NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Written by: Kyla Block
Amended Full Commission Decision Provides Updated Guidance on Navigating Requests for Second Opinions and Clarifies the Issue of Payment Under the Fee Schedule
A long-standing issue under the Workers’ Compensation Act has been second opinions on treatment options under N.C. Gen. Stat. § 97-25(b). The parties have frequently been at odds over whether defendants must 1) issue a prepayment for that visit and 2) pay beyond the NCIC fee schedule amount for the visit. Many administrative motions on the issue have ensued over the years. In May of 2202, the Full Commission issued a non-binding decision, Wyatt v. The Golden Mint, Inc., I.C. No. 20-038523 (May 2022), holding that:
You can find my partner Matt Marriott’s more extensive write up on that decision here. Following the Wyatt decision, Plaintiff filed Plaintiff’s Motion to Reconsider the Opinion and Award Issued on May 12, 2022 and Request for Additional Findings. While Plaintiff’s Motion was pending, the Commission, during its annual publishing of the Medical Fee Schedule Tables for 2022, identified inaccuracies in the fee schedule tables and corrected the inaccuracies in line with the requirements of N.C. Gen. Stat. § 97-26 and Subchapter J of the Industrial Commission’s rules. These changes removed the CPT Cod 99456 for second opinions and replaced it with UCR or Pay Per Agreement. UCR stands for usual, customary, and reasonable. Thereafter Plaintiff filed Plaintiff’s Supplement to Plaintiff’s Motion to Reconsider the Opinion and Award Issued on May 12, 2022 and Request for Additional Findings and pointed to the changes to the second opinion code to reflect “UCR or Pay Per Agreement” and noted that it no longer had a specific monetary amount. Plaintiff asserted that per the updated fee schedule, the second opinion fee would now be what was usual and customary.
The Full Commission, in amending its Opinion and Award to find that the Medical Fee Schedule sets the maximum fee allowable by a physician conducting a 97-25(b) second opinion examination at “UCR or Pay Per Agreement”, found that Plaintiff was entitled to have Defendants pay his selected 97-25(b) expert or any other provider the usual, customary, and reasonable charge for such a provider in such a circumstance or a rate agreed upon by the physician and the parties. The Full Commission also noted that Defendants did not need to make prepayment, but that any motions or requests for a specific prior approval to charge “shall” be submitted to the Commission for each charge. Based on the facts in Wyatt, the Full Commission declined to grant Plaintiff’s request for approval of his specific physician’s fee, indicating there was insufficient evidence to show that plaintiff’s provider’s fee was reasonable; the Act specified that providers not be paid for services prior to the rending of services and said report; that the Commission had the responsibility of assuring medical and related expenses be kept within reasonable and appropriate limits; and the routine nature of the request for a 97-25(b) second opinion examination.
Practice Pointers and Takeaways
As we have noted, a Full Commission decision is not binding case law like a decision from the North Carolina Court of Appeals or Supreme Court would be. However, it does set the tone for how the Commission will likely be deciding these matters going forward. Thus, given the change to the Medical Fee Schedule, carriers and employers should assume they will be ordered to pay the usual, customary, and reasonable charges associated with second opinions under N.C. Gen. Stat. §97-25(b). However, since Defendants will be paying the usual, customary, and reasonable charges going forward, and the parties are encouraged to agree on the provider per the statute, there may be an argument that all else being equal, the provider with the lowest charge should be the provider chosen, in line with the responsibility of the Commission to keep medical and related expenses within reasonable and appropriate limits.
Additionally, Employers and Carriers should expect to see more administrative motions on the issue of prepayment under N.C. Gen. Stat. §97-90(a). In responding to these motions, evidence regarding the usual, customary, and reasonable charges will likely be key, and a failure to provide the same by one side, may result in an adverse decision. A reasonable alternative to motions on the prepayment issue may be suggesting that Plaintiff pay the prepayment upfront with Defendants issuing the full charge upon receipt of the report.
Written by: Tracey Jones
Starting February 20, 2023, the Industrial Commission will begin emailing Report of Mediator fee invoices at the time the mediator is appointed. This new procedure will not impact the fee’s due date but is being introduced in an effort to allow additional time for processing and payment. The $200 fee can be paid either online via credit card or e-Check (a link for payment will be provided in the email) or by mailed paper check. With this new procedure, the Industrial Commission hopes to encourage early payment so employers and carriers can manage cases more efficiently while also being able to avoid the risk of past due invoices, penalties, and interest.
Note: Payment of the $200 Report of Mediator fee is due no later than seven (7) days from the deadline for completing mediation or seven (7) days from the date mediation is completed, whichever is earlier. The Commission is issuing penalties when they receive late payments, so timely processing these invoices is important.
Written by: Tracey Jones
Carolyn J. Thompson Appointed to Serve as Deputy Commissioner
Carolyn J. Thompson was appointed to serve as a Deputy Commissioner and her term began on January 2, 2023. Thompson previously served as a District Court judge and then a Resident Superior Court judge in the 9th Judicial District of North Carolina for a total of nine years. She worked in litigation for 16 years prior to that, and also as a certified mediator in Superior Court cases and Family Financial Settlement disputes. She is assigned to the Commission’s Raleigh office.
Kevin V. Howell Reappointed to Second Term as Deputy Commissioner
Deputy Commissioner Kevin V. Howell has been reappointed to serve a second term, which began on December 30, 2022. Deputy Commissioner Howell will continue to serve out of the Commission’s Raleigh office.
