• Wed. Nov 16th, 2022

Insurer’s good deed restarts countdown to benefits, Carolina Court of Appeals says

ByElla E. Kidwell

Jul 5, 2022
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Insurers might say this one falls into the “no good deed goes unpunished” category.

In a workers’ compensation decision released today, July 5, the North Carolina Court of Appeals ruled that reissuing a missing check to an injured worker, discovered by the insurance company, had restarted the countdown to medical benefits.

In Francisco Dominguez v. Dominguez Masonry and Builders Mutual Insurance Co., the majority of the court found that a knee injury that occurred in 2005 was eligible for continued medical treatment, all because the insurer had reissued a check for $329. to the worker.

After his knee problem in 2005, Francisco Dominguez, a bricklayer, was awarded compensation until 2013 and medical benefits until mid-2015. In 2017, Builders Mutual discovered that a check issued six years earlier had never been cashed. The worker said he never received it and Builders reissued it.

A few months later, Dominguez’s attorney filed a claim for additional medical compensation for the knee. The employer and the carrier denied the request, noting that it was prescribed by law. An Industrial Commission deputy commissioner disagreed, writing that the replacement check was a benefit payment as defined by law – and that it had extended the clock.

Builders Mutual appealed to the full Industrial Commission, but the board upheld the deputy commissioner.

On appeal, the court of appeal cited the letter of the law, which states that “the right to medical compensation ends two years after the last payment by the employer…”


“The question before us is whether a corrective payment constitutes a “final payment” for the purposes of NC Gen. Stat. § 97-25.1 statute of limitations,” Judge Valerie Zachary wrote in the opinion.

Adhering to the plain meaning of the law and the doctrine that workers’ compensation law should be liberally construed in favor of an injured worker, the majority of the court found that the replacement check actually served as a final payment, reviving the law of rest. North Carolina lawmakers had never addressed the issue and the court can no longer create new statutory language, Zachary said.

Judge John Tyson dissented, saying the majority misinterpreted the plain language of the law.


“Their inappropriate and deferential standard of review and overbreadth are contrary to our rules of statutory interpretation, our binding precedents and the stated purpose of workers’ compensation law,” Tyson wrote. “The majority opinion allows a plaintiff to reopen a seventeen-year-old claim, after undisputed evidence shows that the defendants were audited and simply reissued a check that had already been paid.”

In a separate decision released today, the appeals court ruled in favor of the employer and a Berkshire Hathaway company on a state jurisdictional issue.

In Leslie Duke v. Xylem Inc. and Berkshire Hathaway Homestate Insurance Co., the court emphasized the importance of the “last act” test in determining workers’ compensation jurisdiction: “For a contract to be made in North Carolina North, the final act necessary to make it a binding obligation must be done here,” the court wrote, citing a 1998 North Carolina appeals court decision.

Duke, a truck driver, resides in Hertford, North Carolina. In 2017, he was offered a position with Xylem, a leading provider of water treatment and other utility technologies with operations and headquarters in Virginia.

A year later, Duke tore his rotator cuff and suffered a herniated disc while working in Virginia. He filed a claim with the Virginia Workers’ Compensation Commission, but the commission later denied it after Duke failed to respond to discovery requests. The truck driver then filed a claim in North Carolina, arguing that because he had accepted the job offer over the phone, while at his home in North Carolina, the state of Tar Heel was competent.

The North Carolina Industrial Commission disagreed and denied the request. Duke appealed.

Lawyers for Xylem and Berkshire Hathaway argued the job offer was not made or accepted during the phone call, but was contingent on the driver completing employment paperwork and passing a physical exam , a driving test and a drug test at Xylem’s facilities in Wakefield, Virginia. Duke later said he signed documents there on an electronic device, but his signature on paper documents was forged.


The appeals court did not consider the alleged forgery, but cited case law on jurisdiction. The court noted that if an injury occurs out of state, the North Carolina Industrial Commission has jurisdiction only if the contract was made in the state; whether the employer’s principal place of business is in the state; or if the employee’s principal place of employment is in North Carolina.

“The final act of the employment contract is usually the employee’s acceptance of employment, but it can also be the fulfillment of other terms of employment that come after an employee has accepted the job. job offer, such as an orientation session, road test, drug test and physical exam, the appeals court wrote, citing a 2017 court ruling.

The key factor in determining whether these requirements constitute the “last act” is “whether there is a possibility that the potential employee will not meet the criteria, thereby becoming ineligible for employment,” Judge Richard Dietz wrote in the Duke’s opinion.

The court upheld the Industrial Commission’s dismissal of the complaint and found that “the last act necessary to create a binding contract of employment occurred in Virginia…”