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Written by: Lindsay A. Underwood
On May 12, 2007, Plaintiff was working as a tire builder for Defendant-Employer, and sustained injury to her right shoulder. Defendants accepted the right shoulder as compensable. Plaintiff underwent surgery and returned to work. Plaintiff sustained a number of exacerbations to the right shoulder over the course of her claim. Following one incident in 2010, Plaintiff began treating with Dr. Robert Carroll. Dr. Carroll assessed Plaintiff at MMI on March 14, 2012.
On September 6, 2013, Plaintiff was lifting at work when she again injured her right shoulder. She returned to work briefly from October 3, 2013 to October 23, 2013, but again reported pain. Plaintiff was written out of work and was diagnosed with proximal biceps tendinitis. Defendants argued this new diagnosis of biceps tendinitis was not causally related to the May 12, 2007 injury. Although Plaintiff was written out of work, Defendants did not initiate TTD benefits, contending the biceps injury was a new injury unrelated to the 2007 accident. Plaintiff’s three physicians, Dr. Kevin Speer, Dr. Christopher Barnes, and Dr. Carroll, testified that it was unclear whether the September 6, 2013 injury to the biceps tendon was related to the original injury.
The Deputy Commissioner issued an Opinion and Award finding that the medical opinion testimony was insufficient to establish that the biceps tendon was causally related to the original injury and denying Plaintiff’s claim for TTD benefits. Plaintiff appealed to the Full Commission. The Full Commission reversed the Deputy Commissioners’ Opinion and Award. Citing theParsons presumption, the Full Commission concluded that Defendants had the burden to prove the September 2013 injury was not directly related to the 2007 injury. It also determined that Defendants had failed to meet their burden and ordered Defendants to pay Plaintiff TTD benefits.
Defendants appealed to the Court of Appeals, which agreed with the Full Commission. Defendants’ argued that because the biceps tendon is a complete and separate body part than the rotator cuff, theParsons presumption should not apply. The Court of Appeals rejected Defendants’ argument, noting Defendants accepted the compensability of the right shoulder, and could not say the right bicep tendon, part of the right shoulder complex, is not connected to the right shoulder. In addition, two of Plaintiff’s physicians, Dr. Barnes and Dr. Carroll, testified that the surgical repair Plaintiff underwent in 2007 weakened the complex where her bicep attached to the shoulder socket, placing her at a higher risk for injury to the bicep. Thus, the Court determined that Defendants had failed to rebut the presumption that the biceps injury was related to the original 2007 accident.
The Court further determined that Defendants should have immediately reinstated Plaintiff’s disability compensation following her unsuccessful trial return to work. As Defendants did not immediately reinstate benefits, the Court held Defendants were subject to a ten percent (10%) penalty on TTD benefits not paid to Plaintiff following the end of her trial return to work.
RISK HANDLING HINT: Bell provides further clarification as to how the Parsons presumption impacts defendants who have admitted the compensability a prior accident. If the injured worker suffers a new injury affecting a previously accepted body part, even it if is arguably an injury to a different part of the accepted body part, whereBell applies, the burden of proof will shift to defendants to show the new injury is unrelated to the original claim.
Governor Appoints New Commissioner to Industrial Commission
Governor Pat McCrory announced today that Bill Daughtridge, formerly Secretary of Administration, has been appointed a Commissioner at the North Carolina Industrial Commission. The appointment is an emergency appointment which the General Assembly will need to confirm when they return to session in May.
Governor McCrory also has until February 29th to either reappoint Commissioner Linda Cheatham or make a new appointment for the seat. Commissioner Cheatham’s current term runs through June 30, 2016.
Updates from the Industrial Commission:
This follows a flurry of recent activity and changes at the North Carolina Industrial Commission, most notably the appointment of Charlton L. Allen as Chairman.
In January, Governor McCrory also announced the appointments of Brian P. LiVecchi, Dane Scalise and Tyler Younts as Deputy Commissioners, while re-appointing Thomas H. Perlungher and John C. Schafer as Deputy Commissioners as well.