Strict Enforcement of Late Responsive Filings Pursuant to N.C.G.S. § 97-18(j)
The Commission has been regularly assessing sanctions for Carriers/Employers failing to file a Form 60, 61, or 63 within thirty (30) days following notice from the Commission of the filing of a claim. Failure to file a Form within the requisite period results in a fine of $400.00. After the initial sanction of $400.00, Carriers/Employers shall have thirty (30) days anew in which to remit payment-in-full for the sanction AND to file a Form 60, 61, or 63. Failure to do either will result in an additional $200.00 sanction and being referred to an Enforcement Docket before the Commission for additional sanctions. These sanctions could include, but are not limited to, contempt.
Though this rule has been in effect since 2017, we are now seeing strict enforcement and numerous defendants have been scheduled on a contempt docket for failure to file the Forms, or to remit payment for the respective fines.
Corrected Medical Fee Schedule Tables for 2022
Rule 11 NCAC 23J .0102 requires the Industrial Commission to publish annually on its website three tables (a Professional Fee Schedule Table, a Durable Medical Equipment (DME) Fee Schedule Table, and a Clinical Laboratory Fee Schedule Table). The Commission has reported it recently discovered inaccuracies in the fee schedule tables, and it has now corrected the inaccuracies to align with the information in the 2022 fee schedule tables and with the requirements of N.C. Gen. Stat. § 97-26 and Subchapter J of the Industrial Commission’s rules. The revised schedule is posted on the Commission’s website.
Maximum Weekly Benefit for 2023
The Commission has established the maximum weekly benefit for 2023 pursuant to N.C.G.S. § 97-29. As of January 1, 2023, the maximum weekly benefit applicable to all injuries arising on or after January 1, 2023 is $1,254.00.
Written by: Lindsay Underwood
Two return to work decisions were recently handed down from the North Carolina Court of Appeals, both of which are helpful in determining how the Court is currently examining disability issues. The first case, Geraldine Cromartie v. Goodyear Tire & Rubber Co., Inc., involved a machine operator who sustained a laceration to the right hand. Though she returned to work initially, she reported ongoing pain and returned to the authorized treating physician, Dr. James Post for further evaluation. Dr. Post eventually assessed Claimant at MMI and assigned restrictions of no lifting over 20 pounds and no repetitive forceful gripping or grasping. Defendants ended up getting an IME with Dr. Ramos. Soon after, Defendants identified a job they argued was within Claimant’s work restrictions. Specifically, the job required driving a truck to and from building stations over a 12-hour shift, rarely lifting up to 25 pounds, and 30 pounds of force, which could be split between each hand thereby requiring 15 pounds lifting and 15 pounds pushing. Defendants requested the IME provider, Dr. Ramos, review and approve the position. He approved the position, and Defendants formally offered same to Claimant. Claimant refused to return. Through the Form 24 process, opposing counsel sent Claimant back to a plastic surgeon she had seen years prior, who assigned 10-pound lifting restrictions. As is often the case, the Form 24 Application was denied in the administrative setting. This denial led Defendants to send Claimant to another physician for additional examination, and that physician approved the job. Claimant still refused to return to work. The Full Commission found Claimant was disabled, assigning greater weight to the testimony of Dr. Post, the original authorized treating physician. The Court of Appeals agreed, holding that the Full Commission correctly found that the job offered to Claimant was not suitable.
The Court of Appeals focused on the definition of suitable employment, concluding that the job, unless modified in several aspects, was not within Claimant’s physical limitations and was therefore not suitable post-MMI employment. The Commission gave greater weight to Dr. Post’s testimony. As a result, the Full Commission determined the offered position exceeded the restrictions prescribed by Dr. Post because it required lifting over 20 pounds.
The second case, Richards v. Harris Teeter, involved a truck driver who sustained a compensable low back injury. After the incident, Harris Teeter terminated Claimant’s employment after it was determined he violated a safety procedure during the incident. In light of the termination, Claimant was not eligible for rehire pursuant to policy. A defense witness testified that Harris Teeter had a mandatory return to work program for workers’ compensation claimants and numerous temporary light-duty positions were otherwise available. However, since Claimant was not eligible for rehire, Harris Teeter would not offer him a position. Defendants declined to provide vocational rehabilitation to aid in Claimant’s job search.
Claimant’s authorized treating physician testified he would have approved a position with Harris Teeter had he not been terminated. Defendants argued that Claimant constructively refused suitable employment because he was terminated for cause and, but for that termination, he would have remained employed at pre-injury wages.
The Court of Appeals disagreed and indicated Defendants were essentially asking the Court to impose a for-cause bar to recovery of benefits when the employee is terminated for causing the accident resulting in injury and is thereafter unable to find work elsewhere. The Court indicated this was fundamentally incompatible with the workers’ compensation system which deliberately eliminated negligence from its calculus. The Court noted that gross negligence was not a defense to a workers’ compensation claim except in limited exceptions, like intentionally inflicted injuries and intoxication. Even a violation of a safety rule does not bar recovery. Defendants argued fault should have a place in the workers’ compensation system when it comes to determining whether an employer may terminate benefits. However, the Supreme Court considered similar concerns in McRae and noted the risk for abuse if an employer was allowed to evade payments simply because Claimant was terminated.
Though Defendants have numerous options for return to work, the above two cases illustrate the possible barriers and difficulties when it comes to job approval and strict adherence to company policy. The first case is another reminder that the Full Commission, and subsequently the Court of Appeals, which cannot reweigh evidence, will generally give greater weight to the authorized treating physician. Even though Defendants had two physicians stating the position was suitable, the testimony from the original authorized treating physician, Dr. Post, was found more probative.
