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Tag Archives: futility

Administrative – Exhaustion Requirement – Futility – Failure to Plead – Health Insurance – Public Employees (access required)

Kane v. North Carolina Teachers’ & State Employees’ Comprehensive Major Medical Plan All parties knew that it would be futile for plaintiff to exhaust her administrative remedies with regard to her constitutional claims, and plaintiff argued such futility before the trial court and this court. However, precedent requires us to affirm summary judgment for defendant because plaintiff’s complaint did not contain an allegation of futility.

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Workers’ Compensation – Disability – Carpal Tunnel Syndrome — Futility – Other Factors (access required)

Allen v. HBD Industries Even though plaintiff’s physician released him to return to full-duty work, the Industrial Commission’s finding of disability was supported by the testimony of a rehabilitation counselor that plaintiff was unemployable because of his advanced age, functional illiteracy, low cognitive ability, and work history in repetitive and labor-intensive jobs, which his injury left him unable to perform.

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Workers’ Compensation – Disability – Return to Work – Modified Position – Unrelated Conditions – No Apportionment – Futility (access required)

Parrish v. Durham Regional Hospital Even though, after his compensable back injury, plaintiff returned to work for five years, the defendant-employer had to make many modifications to the job to accommodate plaintiff’s disability. The job was so modified that it would not have been available on the competitive job market and did not accurately reflect plaintiff’s wage-earning capacity.

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Workers’ Compensation – Disability – Futility – Back Injury – Medical Evidence (access required)

Adams v. Parts Unlimited Where plaintiff proved disability by “the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment,” Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993), plaintiff was not required to also produce medical evidence that he physically or mentally incapable of work in any employment. We affirm the Industrial Commission’s award of ongoing temporary total disability and medical benefits.

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