2014 NC Case Law Update
Below is a summary of significant 2014 Workers Compensation cases decided by the Courts, along with “practice tips” for addressing these issues. Covered topics include: Medical Causation, notice defenses, subsequent injuries, use of surveillance, time bar defenses, reformation of form agreements, change of treating physicians, and vocational rehabilitation.
1. Fields v. Harnett County and Town of Coats – Subsequent Injuries
In this case plaintiff sustained a compensable back injury in 2008 during the course of his employment with Harnett County. Plaintiff subsequently returned to work for a new employer (Town of Coats) in 2009, and later suffered another back injury in 2010 while still employed with Town of Coats. Plaintiff ultimately underwent surgery in 2011 and the issue was which employer was responsible for plaintiff’s medical and indemnity benefits. The Commission ordered the original employer, Harnett County, to pay for all medical treatment and disability benefits, and the Court affirmed that decision.
Defendants (Harnett County), in addition to denying liability for Plaintiff’s ongoing benefits, argued that the Commission should have attempted to apportion liability and/or find Town of Coats jointly and severally liable with Harnett County under the Newcomb v. Greensboro Pipe Co. case. The Commission and the Court held that this case was distinguishable from Newcomb in that there was no evidence/finding that the disability and need for surgery were due to a combination of the incidents. To the contrary, the Commission held that the second injury (while plaintiff worked for Town of Coats) did not substantially alter plaintiff’s condition.
PRACTICE TIP – Although the Court denied Harnett County’s defense, in my opinion they took the correct position. When there are subsequent injuries to the same body part involved in an accepted claim, Defendants should seek to escape further liability if possible. Ultimately, the ability to do so will turn on the medical evidence/testimony. I generally use the Newcomb case as an “alternative defense” and it looks like the defendants were unable to obtain the necessary medical testimony to argue that issue successfully here.
2. Yingling v. Bank of Am. – written/actual notice under 97-22 –
Plaintiff was involved in a MVA on the way to work for a meeting in 2006. Plaintiff verbally reported the accident to his supervisor and manager. However, he never filed written notice of the accident. He sought medical treatment but continued working. Two years later plaintiff suffered another work injury and did not return to work. At that point, plaintiff filed written notice of a claim for both the 2006 and 2008 injuries.
The Court held that since the employer had actual notice of the 2006 injury, written notice was not required. They also held defendant was not prejudiced by the two year delay. Because they had actual notice, they could have investigated the claim at the time of the injury but failed to do so.
PRACTICE TIP – Essentially this case confirms that if the employer has actual notice of an injury, that will satisfy the notice requirement of 97-22. As a result, if an employer learns of an injury (even one that is not filed as a WC claim immediately) they should investigate it at that time.
3. McCrary v. King Bio, Inc.- Medical Causation –
Plaintiff was assisting a co-worker to repackage meat. One of the packages slipped, and when she attempted to catch the meat, she felt a pop in her right wrist with immediate pain. The co-worker witnessed the incident and heard the pop. Plaintiff sought treatment the following day, but continued to work.
The Court found this was a compensable injury, apparently without any medical testimony, other than a letter from the physician opining plaintiff’s work “very likely did cause” her injury.
PRACTICE TIP – The decision here is not the issue, but the Court’s method is concerning. Although this looked to be a clearly compensable injury, generally questions of medical causation require expert testimony. Here, the court excused that requirement, and held that this was an “uncomplicated situation” due to the facts of the claim, and therefore plaintiff was not required to present expert testimony to establish causation.
4. Bowman v. Cox Toyota Scion – Admissibility of surveillance evidence –
Plaintiff claimed he suffered a trip and fall at work, causing an injury to his neck and back. However, the employer had surveillance equipment recording footage in the area where plaintiff allegedly fell. They reviewed the footage and saw no evidence of a fall. The video footage was transferred to several DVDs for admission into evidence at hearing.
The Deputy denied plaintiff’s claim, finding his testimony was not credible. However, the Full Commission reversed, holding that the defendants did not properly lay foundation or authenticate the surveillance DVDs. Ultimately, the Court reversed the Full Commission and found that the proper foundation was laid, and the surveillance was admissible – largely because the rules of evidence are not strictly applied in Industrial Commission Hearings.
PRACTICE TIP – While the end result was favorable for defendants, plaintiff counsel now use this case to contest surveillance evidence. When using surveillance, defendants need to be sure to lay sufficient foundation and authenticate the evidence through testimony to avoid favorable evidence potentially being excluded.
