operator at a sausage factory worked the same mixer for over twenty years - did the same job every day.
    A year before retirement while unloading a batch of meat, he overlooked one revolution of the grinder - his arm was sucked into the machine and he almost lost his life.
    Using the above rule, he wouldn't qualify for benefits, he should've known the hazard existed after twenty years - Because he is human and the repetition of doing the same job for years, this accident occurred, it's obvious he never intended to lose his arm and almost his life.

    Because this employee was injured in the course of his employment, the case was accepted and he received full benefits.
    These types of accidents happen everyday across this country, to say they're not accidents because the injured worker isn't perfect is ridiculous - these laws need to be repealed.
    In most states the requirement to qualify for benefits is the employee must be injured in the course and scope of employment, there are still exceptions to protect the employer from fraud - This should become the national standard.

    This word game about what defines an accident to qualify for benefits is irrelevant, a ruse and con - it wouldn't fly in the majority of todays courts.

    Workers Compensation and Course of Employment
    The key issue in determining whether an employee is in the course of employment is whether the employee is injured while actually engaged in the furtherance of the employer's business or affairs.

    Conclusion
    In general, the course of employment has been liberally interpreted by the courts. However, certain exceptions exist to protect the employer from questionable course of employment cases. An employee who is not furthering the interests of the employer is not considered within the course of employment. Further, an employee who breaks the law or violates work rules can be excluded from the course of employment but it is the burden of the employer to prove that exclusion.
    https://www.irmi.com/articles/expert...-of-employment

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  5. #5
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    Default Re: Charlotte Observer Criticizes Our North Carolina "Injury by Accident" Rule

    In NC, if the worker got his arm sucked into the grinder because he was not paying close enough attention to the hazard, that would still be an "injury by accident" and he would be covered. In NC, negligence or carelessness, contributory or otherwise, is irrelevant to the question.

    A lot of cases get litigated in NC on the question of whether the employee was acting "in the course and scope of his employment" and whether the risk that caused the injury "arose out of the employment." We have a lot of case law on the topic. In fact, I wrote a CLE paper a few years ago discussing this issues, which is posted on my firm website, in case anyone needs help falling asleep. (CLE = Continuing Legal Education-- the classroom seminars lawyers have to attend every year to keep their licenses current)

    Here is a link to it. https://www.bollingerlawfirmnc.com/a...sitional-risk/
    Last edited by complwyr; 01-02-2020 at 03:51 PM.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  6. #6
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    Default Re: Charlotte Observer Criticizes Our North Carolina "Injury by Accident" Rule

    I guess I misinterpreted what was posted and the caselaw cited in the above article.
    The point I was making is to limit the qualification for benefits based on a perverted definition of an accident is a ruse.

    The title of the article you cited is "Your work injury won’t be covered if it doesn’t meet NC’s definition of an ‘accident' "
    Even you said "NC's big "trap for the unwary"- our "injury by accident" rule.
    Based on these and other statements, I assumed this bogus "Injury by Accident" Rule outweighed whether the employee was acting "in the course of employment" or any other argument.

    I now feel better and will sleep well.
    Thanks for the clarification and link - very interesting!!

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

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