In the last case, Defendants abided by their company policy and terminated Claimant for violating a safety rule during the incident itself. Unlike other safety violations that lead to a for-cause termination, the Court distinguished this case noting that Claimant committed the violation during the work injury, and Defendants were essentially trying to argue that Claimant’s negligence led to his termination. Though you can terminate a claimant for cause due to violations, the Court made it clear that it cannot have occurred at the same time as the work injury. The Court equated Defendants’ argument to trying to read a contributory negligence theory into the Workers’ Compensation Act. Though strict adherence to a company policy is often encouraged; in this case, it resulted in a significant amount of past-owed TTD benefits for Defendants, and a failed constructive refusal argument. This case seems to suggest that employers are better off agreeing to re-hire an employee that violates a safety rule during the injury by accident for which he or she was injured. Depending on the severity of the violation, employers may have no choice but to terminate the employee but must recognize that exposure for TTD is a possibility.
Written by: Elizabeth Ligon and Logan Shipman
The 1972 Report of the National Commission on State Workmen’s Compensation Laws and the Elimination of North Carolina’s Cap on Extended Benefits
Created in 1929 as a compromise between the state’s employers and its workers, the North Carolina Workers’ Compensation Act originally contained a 400-week cap on indemnity benefits. On July 31, 1972, the National Commission on State Workmen’s Compensation Laws, a 15-member Commission appointed by President Nixon under the Occupational Safety and Health Act of 1970, published a report on the inadequacies of state-administered workers’ compensation programs around the country. The Commission issued its report after holding hearings over the course of a year and conducting an intensive analysis of each state’s respective workers’ compensation programs. The report concluded that the programs were, in general, “neither adequate nor equitable.” The Commission issued several recommendations it described as “essential,” including a recommendation for states to remove limits on the payment of benefits for permanent total disability or death. Characterizing the limits as “arbitrary,” the Commission recommended benefits be paid “for the duration of the worker’s disability or for life and, in case of death, should be paid to a widow or widower for life or until remarriage.”
The Commission’s report laid the groundwork for reform that would take place in North Carolina the following year. In 1973, N.C. Gen. Stat. § 97-29, the statute governing compensation rates for total incapacity, was amended to remove the 400-week cap on indemnity benefits such that there was no longer any cap on indemnity benefits for cases arising on or after July 1, 1975. In 1977, N.C. Gen. Stat. § 97-29.1 was added, which increased weekly compensation payments by five percent for all permanent and total disability claims arising prior to July 1, 1973. Not surprisingly, these statutory changes resulted in significantly increased indemnity exposure for employers and their insurance carriers, as well as an increase in litigation over claimants’ entitlement to indemnity benefits.
One of the first litigated issues was over which version of the law to apply when a claimant alleged he was permanently and totally disabled. In Smith v. American & Efird Mills, 305 N.C. 507, 290 S.E.2d 634 (1982), the Supreme Court of North Carolina examined this question in the context of an occupational disease claim. In that case, the claimant was forced to quit his employment with the defendant-employer in 1968 due to breathing difficulties. He returned to work elsewhere earning less wages. The claimant filed a workers’ compensation claim in 1978 and obtained expert testimony that he was permanently and totally disabled. The Deputy Commissioner and the Full Commission awarded the claimant 300 weeks of compensation beginning January 1, 1970, which was when his average weekly wage first began to decline. The North Carolina Court of Appeals remanded the case to the Industrial Commission for a finding in accordance with the evidence that claimant was permanently and totally disabled as of 1978. As such, the Commission should apply N.C. Gen. Stat. § 97-29 as it existed in 1978, not 1970. The North Carolina Supreme Court agreed that the claimant’s indemnity benefits vested when the evidence established the claimant was totally disabled. Here, medical evidence established the claimant was permanently and totally disabled as of 1978, so claimant was entitled to lifetime indemnity benefits under N.C. Gen. Stat. § 97-29.
In 1983, the Supreme Court of North Carolina decided Taylor v. J.P. Stevens Company, 307 N.C. 392, 298 S.E.2d 681 (1983). The claimant in this case argued the legislature’s reform of the Act was intended to increase the total benefits to all persons who were entitled to receive benefits prior to July 1, 1973, and who were receiving or would receive benefits after July 1, 1977, when N.C. Gen. Stat. § 97-29.1 went into effect. The Court disagreed, holding the claimant was limited to compensation as provided by the Act at the time of his total incapacity. The claimant’s incapacity was stipulated to having started on August 2, 1963, so the Court held that the claimant’s compensation was governed by the version of the Act in effect on that date. The claimant’s request for benefits in excess of the maximum amount allowed by N.C. Gen. Stat. § 97-29 as written in August of 1963 was properly denied.
In 1986, the Supreme Court of North Carolina analyzed whether an employee who suffered an injury to a body part that was scheduled pursuant to N.C. Gen. Stat. § 97-31, the statute governing schedule of injuries, rate, and period of compensation, may recover compensation under N.C. Gen. Stat. § 97-29 instead if he was deemed totally and permanently disabled. In Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336 (1986), the claimant suffered severe injuries to his arm and hand and could not return to his previous employment. Since he was illiterate and sixty years old, his return-to-work potential was virtually nonexistent. The Court held N.C. Gen. Stat. § 97-31 was not an exclusive remedy, and therefore did not prohibit an award of lifetime compensation to an employee who was deemed totally and permanently disabled.
Likewise, the North Carolina Supreme Court in Gupton v. Builders Transport, 320 N.C. 38, 320 N.C. 38 (1987), referring to Whitley, held that an injured worker who suffered an eye injury resulting in a blind spot covering seven percent of his field of vision could receive an award of benefits under either N.C. Gen. Stat. § 97-31’s schedule of permanent partial disability benefits or N.C. Gen. Stat. § 97-30, whichever was more munificent to the injured worker. While the claimant could not recover under both provisions, he could select the more favorable remedy. The Court noted that, if the power or capacity to earn is totally obliterated, the claimant is entitled to lifetime total and permanent disability benefits under N.C. Gen. Stat. § 97-29.
