NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Written by: Kyla Block
Amended Full Commission Decision Provides Updated Guidance on Navigating Requests for Second Opinions and Clarifies the Issue of Payment Under the Fee Schedule
A long-standing issue under the Workers’ Compensation Act has been second opinions on treatment options under N.C. Gen. Stat. § 97-25(b). The parties have frequently been at odds over whether defendants must 1) issue a prepayment for that visit and 2) pay beyond the NCIC fee schedule amount for the visit. Many administrative motions on the issue have ensued over the years. In May of 2202, the Full Commission issued a non-binding decision, Wyatt v. The Golden Mint, Inc., I.C. No. 20-038523 (May 2022), holding that:
You can find my partner Matt Marriott’s more extensive write up on that decision here. Following the Wyatt decision, Plaintiff filed Plaintiff’s Motion to Reconsider the Opinion and Award Issued on May 12, 2022 and Request for Additional Findings. While Plaintiff’s Motion was pending, the Commission, during its annual publishing of the Medical Fee Schedule Tables for 2022, identified inaccuracies in the fee schedule tables and corrected the inaccuracies in line with the requirements of N.C. Gen. Stat. § 97-26 and Subchapter J of the Industrial Commission’s rules. These changes removed the CPT Cod 99456 for second opinions and replaced it with UCR or Pay Per Agreement. UCR stands for usual, customary, and reasonable. Thereafter Plaintiff filed Plaintiff’s Supplement to Plaintiff’s Motion to Reconsider the Opinion and Award Issued on May 12, 2022 and Request for Additional Findings and pointed to the changes to the second opinion code to reflect “UCR or Pay Per Agreement” and noted that it no longer had a specific monetary amount. Plaintiff asserted that per the updated fee schedule, the second opinion fee would now be what was usual and customary.
The Full Commission, in amending its Opinion and Award to find that the Medical Fee Schedule sets the maximum fee allowable by a physician conducting a 97-25(b) second opinion examination at “UCR or Pay Per Agreement”, found that Plaintiff was entitled to have Defendants pay his selected 97-25(b) expert or any other provider the usual, customary, and reasonable charge for such a provider in such a circumstance or a rate agreed upon by the physician and the parties. The Full Commission also noted that Defendants did not need to make prepayment, but that any motions or requests for a specific prior approval to charge “shall” be submitted to the Commission for each charge. Based on the facts in Wyatt, the Full Commission declined to grant Plaintiff’s request for approval of his specific physician’s fee, indicating there was insufficient evidence to show that plaintiff’s provider’s fee was reasonable; the Act specified that providers not be paid for services prior to the rending of services and said report; that the Commission had the responsibility of assuring medical and related expenses be kept within reasonable and appropriate limits; and the routine nature of the request for a 97-25(b) second opinion examination.
Practice Pointers and Takeaways
As we have noted, a Full Commission decision is not binding case law like a decision from the North Carolina Court of Appeals or Supreme Court would be. However, it does set the tone for how the Commission will likely be deciding these matters going forward. Thus, given the change to the Medical Fee Schedule, carriers and employers should assume they will be ordered to pay the usual, customary, and reasonable charges associated with second opinions under N.C. Gen. Stat. §97-25(b). However, since Defendants will be paying the usual, customary, and reasonable charges going forward, and the parties are encouraged to agree on the provider per the statute, there may be an argument that all else being equal, the provider with the lowest charge should be the provider chosen, in line with the responsibility of the Commission to keep medical and related expenses within reasonable and appropriate limits.
Additionally, Employers and Carriers should expect to see more administrative motions on the issue of prepayment under N.C. Gen. Stat. §97-90(a). In responding to these motions, evidence regarding the usual, customary, and reasonable charges will likely be key, and a failure to provide the same by one side, may result in an adverse decision. A reasonable alternative to motions on the prepayment issue may be suggesting that Plaintiff pay the prepayment upfront with Defendants issuing the full charge upon receipt of the report.
Written by: Tracey Jones
Starting February 20, 2023, the Industrial Commission will begin emailing Report of Mediator fee invoices at the time the mediator is appointed. This new procedure will not impact the fee’s due date but is being introduced in an effort to allow additional time for processing and payment. The $200 fee can be paid either online via credit card or e-Check (a link for payment will be provided in the email) or by mailed paper check. With this new procedure, the Industrial Commission hopes to encourage early payment so employers and carriers can manage cases more efficiently while also being able to avoid the risk of past due invoices, penalties, and interest.
Note: Payment of the $200 Report of Mediator fee is due no later than seven (7) days from the deadline for completing mediation or seven (7) days from the date mediation is completed, whichever is earlier. The Commission is issuing penalties when they receive late payments, so timely processing these invoices is important.
Written by: Tracey Jones
Carolyn J. Thompson Appointed to Serve as Deputy Commissioner
Carolyn J. Thompson was appointed to serve as a Deputy Commissioner and her term began on January 2, 2023. Thompson previously served as a District Court judge and then a Resident Superior Court judge in the 9th Judicial District of North Carolina for a total of nine years. She worked in litigation for 16 years prior to that, and also as a certified mediator in Superior Court cases and Family Financial Settlement disputes. She is assigned to the Commission’s Raleigh office.
Kevin V. Howell Reappointed to Second Term as Deputy Commissioner
Deputy Commissioner Kevin V. Howell has been reappointed to serve a second term, which began on December 30, 2022. Deputy Commissioner Howell will continue to serve out of the Commission’s Raleigh office.
Strict Enforcement of Late Responsive Filings Pursuant to N.C.G.S. § 97-18(j)
The Commission has been regularly assessing sanctions for Carriers/Employers failing to file a Form 60, 61, or 63 within thirty (30) days following notice from the Commission of the filing of a claim. Failure to file a Form within the requisite period results in a fine of $400.00. After the initial sanction of $400.00, Carriers/Employers shall have thirty (30) days anew in which to remit payment-in-full for the sanction AND to file a Form 60, 61, or 63. Failure to do either will result in an additional $200.00 sanction and being referred to an Enforcement Docket before the Commission for additional sanctions. These sanctions could include, but are not limited to, contempt.
Though this rule has been in effect since 2017, we are now seeing strict enforcement and numerous defendants have been scheduled on a contempt docket for failure to file the Forms, or to remit payment for the respective fines.
Corrected Medical Fee Schedule Tables for 2022
Rule 11 NCAC 23J .0102 requires the Industrial Commission to publish annually on its website three tables (a Professional Fee Schedule Table, a Durable Medical Equipment (DME) Fee Schedule Table, and a Clinical Laboratory Fee Schedule Table). The Commission has reported it recently discovered inaccuracies in the fee schedule tables, and it has now corrected the inaccuracies to align with the information in the 2022 fee schedule tables and with the requirements of N.C. Gen. Stat. § 97-26 and Subchapter J of the Industrial Commission’s rules. The revised schedule is posted on the Commission’s website.
Maximum Weekly Benefit for 2023
The Commission has established the maximum weekly benefit for 2023 pursuant to N.C.G.S. § 97-29. As of January 1, 2023, the maximum weekly benefit applicable to all injuries arising on or after January 1, 2023 is $1,254.00.