WTC First Responders Developing Work Related Cancers

WTC First Responders Developing Work Related Cancers

According to the National Institute for Occupational Safety and Health 1140 people have been diagnosed with cancer related to the attacks on the World Trade Center on September 11th 2001, and that number is expected to grow.  The cancers are traced to in the carcinogens in the air at ground zero.  Tina Engel, an oncology nurse at North Shore Hospital in Queens says she has identified 12 new cases in the last 2 months.  Federal funding is helping patients get biopsies and scans.

Because firefighters, police, EMT’s and other first responders are at particular risk, many of the cancers are work related.  The US Centers for Disease Control has identified about 65,000 people who became sick from 9/11 exposure, many of them first responders.  A Mount Sinai Medical Center study showed that first responders have a 15 percent greater risk of developing cancer than people who were not exposed to the toxic air.  Marty Cervellion , a 63 year old engineer who spent more than 2 months at ground zero following the attacks developed gastroesophageal cancer in 2011.  “It was always in the back of everyone’s mind we were in jeopardy given the contamination down there, but the entire world was calling on you,” he told the Daily News. “It felt so good to serve.  There was no wanting to escape.”

Many workers’ compensation attorneys believe that we will continue to see an increase in work related cancers, which are treated as occupational diseases under NC workers’ comp law.  To recover for an occupation disease in NC the employee must show that their employment placed them at increased risk for developing the condition as compared to the general public and that the employment substantially contributed to the employee contracting the disease.  The challenge is frequently showing that the work exposure contributed to the cancer, particular when other factors such as smoking are present.

Link to Yahoo article.



Law Students Help Local Kids Mediate Differences

Law Students Help Local Kids Mediate Differences

When East Millbrook school officials started sensing tension among their students they brought in  Professor Jon Powell and the Campbell Law School Juvenile Justice Project which he leads.  The Campbell Law School Juvenile Justice Project is a group of Campbell law students who work with Wake County school children to help them resolve conflicts.  The Project partners with several Wake County middle and high schools and is funded through the Campbell University Norman Adrian Wiggins School of Law.

An anonymous eighth grader at East Millbrook complained that students just  “didn’t get along.”  “It was like he-she said stuff.”  The law school mediators focused on the harm that had been done and how that harm could be addressed in a positive way.  Mediators first talk to the students separately, then together, to help keep a conflict from escalating into a fight.  Professor Powell and the law students’ goal is to get both sides to understand the root of the problems so it doesn’t build up again. “We just worked it out that day” said the eighth grade student.

The Campbell Law School Juvenile Justice Project has dealt with about 80 cases in the last school year.  In the last ten years 95% of the students who completed the mediation didn’t offend again.  A vice principal at East Millbrook said that the students behavior after the program was “calmer, not necessarily best friends but at peace.”

One of the major changes in the practice of law over the past twenty years has been the increased use of mediation to resolve conflicts.  Practically every NC automobile accident, personal injury or workers’ compensation case  that is filed is ordered to mediation.  There are many NC personal injury lawyers who now limit their practice to working as a mediator.  And most NC automobile accident lawyers spend more time in mediation that in trial.

So it’s probably a good idea to start training lawyers in law school to mediate conflict.  And I guess if they can mediate a middle school spat they can mediate anything.

Link to WRAL article.

Should I take a drug test if injured on the job in NC?

Should I take a drug test if injured on the job in NC?

An article in the Smoky Mountain News presents an important NC workers’ compensation question:  Do I have to take a drug test if I am injured on the job in NC, and can my workers’ comp. benefits be denied if I refuse?

According the article, Robert Bradley’s day working at Ghost Town in the Sky amusement park in western North Carolina was like any other until a mock wild west showdown went horribly wrong. Bradley was hit with a piece of shrapnel that exploded out of a gun and buried itself 1.5 inches in his upper thigh. After struggling to find a medic on staff at the amusement park Bradley’s coworkers ended up driving him to a nearby bar parking lot to meet with an ambulance that would take him to the emergency room. At the ER, the doctor flushed out several slivers of an unknown material from the wound. The doctors assumed that the substance was wadding, a material used in place of real bullets. Ghost Town’s workers’ compensation insurance company asked Bradley to submit to a drug test in order to receive workers’ compensation for his injuries. Bradley refused stating that the insurance company was just fishing for a reason to withhold his money. After the accident Bradley lost his job. Bradley says he was fired while Alaska Presley, Bradley’s employer and owner of Ghost Town in the Sky, says Bradley quit. Several other Ghost Town employees quit their jobs at the amusement park in support of Bradley.  So far Bradley has not received either medical or wage replacement benefits from his employer’s workers’ compensation carrier.

