Wilkes, HB 26 and Statutory Presumptions

On June 9, 2017, the Supreme Court issued its decision in Wilkes v. City of Greenville, which held in part that a claimant is entitled to a presumption that any condition allegedly arising from a compensable injury – even a condition which the defendants did not accept via Form 60 – is causally related to the admittedly-compensable injury.  Prior to Wilkes, caselaw and practice established a rebuttable presumption of causal relationship which extended only to admittedly-compensable conditions, and a claimant retained the burden of proving unaccepted conditions as being causally related to a compensable injury.


In Wilkes, the defendants had accepted compensability for “multiple injuries to ribs, neck, legs, and entire left side” following a motor vehicle collision, but denied compensability for alleged depression and anxiety conditions.  In its ruling, the Supreme Court held that the defendants’ initial acceptance of the other conditions via Form 60 entitled the claimant to a “rebuttable presumption” that subsequently-alleged depression and anxiety conditions were also causally related to the motor vehicle collision.  Employers and insurers saw this decision as an improper extension of the existing law regarding presumptions of compensability which shifted the burden of proof to the defendants and potentially transformed workers’ compensation insurance coverage into general insurance coverage.


On June 29, 2017, the North Carolina Legislature responded to the Wilkes decision by passing House Bill 26, which was signed by the Governor on July 20, 2017.  This new law amends the Workers’ Compensation Act and effectively overturns Wilkes by expressly stating the claimant retains the burden of proving compensability for medical treatment for an injury or condition not identified in a Form 60 or uncontested Form 63.  The amended Act will now read that “payment pursuant to [a Form 60 or uncontested Form 63] constitute[s] an award of the Commission on the question of compensability of and . . . liability for the injury as reflected on [the Form 60 or uncontested Form 63],” and the same “shall not create a presumption that medical treatment for an injury or condition not identified in the [Form 60 or uncontested Form 63] is casually related to the compensable injury.”


With these changes in mind, we continue to recommend specificity when filing Forms 60 and 63.  With this new amendment to The Act, there is a statutory presumption of compensability for medical treatment to an injury or condition deemed compensable via Form 60 or uncontested Form 63.  Thus, to avoid the application of this presumption to unintended body parts or conditions, when filing Forms 60 and 63 it is important to avoid broad or vague injury or condition descriptions (e.g., “left upper extremity”), and instead refer to specific body parts (e.g., “left shoulder”) when detailing the injury or condition for which you are providing benefits.


We recognize the challenges in applying newly-developed case law and statutes to both new and ongoing claims, and of course welcome any questions you may have about this or any other workers’ compensation claim issue.