There remained no statutory cap on indemnity benefits until 2011, when the North Carolina General Assembly enacted sweeping legislative reform to the North Carolina Workers’ Compensation Act. The reform marked the first major legislative changes to the Workers’ Compensation Act since 1973. N.C. Gen. Stat. § 97-29(b) was amended to limit the duration an employee could receive temporary total disability compensation to no more than 500 weeks from the date of first disability unless the employee qualified for extended compensation.
Pursuant to N.C. Gen. Stat. § 97-29(c), after 425 weeks have passed since the first date of disability, an employee is permitted to apply to the Commission for an award extending his indemnity benefits beyond the 500-week cap. A claimant has the burden of proving by a preponderance of the evidence that he has sustained a “total loss” of wage-earning capacity. If extended benefits are awarded by a Deputy Commissioner, the decision will not be stayed unless the decision is reversed by the Full Commission or an appellate court. An extended benefits award can also be re-reviewed by the Commission at a later time. If defendants can prove by a preponderance of the evidence that the claimant no longer has a total loss of wage-earning capacity, the Commission can terminate the extended benefits.
It should be noted that there are certain claims which allow for automatic permanent and total disability benefits, such as catastrophic cases where a claimant loses two or more limbs. Claimants in these cases are entitled to lifetime benefits without having to show a total loss of wage-earning capacity. Three other categories of claims create a rebuttable presumption of permanent and total disability benefits: (1) spinal injuries involving severe paralysis of both arms, both legs, or the trunk; (2) severe brain or closed-head injuries evidenced by severe and permanent motor or communication disturbances; and (3) second- or third-degree burns to 33% or more of the total body surface. N.C. Gen. Stat. § 97-29(d). Under these three categories of claims, defendants can rebut the presumption by showing the claimant is capable of returning to suitable employment.
Claimants could begin filing Form 33 Requests for Hearing to request extended benefits as of August 2019, so extended benefits appeals are just starting to make their way through the North Carolina court system. The claimants’ bar contends the standard for extended benefits is the same standard as within the initial 500 weeks. The defense bar, however, contends claimant have the burden of proving a total and complete loss of any wage-earning capacity. In other words, claimants must show that their wage-earning capacity has been totally obliterated. If a claimant has at least some wage-earning capacity, they should not be entitled to extended benefits. The decisions from the Full Commission to date have ruled in defendants’ favor, but several of the cases have been appealed to the North Carolina Court of Appeals.
As more and more extended benefits cases make their way through the court system, the constitutionality of North Carolina’s 500-week cap on indemnity benefits could be challenged, like we recently saw in Florida and Kentucky.
In 2016, Florida’s highest court determined that Florida’s 104-week cap on temporary total disability benefits was unconstitutional. In Westphal v. City of St. Petersburg, 194 So.3d 311 (2016), the claimant suffered a severe low back injury in December 2009 and began receiving temporary total disability benefits. Under § 440.15(2)(a) of the Florida Statutes, an injured worker’s entitlement to temporary total disability benefits ended after he reached maximum medical improvement or after 104 weeks, whichever occurred earlier. The claimant in this case did not reach maximum medical improvement prior to the expiration of the 104-week cap on temporary total disability benefits, although he was still incapable of working or obtaining employment according to his medical providers and vocational experts. The claimant requested additional temporary total disability benefits or permanent total disability benefits pursuant to § 440.15(1). The claimant also challenged the statute on the grounds that the statute as plainly written resulted in a denial of access to the courts under Article 1, section 21 of the Florida Constitution, which “guarantees every person access to the courts and ensures the administration of justice without denial or delay.” It provides that the state’s courts “shall be open to every person for redress of any injury, and justice shall be administered without sale, denial, or delay.” Id. Prior case law held that workers’ compensation provided a “reasonable alternative” to tort litigation and thus did not violate the access to courts provision, “so long as it provides adequate and sufficient safeguards for the injured employee.” Id. at 322 (quoting Kluger v. White, 281 So.2d 1, 4 (1973)).
The Florida Supreme Court concluded that the 104-week cap did not provide a reasonable alternative to tort litigation and thus denied the claimant his constitutional right of access to the courts. The Court reasoned the law lacked adequate and sufficient safeguards and could not be said to continue functioning as a system of compensation without contest. The provision did not stand as a reasonable alternative to tort litigation since injured workers, like the claimant in this case, were denied their constitutional right to seek redress when they were not yet legally entitled to assert a claim for permanent total disability benefits at the conclusion of the 104 weeks of temporary total disability benefits. The Court expanded the limit on indemnity benefits to 260 weeks.
Kentucky has also seen constitutional challenges to its statute governing the payment of indemnity benefits. In 2017, the Supreme Court of Kentucky struck down Kentucky Revised Statute (KRS) § 342.730(4) as unconstitutional in Parker v. Webster County Coal, LLC, 529 S.W.3d 759 (2017). At the time, KRS § 342.730(4) allowed termination of disability benefits as of the date the employee qualified for normal Social Security retirement benefits, or two years after the employee’s injury or last exposure, whichever occurred last. The Kentucky Supreme Court initially found this statute constitutional in McDowell v. Jackson Energy RECC, 84 S.W.3d 71 (2002) and Keith v. Hopple Plastics, 178 S.W.3d 463 (2005), as corrected (Dec. 13, 2005). However, the Court in Parker found that the statute resulted in older workers being treated differently from their younger counterparts. Furthermore, not everyone was entitled to Social Security retirement benefits, such as teachers. As there was no rational basis or substantial and justifiable reason for the disparate treatment, the statute violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
In response to the Parker decision, a 2018 amendment to the Kentucky Workers’ Compensation Act was passed, which terminated an injured worker’s right to indemnity compensation when the worker reached 70 years of age, or four years from the date of injury or last injurious exposure, whichever event occurred last. KRS § 342.730(4) (2018). The constitutionality of the revised statute was again challenged in Cates v. Kroger, 627 S.W.3d 864 (2021). The Supreme Court of Kentucky held that the amendment did not violate equal protection, noting that preventing a duplication of wage-loss protection programs and promoting the solvency of the state’s workers’ compensation system were legitimate state interests. Since the statute’s classification was no longer directly related to Social Security eligibility but was instead based only on age, it did not violate the Equal Protection Clause since the age classification was rationally related to a legitimate state purpose.
