• Post-Wilkes Decision Tips for Handling Workers’ Compensation Claims
  • July 11, 2017 | Authors: Michael A. Goode; Leann A. Gerlach; Gregory S. Horner; Ben S. Greenberg; Amy C. Pagani
  • Law Firms: Goldberg Segalla LLP - Greensboro Office; Goldberg Segalla LLP - Greensboro Office
  • Last week we 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 an initial acceptance of compensability. Additionally, we should expect an increase in altered gait-causing injury claims, claims of anxiety and depression following an accepted work injury, and claims stemming from overcompensation (using one body part more as a result of an injury to another).

    Employers and carriers should keep in mind the following recommendations in the post-Wilkes era.

    • Recorded statements are a must for all claims.
      • While recorded statements are sometimes limited to more serious claims, in the post-Wilkes framework, the acceptance of a minor injury means a presumption that any other condition or body part is also compensable.
      • Recorded statements are necessary to determine what pre-existing physical and mental conditions exist to determine whether early causation opinions are necessary to combat the addition of new injuries and conditions down the road.
      • Pay attention to index claim reports. Question each match, including the involved conditions, the treating physicians, and whether the claim is still open.
      • Obtain medical releases to collect records from prior providers.
      • In cases where credibility is a concern, consider a medical trace search to identify other treating providers.
      • If a claimant does not cooperate with the initial claims investigation, consider whether such noncompliance might preclude acceptance of the claim.
    • Encourage employers to obtain written and signed accident reports with the employee detailing specifically what body parts are involved and excluding all others.
    • If a Form 18 is filed, a Form 63 is an appropriate responsive form if the initial investigation cannot be completed within the responsive timeframe. When indemnity benefits are paid with a Form 63, the 90-day period can be extended by 30 days if requested prior to the expiration of the 90-day period.
    • A $200.00 fine is significantly cheaper than filing a Form 60 without a proper investigation. Note that sanctions for failing to respond in a timely manner shall not prohibit an insurer from contesting compensability.
    • For identified pre-existing conditions, consider whether any treating physicians would be appropriate to opine whether the condition was aggravated or accelerated by the injury. If not, consider whether an early independent medical examination could help rebut any presumption of compensability.

    As always, when completing a Form 60/63, be as specific as possible about the injury accepted and the involved body part(s).