These articles exemplify cases accomplished by Bob Davidson. They are written and published by the North Carolina Lawyers Weekly (a statewide publication for attorneys throughout North Carolina).

Workers Compensation

Credibility-Back Injury-Fall From Scaffold-Temporary Employment

Even though, after he fell from a scaffold while working for the defendant-employer, the plaintiff was medically excused from work from May 24, 1999 through July 28, 1999, and even though the plaintiff worked for four days during this period for his father, a brick mason, this temporary, somewhat gratuitous employment did not demonstrate the plaintiff's ability to compete with others for wages.

The full commission reverses the deputy commissioner's denial of benefits.

The plaintiff has a large herniated disc at L4-5, and his doctor has recommended surgery.

"As a result of his injury and the resulting pain and need for futher medical treatment, including surgery, plaintiff has been unable to return to gainful employment since 24 May 1999."

"Having weighed the testimony of plaintiff's witnesses and witnesses for defendants, the full commission gives greater weight to plaintiff's evidence and finds plaintiff's claims to be credible."

"Plaintiff did not intentionally try to hurt himself when he fell from the scaffold."

"The fact that plaintiff complained of back pain and took prescription medicine for that pain before he fell from the scaffold does not, under the totality of the circumstances, negate plaintiff's credibility in this case."

The defendants shall pay total disability benefits beginning May 24, 1999 and continuing until the plaintiff returns to work or until further order of the commission. The defendants shall pay related medical expenses.

The defendants have not unreasonably defended this claim.

Ahrens v. Wolfe Construction, Inc. (Lawyers Weekly No. 1-08-0884, 7 pp.) (Riggsbee, Commissioner) Appealed from Opinion & Award of Jones, Deputy Commissioner. I.C. No. 937670.

 

Back Injury-Education, Work Experience-Limitations-Permanent, Total Disability

Where the plaintiff-mechanic has an eighth-grade education and a work history of only manual labor and mechanics, the limitations resulting from his compensable back injury render totally, permanently disabled.

The full commission affirms and adopts the deputy commissioner's award of benefits.

Statute cited: G.S. §97-29.
Allred v. Vann York Pontiac-Toyota.
(Lawyers Weekly No. ICO1352 - 8 pp.)
(Davis, Commissioner) Appealed from
Ford, Deputy Commissioner.

Full-Time Salesman Gets Comp Award For Loss Of Part-Time JobEven though a back claimant was able to work a 40-hour week selling appliances, he could still collect total disability benefits, the Industrial Commission has ruled.

The reason: his back pain knocked him out of a part-time job at a grocer store, where the back injury occurred.

The 2-1 ruling shows that total disability payments are justified when a worker holds down a full-time job but has a decrease in his overall earning capacity.

The ruling means the worker will get temporary total disability compensation form the grocery store to make up for his lost part-time wages.

The case is Welch v. Lee/Lowe's (North Carolina Lawyers Weekly No. 9-08-0359, 11 pages). The opinion was written by Commissioner Thomas Bolch, with Christopher Scott concurring.

Commissioner Renee Riggsbee dissented; saying the decision improperly treated the plaintiff as if his part-time job injury rendered him totally disabled. That clearly wasn't the case, she said.

The 53-year-old plaintiff worked 20 to 28 hours each week at a grocery store. The job required him to stock shelves, unload trucks, and cart items around the store.

He also worked 40 hours per week as a small appliance salesman for Spencer Parlier, Inc.

In 1994, he ruptured a disc while lifting a wooden pallet at the grocery store. After several rounds of medical treatment, including surgery, the plaintiff was left with a 15 percent permanent partial disability rating to his back.

He continued to work both jobs until 1995, when he again experienced severe back pain. A new doctor ordered him not to lift anything over 15 pounds or perform repetitive bending.

His supervisor at the store said he didn't have any jobs that met those restrictions. The plaintiff stopped working there on Oct. 3,1995.

He subsequently had a heart attack and bypass surgery, keeping him from all work until January 1996.

At the time of his comp hearing, the plaintiff tried to return to work at the grocery store but his back problems forced him to quit after a month.

The plaintiff's treating physicians agreed that he couldn't do the lifting, bending and stooping required to carry out his duties at the grocery store.

Wrote Commissioner Bolch: The real question there is whether plaintiff is entitled to temporary total disability benefits for his inability to now work in a part-time position as he was able to do prior to his injury by accident."

Ruling

The commission said the grocery store was on the hook for temporary total disability benefits.

"Prior to plaintiff's admittedly compensable injury by accident, he was able to and did work between sixty to sixty-eight hours per week, being paid $400 in his full-time position and $139.65 in his part-time position," the commission said.

"Although plaintiff is able to work 40 hours a week, he is unable at present to earn his pre-injury wages because prior to the injury he held two jobs," wrote Bolch.

"Since he is able to work 40 hours per week, it is fair and just that he continue with his full-time employer at 40 hours a week. Since the injury occurred on his part-time job, it is fair and just that such employer bear the entire burden of the consequences of the injury."

