|Michael F. Easley, Governor
Buck Lattimore, Chairman
|Bernadine S. Ballance,
Thomas J. Bolch, Commissioner
Laura K. Mavretic, Commissioner
Christopher Scott, Commissioner
Dianne C. Sellers, Commissioner
Pamela T. Young, Commissioner
Proposed Changes to the North Carolina Industrial Commission Rules
1. Rule 104 reads as rewritten:
Rule 104. Employer’s Report of Injury.
employer shall immediately report to its carrier or administrator any injury or
occupational disease, or allegation by an employee of an injury or occupational
disease, sustained in the course of employment for which the attention of a
physician is needed or actually sought. Within five days of knowledge of the
injury or allegation, the employer or carrier/administrator or its successor in
interest shall file with the Industrial Commission and provide a copy to the
employee of a Form 19, Employer’s Report of Employee’s Injury to the Industrial
Commission, if injury causes the employee to be absent from work for more than
and or the employee’s medical compensation is greater than
an amount which is established periodically by the Industrial Commission in its
Minutes. The employer may record the employee’s or another person’s description
of the injury on the Form 19 without admitting the truth of the information.
In addition to providing the Form 19 to the employee, the employer shall also provide a blank Form 18 for use by the employee.
The front of the Form 19 shall prominently display the following statement: “To the Employee: This Form 19 is not your claim for workers’ compensation benefits. To make a claim, you must complete and sign the enclosed Form 18 and mail it to the Claims Department, North Carolina Industrial Commission, 4334 Mail Service Center, Raleigh, NC 28799-4334 within two years of the date of your injury or within two years of the date your doctor told you that you have a work – related disease”.
2. Section 7a. of Rule 404A, Trial return to work, reads as rewritten:
“Medical only” cases, defined as cases in which the employee is not absent from
work more than one day
and or in which medical expenses are less
than the amount periodically established by the Industrial Commission in its
3. Rule 501 reads as rewritten:
Rule 501. Agreements for payment of compensation.
facilitate the prompt payment of compensation within the time prescribed in N.C.
Gen. Stat. §97-18, the Industrial Commission will accept memoranda of agreements
on Industrial Commission forms.
The agreements may be executed by the
employer or the carrier/administrator where compensation payable under the
agreement does not exceed 52 weeks. 2
In cases where the compensation payable under the agreement exceeds 52 weeks,
the agreement must be executed by the employer as well as the
carrier/administrator. For good cause shown, this requirement may be waived by
the Industrial Commission. 3.2.
No agreement for permanent disability will be approved until all relevant
the material medical , and vocational and nursing
rehabilitation reports records known to exist in the case have been
filed with the Industrial Commission. When requested by the Industrial
Commission, the parties shall file any additional documentation necessary to
determine whether the employee is receiving the disability compensation to which
he or she is entitled and that an employee qualifying for disability
compensation under both N.C. Gen. Stat. §97-29 or -30 and N. C. Gen. Stat.
§97-31 have the benefit of the more favorable remedy. 4.3.
All memoranda of agreements must be
submitted to the Industrial Commission in triplicate on Industrial Commission
forms, as specified in paragraph 6 below. Agreements in proper form and
conforming to the provisions of the Workers’ Compensation Act will be approved
by the Industrial Commission and a copy returned to the employer or
carrier/administrator and a copy sent to the employee, unless amended by award,
in which event a copy of the award will be returned with the agreement. 5.4.
The employer or carrier/administrator, or the attorney of record, if any, shall
provide the employee and the employee’s attorney of record, if any, a copy of a
Form 21, Form 26, Form 26D, and Form 30, when the employee signs said forms, and
the employer or carrier/administrator will send a copy of a Form 28B to the
employee and the employee’s attorney of record, if any, within 16 days after the
last payment of compensation for either temporary or permanent disability,
pursuant to N.C. Gen. Stat. §97-18.
6.5.All memoranda of agreements for cases
which are currently calendared for hearing before a Commissioner or Deputy
Commissioner shall be sent directly to that Commissioner or Deputy Commissioner
at the Industrial Commission. Before a case is calendared, or once a case has
been continued, or removed, or after the filing of an Opinion and Award, all
memoranda of agreements shall be directed to the Claims Department of the
Industrial Commission. 7.6.
After the employer or carrier/administrator has received a memorandum of
agreement which has been signed by the employee and employee’s attorney of
record, if any, it shall have 20 days within which to submit the memorandum of
agreement to the Industrial Commission for review and approval or within which
to show good cause for not submitting the memorandum of agreement signed only by
the employee; provided, however, that for good cause shown, the 20 day period
may be extended.
4. Section 3 of Rule 502, Compromise settlement agreements, reads as rewritten:
3. No compromise agreement will be considered unless the following additional requirements are met:
All The material medical, vocational, and rehabilitation reports
known to exist, including but not limited to those pertinent to the employee’s
future earning capacity, must be submitted with the agreement to the Industrial
Commission by the employer, the carrier/administrator, or the attorney for the
Pparties and all attorneys of record must have signed the
c. The settlement agreement must contain a list of all of the known medical expenses of the employee related to the injury to the date of the settlement agreement, including medical expenses that the employer or insurance carrier disputes, when the employer or carrier has not agreed to pay all medical expenses of the employee related to the injury up to the date of the settlement agreement.
d. If there are unpaid medical expenses which the employer or insurance carrier agree to pay under the settlement agreement, the agreement must contain a list of these unpaid medical expenses, if known, that will be paid by the employer or insurance carrier.
e. The settlement agreement must contain a finding that the positions of the parties to the agreement are reasonable as to the payment of medical expenses.