5. Miller v. Carolinas Medical Center-Northeast – Reformation of a Form 21 Agreement; 97-25.1 and 97-47 statutory time bar issues.
Plaintiff sustained a compensable back injury on August 21, 2006. She was rated and released in December 2006, and the parties entered into a Form 21 Agreement, which was approved by the Commission on November 29, 2007. Plaintiff returned to work and didn’t seek further treatment until September 9, 2008. However, the treating physician opined plaintiff’s issues at that time were unrelated to the injury, and therefore, defendants filed a Form 61 denying further medical treatment. Plaintiff sought surgical treatment on her own, and eventually returned to work on December 31, 2010.
Plaintiff filed a Form 18M in November 2010, and subsequently filed an Amended Form 18 on August 29, 2011 alleging a “chance of condition” since the Form 21 approval. Plaintiff asserted the AWW was incorrect in the Form 21 and sought underpayment as well as additional medical and indemnity benefits. Defendants asserted her claims were time barred under 97-25.1 and 97-47. The Commission reformed the Form 21 to amend the AWW and awarded underpaid TTD, PPD, and found plaintiff’s claims for medical/indemnity benefits were not time barred.
The Court reversed in part and affirmed in part the Commission’s decision. On the issue of reformation of the Form 21, the Commission failed to indicate whether they were rescinding the prior AWW, or enforcing the new “subject to verification” language/provision. In either case, the Court held that the Commission erred. The Form 21 could not be rescinded because it was a mistake of law, not fact, and thus didn’t meet 97-17 requirements. Similarly, case law states that the “subject to verification” provision must be pursued within a “reasonable time.” Here plaintiff waited 3.5 years, which the Court held was not reasonable.
On the time bar issue, although it had been more than 2 years since defendants’ last indemnity payment, 2 years had not passed since their last medical payment (medical case management costs). The Court disagreed with defendants contention that medical case management costs didn’t constitute medical benefits, and held plaintiff was not time barred from pursuing further benefits.
PRACTICE TIP: Although plaintiff’s effort to reform the Form 21 was unsuccessful in this case, the “take home” lesson is that plaintiff likely can do so it verification is requested within a “reasonable time”. This has obvious significant implications on file closure efforts, and our time bar defenses.
6. Poole v. University of North Carolina-Chapel Hill – Compliance with Vocational Rehabilitation
Here, plaintiff sustained a compensable lower back injury on April 23, 1992. In 1998, a Form 24 Application was granted, suspending plaintiff’s TTD payments “until plaintiff makes a proper showing that he is willing to comply with reasonable rehabilitation efforts.” Eight years later, plaintiff sought additional medical treatment and alleged he had an ongoing disability and a change in condition. The claim was dismissed with prejudice due to plaintiff’s failure to bring his claim within a reasonable period of time.
In 2012, the Full Commission reopened plaintiff’s case and remanded it for a new hearing before a Deputy Commissioner. At hearing, plaintiff testified that if there was employment available within his restrictions, he would be willing to cooperate with pursuing employment, including attending job fairs and vocational rehabilitation. Overturning the Deputy Commissioner, the Full Commission found plaintiff’s testimony to be credible, constituting a proper showing that he was willing to comply with reasonable rehabilitation efforts and ordered defendants to reinstate Plaintiff’s TTD payments.
On appeal, the Court stated that although declarations of a willingness to comply are not necessarily sufficient if deemed not credible by the Commission, here the Commission clearly found plaintiff’s testimony that he wished to begin vocational rehabilitation to be credible. The Court of Appeals further found that plaintiff’s eight-year delay in filing his Form 33 was not prejudicial in the context of a Form 24 order merely suspending benefits, as opposed to terminating benefits, because the order provided for reinstatement when plaintiff begins compliance. Finally, the Court authorized plaintiff’s doctor as treating physician because by paying for treatment with that physician, defendants acknowledged and accepted plaintiff’s change in medical providers.
PRACTICE TIP – The significant result here is that, where payments have only been suspended, there may be no time limit on when a claimant may fulfill the terms for reinstatement. However, with the new rules requiring that the Industrial Commission state in the Form 24 what plaintiff must do to comply; defendants can ask that the order be tailored to limit the time frame. Lastly, when ongoing payment for medical treatment has been made, a subsequent challenge to the physician’s classification as “treating physician” will not likely be successful.
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