§ 97-2. Definitions. - North Carolina Statutes

§ 97‑2.  Definitions.

When used in this Article, unlessthe context otherwise requires –

(1)        Employment. – Theterm "employment" includes employment by the State and all politicalsubdivisions thereof, and all public and quasi‑public corporationstherein and all private employments in which three or more employees areregularly employed in the same business or establishment or in which one ormore employees are employed in activities which involve the use or presence ofradiation, except agriculture and domestic services, unless 10 or more full‑timenonseasonal agricultural workers are regularly employed by the employer and anindividual sawmill and logging operator with less than 10 employees, who sawsand logs less than 60 days in any six consecutive months and whose principalbusiness is unrelated to sawmilling or logging.

(2)        Employee. – The term"employee" means every person engaged in an employment under anyappointment or contract of hire or apprenticeship, express or implied, oral orwritten, including aliens, and also minors, whether lawfully or unlawfullyemployed, but excluding persons whose employment is both casual and not in thecourse of the trade, business, profession, or occupation of his employer, andas relating to those so employed by the State, the term "employee"shall include all officers and employees of the State, including such as areelected by the people, or by the General Assembly, or appointed by the Governorto serve on a per diem, part‑time or fee basis, either with or without theconfirmation of the Senate; as relating to municipal corporations and politicalsubdivisions of the State, the term "employee" shall include allofficers and employees thereof, including such as are elected by the people.The term "employee" shall include members of the North CarolinaNational Guard while on State active duty under orders of the Governor andmembers of the North Carolina State Defense Militia while on State active dutyunder orders of the Governor. The term "employee" shall include deputysheriffs and all persons acting in the capacity of deputy sheriffs, whetherappointed by the sheriff or by the governing body of the county and whetherserving on a fee basis or on a salary basis, or whether deputy sheriffs servingupon a full‑time basis or a part‑time basis, and including deputysheriffs appointed to serve in an emergency, but as to those so appointed, onlyduring the continuation of the emergency. The sheriff shall furnish to theboard of county commissioners a complete list of all deputy sheriffs named orappointed by him immediately after their appointment and notify the board ofcommissioners of any changes made therein promptly after such changes are made.Any reference to an employee who has been injured shall, when the employee is dead,include also his legal representative, dependents, and other persons to whomcompensation may be payable: Provided, further, that any employee, as hereindefined, of a municipality, county, or of the State of North Carolina, whileengaged in the discharge of his official duty outside the jurisdictional orterritorial limits of the municipality, county, or the State of North Carolinaand while acting pursuant to authorization or instruction from any superiorofficer, shall have the same rights under this Article as if such duty oractivity were performed within the territorial boundary limits of his employer.

Everyexecutive officer elected or appointed and empowered in accordance with thecharter and bylaws of a corporation shall be considered as an employee of suchcorporation under this Article.

Anysuch executive officer of a corporation may, notwithstanding any otherprovision of this Article, be exempt from the coverage of the corporation'sinsurance contract by such corporation's specifically excluding such executiveofficer in such contract of insurance, and the exclusion to remove suchexecutive officer from the coverage shall continue for the period such contractof insurance is in effect, and during such period such executive officers thusexempted from the coverage of the insurance contract shall not be employees ofsuch corporation under this Article.

Allcounty agricultural extension service employees who do not receive officialfederal appointments as employees of the United States Department ofAgriculture and who are field faculty members with professional rank asdesignated in the memorandum of understanding between the North CarolinaAgricultural Extension Service, North Carolina State University, A & TState University, and the boards of county commissioners shall be deemed to beemployees of the State of North Carolina. All other county agriculturalextension service employees paid from State or county funds shall be deemed tobe employees of the county board of commissioners in the county in which theemployee is employed for purposes of workers' compensation.

Theterm "employee" shall also include members of the Civil Air Patrolcurrently certified pursuant to G.S. 143B‑491(a) when performing dutiesin the course and scope of a State‑approved mission pursuant to Article11 of Chapter 143B of the General Statutes.

"Employee"shall not include any person performing voluntary service as a ski patrolmanwho receives no compensation for such services other than meals or lodging orthe use of ski tow or ski lift facilities or any combination thereof.

