Gibson v. Gibson
I.C. NO. W04372.
| N.C. Indus. Comm. | Sep 27, 2011Background
- Plaintiff Wanda Gibson and her husband Gary Gibson were independent contractor owner-operators for Landstar Express America under an ICOA; Landstar fleet policy provided workers’ compensation coverage through State National Insurance and GAB Robins as TPA.
- Plaintiff sustained a right-hand injury on January 22, 2009, when a wind gust allegedly caused their heavy cargo van to rock; the gust was amplified by the tall, 2,588-pound chemical load.
- The accident occurred during a trip from Tulsa, OK to Beowawe, NV, with a time-sensitive, non-hazardous chemical load; Plaintiff was driving while Mr. Gibson slept in the cargo area.
- Medical treatment for the right-hand injury began January 28, 2009, with subsequent care for complex pain syndrome (CPS/RSD) and related psychological conditions.
- The Full Commission adopted a method-five calculation for average weekly wage (AWD) using the Gibsons’ 2008 Form 1099 income with business-expense deductions, excluding disputed per diem, resulting in AW = $131.71 and compensation rate = $87.81; awards include ongoing TTD and medical treatment, with no attendant care approved at this time.
- The Commission left open the possibility of attendant care pending further medical evaluation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff sustained a compensable injury by accident | Gibson sustained an on-the-job injury from an unforeseen gust | Injury not within course and scope or not proven as accident | Yes, compensable injury by accident established |
| How to calculate Plaintiff's average weekly wage | Use available earnings data to reflect true wages | Apply standard methods and consider deductions | Method-five applied; AWD = $131.71; rate = $87.81 per week |
| What are the compensable consequences and benefits | Injury causes CPS and psychological conditions; Plaintiff needs ongoing medical, possibly attendant care | Limit to medically necessary treatments aligned with WC Act | Plaintiff entitled to ongoing medical treatment (including spinal cord stimulator) and psychological treatment; no attendant care awarded at this time, but open for future evaluation |
Key Cases Cited
- Hensley v. Farmers Federation Co-op., 246 N.C. 274, 98 S.E.2d 289 (1957) (accident defined; employee travel context)
- Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360 (1980) (accident definition and course of employment)
- Bowles v. City of Asheville, Inc., 77 N.C. App. 547, 355 S.E.2d 502 (1985) (accident and employment scope principles)
- Calderwood v. Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App. 112, 519 S.E.2d 61 (1999) (accident scope and worker’s compensation standards)
- Baldwin v. Piedmont Woodyards, Inc., 58 N.C. App. 602, 604, 293 S.E.2d 814, 816 (1982) (deduction of business expenses in AW calculation under § 97-2(5))
- Christian v. Riddle Mendenhall Logging, 117 N.C. App. 261, 450 S.E.2d 510 (1994) (net income approach under AW calculation)
- Holley v. ACTS, Inc., 357 N.C. 228, 581 S.E.2d 750 (2003) (attendant care considerations in WC claims)