The Court of Appeals decided two workers’ compensation cases on February 2, 2016. In Falin v. The Roberts Company Field Services, Inc., the Court affirmed the Full Commission’s award of benefits to Mr. Falin. Temporary partial disability benefits were the only benefits at issue because Mr. Falin had returned to work with a different employer. The case centered on the plain reading of the statutory language defining suitable work under N.C.G.S. § 97-22(2). The statute requires that post-maximum medical improvement work be within 50 miles of the employee’s home in order to be considered suitable employment. In this case, the work The Roberts Company was contending was suitable was 338 miles from Mr. Falin’s home. The Roberts Company contended this job was suitable, despite the distance, because Mr. Falin’s pre-injury job was also hundreds of miles from home and in the same area. The Court ultimately held that the plain reading of the statute made the 50-mile consideration a requirement and not just a factor to be weighed; thus rendering the offered job unsuitable and entitling Mr. Falin to temporary partial disability benefits.
In Pickett v. Advance Auto Parts, Mr. Pickett sought benefits for psychological injuries after being the victim of an armed robbery while working as a salesperson at an Advance Auto store. He was held at gunpoint while the robber stole money and thereafter fled the scene. As a result, Mr. Pickett suffered psychological problems, including post-traumatic stress disorder. The issue before the Court involved challenges to Mr. Pickett’s credibility and to his doctors’ competency as experts. The Commission had previously found Mr. Pickett to be credible, so the Court would not consider questions regarding his credibility; which summarily resolved any challenges to the doctors’ opinions that were founded on Mr. Pickett’s credibility. In regard to challenges to the doctors’ competency as experts, the Court found no basis for finding either doctor incompetent as an expert. This holding also resolved Advance Auto’s challenge to the finding of disability as both doctors had written Mr. Pickett out of work. The Court thus upheld the Commission’s award of ongoing benefits to Mr. Pickett.
Risk Handling Hints: The decisions in Falin and Pickett provide reminders that parties should think carefully when considering whether to appeal a case to the Court of Appeals. Appeals from the Full Commission should not be pursued merely as a matter of course, but instead should be thought out given the facts and posture of the claim. Parties considering an appeal should remember that the Court of Appeals will not overrule the Industrial Commission’s “findings of fact” unless there is no evidence to support those findings.
Charlton L. Allen Named Chairman of the North Carolina Industrial Commission
Governor Pat McCrory has selected Charlton L. Allen to be the next Chairman of the North Carolina Industrial Commission, effective February 1, 2016. Mr. Allen succeeds Andrew T. Heath who will become State Budget Director.
Uploading to the EDFP
The Industrial Commission will require electronic document filing effective Monday, February 1, 2016 pursuant to Rule .0108. All parties must submit documents electronically, except for pro se parties (who may submit by EDFP, e-mail, fax, U.S. Mail, private courier service, or hand delivery). If a fee is required, the document will not be considered filed until the fee has been paid in full. Some documents must be uploaded through the Electronic Document Filing Portal (EDFP). In order to upload documents to the Commission through the EDFP, parties have to first obtain a North Carolina ID (NCID), and then register with the Commission. Here is a link to instructions for registering for the EDFP provided on the Commission’s website: http://www.ic.nc.gov/EDFPregistrationInstructions.pdf. Here is a link to a tutorial for EDFP submissions also provided on the Commission’s website: http://www.ic.nc.gov/training.html.
The following documents must be uploaded through the EDFP:
The following forms are to be filed by e-mail to forms@ic.nc.gov:
Other Documents to Be E-Mailed
Other motions, responses, and additional documents not previously listed to be filed by e-mail as follows:
Connie Chandler began working as a cleaner for Atlantic Scrap & Processing in 1994. Atlantic Scrap was a metal recycling facility. On August 11, 2003, Ms. Chandler was walking down a flight of concrete steps when she accidentally fell backwards, striking the back of her head and neck. She suffered a concussion, closed head injury, neck injury, right shoulder injury, and depression as a result of this fall. She was diagnosed with cognitive impairments due to post-concussive syndrome and was also diagnosed with depression. Her cognitive functioning and memory declined significantly after the accident. Ms. Chandler’s intellectual functioning eventually fell to the impaired range. By June 28, 2004, Ms. Chandler was incapable of caring for herself without assistance and could not be left alone. She required constant supervision and attendant care services, which were provided by her husband. On October 27, 2004, Ms. Chandler’s doctor provided the opinion that she needed constant attendant care services. In April 2008, Ms. Chandler’s doctor provided a written note indicating that she was permanently and totally disabled due to her work-related brain injury.
