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  1. #1
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    Default Getting Medical Treatment Could Get a Lot Harder in North Carolina

    This is important. Our General Assembly is considering making it even harder to get medical treatment for your comp injuries. Read this article, and you can comment online there too, if you wish.

    http://www.newsobserver.com/news/bus...158691879.html
    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 and Board Certified Specialist in NC Workers' Compensation Law

  2. #2
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    Default Re: Getting Medical Treatment Could Get a Lot Harder in North Carolina

    I'm on the employers side on this one, the burden of proof should be on the claimant - in most states the employer doesn't have to prove anything. (I never heard of it)
    How can an employer defend against every claim, substantiated or not - hell anyone can claim anything and it's up to the employer to prove otherwise, that's not right.
    I disagree changing the law will cause a delay in treatment, employers already scrutinize every claim - this ruling won't have an effect on that.

    The issues at hand are:
    1- "Wilkes failed to show that his anxiety and depression also were accident-related."
    2- "under state law, it’s up to the employer to prove that Wilkes’ subsequent medical issues didn’t stem from the accident."

    In my opinion, the employer shouldn't have to prove anything, they only need to attack the evidence presented.
    If Wilkes presented a credible case - the employer would have to attack the evidence or offer new evidence to counter his claim.
    To demand the employer prove a case that has no merit and they've already have won is ridiculous - this law needs to be changed.

    Here's the relevant sections so people will understand the issue at hand.

    Wilkes, now 64, was driving a city-owned truck on April 21, 2010, when another vehicle ran a red light and struck the truck, which then hit a tree.
    As a result, Wilkes suffered “an abrasion on his head, three broken ribs, and injuries to his neck, back, pelvis, hip and entire left side, as well as a concussion,” according to the high court’s decision. The city filed documents with the N.C. Industrial Commission admitting that he was entitled to workers’ compensation for the injuries sustained in the accident.

    However, months later Wilkes filed a claim asking the city to pay for medical treatment of tinnitus (ringing in his ears) as well as anxiety and depression, which he alleged stemmed from the work-related accident. This time, the city objected. Following a hearing on the matter, a deputy commissioner found that the tinnitus, anxiety and depression were “causally related” to the accident. But the full commission saw it differently.

    The commission found that although the tinnitus could be traced to the accident, Wilkes failed to show that his anxiety and depression also were accident-related.
    In one of its two key findings the Supreme Court, following in the footsteps of the N.C. Court of Appeals, held that the Commission had failed to take into account that, under state law, it’s up to the employer to prove that Wilkes’ subsequent medical issues didn’t stem from the accident.

    “We hold that plaintiff here is entitled to a presumption that additional medical treatment is related” to the accident, noted the decision authored by Justice Robin E. Hudson. The court sent the case back to the commission for reconsideration in light of its finding.

    Salamido, the chamber lobbyist, said that the high court’s ruling on subsequent medical conditions “shifts the burden of proof from where it is now” – in other words, from the injured worker to the employee. (employer)
    “Now, under the Wilkes decision, if an employer accepts a claim, they’re accepting a claim for every other condition unless they can prove it’s not related,” Salamido said.

    The upshot, he said, is that “employers are now going to be exercising a whole lot of caution before they accept a claim,” Salamido said. “They’re going to be asking for an additional medical examination. And then that’s going to have to be litigated.”
    That means it will take employees longer to get the treatment they need as well as higher costs for employers, Salamido said.
    http://www.newsobserver.com/news/bus...158691879.html

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  3. #3
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    Default Re: Getting Medical Treatment Could Get a Lot Harder in North Carolina

    Let's make sure you understand what is really happening here.

