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On Friday, June 9, 2017, the North Carolina Supreme Court issued its eagerly anticipated decision in Wilkes v. City of Greenville, in significant part, unanimously affirming the Court of Appeals. Wilkes involves two primary issues. First, whether Johnnie Wilkes failed to meet his burden of establishing that his anxiety and depression were the result of a work-related accident and, more specifically, whether the “Parsons presumption” applied, giving Mr. Wilkes the benefit of a presumption that these conditions were related to his accident. The second issue is whether Mr. Wilkes was entitled to disability payments made after January 18, 2011. The Court’s decision on the Parsons presumption is potentially one of the most significant decisions involving North Carolina worker’s compensation claims in the last 30 years.
The Supreme Court agreed with the Court of Appeals that Mr. Wilkes was entitled to a presumption of compensability in regards to his continued medical treatment and affirmed that part of the decision. In addition, the Supreme Court concluded that the Commission failed to address the effects of Mr. Wilkes’ tinnitus in determining whether he had lost wage earning capacity.
Moving forward after Wilkes, we recommend that any decision regarding filing a Form 60 or a Form 63 and paying indemnity benefits beyond the applicable time period be very carefully considered. Defendants should not unreasonably deny claims, but must consider that by accepting a questionable claim, a rebuttable presumption is likely created that treatment for all other medical conditions or symptoms are related to that work accident.
We anticipate a significant potential increase in denial of questionable claims with this expansion of the Parsons presumption. Defendants will also need to be prepared to obtain independent medical evaluations quickly to evaluate whether any disputed condition is “directly related” to the compensable work injury. In addition, defendants can expect to see an increase in expedited medical motions relying on the Parsons presumption when employees seek additional medical treatment for new conditions. As the current expedited medical motion procedure provides a very short timeline with no ability for extensions, this will likely make obtaining independent medical evaluations to rebut the presumption extremely challenging for defendants.
Mr. Wilkes was working as a landscaper on April 21, 2010, when he was involved in a motor vehicle accident. On April 29, 2010, the defendants filed a Form 60 with the North Carolina Industrial Commission and described the injury as “worker involved in MVA and had multiple injuries to ribs, neck, legs and entire left side.” The defendants began paying temporary total disability and provided medical compensation for Mr. Wilkes’ injuries, but never specifically accepted his anxiety and depression as compensable conditions. Defendants subsequently disputed Mr. Wilkes’ need for medical treatment related to his work injury.
The case was eventually heard by a Deputy Commissioner who entered an opinion and award determining that Wilkes’ low back and leg pain, anxiety, depression, sleep disorder, tinnitus, headaches, and TMJ pain were causally related to the April 21, 2010 compensable injury. The Deputy Commissioner also awarded Wilkes ongoing temporary total disability benefits, concluding that he had demonstrated that it would be futile for him to seek employment because of pre-existing conditions, including his age, IQ, education level reading capacity, previous work history and physical condition resulting from his work injury.
The defendants appealed to the Full Commission, which concluded that Mr. Wilkes suffered from tinnitus as a result of the April 21, 2010 accident, but determined that the evidence regarding his alleged anxiety and depression was conflicting. The Commission ultimately concluded that, based upon the preponderance of all of the evidence, Mr. Wilkes’ alleged anxiety and depression was not caused by his April 21, 2010 work-related accident.
On appeal, the Court of Appeals vacated the Commission’s opinion and award concerning Mr. Wilkes’ request for additional medical treatment for anxiety and depression. The Court of Appeals held that the Commission erred by not applying the rebuttable Parsons presumption to Mr. Wilkes’ anxiety and depression, and instead placing the burden on him to demonstrate the cause of those conditions.
The Supreme Court affirmed the Court of Appeals, holding that the Mr. Wilkes is entitled to a rebuttable presumption that additional medical treatment is related to his compensable conditions. The Court reaffirmed that a presumption of ongoing disability only arises in limited circumstances. The Court also reaffirmed that when an employer admits “compensability”, by filing a Form 60 or a Form 63, when the employer fails to contest compensability within the 90 day time limit, no presumption of “disability” arises in those circumstances.
