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Smith v. First Choice Services6/3/2003
§ 97-42 (2001) states:
Payments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of this Article were not due and payable when made, may, subject to the approval of the Commission be deducted from the amount to be paid as compensation.
"Payments are due and payable under section 97-42 when the employer has accepted the plaintiff's injury as compensable and initiated payment of benefits." Thomas v. B.F. Goodrich, 144 N.C. App. 312, 318, 550 S.E.2d 193, 197, disc. review denied, 354 N.C. 228, 555 S.E.2d 276 (2001). When payments made by an employer are due and payable, the employer is not entitled to receive a credit for payments under the statute. Id. at 318-19, 550 S.E.2d at 197; see also Moretz v. Richards & Associates, 316 N.C. 539, 542, 342 S.E.2d 844, 846 (1986).
The evidence in the record shows that First Choice considered plaintiff's claim to be compensable and paid plaintiff one-third of his salary, the portion of salary that was not covered under the insurance policy, for four months following plaintiff's injury . First Choice stopped paying plaintiff because business declined in plaintiff's absence and First Choice could not afford to continue the payments. There is also evidence in the record that State Farm indicated to First Choice that State Farm considered plaintiff's claim to be compensable and instructed First Choice to file a workers' compensation claim. Since defendants accepted plaintiff's claim as compensable and First Choice initiated payment of partial benefits, the payments were considered due and payable under the statute. See Moretz, 316 N.C. at 541-42, 342 S.E.2d at 846. Accordingly, State Farm is not entitled to a credit under the statute.
Additionally, there is no evidence in the record that State Farm made any payment of benefits to plaintiff following his injury . N.C.G.S. § 97-42 allows the employer to receive credit when the employer makes payment of benefits, the purpose of which is "to encourage voluntary payments by the employer during the time of the worker's disability." Effingham v. Kroger Co., 149 N.C. App. 105, 119, 561 S.E.2d 287, 296-97 (2002). However, the statute does not provide for the insurance carrier to receive a credit for payments made by the employer. State Farm has failed to point us to any authority that would support such an interpretation of the statute. This assignment of error is without merit.
We have reviewed defendant's remaining assignments of error and find them to be without merit.
Affirmed.
Judges HUDSON and STEELMAN concur.
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