Directing Medical Treatment in Compensable Claims in North Carolina

An increasingly litigated issue involves an employer’s right to direct and provide medical treatment. As a reminder, when an employer accepts a claim as compensable, it is the employer’s right to direct medical treatment. This has long been established by North Carolina precedent and statutes, including N.C. Gen. Stat. Section 97-25. Medical treatment, or medical compensation, is broadly defined by N.C. Gen. Stat. Section 97-2(19). Medical compensation includes “medical, surgical, hospital, nursing, and rehabilitative services, including, but not limited to, attendant care services prescribed by a health care provider authorized by the employer or subsequently by the Commission, vocational rehabilitation, and medicines, sick travel, and other treatment, including medical and surgical supplies, as may reasonably be required to effect a cure or give relief and for such additional time as, in the judgment of the Commission, will tend to lessen the period of disability. . . ”

Although an employee can attempt to usurp this right, the requirements are quite clear as to the limited circumstances that the employer would lose the right to direct medical treatment in a compensable claim. A commonly litigated issue is whether an employer’s right to direct medical treatment includes treatment such as a Functional Capacity Evaluation (FCE). However, the analysis remains the same. Assuming a compensable claim, it should remain the employer’s right to direct all medical treatment, which would ultimately include evaluations such as an FCE. The Workers’ Compensation Act also provides the required steps if an employee seeks to have a comprehensive second opinion or a second opinion as to an impairment rating. Generally, if an employee seeks a comprehensive second opinion, this does not provide the employee with the unilateral ability to select the provider. Instead, the commission expects the parties to agree on a provider. If the parties are unable to do so, the commission can become involved. Finally, there are limited examples in compensable claims where an employee has the right to select a physician of their own choosing. For example, N.C. Gen. Stat. Section 97-27(b) provides the employee with a route to request a second opinion as to an impairment rating, with a physician of the employee’s choosing, at the employer’s expense. This is a very limited scenario.  Additionally, the maximum cost an employer is required to pay for such an evaluation is defined by the Industrial Commission fee schedule. As an employer, always pay attention to what is required by the fee schedule as it is not an uncommon occurrence for a fee to be requested under this section that exceeds what is allowed for under the fee schedule.

If you face this issue as an employer, you must ask whether you are dealing with a compensable claim. If so, and there are no exceptions to this right, remember that it generally remains the right of the employer to direct medical care.

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