    Under Parsons v. The Pantry, a 1997 NC Court of Appeals case, once the injured worker carries his initial burden of proof that his injury is related to his work accident, he was not required to come in later and prove that his subsequent symptoms were also related to the injury. He had already proven it, so he got a "presumption" that his subsequent symptoms were related. The way this has always been applied is this: If you hurt your left shoulder and the doc in a box diagnosed you at first with a "left shoulder strain" and that "injury to left shoulder" was accepted, if you later got an MRI and it showed a tear in your left rotator cuff, that was presumed to be related unless the shoulder doctor said clearly that it was NOT related. It was up to the employer to develop the evidence that the cuff tear was not related to the original accident that injured the shoulder, because the left shoulder injury was accepted, and therefore the worker did not have to prove a second time that he hurt his shoulder. But the business community is reading a lot more into this Wilkes decision that what is there-- all it did was lay out the procedure for applying the Parsons presumption, that we have had for 20 years. Wilkes did not change the law, and almost everything Mr. Salamido says in that article is simply incorrect.



    “We hold that plaintiff here is entitled to a presumption that additional medical treatment is related” to the accident, noted the decision authored by Justice Robin E. Hudson. The court sent the case back to the commission for reconsideration in light of its finding.

    Salamido, the chamber lobbyist, said that the high court’s ruling on subsequent medical conditions “shifts the burden of proof from where it is now” – in other words, from the injured worker to the employee. (employer)
    “Now, under the Wilkes decision, if an employer accepts a claim, they’re accepting a claim for every other condition unless they can prove it’s not related,” Salamido said."


    This stuff in italics from the article states what the law has been since 1997. Salamido has an agenda and he has misstated the effect of Wilkes to further his agenda. The business community is claiming that Wilkes will turn the work comp act into "general health insurance" but that is false. If they accept a shoulder injury, do they honestly think the Commission or the Courts are going to apply the presumption to a subsequent complaint of ankle pain? No, that is not the way it has worked. But that is the argument that the business community used to get our pro-business legislature to act on this right at the end of the session.

    But a good workers' comp lawyer will still be able to help an injured worker get everything covered if his doctor believes the injury is related to the work accident. It will just take more litigation and expense. So this fix will actually create more litigation.
    Last edited by complwyr; 06-29-2017 at 03:09 PM.
    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 and Board Certified Specialist in NC Workers' Compensation Law

  4. #4
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    Default Re: Getting Medical Treatment Could Get a Lot Harder in North Carolina

    complwyr
    If they accept a shoulder injury, do they honestly think the Commission or the Courts are going to apply the presumption to a subsequent complaint of ankle pain? No, that is not the way it has worked. But that is the argument that the business community used to get our pro-business legislature to act on this right at the end of the session.
    I don't know, the Wilkes case is close.
    I think it would be on the claimant to prove his anxiety and depression was related to the original injury - that's pushing it.
    The question here is - where do they draw the line?

    Here's the facts I have a problem with.
    1-Wilkes suffered “an abrasion on his head, three broken ribs, and injuries to his neck, back, pelvis, hip and entire left side, as well as a concussion,”
    2-months later Wilkes filed a claim asking the city to pay for medical treatment of tinnitus (ringing in his ears) as well as anxiety and depression
    3- "Wilkes failed to show that his anxiety and depression also were accident-related."

    How's the employer supposed to prove the anxiety and depression wasn't accident-related? That's impossible.
    If ""Wilkes failed to show that his anxiety and depression also were accident-related." why would the employer have to prove anything?
    I could understand making the employer prove otherwise if Wilkes proved his case but to chase a dead horse is ridiculous.

    I understand what you're saying though - the Parsons presumption would be OK as long as claimants and the Commission don't abuse the privilege.
    Based on the Wilkes case, they need to establish boundaries to the law, not eliminate it in it's entirety.

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  5. #5
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    Default Re: Getting Medical Treatment Could Get a Lot Harder in North Carolina

    Our pro-insurance carrier GOP legislature eliminated it entirely. They also tried to do some other stuff that was bad for injured workers, using Wilkes as an excuse, but the folks who lobby down there for free on behalf of injured workers were able to stop the additional bad stuff, and our Governor will sign the new statute into law any day now.
    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 and Board Certified Specialist in NC Workers' Compensation Law

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