5. Rule 601 reads as rewritten:
Rule 601. Employer obligations upon notice, sanctions, and denial of liability.
1. The employer or its insurance carrier shall promptly investigate each injury reported or known to the employer and at the earliest practicable time shall admit or deny the employee’s right to compensation or commence payment of compensation as provided in N.C. Gen. Stat. §97-18(b), (c), or (d).
2. When an employee files a claim for compensation with the Commission, the Commission may order reasonable sanctions against the employer or its insurance carrier which does not, within 30 days following notice from the Commission of the filing of the claim, or 90 days when a disease is alleged to be from exposure to chemicals, fumes, or other materials or substances in the workplace, or within such reasonable additional time as the Commission may allow, do one of the following:
(1) Notify the Commission and the employee in writing that it is admitting the employee’s right to compensation and, if applicable, satisfy the requirements for payment of compensation under N.C. Gen. Stat §97-18(b).
(2) Notify the Commission and the employee that it denies the employee’s right to compensation consistent with N.C. Gen. Stat §97-18(c).
(3) Initiate payments without prejudice and without liability and satisfy the requirements of N.C. Gen. Stat §97-18(d).
For purposes of this Rule, reasonable sanctions shall not prohibit the employer or its insurance carrier from contesting the compensability of and its liability for the claim.
Requests for extensions of time to comply with this rule may be addressed to the Executive Secretary.
3. If the employer or insurance carrier denies liability in any case, a detailed statement of the basis of denial must be set forth in a letter of denial or Form 61, which shall be sent to the plaintiff or his attorney of record, if any, all known health care providers which have submitted bills to the employer/carrier, and the Industrial Commission.
The detailed statement of the basis of denial shall set forth a statement of the facts, as alleged by the employer, concerning the injury or any other matter in dispute; a statement identifying the source, by name or date and type of document, of the facts alleged by the employer; and a statement explaining why the facts, as alleged by the employer, do not entitle the employee to workers’ compensation benefits.
Upon notice of a claim, the employer must admit or deny compensability of the
claim to the Commission within 14 days after the employer has written or actual
notice of the claim, or commence payment without prejudice pursuant to N.C. Gen.
Stat. §97-18(d). If, after 90 days from the date of filing of a Form 18, or if
no Form 18 is filed, the filing of a Form 33 an employer has neither admitted
the claim, filed the notice of denial of the claim with the Commission, or
initiated compensation payments without prejudice pursuant to N.C. Gen. Stat.
§97-18(d), the employer may be sanctioned pursuant to Rule 802, in addition to
any other sanctions available under the Act. Requests for waivers
of this Rule or extensions may be addressed to the Executive Secretary.
Defendant is not obligated to repeat grounds for denial previously given.
6. Rule 701 is amended by adding a new section to read:
(10) Briefs to the Full Commission shall not exceed 35 pages, excluding attachments. No page limit shall apply to the length of attachments. Briefs shall be prepared entirely using a 12 point font, shall be double spaced, and shall be prepared with non-justified right margins. Each page of the brief shall be numbered at the bottom right of the page. When quoting or paraphrasing testimony or other evidence in the transcript of the evidence, a parenthetic entry in the text, to include the exact page number location within the transcript of the evidence of the information being referenced shall be placed at the end of the sentence citing the information [Example: (T.p.38)]. When quoting or paraphrasing testimony or other evidence in the transcript of a deposition, a parenthetic entry in the text to include the name of the person deposed and exact page number location within the transcript of the deposition of the information being referenced shall be placed at the end of the sentence citing the information. [Example: (Smith p.15)].
7. The Rules are amended by adding a new Rule 702 A to read:
Rule 702A. Remand from the appellate courts.
When a claim is remanded to the Commission from the appellate courts, each party to the claim may file a statement with the Full Commission, supported by a brief if appropriate, setting forth its position on the actions or proceedings, including evidentiary hearings or depositions, required to comply with the court’s decision. This statement shall be filed within 30 days of the issuance of the court’s mandate and shall be filed with the Commissioner who authored the Full Commission decision or the Chairman of the Industrial Commission if the Commissioner who authored the decision is no longer a member of the Industrial Commission.
8. Rule 903 reads as rewritten:
Rule 903. Employee’s obligation to report earnings.
A self-insured employer, carrier or third party administrator may require the employee to complete a Form 90 Report of Earnings when reasonably necessary but not more than once every six months.
The Form 90 must be sent to the employee by certified mail, return receipt requested, and include a self-addressed stamped envelope for the return of the Form. When the employee is represented by an attorney, the Form 90 shall be sent to the attorney for the employee and not to the employee.
The employee shall complete and return the Form 90 Report of Earnings within 15 days after receipt of a Form 90. If the employee fails to complete and return the Report of Earnings within 30 days of receipt of the Form, the self-insured employer, carrier or third party administrator may seek an order from the Executive Secretary allowing the suspension of benefits. The self-insured employer, carrier or third party administrator shall not suspend benefits without Commission approval. If the Commission suspends benefits for failure to complete and return a Form 90 Report of Earnings, the self-insured employer, carrier or third party administrator shall immediately reinstate benefits to the employee with back payment as soon as the Report of Earnings is submitted by the employee. If benefits are not immediately reinstated, the employee should submit a written request for an Order from the Executive Secretary instructing the self-insured employer, carrier or third party administrator to reinstate benefits. If the employee’s earnings report does not indicate continuing eligibility for partial or total disability compensation, then the self-insured employer, carrier or third party administrator may apply to the Commission to terminate or modify benefits pursuant to Commission procedure, including filing a Form 24, 36, and 33.