Wilkes v. City of Greenville & House Bill 26

by Bruce Hamilton

On Friday, June 9, 2017, the North Carolina Supreme Court issued its eagerly anticipated decision in Wilkes v. City of Greenville, in significant part, unanimously affirming the Court of Appeals.

Wilkes involves two primary issues. First, whether Johnnie Wilkes failed to meet his burden of establishing that his anxiety and depression were the result of a work-related accident and, more specifically, whether the Parsons presumption applied, giving Mr. Wilkes the benefit of a presumption that these conditions were related to his accident.

On the first issue, the Supreme Court agreed with the Court of Appeals that Mr. Wilkes was entitled to a presumption that his continued medical treatment was related to his work accident. The impact of Wilkes was that when a claim was accepted as compensable pursuant to a Form 60 or section 1 of a Form 63 that a rebuttable presumption was created that any additional medical treatment was related to the compensable condition. The rebuttable presumption was not limited to the specific body part or medical condition accepted in the Form 60 or 63.

Limitation on the New Medical Presumption

To address the new medical presumption created by Wilkes, on June 29, 2017 the North Carolina General Assembly passed House Bill 26 which amends G.S. § 97-82(b) of the Workers' Compensation Act. The overall impact of the legislature's change is to limit the scope of any medical presumption. The legislation has been passed by the General Assembly and is now awaiting approval by Governor Cooper and is anticipated to become law.

The reformed G.S. § 97-82(b) expressly states that filing a Form 60 or 63 shall not create a presumption that medical treatment for an injury or condition not identified in the Form 60 or Form 63 is causally related to the compensable injury. The amendment applies to all accrued or pending claims. A claimant can request a full evidentiary hearing to prove that any additional injury or condition is causally related to the compensable injury.

New Framework for Proving Disability

The second issue in Wilkes is whether Mr. Wilkes was entitled to disability payments made after January 18, 2011. Here, the North Carolina Supreme Court potentially significantly altered the landscape for proving disability. Specifically, the Court concluded that the Commission failed to address the effects of Mr. Wilkes' tinnitus on his ability to work.

The Court held that an employee can prove a disability outside of the four methods outlined in Russell v. Lowes Product Distribution. The Court also stated that lay testimony is competent regarding a disability issue, specifically addressing how the employee's injury and related symptoms have affected his activities. In addition, the Court held that if an employee demonstrates an inability to work after taking into account his work-related conditions and pre-existing limitations, expert testimony is not required to prove a job search is futile.

Wilkes calls into question the framework parties have used to evaluate disability in workers' compensation claims for more than two decades and leaves employers and carriers wondering how to defend disability claims in the future. After Wilkes, disability can be proven by methods other than those outlined in Russell, but the Court does not specify all of the ways an employee may prove disability.

Also, the Court's statement in Wilkes that an employee may use competent lay testimony to support a disability claim may result in a greater number of disability determinations. In cases of contested disability, employers and carriers should consult with defense counsel and consider obtaining expert review of medical and vocational issues to refute disability.

As part of the negotiations amend G.S. § 97-82(b), representatives for both employees and industry have agreed to continue to discuss issues raised by Wilkes concerning how employees prove a disability during the remainder of the 2017-2018 legislative session. In addition, both sides have agreed to discuss the potential implications of Wilkes in medical only cases, including cases where medical benefits are paid without prejudice under Section 2 of a Form 63, and whether an expedited hearing process should be available to claimants seeking to prove that an additional condition or body part not listed on the Form 60 or 63 is related to the compensable injury.