Ultimately, we anticipate any constitutional challenges to N.C. Gen. Stat. § 97-29 would not be successful, as North Carolina’s extended benefits cap is distinguishable from the caps established in Florida and Kentucky. Whereas Florida’s cap on temporary total benefits created a statutory gap for employees who had received 104 weeks of benefits but were not yet at maximum medical improvement and not yet deemed permanently and totally disabled, North Carolina’s statute allows claimants to begin the process of requesting extended benefits beyond the 500-week cap once 425 weeks have elapsed from the first date of disability. Presumably, claimants would be able to have their request for extended benefits heard at the Industrial Commission well before the 500-week cap was reached and their temporary total disability benefits were terminated. In addition, North Carolina’s statute allows defendants to take a credit for all primary Social Security retirement benefits the claimant receives. Therefore, North Carolina’s N.C. Gen. Stat. § 97-29 does not permit termination of benefits once claimant reaches a certain age or upon receipt of Social Security retirement benefits, unlike Kentucky’s statute.
In addition, N.C. Gen. Stat. § 97-29 as amended in 2011 still allows an injured worker multiple ways to prove entitlement to lifetime indemnity benefits for permanent and total disability, as well as yet another method to prove entitlement to receive extended benefits beyond 500 weeks if they can prove a total loss of wage-earning capacity.
Finally, the 2011 amendments in North Carolina were the result of a bipartisan effort to pass balanced legislation that provided additional positive benefits for both injured workers and the business community. In addition to the 500-week limitation of benefits under N.C. Gen. Stat. § 97-29, injured workers received increased benefits in several areas. Specifically, temporary partial disability benefits under N.C. Gen. Stat. § 97-30 were increased from 300 weeks to 500 weeks, death benefits under N.C. Gen. Stat. § 97-38 were increased from 400 weeks to 500 weeks and burial expenses were increased from $2,500 to $10,000. The amendments to N.C. Gen. Stat. § 97-29 were part of a large cooperative effort between all North Carolina workers’ compensation stakeholders. The 2011 Amendment passed 46 to 0 in the Republican-controlled State Senate and 110 to 3 in the Republican-controlled State House and was signed into law by the then-Democratic governor.
Written by: Matthew Flammia
Over the holiday season, the Industrial Commission filed the first couple of Deputy Commissioner decisions for COVID-19 claims. Several decisions have been filed under the N.C. Gen. Stat. § 143-166.1 et seq for death benefits for public safety employees, which is a different standard than what is required under the North Carolina Workers’ Compensation Act. A decision on whether an employee can prove COVID-19 as a compensable occupational disease pursuant to N.C. Gen. Stat. § 97-53(13) had not been decided until recently, as discussed below. For COVID-19 workers’ compensation occupational disease claims in North Carolina to be compensable, a claimant has the burden of proving: (1) that their employment placed them at an increased risk of contracting the virus when compared to members of the general public; and (2) that there was a causal connection between their specific infection and their employment. In other words, the claimant must prove that they were infected while at work, as opposed to outside of work. Further, the claimant’s employment must have placed them at an increased risk of contracting COVID-19.
In both decisions, Britney McNeair v Owens Illinois, Inc./O-I Glass (November 21, 2022) and Tony Esai Chambers v North Carolina Department of Public Safety (December 22, 2022), the Deputy Commissioner determined that claimant failed to meet his/her burden of proof to establish a compensable occupational disease claim. The claimants in both claims could not show that they actually contracted COVID-19 from their employment as a Crew Leader of a glass manufacturing line or as a Corrections Officer. Further, it was determined that neither one of their positions placed them at an increased risk to contract COVID-19 compared to the general public. Of interesting note, the claimant in the McNeair decision asserted an injury by accident claim, but it was denied as well.
The decisions highlight the difficulty an employee will have to establish a compensable COVID-19 claim in North Carolina. The claimants in these claims contracted COVID-19 in 2020 and 2022, contracted different COVID-19 variants, and during times when different safety protocols were in place. However, these distinguishing facts did not seem to influence the decision either way. The claimants were employed in occupations where there was frequent contact with a number of co-workers, but it was determined those facts alone were not enough to establish the increased risk element needed to prove a compensable claim. Finally, these decisions demonstrate the importance of a thorough investigation. In both decisions, contract tracing and investigation into the claimant’s personal and work schedule were important when determining whether COVID-19 was actually contracted in the workplace.
Overall, the recent decisions give us the insight into how the Industrial Commission will handle COVID-19 claims. It affirms how difficult it will be for an employee to show that he/she actually contracted COVID-19 from their employment instead of outside of work when COVID-19 can be contracted anywhere. Further, the decisions establish in multiple industries that just having contact with a number of co-workers is not enough to establish that the employment places individuals at a greater risk than the public of contracting COVID-19. Along those lines, there is an argument to be made that COVID-19, like the flu, should now be considered an ordinary disease to which the public is generally exposed nationwide as well as in North Carolina.