Anysole proprietor or partner of a business or any member of a limited liabilitycompany may elect to be included as an employee under the workers' compensationcoverage of such business if he is actively engaged in the operation of thebusiness and if the insurer is notified of his election to be so included. Anysuch sole proprietor or partner or member of a limited liability company shall,upon such election, be entitled to employee benefits and be subject to employeeresponsibilities prescribed in this Article.

"Employee"shall include an authorized pickup firefighter of the Division of ForestResources of the Department of Environment and Natural Resources when thatindividual is engaged in emergency fire suppression activities for the Divisionof Forest Resources. As used in this section, "authorized pickupfirefighter" means an individual who has completed required firesuppression training as a wildland firefighter and who is available as neededby the Division of Forest Resources for emergency fire suppression activities,including immediate dispatch to wildfires and standby for initial attack onfires during periods of high fire danger.

Itshall be a rebuttable presumption that the term "employee" shall notinclude any person performing services in the sale of newspapers or magazinesto ultimate consumers under an arrangement whereby the newspapers or magazinesare to be sold by that person at a fixed price and the person's compensation isbased on the retention of the excess of the fixed price over the amount atwhich the newspapers or magazines are charged to the person.

(3)        Employer. – The term"employer" means the State and all political subdivisions thereof,all public and quasi‑public corporations therein, every person carryingon any employment, and the legal representative of a deceased person or thereceiver or trustee of any person. The board of commissioners of each county ofthe State, for the purposes of this law, shall be considered as"employer" of all deputy sheriffs serving within such county, orpersons serving or performing the duties of a deputy sheriff, whether suchpersons are appointed by the sheriff or by the board of commissioners andwhether serving on a fee basis or salary basis. Each county is authorized toinsure its compensation liability for deputy sheriffs to the same extent it isauthorized to insure other compensation liability for employees thereof. Forpurposes of this Chapter, when an authorized pickup firefighter of the Divisionof Forest Resources of the Department of Environment and Natural Resources isengaged in emergency fire suppression activities for the Division of ForestResources, that individual's employer is the Division of Forest Resources.

(4)        Person. – The term"person" means individual, partnership, association or corporation.

(5)        Average WeeklyWages. – "Average weekly wages" shall mean the earnings of theinjured employee in the employment in which he was working at the time of theinjury during the period of 52 weeks immediately preceding the date of theinjury, including the subsistence allowance paid to veteran trainees by theUnited States government, provided the amount of said allowance shall bereported monthly by said trainee to his employer, divided by 52; but if theinjured employee lost more than seven consecutive calendar days at one or moretimes during such period, although not in the same week, then the earnings forthe remainder of such 52 weeks shall be divided by the number of weeksremaining after the time so lost has been deducted. Where the employment priorto the injury extended over a period of fewer than 52 weeks, the method ofdividing the earnings during that period by the number of weeks and partsthereof during which the employee earned wages shall be followed; provided,results fair and just to both parties will be thereby obtained. Where, byreason of a shortness of time during which the employee has been in theemployment of his employer or the casual nature or terms of his employment, itis impractical to compute the average weekly wages as above defined, regardshall be had to the average weekly amount which during the 52 weeks previous tothe injury was being earned by a person of the same grade and character employedin the same class of employment in the same locality or community.

Butwhere for exceptional reasons the foregoing would be unfair, either to theemployer or employee, such other method of computing average weekly wages maybe resorted to as will most nearly approximate the amount which the injuredemployee would be earning were it not for the injury.

Whereverallowances of any character made to an employee in lieu of wages are specifiedpart of the wage contract, they shall be deemed a part of his earnings.

Wherea minor employee, under the age of 18 years, sustains a permanent disability ordies leaving dependents surviving, the compensation payable for permanentdisability or death shall be calculated, first, upon the average weekly wagepaid to adult employees employed by the same employer at the time of theaccident in a similar or like class of work which the injured minor employeewould probably have been promoted to if not injured, or, second, upon a wagesufficient to yield the maximum weekly compensation benefit. Compensation fortemporary total disability or for the death of a minor without dependents shallbe computed upon the average weekly wage at the time of the accident, unlessthe total disability extends more than 52 weeks, and then the compensation maybe increased in proportion to his expected earnings.