This second Court of Appeals decision focused on interpreting the Supreme Court mandate in regard to the issue of attendant care. This case was previously heard by a deputy commissioner, the Full Commission, the Court of Appeals, and the Supreme Court. The Supreme Court affirmed per curium the Court of Appeals’ decision regarding the reasonableness of the delay in Ms. Chandler’s request for payment of attendant care services and remanded for additional findings inChandler I. The Court of Appeals in Chandler II held that the only issue for consideration upon remand was whether the Commission erred as to the award of interest for unpaid attendant care. The Court held that the Supreme Court’s mandate was not to be construed to require “magic words” when considering whether a plaintiff had provided a defendant with a request for attendant care within a reasonable amount of time. The Court emphasized that Defendants had actual notice of the need for attendant care less than one month after June 28, 2004. The Court also highlighted that Ms. Chandler’s doctors were selected by Defendants and/or the nurse case manager, that Ms. Chandler’s doctors unanimously agreed that she needed constant attendant care services, and that Ms. Chandler’s mental functioning was at the level of a four-year-old child. Ultimately, the Court interpreted the Supreme Court’s mandate to not require additional consideration of the notice issue for attendant care services.
Risk Handling Hints: The decision in Chandler II provides additional guidance as to the facts the Court will look at when determining whether a plaintiff’s delay in requesting attendant care services is reasonable. Based on this decision, the Court will consider: when a defendant receives notice of the need for attendant care services; whether the medical opinion for attendant care services was provided by a doctor selected by the defendant(s); whether the opinion regarding the necessity for attendant care services is unanimous; the mental functioning of the plaintiff; and whether the plaintiff made attempts to notify the defendant(s) of the need for attendant care services. The Court made mention of the underlying policy for requiring reasonable notice, which is to ensure that an employer is “seasonably notified” when an injured employee seeks new or different medical care because that employer is paying for these medical expenses. If an employer or carrier becomes aware that a medical provider has recommended attendant care services, they should address the issue without delay by either making efforts to find a different provider and/or a second opinion regarding the need for services, or by agreeing to pay compensation for the attendant care services rendered.
Dorothy Jane Ketchie and Glegg Lee Jones worked for Fieldcrest Cannon, Inc. over the course of approximately two and 45 years respectively. The parties stipulated that Ms. Ketchie was last injuriously exposed to asbestos in the seven months before January 31, 1974. The parties stipulated that Mr. Jones’ last injurious exposure was in the seven months before September 24, 1986. In 2000, Ms. Ketchie was diagnosed with asbestosis as a result of her exposure during employment with Fieldcrest. In 2003, Mr. Jones was diagnosed with mesothelioma and died on May 9, 2004.
The North Carolina General Assembly created the Security Association on October 1, 1986 to provide a way to pay covered claims against member self-insurers in order to avoid, among other things, non-payment of claims due to the insolvency of a member self-insurer. All self-insurers are required to be members of the Security Association as a condition of being licensed to self-insure. Fieldcrest was a member of the Security Association from October 1986 until December 19, 1997, after which the company purchased workers’ compensation insurance. The company thereafter filed for bankruptcy in 2000 and 2003. After the bankruptcy in 2003, Fieldcrest defaulted on its outstanding workers’ compensation claims incurred during this period of self-insurance before the company became a member of the Association on October 1, 1986. Mr. Ketchie and Mr. Jones’ claims, along with other plaintiffs, fell into the category where their employment and last injurious exposure occurred before October 1, 1986 but were not diagnosed until after the bankruptcies. As such, these plaintiffs sought compensation from the Security Association because Fieldcrest had declared bankruptcy and had defaulted on their claims. In 2009, both Ms. Ketchie and Mr. Jones’ estate filed workers compensation claims against Fieldcrest and the Security Association.
The Full Commission concluded that the plain language of N.C.G.S. § 97-130 statutorily excluded Ms. Ketchie’s and Mr. Jones’ claims because covered claims only include those claims where an injury occurred while the employer was a member of the Security Association. Under N.C.G.S. § 97-57, liability for an occupational disease attaches when the last injurious exposure occurs. Because Fieldcrest was not a member of the Security Associates on the date of the last injurious exposures, Ms. Ketchie’s and Mr. Jones’ claims were not covered claims.
The Court of Appeals affirmed the Commission’s decision, relying on the plain language of N.C.G.S. §§ 97-130 and 131 to find that there was no coverage for these claims. In order for the claims to be covered by the Security Association, the claims must have arisen when the self-insured company was insolvent and when the company was a member of the Association. The Court found that these claims arose in 1974 and September 1986, while Fieldcrest was solvent and before the company joined that Security Association. Because the Association was not created until after Ms. Ketchie’s and Mr. Jones’ last injurious exposures, these claims could not be covered. As such, Ms. Ketchie’s and Mr. Jones’ claims were barred and there was no recourse for them as a result of Fieldcrest’s bankruptcy.