This one is a little tricky. First, if an EMPLOYER (not insurance company) has a prior policy of requiring drug testing after an on the job injury, then the employee must either take the test or risk losing his job for violation of company policy. If there is no such policy then the employee is on firmer ground refusing the test. However a refusal or even a positive test is not a valid basis for denying a workers’ compensation claim in North Carolina. If an employer can prove that an employee was actually impaired by drugs when the accident occurred and this impairment contributed to the accident then no benefits are due. A simple drug screen, showing only the presence of a drug, is not sufficient to show that an employee was actually impaired. A test that actually measure the amount of the substance, like a breathalyzer, may be sufficient. The relevant portion of the NC law is reprinted below.

Unfortunately, without regard to the actual law, refusing to take a drug test after an on the job injury in North Carolina may prompt the workers’ compensation insurance company to deny the claim. While a postive test may also draw a denial I generally tell injured workers that if the employer has a clear drug testing policy that it has consistently enforced then taking the test may be best.  The safest route though is to contact an experienced NC workers’ compensation lawyer before deciding whether to take a post-injury drug test.




§97-12. Use of intoxicant or controlled substance; willful neglect; willful disobedience of statutory duty, safety regulation or rule.

No compensation shall be payable if the injury or death to the employee 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 North Carolina Controlled Substances Act, G.S. §90-86, et seq., where such controlled substance was not by prescription by a practitioner; or
  3. His willful intention to injure or kill himself or another.

“Intoxication” and “under the influence” shall mean that the employee shall have consumed a sufficient quantity of intoxicating beverage or controlled substance to cause the employee to lose the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.

A result consistent with “intoxication” or being “under the influence” from a blood or other medical test conducted in a manner generally acceptable to the scientific community and consistent with applicable State and federal law, if any, shall create a rebuttable presumption of impairment from the use of alcohol or a controlled substance.”

The burden of proof shall be upon him who claims an exemption or forfeiture under this section.



Simpler Hospital Billing Might Help Personal Injury Claimants

Simpler Hospital Billing Might Help Personal Injury Claimants

Starting in June, the mystery shrouding hospital billing in North Carolina will be lessened.  Laws passed by the General Assembly will force hospitals to bill their patients using simple, easy to understand language.  These newly passed laws will help defend the public from misreading or overpaying hospitals for petty or unnecessary charges.   The idea for increasing transparency in hospital billing came alive after the News and Observer and the Charlotte Observer released stories revealing several hospitals misuse of profits.  After these scandals were uncovered, the power of the hospitals in the state began to diminish.

This past year, hospitals across the state took a financial hit due to the greatest Medicaid cuts in history.  The General Assembly denied the expansion of Medicaid to hundreds of thousands of North Carolina residence this year under the Affordable Care Act.  These cuts had the greatest impact on smaller hospitals located in the rural parts of the state where a large number of their patients rely on these federal programs.  These severe cuts in funding forced hospitals across the state to look for new means of income.  The North Carolina Hospital Association is said to have spent almost $1 million on advertisement in an attempt to boost business.

The main goal of N.C. hospitals was to fight a cap on sales tax refunds for non profit hospitals.  The original proposal was to cap the refund at $100,000.  This was quickly shot down by the House and the cap was adjusted to $2.85 million.  To some of the larger hospitals this amount was startlingly small. Many politicians were disappointed and frustrated by the outcome of a $45 million dollar cap on sales tax refunds.  This should not affect any hospitals this year, but hospital lobbyists fear that if the issue is reevaluated in the future, the cap will be set lower.

The most important section of the bill to the public is the more ‘user friendly’ billing system.  Patients will now be more aware of hospital pricing and the cost of all of the services healthcare providers and hospitals provide. Hospitals now have to post the reimbursements for patients from Medicare, Medicaid  and other  insurance providers as well as for patients who are not insured.  These have to be posted in plain view both in the hospitals and on their website. This allows patients to really feel more in control of the care they receive.

This will help NC personal injury and car accident claimants by making the bills easier to understand, especially where the medical provided may have to be reimbursed.

If you have been injured in an auto accident or on the job in NC and have questions about your personal injury claim or NC workman’s comp case please call or email for your free consultation with a North Carolina Personal Injury lawyer.