Incase of disabling injury or death to a volunteer fireman; member of anorganized rescue squad; an authorized pickup firefighter, as defined insubdivision (2) of this section, when that individual is engaged in emergencyfire suppression activities for the Division of Forest Resources; a dulyappointed and sworn member of an auxiliary police department organized pursuantto G.S. 160A‑282; or senior members of the State Civil Air Patrol functioningunder Article 11 of Chapter 143B of the General Statutes, under compensablecircumstances, compensation payable shall be calculated upon the average weeklywage the volunteer fireman, member of an organized rescue squad, authorizedpickup firefighter of the Division of Forest Resources, when that individual isengaged in emergency fire suppression activities for the Division of ForestResources, member of an auxiliary police department, or senior member of theState Civil Air Patrol was earning in the employment wherein he principallyearned his livelihood as of the date of injury. Provided, however, that theminimum compensation payable to a volunteer fireman, member of an organizedrescue squad, an authorized pickup firefighter of the Division of ForestResources of the Department of Environment and Natural Resources, when thatindividual is engaged in emergency fire suppression activities for the Divisionof Forest Resources, a sworn member of an auxiliary police department organizedpursuant to G.S. 160A‑282, or senior members of the State Civil AirPatrol shall be sixty‑six and two‑thirds percent (66 2/3%) of themaximum weekly benefit established in G.S. 97‑29.

(6)        Injury. – "Injuryand personal injury" shall mean only injury by accident arising out of andin the course of the employment, and shall not include a disease in any form,except where it results naturally and unavoidably from the accident. Withrespect to back injuries, however, where injury to the back arises out of andin the course of the employment and is the direct result of a specifictraumatic incident of the work assigned, "injury by accident" shallbe construed to include any disabling physical injury to the back arising outof and causally related to such incident. Injury shall include breakage ordamage to eyeglasses, hearing aids, dentures, or other prosthetic devices whichfunction as part of the body; provided, however, that eyeglasses and hearingaids will not be replaced, repaired, or otherwise compensated for unless injuryto them is incidental to a compensable injury.

(7)        Carrier. – The term"carrier" or "insurer" means any person or fund authorizedunder G.S. 97‑93 to insure under this Article, and includes self‑insurers.

(8)        Commission. – Theterm "Commission" means the North Carolina Industrial Commission, tobe created under the provisions of this Article.

(9)        Disability. – Theterm "disability" means incapacity because of injury to earn thewages which the employee was receiving at the time of injury in the same or anyother employment.

(10)      Death. – The term"death" as a basis for a right to compensation means only deathresulting from an injury.

(11)      Compensation. – Theterm "compensation" means the money allowance payable to an employeeor to his dependents as provided for in this Article, and includes funeralbenefits provided herein.

(12)      Child, Grandchild,Brother, Sister. – The term "child" shall include a posthumous child,a child legally adopted prior to the injury of the employee, and a stepchild oracknowledged illegitimate child dependent upon the deceased, but does notinclude married children unless wholly dependent upon him."Grandchild" means a child as above defined of a child as abovedefined. "Brother" and "sister" include stepbrothers andstepsisters, half brothers and half sisters, and brothers and sisters byadoption, but does not include married brothers nor married sisters unlesswholly dependent on the employee. "Child," "grandchild,""brother," and "sister" include only persons who at the timeof the death of the deceased employee are under 18 years of age.

(13)      Parent. – The term"parent" includes stepparents and parents by adoption, parents‑in‑law,and any person who for more than three years prior to the death of the deceasedemployee stood in the place of a parent to him, if dependent on the injuredemployee.

(14)      Widow. – The term"widow" includes only the decedent's wife living with or dependentfor support upon him at the time of his death; or living apart for justifiablecause or by reason of his desertion at such time.

(15)      Widower. – The term"widower" includes only the decedent's husband living with ordependent for support upon her at the time of her death or living apart forjustifiable cause or by reason of her desertion at such time.

(16)      Adoption. – The term"adoption" or "adopted" means legal adoption prior to thetime of the injury.

(17)      Singular. – Thesingular includes the plural and the masculine includes the feminine andneuter.