The Industrial Commission has revised its in-person hearing guidelines to reflect the most recent guidance from the Centers for Disease Control (CDC).
Any person with symptoms of COVID-19 who has not had a COVID-19 viral test following onset of symptoms shall not attend an in-person hearing and shall contact the Deputy Commissioner.
Any person who has tested positive for COVID-19 and has had symptoms of COVID-19 shall not attend an in-person hearing and shall contact the Deputy Commissioner unless at least 5 days have passed since symptom onset and 24 hours with no fever and without the use of fever-reducing medications has passed and other COVID-19 symptoms are improving. Additionally, any person who has tested positive for COVID-19 and has had symptoms of COVID-19 shall wear a high-quality mask while attending any in-person Industrial Commission hearing for an additional 5 days after the end of the isolation period.
Any person who has tested positive for COVID-19 but has had no symptoms of COVID-19 shall not attend an in-person Industrial Commission hearing and shall not contact the Deputy Commissioner unless at least 5 days have passed.
Any person who has no symptoms of COVID-19 and has not tested positive for COVID-19 but who has, at any time during the 10-day period prior to an in-person Industrial Commission hearing, had a known contact with another person who has COVID-19 shall wear a high-quality mask at all times during the hearing.
Read the full list of revised in-person Industrial Commission hearings here.
Any person with symptoms of COVID-19 who has not had a COVID-19 viral test following onset of the symptoms shall not attend an in-person Full Commission hearing and shall contact Counsel to the Panel Chair.
Any person who has tested positive for COVID-19 and has had symptoms of COVID-19 shall not attend an in-person Full Commission hearing and shall contact Counsel to the Panel Chair unless at least 5 days have passed since symptom onset and 24 hours with no fever and without the use of fever-reducing medications has passed and other COVID-19 symptoms are improving. Additionally, any person who has tested positive for COVID-19 and has had symptoms of COVID-19 shall wear a high-quality mask while attending any in-person Full Commission hearing for an additional 5 days after the end of the isolation period.
Any person who has tested positive for COVID-19 but has had no symptoms of COVID-19 shall not attend an in-person Full Commission hearing and shall contact Counsel to the Panel Chair unless at least 5 days have passed since the positive COVID-19 test.
Any person who has no symptoms of COVID-19 and has not tested positive for COVID-19 but who has, at any time during the 10-day period prior to an in-person Full Commission hearing, had a known contact with another person who has COVID-19 shall wear a high-quality mask at all times during the in-person Full Commission hearing.
Read the full list of revised in-person Full Commission hearings here.
Pursuant to Rule 11 NCAC 23A.0109(d), all carriers, third-party administrators, and self-insured employers are required to provide the Commission with an email address for service of claim-related documents in cases where the Commission does not have email contact information for a specific representative assigned to the claim. The Rule requires a general email address for receipt of letters and notices related to claims when the Commission has NOT been advised of a specific person handling the claim. Once the Commission has been advised of a specific representative assigned to the claim, correspondence regarding the claim will be sent directly to that person.
Written by: Kyla Block
A trip and fall. Injury by machinery. Exposure to asbestos leading to a diagnosis of mesothelioma. These are life-changing events for employees (and employers) that may lead to a slurry of workers’ compensation claims. When the worst happens to an injured employee and his or her family is left behind, the Workers’ Compensation Act details the steps employers, insurance carriers, and administrators must take, as well as what family can anticipate in the aftermath of loss. The Act explains the scope of death benefits, including the different kinds of beneficiaries that may exist and how they will be allocated compensation. Considering key litigation helps to demonstrate how the statutes are applied in practice.
According to the Act, a beneficiary may be someone wholly dependent on the employee, or they may be only partially dependent. If only one person is deemed to be wholly dependent, then he or she will receive the entire share of benefits. The Act considers widows, widowers, and children to be whole dependents. If there are multiple individuals who are deemed to be wholly dependent, then the compensation they receive will be divided among them “according to the relative extent of their dependency (Section 97-39).”
Partial dependents, unlike whole dependents, receive benefits in proportion to the amount of support they received from the deceased employee at the time of his injury. If there are neither whole nor partial dependents, compensation is assigned to whoever may be “next of kin.” These may include adult children, brothers and sisters, or parents. Next of kin, in the absence of whole or partial dependents, will receive the full compensation owed in a lump sum. In the absence of next of kin or dependents of any kind, no compensation death benefits will be paid. However, the employer must still pay for funeral expenses.
Typically, beneficiaries to the compensation of a deceased employee will be due 66 and 2/3 percent of the employee’s average weekly wages calculated at the time of his or her injury. Benefits will be paid at this rate for 500 weeks from the date the employee dies. However, dependent children will continue to receive benefits beyond 500 weeks until they reach 18 years. Finally, if the deceased’s widow or widower is physically or mentally unable to care for themselves as of the time the employee’s death, then the widow or widower will continue to receive benefits throughout life until or if they should remarry.
Prior litigation highlights the nuances in how our courts consider and apply death benefits owed under the Act. For example, Deese v. Southern Law and Tree Expert Company (1982) provides guidance on what happens if the pool of eligible beneficiaries pass away. The North Carolina Supreme Court considered the case of Charles W. Deese, who died following his compensable injury. At the time of his death, Deese was married with three dependent children under the age of 18. As his children reached 18 years, they would become ineligible to receive further compensation. Deese’s family argued that the amount of compensation no longer paid to children who reached 18 years should be reassessed and lumped into the amount remaining for any children who had not yet reached adulthood. To reassess the amount owed to remaining dependents would essentially increase the amount remaining beneficiaries could claim. However, the Court found that the only timeline during which apportioned benefits could be changed would be within the first 400 weeks. The Court further noted that the Act is not intended to “provide…the equivalent of general accident, health, or life insurance.” Thus, the amount of death benefits owed to dependents cannot be reapportioned when the 400 weeks have elapsed, even if dependents age out and are no longer eligible to receive benefits.