Price is Right in Fayetteville NC workers’ compensation case

Price is Right in Fayetteville NC workers’ compensation case

I read just about everywhere this week about the Fayetteville NC workers’ compensation case involving a postal carrier who pled guilty in federal court to workers’ compensation fraud.  Apparently Cathy Wrench Cashwell was caught on “The Price is Right” spinning the “big wheel” twice, after claiming that she was unable to lift mail trays into a truck because of a 2004 on-the-job shoulder injury, along with claiming other serious physical limitations.   According to WRAL the indictment alleged that Ms. Cashwell “raised her left arm above her head and gripped the handle with her left hand.”  On a second spin, she “raised both arms above her head and gripped the same handle with both hands.”  The indictment also alleges she went ziplining while on a Carnival Cruise and was seen lifting furniture and groceries.

I expect that she will punished appropriately.

Unfortunately, there is never quite the same enthusiasm when it comes to prosecuting employer workers’ compensation fraud in North Carolina.  I have written a number of times on my own NC workers’ comp blog, and recently on as a guest writer on Raleigh divorce lawyer Jim Hart’s blog, about the failure of state-wide leaders to address the issue of employers that fail to provide workers’ compensation insurance for their employees.  To my knowledge, not a single one of the thousands of employers that break North Carolina’s workers’ comp laws has ever been prosecuted.

I know private investigator Allison Blackman who was quoted in the WRAL article as saying that a big chunk of workers’ comp claims are fraudulent.   Allison is a skilled private investigator and a good man.  But I have to disagree with him on this one.  The fact is the vast majority of fraud in the workers’ compensation system is on the employer side.  I have represented a number of people in their Fayetteville NC workers’ compensation case and all of them were seriously and legitimately injured.

People who cheat the workers’ compensation system in North Carolina or elsewhere need to be identified and prosecuted, whether they are employees or employers.  I would be nice to see some equality of effort in prosecuting both types.


Is my injury covered by NC workers’ comp?

Is my injury covered by NC workers’ comp?

The North Carolina workers’ comp system provides important medical and wage benefits, but only if the injury is covered.  Not all workplace injuries and occupational diseases fall within the North Carolina workers’ compensation system.  Many times injured workers will contact me to ask “is my injury covered by NC workers’ comp?”

Workers’ compensation applies to injuries that arise from an accident that occurs during the course and scope of the employment.  In general, an accident is an unexpected or unforeseen event that is outside the normal work routine.  So, an employee who is stacking boxes in their normal routine and suddenly feels pain in their shoulder may find their claim denied, while an employee who slips in a pool of water will be covered.  Common accidents include slips, trips, and falls, machine accidents, load handling accidents and automobile accidents.  Back injuries require only a specific traumatic incident and may be covered so long as the employee can identify the point in time when the injury occurred.

Workers’ comp injuries in North Carolina must also occur during the “course and scope” of the employment. This means the injured worker must be doing the business of his or her employer when the accident occurs.  Course and scope should be broadly interpreted to include activities that benefit the employer.

Employees who have been injured on the job should consider consulting an experienced workers’ comp lawyer prior to giving a statement to an adjuster.  Frequently injured workers will say they felt tricked into saying something that hurt their case.

An occupational disease will be compensable under the N.C. workers’ comp system if:  1) the employment placed the employee at an increased risk of contracting the occupational disease compared to the general public, and 2) the employment actually caused the disease.  Traditional occupational diseases such as brown lung and asbestosis fall in this category, as do carpal tunnel and bursitis conditions.

An injured North Carolina employee is covered under the NC workers’ compensation system even if he or she is at fault in the accident. However, a recovery may be denied under if the injury is intentionally self-inflicted or is a result of the employee’s use of alcohol or drugs.  An employer’s violation of a safety rule may cause the recovery may cause a recovery to be increased.

An employee injured on the job as a result of the negligence of a person who is not their employer or co-employee should file a claim in the NC workers’ compensation system with their employer, as well as in civil court against the at-fault third party. Third party workers’ comp claims in North Carolina often involve automobile accidents and defective products.  The workers’ comp insurance company may have a lien against the third-party recovery but this can be negotiated or, if necessary, compromised in court.

Frequently NC workers’ compensation insurance companies will deny valid claims, often by applying a narrow definition of “accident,”  “course and scope” or “increased risk.”  A North Carolina workers’ comp lawyer can help evaluate whether you have a claim under the NC workers’ comp system and, if so, ensure you get the benefits you deserve.

Kevin Bunn is a North Carolina workers’ compensation attorney located in Cary, NC, convenient to Raleigh, Apex, Holly Springs and Fuquay-Varina.  Please call or email for your free consultation with an experienced NC workers’ comp lawyer.