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Workers’ Compensation – Statute of Limitations – Fired Employee – Disability – Hernias – Parsons Presumption

Workers’ Compensation – Statute of Limitations – Fired Employee – Disability – Hernias – Parsons Presumption

Anders v. Universal Leaf North America (Lawyers Weekly No. 011-127-17, 26 pp.) (Valerie Zachary, J.) Appealed from the Industrial Commission. N.C. App.

Holding: Even though the Industrial Commission failed to give plaintiff the benefit of the Parsons presumption, his claim for medical benefits was time-barred, and he failed to prove that he suffered any disability after defendant fired him for misconduct unrelated to his compensable injury.

We affirm the Commission’s denial of additional medical and indemnity benefits.


Plaintiff suffered admittedly compensable bilateral hernias while working for defendant. Despite a doctor’s referral, defendant refused to authorize a surgeon’s visit. When plaintiff sought further treatment a couple of days later, he was fired for violating defendant’s attendance policy.

Defendant’s attendance policy and its workers’ compensation policy had been explained to plaintiff, and plaintiff was notified each time he violated the attendance policy. Plaintiff had already exceeded the absentee limit when he went to the emergency room without notifying defendant.

Defendant paid to have plaintiff’s hernias surgically repaired.

Plaintiff went to work at Waffle House, then Hardee’s, and then in construction and landscaping. While he was working at Waffle House, he sought additional treatment for his hernias.

Defendant made the last disability payment to plaintiff on April 8, 2011, and the last medical payment on Jan. 19, 2012. Plaintiff initiated this claim on Jan. 27, 2014.

Medical Benefits

The court adopts the reasoning of Harrison v. Gemma Power Systems, LLC, (Lawyers Weekly No. 14-16-0684) (2014) (unpublished), and rejects plaintiff’s argument that the two-year limitations period in G.S. § 97-25.1 had not begun to run because the Commission might decide to award him additional indemnity benefits.

Plaintiff’s Jan. 27, 2014, request for additional medical compensation was filed more than two years after defendant’s last payments of indemnity and medical compensation, which occurred, respectively, on April 8, 2011, and Jan. 19, 2012. Accordingly, the Commission properly concluded that § 97-25.1 bars plaintiff’s claims for additional medical treatment.

Indemnity Benefits

Defendant satisfied the initial part of the test set out in Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996), by showing that (1) plaintiff was terminated for misconduct or other fault, (2) a nondisabled employee would have been terminated for the same misconduct or fault, and (3) the termination was unrelated to plaintiff’s compensable injury.

The burden then shifted to plaintiff to re-establish that he suffered from a disability after leaving defendant’s employ. Plaintiff’s subsequent jobs paid less than he had earned while working for defendant.

However, in unchallenged findings, the Commission found that plaintiff was physically able to work but had not conducted a reasonable job search, so he had failed to show that he was disabled. These unchallenged findings support the Commission’s conclusion that plaintiff failed to meet his burden of establishing that he was disabled, except for the period from March 22, 2011, through April 7, 2011, during which time defendant did pay indemnity benefits.

Although one doctor said plaintiff had suffered permanent damage to the inguinal nerve, he did not provide evidence or testimony of the importance of the inguinal nerve to the body’s general health and well-being. The Commission’s unchallenged findings support its conclusions that plaintiff “failed to establish through competent medical evidence that he suffered loss or permanent damage to any important organs or body parts” and that it would improper to make an award under G.S. § 97-31(24).

Under Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997), when plaintiff sought additional medical treatment for recurring hernias allegedly caused by his 2010 work-related injury, the burden of proof should have shifted to defendants to show that plaintiff was not entitled to additional compensation. The Commission failed to give plaintiff the benefit of the Parsons presumption.

Nevertheless, plaintiff’s claim for medical compensation is barred by § 97-25.1, and the Commission’s conclusion that plaintiff is not entitled to any additional indemnity compensation is supported by his failure to prove that he suffered any period of disability following his termination. Plaintiff’s claims for medical and indemnity compensation are barred for reasons independent of the causation issue.



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