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by Dana Leonard   

RALEIGH, NC – Arguably the most significant decision made in handling N.C. Workers’ Compensation claims is the decision as to whether to accept or deny the compensability of the claim. Therefore, it is important to be aware of all possible defenses available under the N.C. Workers’ Compensation. The following is a discussion of the most frequently used defenses which need to be considered when determining whether to accept or deny a workers’ compensation claim in North Carolina.

One of the most common defenses asserted in N.C. workers’ compensation claims is there was no injury by accident or specific traumatic incident (in a back/hernia claim). In North Carolina, for injuries to body parts other than the back or hernias, the claimant has the burden of proving an injury by accident, which is defined as an unlooked for or untoward event which was not expected or designed by the injured employee. If an injury occurs while the employee is performing his/her regular duties in the usual and customary manner, the injury is not compensable. For back injuries to be compensable, the injury must be the direct result of a specific traumatic incident of the work assigned. Back injuries that occur gradually over long periods of time are not the result of specific traumatic incidents; however, back injuries which are the result of events which occur contemporaneously, during a cognizable period of time are compensable. A hernia is compensable if it is the result of a specific traumatic incident, as long as the hernia:  1) was not pre-existing, and 2) appeared suddenly following the incident.

Another possible defense is that the injury did not arise out of and occur in the course and scope of employment.  For an injury to be compensable, the injury must have occurred while the employee was engaged in some activity or duty which he/she was authorized to undertake, and which was calculated to further the employer’s business. In North Carolina, the general rule is that an injury suffered by an employee while going to or returning from his/her work does not arise out of and occur in the course and scope of his/her employment.  This is known as the “Coming and Going Rule.”  However, there are multiple exceptions to the “Coming and Going Rule.”  The Premises Exception provides that if the employee is going to or coming from work but is on the employer’s premises when the accident occurs, the injury resulting from the accident is compensable.  A second exception is the Special Errand Exception which provides that if the employee is acting in the course of his/her employment and in the performance of some duty, errand, or mission thereto when the accident occurs, the injury resulting from the accident is compensable.  A third exception is the Traveling Salesman Exception, which provides that if an employee has no definite time and place of employment, requiring him/her to make a journey to perform a service on behalf of the employer, an injury from an accident during travel is compensable, except when the accident occurred during a personal errand.  Finally, a fourth exception to the “Coming and Going Rule” is the Contractual Duty Exception which is applicable if the employer contractually provides transportation or allowances to cover the cost of transportation as a matter of right and is not merely gratuitous.

A third possible defense is that the claimant failed to file a claim within two years of the accident. N.C. Gen. Stat §97-24 provides that an injured worker is barred from receiving workers’ compensation benefits unless he/she files a claim or is paid indemnity benefits within two years of the accident. Another possible defense is that the carrier did not provide insurance coverage to the employer at the time of the accident. Another possible defense is that the claimant is not an employee of the insured.  However, keep in mind that pursuant to N.C. Gen. Stat. §97-19, any contractor (whether it is a principal contractor, an intermediate contractor, or a subcontractor) who subcontracts for work will be responsible for the payment of workers’ compensation for any injuries suffered by a subcontractor’s employee during the performance of the work covered by the contract if the contractor failed to obtain a certificate of workers’ compensation insurance stating that the subcontractor had workers’ compensation coverage and the subcontractor did not have workers’ compensation insurance covering its employees at the time of the injury.

Another possible defense is the intoxication defense pursuant to N.C. Gen. Stat. §97-12. Pursuant to N.C. Gen. Stat. §97-12, a claimant is not entitled to compensation if the injury was proximately caused by: “(1) His intoxication, provided the intoxicant was not supplied by the employer or his agent in a supervisory capacity to the employee; or (2) His being under the influence of any controlled substance listed in the N.C. Gen. Stat. §90-86, et seq, where such controlled substance was not by prescription by a practitioner.” A positive drug test creates a rebuttable presumption of impairment, but defendants must still prove that the injury was proximately caused by the impairment.

In an occupational disease claim, the compensability of a claim may be denied on the basis that the last injurious exposure to the hazards of the occupational disease did not occur during the claimant’s employment with the insured or the carrier’s coverage period.

The N.C. Workers’ Compensation Act allows an employer to plead an affirmative “Misrepresentation Defense” when an employee intentionally misrepresents his/her physical condition when entering into the employment relationship. Specifically, no workers’ compensation benefits will be payable if the employer can prove the following:  1) the employee knowingly and willfully made a false representation as to the employee’s physical condition; 2) the employer relied upon the false representation and the reliance was a substantial factor in hiring; and 3) there was a causal connection between the false representation and the injury.

Finally, a claim may be denied on the basis that the claimant failed to comply with notice requirements.  N.C. Gen. Stat. §97-22 provides that an injured employee is not entitled to any compensation unless the injured worker gives written notice of the accident to the employer within 30 days of the accident unless:  1) employer has actual notice of the accident; 2) injured worker is prevented from giving notice due to impairment; or 3) injured worker has a reasonable excuse for not given such notice; and 4) employer is not prejudiced by the delay.

If you have questions concerning possible defenses in North Carolina workers’ compensation claims, feel free to contact me directly at (919)348-2303 or [email protected].