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Injured nurse failed to seek employment, loses benefits

North Carolina

A nurse injured while working for Duke University lost access to indemnity benefits because she did not show she had been actively seeking alternative employment, an appeals court in North Carolina ruled Tuesday.

Margarita Walston suffered two compensable injuries to her arm and knee in 2014 and 2015 while working at the university hospital in Durham, North Carolina. Upon reaching maximum medical improvement in 2015 following surgery, an evaluating physical put her on some physical restrictions. Six months later, another evaluation demonstrated she could work “in a light physical demand category,” but the evaluator noted she displayed “inconsistent performance with self-limiting behavior,” according to documents in Margarita Walston v. Duke University, filed in the Court of Appeals of North Carolina in Raleigh.

Meanwhile, the self-insured university investigated Ms. Walston, finding her performing yard work and walking without a cane she said she needed and used when visiting the doctor, according to documents.

Ms. Walston also failed to comply with vocational rehabilitation by not applying for jobs she was capable of performing, per her evaluator, and within 50 miles from her home, according to documents.

“Plaintiff was given several available positions from (vocational rehabilitation case manager), but she did not apply for any of the available positions. Plaintiff's noncompliance as to the available positions was documented. Plaintiff's continued noncompliance resulted in an order from the special deputy commissioner on 1 March 2016 to ‘fully comply with all reasonable vocational rehabilitation provided by [Duke]’ and respond ‘to e-mails from (case manager) within… (24) hours of receipt,’” records state. 

Following that order, (the case manager) met with plaintiff “occasionally and provided her with more job vacancies. Plaintiff responded to some but not all of the available positions, citing the following as reasons for noncompliance: lack of qualifications or experience; the requirement for weekend hours; and distance from her residence,” records state. 

Ms. Walston told (the case manager) “that some of the positions, albeit within the 50-mile radius, were too far away from her residence and the driving distance would have an impact on her injuries. However, plaintiff's work record did not contain any driving restrictions. As such, absent proof of any driving restrictions, (the case manager) continued to provide plaintiff with job vacancies up to 50 miles away,” records state.

In April 2016, the university terminated her indemnity benefits. On two appeals, both the full Workers Compensation Commission and the deputy commissioner ruled in favor of Duke’s decision to terminate benefits because Ms. Walston failed to seek employment despite her documented recovery.

The appeals court affirmed, writing in its opinion: “After reviewing the record, we agree with the Commission's conclusion as there was competent evidence that plaintiff misrepresented her injuries while undertaking her job search. … Defendant produced video surveillance that plaintiff had performed extensive personal tasks with unrestricted use of her leg and arm. Plaintiff's doctors noted plaintiff's inconsistency with her injuries as she demonstrated self-limiting behaviors during medical visits.”

The university and lawyers involved could not immediately be reached for comment.




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