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  1. #1
    Join Date
    Mar 2009
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    2

    Default Stress Claims in NC Under WC

    Does anyone know how difficult psychiatric/stress claims under workers' comp are to prove to the Commission? Are they treated with skepticism or recognized when physical manifestations are present? I am in CA which is one of the most liberal states and was wondering how differently NC treats them.
    Also, does anyone know the average length of benefits granted for a severe emotional distress claim?

  2. #2
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Stress Claims in NC Under WC

    As with any claim for benefits/WC, the basis for any treatment is going to be 'medical evidence', the treating physican though evaluation will determine the status, diagnosis, and treatment plan.

    With a 'stress/psych' claim, the IW's entire life history from womb to day after tomorrow is going to be at issue.
    In most/many states you have to prove/show that a minimum of 51% of your 'injury/illness' is due to your job.
    You can expect the defense to delve fully into your past medical records, and attempt to find that additonal 1% or 2% that can be apportioned to 'other/outside factors' of disability/impairment.

    Unfortunately, in WC awards/settlements are based on disability, or impairment. The IW is labled as having a 'mental impairment' at the resolution of the claim....not something anyone would choose to carry the rest of their life.

    Regardless of the nature of the claim, IW's are still subject to the medical treatment guidelines, and utilization review process as adopted by the state through the WC Act...http://www.comp.state.nc.us/ncic/pages/statute.htm

    the average length of benefits granted for a severe emotional distress claim?
    The length of time for benefits would be the same as any work related injury/illness...
    97-25.1. Limitation of duration of medical compensation.

    The right to medical compensation shall terminate two years after the employer's last payment of medical or indemnity compensation unless, prior to the expiration of this period, either: (i) the employee files with the Commission an application for additional medical compensation which is thereafter approved by the Commission, or (ii) the Commission on its own motion orders additional medical compensation. If the Commission determines that there is a substantial risk of the necessity of future medical compensation, the Commission shall provide by order for payment of future necessary medical compensation. (1993 (Reg. Sess., 1994), c. 679, s. 2.5.)

    http://www.comp.state.nc.us/ncic/pag...ute/97-251.htm
    If the treating physican determines that no work at all can be performed, there are TTD benefits...97-29. Compensation rates for total incapacity. http://www.comp.state.nc.us/ncic/pag...tute/97-29.htm

    I don't know that Calif is the most liberal in stress/psych claim benefits...there are some heavy hurdles to jump here too...

  3. #3
    Join Date
    Feb 2007
    Location
    Charlotte, NC
    Posts
    3,048

    Default Re: Stress Claims in NC Under WC

    I have handled a few stress claims in NC. They are very hard to win. In theory, they should not be too hard to win, but practically speaking, they are very difficult.

    I tried a denied PTSD/depression case about a decade ago for a man who saw his treating psychiatrist 41 times before we took the doctor's deposition. The doc was an expert in PTSD and early in his career had treated a lot of Vietnam vets for it, so he knew his stuff and he gave us the medical expert opinion that we needed in order to win.

    The defense sent my guy to another doc for a one-time visit and evaluation. The Industrial Commission found that the IME doc's opinion had more credibility, and his opinion was simply that my guy was just mad because his claim was denied and he did not even have PTSD. We could show that was not the case---the symptoms arose before the denial occurred. The IC did not care--they ignored that evidence, which was written in the notes of the orthopedist. I appealed and lost, twice. The case is Harmon v. Food Lion and is on the IC web site and the NC Ct of Appeals site.

    Since then, I have been very skeptical of winning denied mental health claims at the IC.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney at Law

  4. #4
    Join Date
    Mar 2009
    Posts
    2

    Default Re: Stress Claims in NC Under WC

    If the WC stress claim is augmented by the fact that pension health benefits for life (upon retirement) would be denied to an employee of 12 years with good reviews for the first 11 and 1/2 years, 6 months before her pension would vest...what is the best way to approach this type of complicated claim? (I also neglected to mention that the injured employee in question is 62 years of age.)

    Would it be easier for the employee to go out on short term disability rather than WC? Finally, are the WC claim and short term disability claims (and any ERISA or age discrimination claim) mutually exclusive?
    Last edited by Plaintiff- Charlotte, NC; 03-18-2009 at 04:09 PM.

  5. #5
    Join Date
    Feb 2007
    Location
    Charlotte, NC
    Posts
    3,048

    Default Re: Stress Claims in NC Under WC

    I think you should look into an age discrimination case. Talk to an "employment law" attorney about that. Send me a PM and I can steer you in the correct direction.

    STD and WC are not mutually exclusive, but there are offsets and credits that may apply to prevent a double recovery.

    I don't think an age claim and an ERISA claim would be mutually exclusive either. Those two are not really related.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney at Law

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