Risk Handling Hints: This decision shows that courts will apply the plain language of statutes to determine compensability, even when it leaves injured employees without recourse or relief. The Workers’ Compensation Act is to be interpreted broadly to provide injured workers benefits, but this purpose will be limited by the laws enacted by the General Assembly.
Johnnie Wilkes was a 62-year-old landscaper working in the Recreation and Parks Department for the City of Greensboro. He had worked for the City for approximately nine years. On April 21, 2010, Mr. Wilkes was involved in a car accident. Mr. Wilkes was treated for an abrasion to his head, broken ribs, and injuries to his neck, back, pelvis, and left hip. He underwent a brain MRI, which was negative for acute infarction but revealed mild paranasal sinus disease resulting from a concussion. The claim was accepted by the City on a Form 60. Mr. Wilkes was discharged from the hospital the next day. Mr. Wilkes later sought treatment for anxiety and depression.
After the hearing, a deputy commissioner found that Mr. Wilkes’ anxiety and depression were causally related to the April 21, 2010 accident. It was also found that it would be futile for Mr. Wilkes to seek employment due to pre-existing conditions that were personal to him; such as age, IQ, work history, and physical conditions as a result of the at-work injury. Defendants appealed and the Full Commission reversed the deputy commissioner’s decision, holding that Mr. Wilkes failed to meet his burden of proving that his anxiety and depression were caused by the accident, and that he was no longer entitled to temporary total disability benefits because he had presented insufficient evidence that a job search would be futile. Mr. Wilkes appealed this decision to the Court of Appeals.
The Court of Appeals held that Mr. Wilkes was entitled to medical compensation for his anxiety and depression. The Court relied on theParsons presumption and two subsequent cases to find that this additional medical treatment was related to the April 21, 2010 injury. The Court specifically cited a footnote in thePerez v. Am. Airlines/AMR Corp. case that noted, “[w]e can conceive of a situation where an employee seeks medical compensation for symptoms completely unrelated to the compensable injury. But the burden of rebutting the presumption of compensability in this situation, although slight, would still be upon the employer” (emphasis inWilkes decision). The Court therefore held that, in light of the previously filed Form 60 accepting Mr. Wilkes’ claim as compensable, there was a rebuttable presumption that Mr. Wilkes’ anxiety and depression were causally related to the accepted injury. The Court remanded the case to the Commission to determine if the City had rebutted the presumption.
The Court also found that Mr. Wilkes had successfully demonstrated that searching for work would be futile based on his pre-existing, personal conditions. The Court factually distinguished this case from theFields v. H&E Equip. Servs., LLC case (which was included in a prior Risk Alert). The Court noted that Mr. Wilkes was 60 years old, had worked as a landscaper with the City since 2001, had been employed in medium to heavy duty labor positions for his entire adult life, only attended school until the 10th grade, was physically incapable of performing his prior job as a landscaper, had difficulty reading and comprehending written material, and had a low IQ putting him in the impaired range. Specifically, the Court highlighted that Mr. Wilkes had a lack of transferrable skills and that there was medical evidence of his intellectual impairment and difficulty with reading comprehension. The Court found that, generally, plaintiffs are not required to present medical evidence or vocational expert testimony to establish futility, which appears to contradict the recent holding inFields. The Court instead relied on prior case law to hold that, once the plaintiff establishes futility through his or her own testimony, the burden shifts to the defendants to show that suitable jobs were available and that the plaintiff is capable of obtaining one considering his physical and vocational conditions and limitations. The Court found that the City had not carried its burden to show that suitable jobs were available and Mr. Wilkes capable of obtaining a job in light of his conditions, thus entitling him to additional indemnity benefits.
Risk Handling Hints: The decision in Wilkes extends theParsons presumption to apply to injuries not previously accepted and even to injuries entirely different from the injuries included on a Form 60. The burden is then on the defendants to produce evidence that additional claimed injuries are not causally related to the accepted conditions. This is an extension of the prior case law where the courts had previously been unwilling to apply the presumption to entirely different body parts. The Court relied on side notes in prior cases to take extend this analysis to apply to wholly different injuries. Going forward, employers and carriers should be aware that they will have the burden of rebutting compensability for any claimed injury regardless of what injuries or body parts are listed on the Form 60. As a result of this decision, employers and carriers should work on gathering medical evidence that disputes causation as soon as they become aware of any claimed injury.
