North Carolina Archives - Page 2 of 3 - Workers' Compensation Defense

May 7, 2018 North Carolina

North Carolina Court of Appeals Holds Medications Not Approved by FDA can Constitute Medical Compensation

The Court of Appeals of North Carolina recently affirmed an Industrial Commission decision that use of non-FDA approved “compound creams” prescribed by an authorized treating physician was compensable medical treatment to be provided by the employer.

In Davis v. Craven County ABC Board, the plaintiff suffered compensable complex regional pain syndrome. He was prescribed a non-FDA approved compound cream and testified that it relieved some of his symptoms. The defendants refused to honor the prescription for several reasons, arguing that, among other things, the medication …

March 15, 2018 North Carolina

Getting Your Recorded Statement into Evidence Under Rule 608

Most adjusters handling North Carolina workers’ compensation matters take recorded statements as part of their claims investigation. For defense counsel, this is one of the most important documents used to defend denied claims. This post is a reminder of two technical requirements that must be met with regard to all recorded statements. If these requirements are not met, the statement can be excluded from evidence by the Industrial Commission. This can be catastrophic to the defense of the claim.

Recorded statements are governed by North …

February 16, 2018 North Carolina / Opioids

Proposed Rules Aimed at Addressing Opioid Epidemic and its Impact on North Carolina Workers’ Compensation Claims Continue to Progress

As the opioid epidemic continues to sweep the country, the North Carolina Industrial Commission has taken notice. In February 2017, Chairman Charlton Allen established an Opioid Task Force aimed at finding solutions to address the opioid epidemic and the impact on workers’ compensation claims. Late last year, the Industrial Commission published draft rules for public comment on the utilization of opioids and pain management in workers’ compensation claims.

On January 16, 2018, the Industrial Commission announced that the proposed rules were published in Volume 32, …

November 17, 2017 North Carolina

North Carolina Court of Appeals Affirms Full Commission Decision: Injury does not Fall under Pre-Amendment N.C. Gen. Stat. § 97-29

The North Carolina Court of Appeals has recently decided a case where the 2011 amendment of N.C. Gen. Stat. § 97-29 was in dispute.

In Brown v. N.C. Dept. of Public Instruction, the plaintiff suffered three injuries in 2002, 2011, and 2012, respectively all to her right shoulder. Here, the plaintiff alleged that her 2012 injury was related to her 2011 injury, which occurred days before § 97-29 was amended to establish the 500-week cap on compensability benefits. Prior the amendment, there was no …

August 30, 2017 North Carolina

North Carolina Governor Signs Bill Aimed at Protecting Employees from Misclassification

On August 11, 2017, North Carolina Governor Roy Cooper signed into law Senate Bill 407, which creates Article 82, Chapter 183 of the state’s general statutes — more commonly known as the Employee Fair Classification Act (the Act). Quite simply, the Act creates an Employee Classification Division (ECD) within the North Carolina Industrial Commission, led by Director Bradley L. Hicks.

The legislation creating the ECD was introduced in 2015 but failed to become law. In response, former Governor Pat McCrory signed an executive order temporarily …

August 30, 2017 Average Weekly Wages / North Carolina

North Carolina Court of Appeals Holds Calculations of Average Weekly Wage Must Be “Fair and Just” to Both Employer and Employee

The North Carolina Court of Appeals ruled that when calculating the average weekly wage of an employee, the calculation must be “fair and just” to both the employer and the employee.

In Ball v. Bayada Home Health Care, the plaintiff alleged to have suffered injuries to her left hand, bilateral knees, and right hip while employed as a certified nursing assistant (CNA) in February 2011. Her accident took place on the first day of work with a new patient — right after she had …

June 23, 2017 North Carolina

Post-Wilkes Decision Tips for Handling Workers’ Compensation Claims

We recently wrote about the impact of the Wilkes v. City of Greenville decision. In this ruling, the North Carolina Supreme Court significantly expanded the “Parsons presumption,” which posits a relationship between an original work-related injury and additional treatments required. It is possible that the North Carolina General Assembly will overturn the decision — though there is no guarantee. If the General Assembly does not act, then we can expect to see a significant increase in claims for new body parts and conditions following …

June 23, 2017 North Carolina

Plain Language of North Carolina Statute Withstands Challenge from Claimant

In North Carolina, a claimant’s right to seek additional medical compensation expires two years after the date of the employer’s last payment of medical or indemnity compensation (absent limited exceptions). N.C. Gen. Stat. § 97-25.1 Recently, the North Carolina Court of Appeals, in Anders v. Universal Leaf N. Am, issued an opinion rejecting a claimant’s attempt to get around this time limitation holding true to the plain language of the statute.

In Anders, the claimant suffered from a compensable accident resulting in bilateral …

May 22, 2017 North Carolina

Parsons Presumption Still Applicable to Same Body Part

The North Carolina Court of Appeals has handed down a ruling that clarifies and potentially expands the “Parsons presumption,” a North Carolina precedent that posits a relationship between an original work-related injury and additional treatments required. This new ruling, in the case of Bell v. Goodyear, establishes that when a court accepts an injured body part as compensable, subsequent injury to the same body part is subject to the Parsons presumption, even if the exact location of the subsequent injury is different from the …

May 9, 2017 North Carolina / Post-Accident Drug Testing

Post-Accident Drug Testing: Part 7 — North Carolina

After every accident involving potential human error, North Carolina employers should perform a drug test. The test must enable the defense attorney to prove not only the presence of an intoxicating substance, but the concentration. Most simple urine drug screens do not provide that information.

The North Carolina Workers’ Compensation Act makes “intoxication” by illegal drugs, or legal drugs not taken as prescribed, a defense to a claim for an injury by accident. But “intoxication” is harder to prove than many realize. The defense attorney …