Not just anyone can claim death benefits. The NC Supreme Court has made key decisions regarding who may–and may not–be considered a beneficiary. In Fields v. Hollowell & Hollowell (1953), the Court considered the possibility of awarding death benefits to a long-time unmarried partner. Following the death of the employee, William Edward McMillan, the Industrial Commission awarded death benefits to the deceased’s mother. Of note, McMillan’s mother was not reliant upon him financially–she was awarded benefits as “next of kin,” and not as a dependent. McMillan’s cohabitating partner, Julia Mae Fields, appealed on the grounds that she was dependent on the deceased and should receive death benefits. The Court found that not only was it “alien to the customs and ideas of our people” to allow the same benefits to a cohabitating couple as it would to a married one, but it would also pave the path to denigrate the rights of the “legitimate claims of helpless defendants.” The Court denied Fields’ claim for benefits, reversed the decision of the Court of Appeals, and remanded the case to the Industrial Commission to award its initial denial of her claims.
If death occurs following occupational illness instead of one-time accidental injury, prior litigation explains what beneficiaries and employers can anticipate. In the seminal case of Booker v. Duke Medical Center (1979), the NC Supreme Court considered the claims of the family of Michael Booker. Booker worked as a laboratory technician at Duke Medical Center. As a part of his job duties, Booker regularly handled unmarked blood samples contaminated with serum hepatitis. Several years into his employment, he contracted serum hepatitis. After filing a claim for workers’ compensation benefits, Booker subsequently died from his illness. The Industrial Commission granted death benefits to his surviving wife and four children. When Duke and the insurance carriers appealed, the Court of Appeals reversed the award. The case then went before the NC Supreme Court.
The Supreme Court considered whether serum hepatitis could be considered an occupational disease and under what statute Booker’s dependents could claim death benefits: the statute in effect at the time of Booker’s initial worker’s compensation claim, or the amended statute in effect at the time of his death. While the Court of Appeals argued that the statue governing death benefits should be the one in effect when Booker became sick, the Supreme Court stated that the determining statute should be the one in effect at the time of Booker’s death, since “these amendments were made applicable to cases originating on and after their effective date.” Additionally, the Supreme Court held that Booker’s disease was occupational, even though it was admittedly a disease that any person could contract. Key for the Supreme Court was expert testimony noting that, though serum hepatitis is not a disease specific to laboratory technicians, Booker’s occupational exposure to the disease vastly exceeded that of the general population, putting him at significant occupational risk. The Supreme Court reversed the decision of the Court of Appeals and returned the matter to the Industrial Commission to award benefits to Booker’s family.
In Deese, the Court explained, “in all cases of doubt, the intent of the legislature regarding the operation or application of a…provision is to be discerned from a consideration of the Act as a whole–its language, purposes and spirit.” The Act details the circumstances under which someone can be considered a beneficiary and claim death benefits. When seeking clarity on how to file for and pay out death benefits claims due to compensable workplace injury or occupational disease, employers and beneficiaries should look to the statutes and existing prior case law to understand how courts will interpret and apply these regulations, as well as under what circumstances exceptions do and do not exist.
Written by John Tomei
When employees in North Carolina sustain injuries by accident arising out of and in the course of their employment with employers, their ensuing workers’ compensation claims are generally compensable. However, what if the injured worker is a subcontractor? And, does it matter if the injured subcontractor is uninsured?
The answer to the first question is determined by the analysis of whether the worker was an employee or an independent subcontractor at the time of the injury. Many employers mistakenly believe that simply calling workers “independent contractors” or “subcontractors” and paying them cash or with a Form 1099 makes their workers independent or subcontractors. That is often not the case. Rather, in North Carolina, it is a multi-factored analysis as to whether an injured worker is an employee or an independent contractor, with the ultimate test being whether the contracting entity had the right to control the details of the injured worker’s work.
Some of the factors the Industrial Commission considers are whether the injured worker (1) was engaged in an independent business, calling, or occupation; (2) whether they had independent use of their special skill, knowledge or training; (3) whether they were doing a specified piece of work at a fixed price, for a lump sum, or on a quantitative basis; (4) whether they are not subject to discharge for choosing their method of work; (5) whether they are in the regular employ of the other contracting party; (6) whether they are free to hire assistants; (7) whether they have full control over their assistants; and (8) whether they select their own time. No single factor is determinative. Instead, the ultimate test is whether the contracting entity had the right to control the details of the injured worker’s work.
These cases are all fact-specific and often require careful factual and legal analysis. Some at the Commission give the benefit of any factual doubts to the injured worker. Moreover, if the injured worker was paid by the hour, the Commission will often give that factor great weight and find that the injured worker was an employee rather than an independent contractor, such that the worker’s claim would be found compensable.
If the injured worker is a subcontractor, and they are uninsured for workers’ compensation purposes, can they successfully argue that the statutory employment protections of N.C.G.S. 97-19 should nonetheless apply to enable them to obtain workers’ compensation benefits? Fortunately for contracting entities and their carriers, the answer is likely “No.”
N.C.G.S. 97-19 provides, in relevant part, the following:
…shall be liable, irrespective of whether such subcontractor has regularly in service fewer than three employees in the same business within this State, to the same extent as such subcontractor would be if he were subject to the provisions of this Article for the payment of compensation and other benefits under this Article on account of the injury or death of any employee of such subcontractor due to an accident arising out of and in the course of the performance of the work covered by such subcontract. N.C.G.S. Ann. 97-19.
