In Wilkes v. City of Greenville, __ S.E.2d __, (2017) the North Carolina Supreme agreed with the Court of Appeal’s determination that when compensability is admitted an injured worker is entitled to a presumption that future medical treatment is causally related to the compensable injury. Moreover, the Supreme Court expanded its review to the Russell v. Lowe’s and proving disability. The result is an opinion that shifts the burden of causation for related body parts and a potential expansion of evidence accepted to prove disability.


The issues before the Court stemmed from an accepted claim related to a motor vehicle accident including injuries to the ribs, neck, legs and entire left side. Over the course of the claim, Plaintiff complained to medical providers of anxiety and depression contending the diagnoses were related to the accident. The additional treatment, not originally accepted, was denied on the basis that the conditions were unrelated to the claim and it was Plaintiff’s burden to prove a causal relationship to the compensable accident. 

The Court of Appeals reversed a Full Commission Opinion that Plaintiff had failed to show sufficient evidence his anxiety and depression were related to the car accident and denied the medical compensation. The Court held that the Commission erred by not applying the rebuttable Parsons presumption to the anxiety and depression conditions. Additionally, the Court of Appeals reversed the Commission’s determination of terminating temporary total disability benefits because Plaintiff did not perform a reasonable job search. The Court determined that evidence of restrictions, as well as evidence of an individual’s incapacity to earn wages after the accident was sufficient to establish disability. The Supreme Court addressed both the issues of the Parsons presumption and evidence for disability.

Rebuttal Presumption for Medical Compensation

The Court affirmed the Court of Appeal’s opinion and agreed a rebuttable presumption for a causal relationship between medical treatment and a compensable injury. The Court explained that under N.C. Gen. Stat. § 97-82(b), admission of compensability of an injury is considered an award and it is the employer’s responsibility to provide “medical compensation.” The Court surmised,”[c]ontinually placing the burden on an employee to prove that his symptoms are causally related to his admittedly compensable injury before he can receive further medical treatment ‘ignores this prior award.’” The Court also cited N.C. Gen. Stat. § 97-2(19) stating statute requires that medical compensation includes any treatment that “may reasonably be required to effect a cure or give relief.” Therefore, statutory language requires an employee have a presumption on medical treatment and its relation to the compensable injury.

Evidence Proving Disability

The Supreme Court acknowledged, unlike medical compensation, filing a Form 60 does not create a presumption of disability. However, it addressed the sufficiency of evidence to prove disability in a compensable claim. First, the Court emphasized the prongs in Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454, (1993) are examples of ways to prove disability, not an exhaustive list of means. Instead, Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682, (1982) states that an employee must prove, through factual evidence:

We are of the opinion that in order to support a conclusion of disability, the Commission must find: (1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual’s incapacity to earn was caused by plaintiff’s injury.

The Court also cited the recent opinion in Medlin v. Weaver Cooke Construction, LLC 367 N.C. 414, 760 S.E.2d 732 (2014), which affirmed Hilliard, and determined Russell’s “test” as actual examples of methods to prove disability. Evidence such as preexisting/coexisting limitations of limited education, work experience and age must be also considered establishing disability. The Commission may rely on the employee’s own testimony on wage earning capacity and testimony of an expert is not required. Therefore, it is inappropriate to rely on the “prongs” of Russell as a test for determining if an employee is disabled.

Practice Tips

The Wilkes opinion places the onus on employers and carriers to rebut a presumption that medical conditions are related to a compensable accident. Addressing this opinion is twofold, (1) requiring a clear identification of injuries at the beginning of the claim and (2) effectively managing new conditions that arise over the course of a compensable claim.  Thus, this decision places greater importance on the initial investigation, before a Form 60 or 63 is filed, by obtaining pre-existing medical records, recorded statements, and documentation (injury reports, witness statements, etc.) of the initial injury. The results of an investigation may lead to a denial of the entire claim or could necessitate legally appropriate communications with treating physicians in an attempt to rebut medical causation. The Court also emphasized that statute allows independent medical examinations and the Form 63 for payment without prejudice to investigate a claim. They urged employers/carriers to gather evidence where uncertainty exists on compensability through diligent investigation with medical experts and documentation. In that vein, questionnaires to medical providers can serve as an easy means to investigate new diagnoses and their relation to the claim. Finally, when dealing with disputes on causation, the Court noted that expedited medical motions may be used by employers and carriers to quickly address disputed medical conditions.

Regarding the Court’s analysis of disability, it may become more important for defendants to produce vocational evidence of their own in order to show suitable jobs are available for an employee. Vocational expert opinions and labor market surveys are admissible to address an employee’s capability to obtain work even when taking into consideration testimony regarding physical and vocational limitations.