The result: the plaintiff was entitled to temporary total disability compensation at the rate of $93.10 per week "for the period of October 4, 1995 through the present and continuing until such times as plaintiff is able to return to his pre-injury earning capacity or until further order of the Industrial Commission."

Dissent

In her dissent, Riggsbee said the "plaintiff has not sustained a wage-earning disability under the act because he is capable of earning at his regular job the same (in fact, greater) wages that he was earning at the part-time job."

In support of that reasoning, she cited Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966). In that case, the court said that a part-time employer might escape liability for compensation if the claimant could still earn wages at his regular job.

"The employer and his carrier thus benefit from other wages plaintiff is still able to earn, but escape liability for other wages he is no longer able to earn," the Barnhardtcourt said.

 

Negligence/Auto

 

Motorist Recovers $445,804 On North Carolina Complaint After West Virginia Wreck

North Carolina Driver in West Virginia Wreck- Limitations-North Carolina Complaint-$445,804 Settlement-Comp Lien Reduced

Brief statement of claim: The plaintiff, a 60-year-old North Carolina man, was traveling on a West Virginia highway when an individual working for a construction crew drove his vehicle from off the highway into the path of the plaintiff's vehicle.

Principal injuries (in order of severity): Left knee replacement, shoulder rotator cuff tear requiring surgery, right knee injury, arthroscopic surgery. There was evidence of pre-existing medical conditions on the part of plaintiff, according to his attorney. The plaintiff made good recovery with permanent disabilities, according to his counsel.

Special damages: Medical expenses of $49,114; loss of income of $12,952; worker's compensation lien: $115,405

Tried or settled: Settled after complaint was filed in Guilford County to toll the statute of limitations in West Virginia. The defendants were given an open extension of time to review the case and negotiate a settlement, according to the plaintiff's counsel.

County where tried or settled: Guilford

Case name and number: Confidential

Date concluded: Jan. 2, 2002

Name of judge: n/a

Amount: $445,804; workers' compensation lien reduced to $41,547 and paid

Insurance carrier: n/a

Expert witnesses and areas of expertise: n/a

Attorney for plaintiff: Bob Davidson Jr. of the Law Firm of Bob Davidson Jr., High Point; and Perry C. Henson Jr. of Henson & Henson, L.L.P., Greensboro.

Other useful info: The defendant was not represented by counsel, according to the plaintiff's counsel.

 

Family Law

North Carolina Lawyers Weekly - Domestic Relations

Parent & Child - Support -TaxDeduction - Guidelines -Separation Agreement

Even though the parties' separation agreement granted the tax deduction for one child to the plaintiff-mother and the tax deduction for the parties' other child to the defendant-father, since the parties waived enforcement of their separation agreement by asking the court to deter-mine child support under the N.C. Child Support Guidelines, the trial court wasalso required to apply the Guidelines provision regarding tax deductions.

We reverse the trial court's orderfinding it lacked authority to consider the issue of tax deductions.

The parties' separation agreement required the defendant-father to paychild support for the parties' two children but granted him one of the dependent tax deductions.

The plaintiff-mother filed a complaint seeking a modification of the father's child support obligation. The trial court determined child support in accordance with the Guidelines; however, the court found it did not have authority to modify the income tax deduction provision of the separation agreement.

The mother argues the trial court had authority to modify the separation agreement's child support provisions because the parties consented by both requesting that the court apply the Guidelines. We agree.

A separation agreement which is not incorporated into a court judgment is a contract and cannot be modified absent the consent of the parties. Both parties expressly requested that the court modify the child support provision of the separation agreement.

In determining child support under applicable N.C. law, the Guidelines "apply as a rebuttable presumption to all child support orders in North Carolina," and the court may only deviate from the Guidelines "where application would be inequitable to one of the parties or to the child(ren)" and where the court makes written findings of fact justifying deviation. With regard to the tax deduction, the Guidelines provided, "[It is] presume[d] the custodial parent claims the tax exemptions for child(ren) due support...." Therefore, the Guidelines plainly address the issue of income tax dependency deductions. Accordingly, application of the Guidelines included a determination of the tax dependency deduction.

Even though the tax dependency deduction is not utilized in the work-sheet calculations of child support, application of the Guidelines is not limited solely to the numbers on the worksheet. Where a party requests are calculation of child support, that request directs the court to apply the entirety of the Guidelines, including not only the worksheets but also the commentary.

Where the parties waive the enforcement of their separation agreement by asking the court to determine child support in accordance with N.C. law, the court shall apply the Guidelines in their entirety. The trial court erred in not applying the Guideline provision regarding tax deductions.

Reversed and remanded.

Ticconi v. Jicconi. (Lawyers Weekly No. 03-07-1566, 6 pp.) (Ann Marie Calabria, J.) Appealed from Guilford County Superior Court. (Susan R. Burch, J.) N.C. App.