Last week, North Carolina Governor Roy Cooper signed House Bill 26 into law, partially repealing the North Carolina Supreme Court’s decision in Wilkes v. City of Greenville in June, which focused on two issues: medical presumptions and evidence needed to prove disability.
On the medical presumptions issue, the Supreme Court held that once there has been a determination of compensability (either through a determination by the Commission or by an employer or insurer accepting a claim), an employee is entitled to a presumption that additional medical treatment is directly related to the initial injury. This presumption arises even if the claimed condition is not the same condition that was accepted or determined to be compensable.
On the disability issue, the Supreme Court confirmed that an employee may prove disability in ways other than those listed in Russell. Additionally, the Supreme Court confirmed that an employee does not need expert vocational evidence in order to support a claim for futility.
House Bill 26 focused solely on repealing the medical presumption expansion of Wilkes when a claim is accepted either on a Form 60 or a Form 63, leaving the disability discussion in place. Specifically, the bill limited medical presumptions to the injury or condition identified on either the Form 60 or Form 63.
Interestingly, the bill did not address medical presumptions arising after the Commission makes a determination of compensability following a hearing. Although this scenario is unlikely, one could argue that a medical presumption would apply to new injuries when compensability was initially established through a hearing, as opposed to an acceptance through a Form 60 or Form 63.
Moving forward, specificity is absolutely necessary when paying compensation pursuant to a Form 60 or a Form 63 because future medical presumptions will be based on this language. For example, if a Form 60 lists “back” as the accepted condition, a claimant could argue that any additional treatment for the cervical to lumbar spine should be presumed related. For comparison, it would be difficult for an employee to argue that neck treatment should be presumed related when a Form 60 specifically lists L2 compression fracture.
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