The NC Supreme Court ruled for the worker. Now employers want the law changed.

A broad coalition of private and public organizations is seeking changes to the state’s workers’ compensation law on the heels of an N.C. Supreme Court decision in favor of an injured worker.

Attorneys who represent injured workers say that the court’s unanimous decision merely affirms employees’ long-held legal rights, but employers view it as a ground-breaking ruling that will significantly raise their workers’ comp costs.

A coalition of more than two dozen groups ranging from the N.C. Chamber and Blue Cross and Blue Shield of North Carolina to the N.C. League of Municipalities and the N.C. Association of County Commissioners is urging legislators to provide a “legislative fix” to the June 9 decision by the state’s highest court.

“We’re in discussions now with House and Senate leadership, and with the plaintiffs’ bar, to try and reach a mutually agreeable solution,” said Gary Salamido. “We need it to be enacted before they go home this week.”

A bill addressing the issue passed the N.C. Senate unanimously on Wednesday night and now goes to the House.

But workers’ comp attorneys caution that any changes to the law could throw out of whack the existing system of checks and balances that ensures fairness to both employer and employee – to the detriment of injured workers.

“The big losers, if they change the law, are North Carolina employees,” said Durham workers’ comp attorney Anita Hunt. “There’s no doubt about that.”

Hunt is one of the attorneys who represented Johnnie Wilkes, a landscaper/laborer employed by the City of Greenville at the center of the Supreme Court’s recent ruling.

Wilkes, now 64, was driving a city-owned truck on April 21, 2010, when another vehicle ran a red light and struck the truck, which then hit a tree.

As a result, Wilkes suffered “an abrasion on his head, three broken ribs, and injuries to his neck, back, pelvis, hip and entire left side, as well as a concussion,” according to the high court’s decision. The city filed documents with the N.C. Industrial Commission admitting that he was entitled to workers’ compensation for the injuries sustained in the accident.

However, months later Wilkes filed a claim asking the city to pay for medical treatment of tinnitus (ringing in his ears) as well as anxiety and depression, which he alleged stemmed from the work-related accident. This time, the city objected.

Following a hearing on the matter, a deputy commissioner found that the tinnitus, anxiety and depression were “causally related” to the accident. But the full commission saw it differently.

The commission found that although the tinnitus could be traced to the accident, Wilkes failed to show that his anxiety and depression also were accident-related.

In one of its two key findings the Supreme Court, following in the footsteps of the N.C. Court of Appeals, held that the Commission had failed to take into account that, under state law, it’s up to the employer to prove that Wilkes’ subsequent medical issues didn’t stem from the accident.

“We hold that plaintiff here is entitled to a presumption that additional medical treatment is related” to the accident, noted the decision authored by Justice Robin E. Hudson. The court sent the case back to the commission for reconsideration in light of its finding.

Salamido, the chamber lobbyist, said that the high court’s ruling on subsequent medical conditions “shifts the burden of proof from where it is now” – in other words, from the injured worker to the employee.

It’s long been accepted under state workers’ comp law that an employee who suffered a lumber spine strain/sprain on the job was entitled to have their medical treatment for a herniated disc paid for as well because the conditions were “directly related,” according to a position paper prepared by the groups seeking to change the law.

But, the paper continues, up until now if an employee suffered a workplace injury such as a torn right rotator cuff and later sought treatment for an injured left hip that wasn’t obviously directly related, it was up to the employee to prove that the hip condition was caused by the accident.

“Now, under the Wilkes decision, if an employer accepts a claim, they’re accepting a claim for every other condition unless they can prove it’s not related,” Salamido said.

The upshot, he said, is that “employers are now going to be exercising a whole lot of caution before they accept a claim,” Salamido said. “They’re going to be asking for an additional medical examination. And then that’s going to have to be litigated.”

That means it will take employees longer to get the treatment they need as well as higher costs for employers, Salamido said.

The pro-change groups, citing information provided by the state that was confirmed by a spokeswoman for the Office of State Human Resources, note that state officials estimate that, as a result of the Wilkes ruling, the state’s workers’ comp costs will rise by $18.4 million in the fiscal year that begins in July.

“We respectfully disagree with that,” said Kevin Bunn, a Cary workers’ comp attorney. “We don’t think (the Wilkes decision) changes the law so we don’t think costs will go up.”

Workers’ comp attorneys further point out that the Supreme Court decision makes it clear that the court was affirming the existing law, not making new law with regard to injuries that surface down the road.

“There are a lot of things that aren’t diagnosed right away, there are a lot of things that don’t show themselves until time has gone by,” Hunt said. Employers, she added, have the right to insist that an employee sees a physician to determine if injuries that arise later stem from the work-related accident.

Bunn is one of the attorneys representing the N.C. Advocates for Justice, a group whose members include attorneys who represent injured workers, in discussions on changing the law.

“The people representing business, they’re tough negotiators,” he said.

This story was originally published June 28, 2017 at 5:15 PM with the headline "The NC Supreme Court ruled for the worker. Now employers want the law changed.."