11/17/2025
NOVEMBER 2025 WORKERS’ COMP CASE LAW UDPATE
The North Carolina Court of Appeals recently issued two opinions addressing important issues under the Workers’ Compensation Act: 1) A published decision addressing the application of the Exclusivity Provision of the Act to claims involving a special employment relationship; and 2) An unpublished decision addressing the burden of proof in suitable employment claims.
1) Special Employment & the Exclusivity Provision of the NC Workers’ Compensation Act
In Solis-Santos v. Lester & Prime Demolition (COA25-7, filed November 5, 2025), the Plaintiff was a temporary worker assigned by a staffing agency (Global) to Prime Demolition. The Plaintiff was injured when he was moving a light tower with a coworker during demolition work and the tower fell onto Plaintiff. After settlement of his workers’ compensation claim with Global, Plaintiff sued Prime Demolition and Prime Demolition employees for negligence and a Pleasant claim for willful, wanton or reckless conduct.
According to a General Staffing Agreement between Global and Prime Demolition, Global would assign employees to Prime Demolition. Global’s responsibilities included paying the assigned employees’ wages and benefits and an agreement to “handle unemployment and workers’ compensation claims involving assigned employees.” Prime Demolition’s duties included supervision of assigned employees performing its work and supervision, control and safeguarding the premises, processes and systems.
In Solis-Santos, the Court of Appeals relied on Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, cert denied, 285 N.C. 589, 206 S.E.2d 862 (1974) and held that special employees are subject to the jurisdictional limitations of the Act’s exclusivity provision. The Court of Appeals applied the three-prong Collins test for determining whether a worker is a special employee: 1) the employee has made a contract of hire (express or implied) with the special employer; 2) the work being done is essentially that of the special employer (same type of work); and 3) the special employer has the right to control the details of the work. The Court of Appeals determined that the Plaintiff’s receipt of benefits from either employer bars him from proceeding in a civil claim against either of the employers and dismissed Plaintiff’s claim against Prime Demolition without prejudice.
Plaintiff further argued that he can seek civil recovery against a co-employee (“Lester”) given Lester’s willful, wanton and reckless negligence. The Court of Appeals emphasized that the Plaintiff must clear a high bar in alleging and proving such a claim and must show actions “equivalent in spirit to actual intent.” Here, at the time of the accident, Plaintiff and Lester were moving a metal light tower. As Lester slowly moved the tower forward, Plaintiff released his hold on the tower to move some cables on the floor, causing the tower to fall and strike Plaintiff. The Court of Appeals held that Lester’s actions fell short of showing negligence egregious enough to recover in a civil claim against a co-employee.
Defense Practice Tips:
- Confirm staffing agreements and control over work as these factors often trigger exclusivity under the Act.
- Emphasize the high evidentiary threshold for Pleasant claims. Ordinary negligence rarely meets the standard.
2) Shifting of the Burden in Suitable Employment Claims
In Hall v. Jones Lang LaSalle, Inc., (COA25-59, filed November 5, 2025), an unpublished decision, the Court of Appeals addressed the burden of proof in a claim involving the suitability of employment offered by the employer. Following a compensable injury, the Plaintiff in Hall returned to work with the Defendant-Employer in a modified position earning equal or greater wages.
The Full Commission determined that Plaintiff’s permanent work restrictions resulting from his injury prevented him from performing the full duties of his job without modifications, and that Defendants failed to establish that the modified position is available in the competitive job market. As a result, the Commission determined that Plaintiff is entitled to stop working the unsuitable job and begin receiving TTD benefits while he conducts a reasonable job search for suitable employment. Defendants appealed and argued, in part, that the Commission erred by placing on Defendants the burden of proof.
The Court of Appeals addressed the definition of “disability,” i.e., an “incapacity because of injury to earn the wages that a plaintiff received at the time of injury in the same or any other employment.” The Court of Appeals further applied Hilliard and noted that Plaintiff bears the initial burden of proving that: 1) he could not earn the same wages he had earned before his injury in the same employment; 2) he could not earn those same wages in any other employment; and 3) his injury caused the “incapacity to earn” in each case.
The Court of Appeals determined that, absent more evidence of Plaintiff’s efforts to find third-party employment or that such efforts were truly futile, Plaintiff did not meet the second element of Hilliard. The Court of Appeals held that the Commission cannot shift the burden onto Defendants to prove suitability of employment until it first finds that Plaintiff meets the requirements to show disability. The Court of Appeals noted that the Commission must consider “both economic conditions and Plaintiff’s specific limitations” as a result of his injury when considering his inability to find equally lucrative work with third-party employers. The Court of Appeals remanded the case to the Commission.
Defense Practice Tips:
- Ensure that Plaintiff has met his burden of proving disability before focusing an argument on suitability of employment.
- Obtain a Labor Market Survey to counter Plaintiff’s argument regarding inability to locate work with third-party employers.
