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If employee loses workers’ comp appeal, don’t be shy about asking him to pay legal fees

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in Employment Law,Human Resources

Congratulations! You just won a workers’ compensation case because you had strong evidence that the employee’s injury wasn’t caused by anything that happened at work. Now get ready for round No. 2.

If the employee appeals, be sure to ask for attorneys’ fees. Under the right circumstances, you’ll be entitled to payment.

Recent case: Christopher developed acute myelogenous leukemia when he was 33 and sued his most recent employer for workers’ compensation benefits. He alleged that his illness was caused by workplace exposure to benzene, a chemical that can sometimes trigger cancer like his.

But the employer presented compelling evidence that none of the processes Christopher worked on involved benzene, and that any ex­posure at work would at most have been 1/2000th of the limit OSHA considers safe. Plus, the evidence suggested that the type of cancer Christopher developed was based more on genetics and cigarette exposure than benzene.

Christopher’s case was dismissed, but he appealed, arguing that his “expert witness” presented evidence from science journals published in the 1950s showing a connection between benzene and cancer.

The employer asked for attorneys’ fees if he lost the appeal.

The court refused to overturn the decision and ordered the North Caro­­lina Industrial Commission to determine whether Christopher should pay the employer’s legal fees for a frivolous appeal. (Scearce v. Chemtek, No. COA12-345, Court of Appeals of North Carolina, 2012)

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