Nonetheless, reviewing the plain language of N.C.G.S. §97-82(b), the Supreme Court concluded that when compensability and liability are admitted, that this shall constitute an award of the Commission on the question of compensability of and the insurer’s liability for the injury for which payment was made. Accordingly, an admission of “compensability” approved under §97-82(b) entitles an employee to a presumption that any additional medical treatment is causally related to his compensable injury. In reaching this conclusion, the Court cited the language in N.C.G.S. §97-25(a) which states that medical compensation “shall be provided by the employer.”
The Supreme Court specifically rejected the defendant’s argument that applying the Parsons presumption to a Form 60 will discourage direct payment, upset the framework of the Act, and convert the Act into a general health insurance program. According to the Court, applying the rebuttable Parsons presumption merely removes the burden from the employee to prove that each medical treatment sought is to the compensable condition. The employer may rebut this presumption with evidence that the condition or treatment is not “directly related” to the work injury. The Court noted that medical issues can be complex and the extent of an employee’s injuries may be difficult to determine at the time of the accident. The Court also noted that the Act provides the Form 63 procedure which allows employers to pay benefits without prejudice while they investigate such injuries without admitting liability and requires employees to submit to medical examinations by the employer’s authorized physician.
In addition, in a footnote the Court indicated that the presumption could have been applied during the expedited medical motion procedure. In other words, it appears that the Court wants parties and the Commission to quickly determine what medical conditions are and are not related to a compensable injury.
With respect to Mr. Wilkes’ medical conditions, the Supreme Court expressed no opinion on whether the evidence was sufficient to rebut the presumption that Mr. Wilkes’ current complaints are related to his initial compensable injury. Therefore, the claim was remanded back to the Commission for further review.
There are numerous issues unresolved by the Supreme Court’s decision in Wilkes. The first is whether defendants can file a Form 60 accepting a clearly compensable claim and body part, but simultaneously file a Form 61 with respect to a disputed medical condition. In the plainest reading of the Court’s decision, the filing of a Form 60 or a Form 63, without a denial within the applicable time periods, creates the rebuttable presumption. Therefore, even if a Form 61 is filed, it may have not have an impact and the employee may still enjoy the presumption of compensability despite a clear denial of disputed body part or condition.
The Supreme Court also does not appear to place any limitations on the scope of the presumption based upon the exact injury listed in the Form 60 or Form 63. Wilkes dealt with physical injuries that allegedly caused anxiety and depression. What is potentially left unresolved is whether a defendant accepting one undisputed body part on a Form 60 is also going to have to rebut a request for medical treatment for any other body part or symptom not specifically listed on the Form 60 or Form 63.
It is also unclear how conditions that develop after the initial injury by accident will be treated, such as an employee who has a compensable right knee injury and develops back pain allegedly related to the knee injury two years later. In addition, the Court leaves open whether an employee is entitled to a presumption that a work-related injury aggravated or accelerated a pre-existing condition. The Supreme Court’s decision states that the additional medical treatment being sought by the employee must be “directly related” to the compensable injury, but it is unclear how that term will be interpreted and how the presumption interacts with prior case law.
Finally, while the Supreme Court acknowledges that the filing of a Form 60 does not create a presumption of disability, Wilkes ignores the fact that many times, if not most times, the disability determination is driven by the medical conditions in a claim. Consider an employee who has a compensable right knee injury which does not cause any physical limitations and who also has back pain allegedly caused by the right knee injury, which is totally disabling. If treatment for the back pain is found compensable, as a result of the rebuttable presumption, because the right knee injury is accepted, then the medical presumption has morphed into a disability presumption as well.
Risk Handling Hint: Employers and carriers should carefully investigate and evaluate all claims before filing a Form 60 or 63. As always, the Form 60 or 63 should specifically address exactly which body parts and injuries are being accepted. In appropriate cases, where the defendants have investigated the claim and determined that certain body parts are not related, they should file a Form 61 denying those body parts and conditions. However, employers and carriers need to realize that, following Wilkes, it is not clear that filing a Form 61 will provide protection. The employee may still be entitled to a presumption that any additional medical condition is related to the compensable injury and defendants will likely be required to litigate many of these claims and to present contrary evidence.