Over the next several weeks I will be releasing a series of articles on North Carolina Workers’ Compensation Death Claims.  The articles will address the following five overarching issues:

• Whether the underlying accident or occupational disease is compensable.
• Whether the accident or occupational disease caused the resulting death.
• What benefits are owed?
• To whom are the benefits owed?
• How are the benefits to be distributed?

This article analyzes the first issue that an adjuster or an attorney should ask themselves – was the underlying accident or occupational disease compensable?

In order for the death of an employee to be compensable it must result from an injury by accident^[1]arising out of and in the course and scope of the employment.  Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E.2d 844 (1936).

“Injury” and “accident” are not synonymous.  “Accident” means a “fortuitous” or an “unlooked for and untoward” event.  See e.g. Conrad v. Cook–Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266 (1933); Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109 (1962).  Therefore, just because a death (“injury”) occurs, does not necessarily mean it was the result of an accident. 

The “arising out of” portion of the inquiry refers to the origin or cause of the accident.  It references the causal connection between the injury and the employment.

“In the course of” refers to the time, place, and circumstances surrounding the accident.

Due to the nature of death claims, the practical time to investigate compensability is somewhat truncated.  Employers are provided a couple of procedural rights to help assist in these investigations.

N.C. Gen. Stat. § 97-27(c) provides, “[t]he employer, or the Industrial Commission, has the right in any case of death to require an autopsy at its expense.”  This allows Employers to require an autopsy to be performed to obtain more information about the cause of death.

Employers may also file an Emergency Motion to Preserve Evidence to obtain access to blood analysis, urine analysis, and drug tests.  This grants Employers access to specimens that can be analyzed to provide further information about the potential cause of death.

It is prudent to move swiftly to file an Emergency Motion for Autopsy and an Emergency Motion to Preserve Evidence if an employer is presented with a death claim, and there is any reason to believe that the death may not have been caused by an accident during the course and scope of employment, or an occupational disease.  The filing of these Motions, and obtaining Orders regarding the same, will increase the amount of evidence that can be considered prior to a decision being rendered concerning whether to accept the compensability of the claim.  The filing of the Motions will often need to occur before a claim has even been filed by the Decedent’s family, as the ability to perform an autopsy will be lost after burial, and the treating providers may dispense with evidence samples following death if they are not under an order to preserve the same.

In the next edition of this series, I will explore the question of whether the accident or occupational disease caused the resulting death.

^[1] Or occupational disease.  For all practical purposes, occupational diseases are treated as accidents.  “Disablement or death of an employee resulting from an occupational disease described in G.S. 97-53 shall be treated as the happening of an injury by accident within the meaning of the North Carolina Workers’ Compensation Act and the procedure and practice and compensation and other benefits provided by said act shall apply in all such cases except as hereinafter otherwise provided.”  N.C. Gen. Stat. § 97- 52.