(18)      Hernia. – In allclaims for compensation for hernia or rupture, resulting from injury byaccident arising out of and in the course of the employee's employment, it mustbe definitely proven to the satisfaction of the Industrial Commission:

a.         That there was aninjury resulting in hernia or rupture.

b.         That the hernia orrupture appeared suddenly.

c.         Repealed by SessionLaws 1987, c. 729, s. 2.

d.         That the hernia orrupture immediately followed an accident. Provided, however, a hernia shall becompensable under this Article if it arises out of and in the course of theemployment and is the direct result of a specific traumatic incident of thework assigned.

e.         That the hernia orrupture did not exist prior to the accident for which compensation is claimed.

Allhernia or rupture, inguinal, femoral or otherwise, so proven to be the resultof an injury by accident arising out of and in the course of employment, shallbe treated in a surgical manner by a radical operation. If death results fromsuch operation, the death shall be considered as a result of the injury, andcompensation paid in accordance with the provisions of G.S. 97‑38. Innonfatal cases, if it is shown by special examination, as provided in G.S. 97‑27,that the injured employee has a disability resulting after the operation,compensation for such disability shall be paid in accordance with theprovisions of this Article.

Incase the injured employee refuses to undergo the radical operation for the cureof said hernia or rupture, no compensation will be allowed during the time suchrefusal continues. If, however, it is shown that the employee has some chronicdisease, or is otherwise in such physical condition that the Commissionconsiders it unsafe for the employee to undergo said operation, the employeeshall be paid compensation in accordance with the provisions of this Article.

(19)      Medical Compensation.– The term "medical compensation" means medical, surgical, hospital,nursing, and rehabilitative services, and medicines, sick travel, and othertreatment, including medical and surgical supplies, as may reasonably berequired to effect a cure or give relief and for such additional time as, inthe judgment of the Commission, will tend to lessen the period of disability;and any original artificial members as may reasonably be necessary at the endof the healing period and the replacement of such artificial members whenreasonably necessitated by ordinary use or medical circumstances.

(20)      Health care provider.– The term "health care provider" means physician, hospital,pharmacy, chiropractor, nurse, dentist, podiatrist, physical therapist,rehabilitation specialist, psychologist, and any other person providing medicalcare pursuant to this Article.

(21)      Managed careorganization. – The term "managed care organization" means apreferred provider organization or a health maintenance organization regulatedunder Chapter 58 of the General Statutes. "Managed care organization"also means a preferred provider benefit plan of an insurance company, hospital,or medical service corporation in which utilization review or qualitymanagement programs are used to manage the provision of health care servicesand benefits under this Chapter.  (1929, c. 120, s. 2; 1933, c. 448; 1939, c. 277, s.1; 1943, c. 543; c. 672, s. 1; 1945, c. 766; 1947, c. 698; 1949, c. 399; 1953,c. 619; 1955, c. 644; c. 1026, s. 1; c. 1055; 1957, c. 95; 1959, c. 289; 1961,cc. 231, 235; 1967, c. 1229, s. 1; 1969, c. 206, s. 2; c. 707; 1971, c. 284, s.1; c. 1231, s. 1; 1973, c. 521, ss. 1, 2; c. 763, ss. 1‑3; c. 1291, s.14; 1975, c. 266, s. 1; c. 284, ss. 2, 3; c. 288; c. 718, s. 3; c. 817, s. 1;1977, c. 419; c. 893, s. 1; 1979, cc. 86, 374; c. 516, ss. 4, 5; c. 714, s. 3;1981, c. 421, ss. 1, 2; 1983, c. 833; 1983 (Reg. Sess., 1984), c. 1042, s. 1;1985, cc. 133, 144; 1987, c. 729, ss. 1, 2; 1991, c. 703, s. 1; 1993, c. 389,s. 3; 1993 (Reg. Sess., 1994), c. 679, ss. 2.6, 10.7; 1995, c. 517, s. 35; 1999‑219,s. 4.2; 1999‑418, s. 1; 1999‑456, s. 33(c); 2001‑204, ss. 1,1.1, 2; 2003‑156, s. 1; 2009‑281, s. 1.)