State News : North Carolina

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North Carolina



Written by: Tracey Jones

On September 29, 2021, the Full Commission entered an Opinion and Award in Milton Nobles v. North Carolina DHHS and CCMSI. The Full Commission reversed Deputy Commissioner Harris’ Opinion and Award and denied claimant’s right to extended benefits beyond the 500 weeks, as well as his claim for PTSD. The Full Commission panel consisted of Commissioner Myra Griffin, Commissioner Kenneth Goodman and Deputy Commissioner David Hullender.

By way of background, Deputy Commissioner Robert J. Harris entered an Opinion and Award on January 25, 2021, awarding claimant extended benefits beyond the 500 weeks and finding that claimant’s PTSD was compensable. On June 26, 2011, the claimant was working for a hospital and sustained physical injuries to his right eye, mouth and right shoulder, which were accepted. At the hearing, claimant alleged that he also developed PTSD as a result of his work injuries. In awarding extended benefits, Deputy Harris noted that the claimant had no formal education outside of a high school diploma, and his work experience was primarily as a health care technician. Additionally, Deputy Harris emphasized the severity of the fight and the resulting injuries to claimant as well as claimant’s limited job history and low IQ.

Dr. Thomas Gualtieri saw the claimant for a one-time neuropsychiatric evaluation in September of 2011 and opined that claimant was malingering. He testified in line with the same at hearing. Claimant then began seeing Dr. Edwin Hoeper, a psychiatrist, on his own starting in May of 2012. Claimant was still seeing Dr. Hoeper as of the date of the hearing and Dr. Hoeper provided testimony for claimant that his PTSD was related to the work injury, would never be cured and that his treatment could only improve his life slightly. Dr. Hoeper testified that claimant was permanently and totally disabled, and unemployable in any job. Dr. Manish Fozdar also conducted a one-time independent medical examination of claimant. Dr. Fozdar found claimant to be uncooperative and opined claimant was malingering. He opined any further mental health treatment was not related to his initial injury. Defendants also hired a vocational rehabilitation professional, who produced a labor market survey and identified several positions she believed claimant could perform. Defendants’ vocational expert never met with claimant and claimant did not hire his own vocational expert. Deputy Commissioner Harris determined that claimant was entitled to extended benefits beyond the 500 weeks. Deputy Harris found that claimant had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C.G.S. § 97-29(c) and had proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Dr. Hoeper’s testimony was given more weight than that of Dr. Fozdar, Dr. Gualtieri, and of the vocational rehabilitation professional.

The Full Commission reviewed the evidence and testimony and noted that claimant had received no medical treatment for his physical injuries since 2012 and had no work restrictions related to those injuries. Additionally, the Full Commission noted that the Parsons presumption did not apply to claimant’s allegations of PTSD as it was not an accepted condition in the claim and found Dr. Gualtieri’s and Dr. Fozdar’s testimony more credible than that of claimant’s treating physician, Dr. Hoeper. The Full Commission concluded that Dr. Hoeper relied solely on claimant’s subjective complaints without any diagnostic testing or objective findings to support his diagnosis of PTSD. They specifically noted that Dr. Fozdar and Dr. Gualtieri performed objective testing which led them to conclude that claimant’s alleged mental conditions were not related to his work injury. Accordingly, the Full Commission conculded that claimant failed to prove that he suffered from PTSD or depression as a result of his work injury and did not prove that he lacks total wage-earning capacity as a result of his June 26, 2011, right eye, mouth or right shoulder injuries. The Full Commission denied medical treatment for claimant’s alleged PTSD and denied his claim for extended benefits beyond the 500-week cap.

What can we take away from this case?

Employers and adjusters should carefully draft Form 63s or Form 60s. When completing these forms, only list the body parts that are truly accepted, and list them with specificity.

Although it is unclear whether the Full Commission would have still reached the same conclusion if the mental component had been accepted in light of Dr. Fozdar’s and Dr. Gualtieri’s testimony and examinations, the Parsons presumption is a difficult one for defendants to overcome. (The Parsons presumption states that if a condition is listed on the Form 63 than there is a presumption that the condition listed and all future treatment for that condition is related to the original injury absent evidence to the contrary.) Additionally, the Opinion reiterates the importance of expert testimony that is based on objective diagnostic testing

For a more detailed list of practical takeaways when defending against extended benefits cases see our article Early Trends in North Carolina Extended Benefits Cases and How Comparable Jurisdictions in the Southeast Have Analyzed Similar Statutory Caps.