An injured worker in North Carolina is entitled to a 10% increase in benefits when a worker’s injury or death is caused by the willful failure of the employer to comply with any statutory requirement or any lawful order of the Industrial Commission.
While the statute provides that a violation of any statutory requirement which causes the injury or death of the injured worker gives rise to the 10% increase in benefits, the usual application of this statute is with respect to an OSHA violation or the violation of some other safety statute. One example of the application of this statute is a case in which an increase in the employee’s compensation award of 10% was upheld where the employer had violated OSHA standards by failing to have a guard on a brake press machine and the employee established that the failure to have the guard was the cause of the injury.
However, a similar law applies when a worker violates a safety standard. Under that law, when the injury or death is caused by the willful failure of the employee to use a safety appliance or perform a statutory duty or by the willful breach of any rule or regulation adopted by the employer and approved by the commission and brought to the knowledge of the employee prior to the injury, compensation is reduced by 10%.
This is a narrow exception to the general rule that the negligence on the part of an employee which causes injury or death will not prevent the payment of NC workers' compensation benefits.
An example of a case in which the negligence of the injured worker did not prevent payment of a workers' compensation claim involved an employee who injured himself with a crane. The worker was improperly operating the crane and it toppled over. This worker was not prevented from collecting workers' compensation benefits because there was no evidence that his injuries were the result of a willful intention to injure himself or a willful breach of a safety rule or procedure adopted by his employer. Although the worker was clearly negligent and his negligence caused his injury, the worker still recovered benefits.