In October of 2015, the North Carolina Court of Appeals issued an opinion in Wilkes v. City of Greenville, __ N.C. App. __, 777 S.E.2d 282 (2015), which created uncertainly for employers across the State – including, but certainly not limited to, motor carriers – regarding the application of the Parsons presumption by expanding the presumption to any and all symptoms an employee may allege are compensable. The evidentiary presumption resulting from the Court’s prior decision in Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997), was created to protect employees who met their initial burden of proving a causal relationship between medical treatment sought and the compensable injury from having to repeatedly re-prove medical causation with respect to additional treatment for the very injury already deemed compensable. Once the Industrial Commission has judicially determined that a particular injury is compensable, the burden shifts to the employer to show that any additional treatment involving that condition is unrelated to the compensable injury. However, the “Parsons presumption” was never intended to address an employee’s entitlement to medical treatment for symptoms other than those for which treatment was previously awarded. Rather, when the Commission holds a specific condition is compensable, the employee is prospectively entitled to the presumption only for the “very injury” found compensable in the previous decision.
In Perez v. Am. Airlines, 174 N.C. App. 128, 620 S.E.2d 288 (2005), the Court of Appeals extended the Parsons’ presumption to any injury accepted by an employer on a Form 60. Employers had some certainty, however, that the presumption would be limited to any injury specifically listed on the Form 60 as accepted, but no other symptoms.
In Wilkes, the employee sustained physical injuries from a work-related motor vehicle accident. The employer initiated payment of workers’ compensation benefits by accepting the claim on a Form 60 that expressly limited the injuries accepted as those sustained to the employee’s “ribs, neck, legs and entire left side.” The Court held that, because the employer accepted the compensability of the injuries employee sustained directly in the motor vehicle accident on a Form 60, Plaintiff was entitled to the Parsons presumption that his subsequently-diagnosed anxiety and depression were also compensable. Thus, Wilkes arguably stands for the proposition that, when an employer accepts liability for injuries on a Form 60, that Form 60 presumes a causal relationship for any subsequent symptom the injured worker alleges is compensable, shifting the burden to the employer to disprove the causal relationship between the original injuries and any new symptoms or conditions.
Two subsequent NC Court of Appeals decisions have somewhat reigned in the expansiveness of Wilkes, albeit through unpublished opinions, which are not precedential. In Edwards v. Reddy Ice, COA15-308, 2016 WL 1565770 (N.C. Ct. App. Apr. 19, 2016) (unpublished), the Court of Appeals refused to extend the Parsons presumption to a claimant’s lymphedema following an admittedly compensable knee injury. Also, in Henderson v. Goodyear Tire & Rubber Co., COA15-985, 2016 WL 1745222 (N.C. Ct. App. May 3, 2016), the court refused to extend the presumption to the claimant’s physical conditions that were distinct from the injuries previously accepted because the defendants never admitted liability for those specific physical injuries and the Commission never determined a causal relationship exists between the accident and those injuries.
While these unpublished opinions provide some optimism, the most promising news is that the North Carolina Supreme Court has granted the defendant’s Petition for Discretionary Review in Wilkes, which means the Supreme Court will review the decision and, hopefully, issue a decision which clarifies the Parsons presumption to the limitations initially considered in Parsons. Several organizations have joined together on amicus curiae briefs to argue on behalf of insurers and employers doing business in North Carolina. These groups include North Carolina Chamber of Commerce, North Carolina Retail Merchants Association, North Carolina Home Builders Association, Employers Coalition of North Carolina, Property Casualty Insurers of America, American Insurance Association, North Carolina Association of County Commissioners, North Carolina League of Municipalities, and the North Carolina School Boards Association. Hedrick Gardner Kincheloe & Garofalo and the leader of its appellate advocacy practice group, M. Duane Jones, participated in authoring one of those amicus curiae briefs.
It is likely the Supreme Court will hear arguments in August or September of 2016. In the meantime, Hedrick Gardner continues to actively advocate for limiting the scope of the Parsons presumption and reversing the Court’s expansive interpretation of Wilkes. If you or your company have questions about Wilkes, the “Parsons presumption” in general, or any other workers’ compensation issues, we would be glad to answer them.
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