In an earlier version of the statute, the class of persons protected by this provision included not only employees of the subcontractor, but also the subcontractor himself. Southerland v. B.V. Hedrick Gravel & Sand Co., 345 N.C. 739, 483 S.E.2d (1997). However, in 1995, the General Assembly reinstated the pre-1987 language of N.C.G.S. 97-19 by deleting ” any such subcontractor, any principal or partner of such subcontractor or” preceding “any employee of such subcontractor” effective June 10, 1996. Boone v. Vincent, 127 N.C. App. 604, 609, 492 S.E.2d 356, 359 (1997), cert. denied, 347 N.C.573, 498 S.E.2d 377 (1998). (citing 1995 N.C. Sess. Laws ch. 555 sec.1).
Consequently, the current Act only protects injured employees of a subcontractor, and not the uninsured, injured subcontractor himself. Obviously, subcontractors can choose to purchase workers’ compensation insurance coverage to protect themselves, in addition to their employees, in the event of a work-related injury.
At the inception of a claim, insurance carriers and their adjusters need to thoroughly investigate and confirm whether the injured worker was an employee or an independent subcontractor, bearing in mind the factors mentioned above. If the injured worker is a subcontractor and uninsured, the Act does not provide any protection for that injured subcontractor. Rather, under the statutory employment scheme of N.C.G.S. 97-19, only injured employees of subcontractors are protected by the coverage, which is afforded by the general contractor’s workers’ compensation policy.
Written by: Lindsay Underwood
A recent May 2022 decision from the North Carolina Court of Appeals provides a refresher on the “eggshell plaintiff rule” and taking your claimant how you find them. In Kluttz-Ellison v. Noah’s Playloft Preschool, the claimant sustained two separate incidents to the knees while working as the owner and director of a preschool. One incident took place in 2013, while the claimant was changing a lightbulb, and one took place in 2015, when she tripped over a student’s sleeping cot. Both claims were found to be compensable.
The claimant was ultimately referred for a revision replacement surgery for the right knee, as well as a total knee replacement for the left knee. Before she could undergo the same, her physician opined that she needed to lose a significant amount of weight to get the surgery. Unfortunately, the claimant was unable to lose weight on her own, and the physician recommended a bariatric surgery to assist with weight loss. The parties proceeded to hearing on the issue of weight loss and the need for bariatric surgery. The claimant testified she had tried to lose weight on her own using various diets. The Deputy Commissioner found the claimant’s need for a right knee revision surgery and repair of hardware loosening were not related to the compensable work injury, and, thus, the bariatric surgery, was unrelated as well. The claimant’s claims for the surgeries were denied.
The claimant appealed to the Full Commission. Notably, during the appeals process, the claimant underwent the right knee revision surgery and bariatric surgery on her own. The Full Commission reversed, concluding her right knee condition, treatment, and, now completed, right knee revision surgery was compensable. The Full Commission initially concluded her need for weight loss treatment/bariatric surgery was not directly related to her injury but following a Motion for Reconsideration and a Motion to Allow Additional Evidence filed by the claimant, the Full Commission amended the Opinion and Award. Though the Full Commission did not admit additional evidence, they concluded the bariatric surgery was medically necessary as a precedent to her compensable right knee surgery.
Defendants appealed to the Court of Appeals. The Court noted the claimant’s bariatric surgeon testified it was standard practice to not allow a patient to have knee replacement surgery until their BMI is under 40. Further, the surgeon testified that the claimant had fully participated in efforts to lose weight on her own. Thus, the only way for her to get her BMI under 40 so she could undergo the medically necessary knee replacement revision, was to have bariatric surgery. Further, the claimant needed surgery for both knees, and her authorized treating physician testified that it was an emergent weight loss requirement to get her BMI under 40 before she could undergo the surgeries.
The Court of Appeals cited N.C.G.S. §97-25, and the definition of medical compensation including “other treatment” such as payment of medical expenses incurred as a result of bariatric surgery because it was medically necessary to help her achieve an optimal BMI to allow her to undergo the right knee replacement revision. The question then became whether her need for bariatric surgery was directly related to the work injury. Applying the Act liberally, the Court of Appeals rejected Defendants’ argument that the claimant’s weight issues preexisted the work injury and were not therefore directly related to the compensable claim. Instead, they noted a direct line of causation connecting the dots between the compensable injury and the Commission’s award for bariatric surgery. As the bariatric surgeon testified that, due to physical limitations (the need for bilateral knee surgeries), she could not lose weight fast enough on her own, her need for bariatric surgery was directly related to the compensable injury.
Employers are often frustrated by the “tangential” medical treatments that come up while a claimant is receiving treatment for a compensable condition. Unfortunately, defendants take their claimant as they find them, and this decision only confirms that the Commission, and the Court of Appeals, will require defendants to take steps to return the claimant to their pre-injury status, even if it includes providing treatment like bariatric surgery, weight loss programs, and smoking cessation efforts.
A key point was that the physician testified that the claimant had made her best efforts with other weight loss treatment, such that the bariatric surgery was the only remaining option. A motion to compel the claimant to comply with medical treatment is a potential option if defendants are ordered to pay for weight loss to treat a compensable work-related injury. The claimant will have to show up at meetings and comply with preliminary weight loss programs or they could jeopardize their benefits due to noncompliance with medical treatment. What is clear from this case is that Defendants should not have to immediately pay for the most expensive treatment modality, and the claimant still has to make efforts on their own via less-expensive options.