In addition, employers and carriers should obtain medical evidence and vocational experts to rebut an employee’s contention that it is futile to seek employment. This decision re-establishes that an employee’s testimony alone will be enough to carry his or her burden of proving futility. Defendants will then be responsible for rebutting this presumption through expert testimony and evidence.
Vincent Burley was a resident of Georgia, and in May 2000, U.S. Foods, Inc. offered him employment as a delivery truck driver. This offer of employment was extended by letter, which Mr. Burley signed. He was in South Carolina when he signed the offer letter and was assigned to South Carolina by the company. His responsibilities as a delivery truck driver included deliveries in Georgia and South Carolina, but no travel to North Carolina. In 2002, U.S. Foods merged with another company and stopped operating in South Carolina. U.S. Foods gave Mr. Burley the option of either terminating his employment and receiving a severance package, or transferring his assignment and supervision to North Carolina. He elected to transfer to North Carolina. After the transfer, Mr. Burley made deliveries to different customers and earned more money, but still never had any deliveries in North Carolina. On September 23, 2009, he suffered a back injury during a delivery in Georgia. His claim was accepted under the Georgia Workers’ Compensation Act and he received benefits for the injury. On July 8, 2011, Mr. Burley filed a claim for benefits with the North Carolina Industrial Commission.
After the hearing, the Deputy Commissioner held that the Commission did not have jurisdiction over the claim. The Full Commission affirmed, and the Court of Appeals reversed. The Court held that Mr. Burley’s transfer to the North Carolina division involved modification of his employment contract, which was enough to find that a contract was “made” within North Carolina for purposes of establishing jurisdiction. There was a dissent by Judge Dillon noting that the modification of the employment contract was insufficient for the Commission to have jurisdiction.
The Supreme Court reversed the Court of Appeals holding that modification of an employment contract does not change the location of that contract. The Court indicated that there can be only one contract of employment. The Court noted that once an identifiable site has been established and there has been an offer and acceptance of the employment contract, that location will be used for purposes of jurisdiction regardless of subsequent contract modifications. The Court further noted that N.C.G.S. § 97-36 included plain language regarding where a contract for employment was “made” and not where the contract was “modified.”
In this case, Mr. Burley executed his contract in South Carolina when hired by U.S. Foods. The Court held that the subsequent internal transfer of supervision and assignment failed to establish a new employment contract, and the site of the original contract controlled for jurisdiction. The Court characterized Mr. Burley’s situation as a mere internal transfer of supervision without a change in work capacity. Justice Hudson dissented, noting that the Court’s holding barred jurisdiction even where there were substantial modifications to the employment contract and employment relationship. Judge Hudson noted that this went against the spirit of the North Carolina Workers’ Compensation Act to be liberally construed to provide benefits to injured employees. Instead, Judge Hudson saw the modification as establishing a new employment contract based on the facts of the case, thus changing the location of the contract to North Carolina for purposes of jurisdiction.
Risk Handling Hints: The decision in Burley seems to establish that, short of a drastic modification of the employment contract, there will be only one location for purposes of jurisdiction. The location where the employment contract was made, once “identifiable,” will be the site for jurisdiction. The Court did not outline specific factors to consider when determining whether a modification is significant enough to establish a new employment contract.
As previously reported in Risk Alert: Special Edition (New IC Rules) published in October 2014, Industrial Commission costs associated with settlement agreements and mediations were increased, but the fees for Forms 21, 26, and 26A and hearing costs have now been eliminated. Effective back on November 1, 2014, the processing fee for compromise settlement agreements, or clinchers, increased from $375 to $400. Additionally, a fee of $200 is now charged for the filing of the “Report of Mediator” form, regardless if the mediation is mandatory or voluntary. As before, the employer or carrier pays the processing fee for the clincher and the “Report of Mediator” in their entirety, but is entitled to a credit for the employee’s 50% share of the fees against any settlement proceeds or final award, unless the parties agree otherwise.
Most recently, effective July 1, 2015, the $120 fee for Deputy Commissioner hearings and the $220 fee for Full Commission hearings was eliminated. The $300 processing fees for Forms 21, 26, and 26A were also eliminated effective July 1, 2015.