Keeping Medical Benefits Alive in NC Workers’ Comp Cases

USE OF FORM 18M TO PROTECT MEDICAL BENEFITS

By Kevin Bunn

Cary, North Carolina

I. STATUTE, RULE AND PROCESS The sudden termination of medical benefits two years after the last payment of compensation in a NC workers’ comp case can have devastating consequences for the client and 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, which is attached hereto. When the parties agree on the provision of additional medical treatment, the IC 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 IC for good cause shown. Rule 408. Where the plaintiff filed a Form 18 instead of an 18M, the Court of Appeals upheld the Full Commission’s determination that the particular Form 18 filed constituted sufficient notice within the two year limitation, but warned that would not always be the case. Fontenot v. Ammons Springmoor Associates, 176 N.C. App. 93, 101 (2006).

II. STANDARDS AND BURDENS Generally, an employee may seek additional 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 medical care was reasonable.

NC workers’ comp lawyers should file a Form 18M when the injured NC employee reaches MMI or when there is a significant lull in medical treatment.

Rule 408 Additional Medical Compensation

1. The Industrial Commission may enter an order as contemplated by N.C. Gen. Stat. §97-25.1 providing for additional medical compensation on its own motion or pursuant to a stipulation of the parties or by approval of an agreement of the parties for additional medical compensation reflected in a Form 21 or a Form 26.
2. If the parties have not reached an agreement regarding additional medical compensation, an employee may file a claim with the Industrial Commission for an order pursuant to the terms of N.C. Gen. Stat. §97-25.1, for payment of additional medical compensation within two years of the date of the last payment of medical or indemnity compensation, whichever shall last occur. The claim may be made on a Form 18M or by written request to the Industrial Commission. The filing of this claim tolls the time limit contained in this paragraph and in N.C. Gen. Stat. §97-25.1. The original and one copy of the claim must be filed with the Industrial Commission’s Office of the Executive Secretary, one copy must be provided to the employer or carrier/administrator, and one copy must be provided to the attorney of record, if any.
3. Upon receipt of the claim, the Industrial Commission will notify the employer or carrier/administrator that the claim has been received by providing a copy of a Form 18M or a written claim. The employer or carrier/administrator shall, within 30 days, send to the Industrial Commission and to the employee and the employee’s attorney of record, if any, a written statement as to whether the employee’s request is accepted or denied. If the request is denied, the employer or carrier/administrator shall state in writing the grounds for the denial and shall attach any supporting documentation to the statement of denial.
4. In cases where the employee’s right to additional medical compensation is contested, the Form 18M, Request for Additional Medical Compensation, shall be treated as a Motion to the Executive Secretary for future medical compensation. Defendants shall have 30 days to respond. An administrative ruling shall thereafter be made subject to the right of either party to appeal such administrative decision by filing a Form 33, Request for Hearing, pursuant to the 15 day time limitation contained in Rule 703. An appeal of the Administrative Decision shall have the effect of staying the decision, provided that the stay may be dissolved in the discretion of the Commission for good cause shown.
5. This Rule applies to injuries by accident occurring on or after July 5, 1994.