Obviously, we all know that workers’ compensation claimants are typically limited to receiving no more than 500 weeks of temporary total disability benefits (and, if you didn’t know that, you do now!). This provision was added to the Workers’ Compensation Act in 2011 and it has reliably added some much-appreciated cost containment leverage for more than a decade now.
Less well-known is the fact that the 2011 changes to the Act also included a provision allowing claimants to apply to continue receiving disability benefits beyond the typical 500-week cap if they can show a complete absence of “wage-earning capacity” after 425 weeks have elapsed since their initial date of disability. The 2011 reforms to the Act turned 425 weeks old at the end of 2019 and, like much of the North Carolina workers’ compensation bar, the attorneys of Anders Newton have been eagerly awaiting the first round of decisions from the Industrial Commission on this topic.
After working its way through the Commission, the first “extended benefits” case was finally heard by Deputy Commissioner Robert Harris on August 25, 2020. That case, Milton Nobles v. N.C. Dept. of Health and Human Services Nobles v. NCDHHS Opinion & Award, sought to determine whether the plaintiff had sustained a compensable psychological condition and whether he was entitled to receive extended disability benefits.
The plaintiff in Nobles was working as a Forensic Healthcare Technician when, on June 26, 2011, he was struck in the head while breaking up a fight between two patients. The defendants eventually accepted plaintiff’s right eye, mouth, and right shoulder injuries pursuant to a Form 63. Plaintiff reached maximum medical improvement for his accepted body parts by May 2012. While he was initially assigned work restrictions for his right eye injury, an independent medical examination in 2020 found no evidence of lingering trauma and determined that no restrictions were necessary.
Due to plaintiff’s cognitive and neurological complaints, defendants sent him for one-time evaluations with Dr. Thomas Gualtieri and Dr. Manish Fozdar. Following extensive objective testing, both providers opined that plaintiff was uncooperative, inconsistent, and likely malingering. Defendants provided no other psychological treatment but, in May 2012, plaintiff independently began treating with his own psychiatrist, Dr. Edwin Hoeper. After an initial 20-minute appointment, Dr. Hoeper diagnosed plaintiff with chronic PTSD and major depression and opined that he was “permanently and totally disabled” due to those conditions.
Plaintiff continued treating with Dr. Hoeper on his own for more than six years with no objective testing, no cognitive therapy, and little, if any, improvement. (It’s not particularly clear what, if anything, Dr. Hoeper actually did for plaintiff during those six years but I digress.) At his deposition in 2020, Dr. Hoeper testified that, despite having “treated” plaintiff for nearly eight years, his diagnoses remained unchanged from their initial meeting in 2012. He also continued to believe that plaintiff was entirely unable to work. Dr. Hoeper further conceded that, during that time, he had not completed any objective measurements to confirm plaintiff’s long-running subjective complaints.
On January 25, 2021, Deputy Commissioner Harris entered an Opinion & Award finding that plaintiff had in fact developed compensable psychological conditions due to the incident of June 26, 2011. Deputy Commissioner Harris also found that Plaintiff was entitled to receive extended benefits beyond 500 weeks due to his ongoing total disability. Unsurprisingly, the defendants appealed Deputy Commissioner Harris’ Opinion & Award to the Full Commission.
After examining the evidence and hearing oral arguments, the Full Commission issued its own Opinion & Award on September 29, 2021 reversing Deputy Commissioner Harris’ conclusions. The Full Commission’s Opinion & Award noted that Dr. Hoeper had not performed any objective testing on plaintiff and had instead relied solely on plaintiff’s own subjective reporting. Consequently, the Full Commission gave more weight to the causation opinions of Dr. Gualtieri and Dr. Fozdar, who had both utilized objective methods in determining that plaintiff did not have any compensable psychological condition and could, in fact, return to work.
The Full Commission also found that plaintiff was not entitled to a presumption of compensability (“the Parsons presumption”) for his alleged psychological conditions because defendants’ Form 63 had not expressly identified such conditions as being accepted. Therefore, the Full Commission concluded that plaintiff had not met his burden of proving that he had sustained a compensable psychological injury and had not established total disability and/or entitlement to extended compensation beyond the 500-week limit.
In reviewing the Nobles case, there are a couple of obvious, practical takeaways that claims adjusters can apply in their everyday claims management practice. First and foremost, if you aren’t already narrowly-tailoring your Form 60s and Form 63s when accepting claims, you should probably consider doing so. When a Form 60 or Form 63 does not use specificity in listing the body parts or injuries being accepted, it leaves open the possibility that the Commission will later broadly apply the Parsons presumption to find compensability for conditions or injuries that you didn’t intend to accept. Take care in drafting your forms and consult an attorney (preferably one at Anders Newton) if you have any concerns. Remember: the Commission wants to find for the plaintiff in any given claim. If you give them an opening to do so, they will take it!
Second, it is also important to remember that objective evidence will nearly always trump subjective evidence. In Nobles, the plaintiff’s claim of psychological injury was almost entirely dependent on the subjective findings of Dr. Hoeper. On the other hand, the defendants were able to build a strong (and successful) defense around the objective testing and documentation provided by Dr. Gualtieri and Dr. Fozdar. Obviously, defendants cannot dictate or control the findings of a given expert or medical provider. However, by locating, vetting, and scheduling a claimant to be seen by a well-credentialed, conservative provider, you can set your claims up for later success. (Of course, the attorneys at Anders Newton would be happy to guide and assist you in that process.) The defendants in Nobles were also proactive in scheduling the plaintiff for a psychological evaluation at the beginning of the claim which helped to clarify the extent of his potentially compensable injuries. More often than not, similarly prompt efforts will help you more easily define and direct a given claim. Conversely, a failure to establish the full scope of a claimant’s injuries at the outset of their claim can allow an opportunistic plaintiff the chance to later allege additional, plausibly related conditions.
I hope that at least one of you found this case summary to be helpful! If you have any questions or comments (or just want to say hi), please always feel free to reach out to any of us here at Anders Newton. We’ve got a proven track record in handling North Carolina workers’ compensation matters and we’re always happy to promptly help you move your claims toward a resolution (unless you want us to suggest ideas to help keep them open, which we are absolutely willing to do just for a change of pace!).