NC Worker May Proceed in Tort Against Employer and Plant Nurse for Negligent Treatment

A North Carolina worker, who alleged that he was negligently diagnosed and treated by his employer’s plant nurse after suffering a stroke at work, may proceed in tort against that employer and the nurse, held a state appellate court yesterday [Jackson v. Timken Co., 2019 N.C. App. LEXIS 477 (May 21, 2019)]. The court ruled that in as much as the state’s Industrial Commission had previously determined that the worker’s injury did not arise out of the employment, the state’s trial court had jurisdiction to hear the matter. The cause of action was not barred by the exclusive remedy provisions of the state’s Workers’ Compensation Act.

Background

Because of the early jurisdictional status of the case, the facts were not laid out in detail by the court, but generally the plaintiff suffered a stroke while working for the employer. He filed a workers’ compensation claim and subsequently also filed a civil action in superior court asserting a claim of negligence. An Industrial Commission Deputy Commissioner issued a ruling that the plaintiff did not sustain an injury by accident arising out of and in the course of his employment and, therefore, his claim did not fall under the Industrial Commission’s jurisdiction. The plaintiff did not appeal.

In the superior court case, the defendants moved to dismiss, contending that there was no jurisdiction since the Workers’ Compensation Act provided the plaintiff’s exclusive remedy against them.

Court of Appeals

The Court of Appeals made a point that is often lost on parties and counsel in a workers’ compensation dispute: “injury and accident are separate concepts” [Opinion, p. 4]. The Court stressed that an employee seeking care from a medical professional at his or her place of work is not the type of occurrence that creates an injury by accident under The Act. Nor did the injury arise out of the employment.

“Arising Out of” and “In Course of” Are not Synonymous

The Court stressed another important point: while the phrase “arising out of and in the course of employment” represents a single test of work connection, the terms “arising out of” and “in the course of” are not synonymous, but rather are two separate and distinct elements, both of which must be proved. Here, there was no question that the injury occurred in the course of the plaintiff’s employment. The issue was whether it also arose out of that employment. The Court continued:

Here, Plaintiff’s alleged injury resulted from a failure to properly diagnose and treat the stroke he suffered on the job. That injury, although caused by a coworker, does not spring from his employment as a grinding machine operator for Timken because it is not a natural or probable consequence of the nature of Plaintiff’s employment. Stated differently, when Plaintiff reported to work as a grinding machine operator he would not have considered being misdiagnosed or mistreated for a stroke by a medical professional as a possible consequence of that work [Opinion, p.7]

Author’s Comment

This decision is consistent with the majority rule [see Larson’s Workers’ Compensation Law, § 113.08]. As Dr. Larson originally wrote:

Suppose plaintiff is a clerk in defendant’s store. On a day when she is off work, she goes into the store to buy a dress, and is hit in the eye by a hanger as a result of the sales clerk’s negligence. Obviously she can sue the store and the co-employee. Or, suppose a nurse who works for the defendant hospital happens to be involved in a weekend accident while driving past the hospital, and is rushed to hospital’s emergency room, where the alleged malpractice occurs. Here again, no one would contend that her suit is barred [Id.].

Practitioners should take care not to confuse the current fact situation with what is sometimes referred to as the “dual-persona” or “dual capacity” problem [see Larson, § 113.01, et seq.]. In the dual persona/dual capacity situation, there is but one “transaction”—the work. In the situation depicted in the case being discussed, there are two transactions—the work, yes, but also the separate treatment, which is itself not part of the employee’s job.