Keeping NC Workers’ Compensation Medical Benefits Alive
USE OF FORM 18M TO PROTECT MEDICAL BENEFITS
I. STATUTE, RULE AND PROCESS
The sudden termination of NC Workers’ Compensation medical treatment two years after the last payment of compensation in a NC workers’ comp case can have devastating consequences for workers compensation the claim. Fortunately the Form 18M is an easy and effective way to prevent that occurrence. N.C. Gen. Stat. § 97-25.1 provides: The right to medical compensation shall terminate two years after the employer’s last payment of medical or indemnity compensation unless, prior to the expiration of this period, either: (i) the employee files with the Commission an application for additional medical compensation which is thereafter approved by the Commission, or (ii) the Commission on its own motion orders additional medical compensation. If the Commission determines that there is a substantial risk of the necessity of future medical compensation, the Commission shall provide by order for payment of future necessary medical compensation.
N.C. Gen. Stat. § 97-25.1 is implemented by Industrial Commission Rule 408. When the parties agree on the provision of additional NC Workers’ Compensation medical treatment, the Industrial Commission may order its approval by stipulation of the parties, or by approval of a Form 21 (Agreement for Compensation for Disability) or a Form 26 (Supplemental Agreement as to Payment of Compensation). Absent an agreement by the parties the IC may order the approval of additional medical on its own motion or by approval of a Form 18M. Filing a Form 18M tolls the two year time limit. Rule 408.
A Form 18M should be filed with the Executive Secretary of the Industrial Commission, with copies to the employer or carrier/administrator and any attorney of record. Upon receipt the Executive Secretary will provide notice of the filing to defendants, who then have thirty days to accept or deny the motion. Rule 408. Either party may appeal the Executive Secretary’s decision by Form 33 with in 15 days. Rules 408, 703. An appeal stays the effect of the Executive Secretary’s order, absent dissolution of the stay by the NC Industrial Commission for good cause shown. Rule 408.
II. STANDARDS AND BURDENS
Generally, an employee may seek additional NC Workers’ Compensation medical treatment that “lessens the period of disability, effects a cure or gives relief.” Taylor v. Bridgestone/Firestone, 157 N.C. App. 453, 457 (2003) (quoting Parsons v. Pantry, Inc, 126 N.C. App. 540 (1997) and Renninger v. Prestige, 136 N.C. App. 255 (1999)). When such additional medical treatment is necessary, “there arises a rebuttable presumption that the treatment is directly related to the original compensable injury and the employer has the burden of producing evidence showing the treatment is not directly related to the compensable injury. Id. at 458 (quoting Renninger). This “Parsons presumption,” that additional medical treatment is related to the original injury, applies in the 18M context. Perez v. American Airlines, 174 N.C. App. 128, 136 (2005). In ruling on an 18M the IC must first asses whether Plaintiff has shown that there is a “substantial risk” the he or she will require future medical treatment. Once the Plaintiff meets this burden, the inquiry turns to whether the defendants can meet their burden to prove the treatment is not reasonably related to the compensable injury. Taylor, 157 N.C. App. at 458. Presumably treatment for distinct medical conditions that flow directly and naturally from the original injury should also be approved. See Bondurant v. Estes Express, 167 N.C. App. 259 (2004).
III. “POSSIBLE” FUTURE TREATMENT CAN BE ORDERED
Where the Full Commission found that Plaintiff “will require future medical treatment including a possible knee replacement” and ordered that the defendants would be responsible for that surgery some time in the future, the Court of Appeals upheld the order. Adams v. Frit Car, Inc., 185 N.C. App. 714 (2007). The Court of Appeals noted in that case that the Full Commission also found that two doctors had testified that plaintiff would “likely” need additional treatment for his knee. Id. at 719. In Queen v. Penske Corporation, 174 N.C. App. 814 (2005), the Court of Appeals squarely held that an order that defendants pay for “possible” future NC Workers’ Compensation medical treatment was reasonable.