In the Summer, 2016 Edition of this Publication, we addressed certain recent developments with regard to the “Parsons presumption.” Since that time, a decision by the North Carolina Supreme Court and subsequent action taken by the General Assembly of North Carolina has further clarified the extent to which the “Parsons presumption” will be applied.
By way of review, the “Parsons presumption” is an evidentiary presumption resulting from the Court of Appeal’s decision in Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997). The presumption was created to protect employees from having to re-prove medical causation with regard to additional treatment being sought for injuries that had already been deemed compensable. Once the Industrial Commission judicially determines that a particular injury is compensable, the burden then shifts to the employer to show that any treatment involving that injury is unrelated to the compensable injury.
Following Parsons, several Court decisions addressed the applicability of the presumption in differing circumstances. For example, in Perez v. Am. Airlines, 174 N.C. App. 128, 620 S.E.2d 288 (2005), the Court found that the presumption extended to any injury accepted by an employer on a Form 60.
The issue of the expansiveness of the Parsons presumption was somewhat settled until the North Carolina Court of Appeals issued an opinion in Wilkes v. City of Greensville, __ N.C. App. ___, 777 S.E.2d 282 (2015). In Wilkes, the employee had sustained injuries as a result of a work-related motor vehicle accident. The employer accepted injuries to the “ribs, neck, legs and entire left side” as compensable via Form 60. The employee then sought compensation for treatment of anxiety and depression. The Court of Appeals held that since the employer accepted the compensability of injuries employee sustained directly in the motor vehicle accident on a Form 60, the employee was entitled to the Parsons presumption that his subsequently-diagnosed anxiety and depression were also compensable.
The decision by the Court of Appeals led to great uncertainty for employees and employers alike. Knowing this, the North Carolina Supreme Court granted Defendant’s Petition for Discretionary Review. At the time of our last writing, briefs were being submitted to the Supreme Court and the hope was that a decision would be forthcoming that clarified the limitations of the Parsons presumption.
On June 9, 2017, the Supreme Court issued an opinion, authored by Justice Hudson, which affirmed the decision of the Court of Appeals with regard to the Parsons presumption. In affirming the decision of the Court of Appeals, the Supreme Court viewed the plain language of N.C. Gen. Stat. § 97-82(b) as dispositive. At the time of the decision, N.C. Gen. Stat. § 97-82(b) read, in part,
“Payment pursuant to G.S. 97-18(b), or payment pursuant to G.S. 97-18(d) when compensability and liability are not contested prior to expiration of the period for payment without prejudice, shall constitute an award of the Commission on the question of compensability of and the insurer’s liability for the injury for which payment was made.”
The Supreme Court in Wilkes stated, “Continually placing the burden on an employee to prove that his symptoms are causally related to his admittedly compensable injury before he can receive further medical treatment ignores this prior award.”
Following the decision by the Supreme Court in Wilkes, the law appeared to be that if a Defendant accepted the compensability of an injury or claim on a Form 60 or Form 63 (Section 1, without denying the claim within period of time provided), then an employee would be entitled to the Parsons presumption for any injuries later alleged to be related; no matter what specific injuries were listed on the Form 60 or Form 63.
In response to the decision by the Supreme Court in Wilkes, which predictably caused great consternation in the business community, the General Assembly of North Carolina passed a bill (Session Law 2017-124, House Bill 26), which was signed into law by Governor Roy Cooper on July 20, 2017. The new law amended N.C. Gen. Stat. § 97-82(b) as follows:
“Payment pursuant to G.S. 97-18(b), or payment pursuant to G.S. 97-18(d) when compensability and liability are not contested prior to expiration of the period for payment without prejudice, shall constitute an award of the Commission on the question of compensability of and the insurer’s liability for the injury as reflected on a form prescribed by the Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d) for which payment was made. An award of the Commission arising out of G.S. 97-18(b) or G.S. 97-18(d) shall not create a presumption that medical treatment for an injury or condition not identified in the form prescribed by the Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d) is causally related to the compensable injury.
(emphasis added to reflect changes to N.C. Gen. Stat. § 97-82(b).)
The amendment of N.C. Gen. Stat. § 97-82(b) now makes clear that the Parsons presumption will only apply to specific injuries or conditions identified on a Form 60 or Form 63. If the injury or condition is not specially identified on a Form 60 or Form 63, the Parsons presumption does not apply and it is employee’s initial burden to prove that the alleged injury or condition is causally related.
While it has taken approximately twenty years, it appears that the uncertainty surrounding the Parsons presumption has finally been resolved. Given this clarification, it is critical that when a Form 60 or Form 63 is prepared, that only the specific injuries or conditions being accepted as compensable are listed.
The information published in Hedrick Gardner Alerts is general in nature and not intended to take the place of legal advice on any particular matter. © 2017 Hedrick Gardner Kincheloe & Garofalo LLP