WORKERS’ COMPENSATION RULES OF THE
NORTH CAROLINA INDUSTRIAL COMMISSION

Effective 1 August 2006*

ARTICLE I. ADMINISTRATION

Rule 101
Location of Offices and Hours of Business

The offices of the North Carolina Industrial Commission (hereinafter "Industrial Commission") are located in the Dobbs Building, 430 North Salisbury Street, in Raleigh, North Carolina, 27611. The General Mailing Address is North Carolina Industrial Commission, 4319 Mail Service Center, Raleigh, NC 27699-4319. The same office hours will be observed by the Industrial Commission as are, or may be, observed by other State offices in Raleigh. Documents may be filed The offices are open between the hours of 8:00 a.m. and 5:00 p.m. to accept documents for filing. only.

The Industrial Commission will remain in continuous session subject to the call of the Chairman to meet as a body for the purpose of transacting such business as may come before it.

(1) The Industrial Commission will supply, on request, forms identified by number and title as follows:

Form 17 Workers’ Compensation Notice

Form 18 Notice of Accident to Employer (N.C. Gen. Stat. § 97-22) and Claim of Employee or His Personal Representative or Dependents (N.C. Gen. Stat. § 97-22 through 24)

Form 18B Claim by Employee or His Personal Representative or Dependents for Workers’ Compensation Benefits for Lung Damage, Including Asbestosis, Silicosis, and Byssinosis (N.C. Gen. Stat. § 97-53)

Form 18M Employee’s Claim for Additional Medical Compensation

Form 19 Employer’s Report of Employee’s Injury to Employee the Industrial Commission

Form 21 rev. Agreement for Compensation for Disability Pursuant to N.C. Gen. Stat. § 97-82

Form 22 Statement of Days Worked and Earnings of Injured Employee (Wage Chart)

Form 24 rev. Application to Terminate or Suspend Payment of Compensation Pursuant to N.C. Gen. Stat. § 97-18.1

Form 25C Authorization for Rehabilitation Professional to Obtain Medical Records of Current Treatment

Form 25D Dentists’ Itemized Statement of Charges for Treatment and Certification of Treatment of Disability

Form 25M Physician’s Itemized Statement of Charges for Treatment and Certification of Treatment

Form 25N Notice to the Industrial Commission of Assignment of Rehabilitation Professional

Form 25R rev. Evaluation for Permanent Impairment

Form 25T Itemized Statement of Charges for Travel

Form 25P Itemized Statement of Charges for Drugs

Form UB-92 Hospital Bill

Form 26 rev. Supplemental Agreement as to Payment of Compensation Pursuant to N.C. Gen. Stat. § 97-82

Form 26D Agreement for Compensation Under N.C. Gen. Stat. § 97-37

Form 28 rev. Return to Work Report

Form 28B rev. Report of Employer or Carrier/Administrator of Compensation and Medical Compensation Paid and Notice of Right to Additional Medical Compensation

Form 28T Notice of Termination of Compensation by Reason of Trial Return to Work Pursuant to N.C. Gen. Stat. § 97-18.1(b) and N.C. Gen. Stat. § 97-32.1

Form 28U Employee’s Request that Compensation be Reinstated After Unsuccessful Trial Return to Work Pursuant to N.C. Gen. Stat. § 97-32.1

Form 29 Supplementary Report for Fatal Accidents

Form 30 Agreement for Compensation for Death

Form 30D Notice of Death Award (Approval of Agreement)

Form 31 Application for Lump Sum Award

Form 33 Request that Claim be Assigned for Hearing

Form 33R Response to Request that Claim be Assigned for Hearing

Form 36 rev. Subpoena for Witness and Subpoena to Produce Items or Documents

Form 42 Application for Appointment of Guardian Ad Litem

Form 44 Application for Review

Form 50 Itemized Statement of Charge for Nursing

Form 51 Consolidated Fiscal Annual Report of "Medical Only" and "Lost Time" Cases

Form 60 Employer’s Admission of Employee’s Right to Compensation Pursuant to N.C. Gen. Stat. § 97-18(b)

Form 61 Denial of Workers’ Compensation Claim Pursuant to N.C. Gen. Stat. § 97-18(c) and (d)

Form 62 Notice of Reinstatement of Compensation Pursuant to N.C. Gen. Stat. § 97-32.1 and N.C. Gen. Stat. § 97-18(b)

Form 63 Notice to Employee of Payment of Compensation Without Prejudice to Later Deny the Claim Pursuant to N.C. Gen. Stat. § 97-18(d)

Form 90 Report of Earnings

Form IZ-510 Medical Bill Analysis Used for Approval and Reduction of Medical Bills

Form MCS2 Petition for Order Referring Case to Mediated Settlement Conference

Form MCS4 Designation of Mediator

Form MCS5 Report of Mediator

Form MCS6 Mediator’s Declaration of Interest and Qualifications

Form MCS7 Report of Evaluator

The mailing address for each Industrial Commission Form appears at the bottom right corner of the Form.

(2) The use of any printed forms other than those approved and adopted by the Industrial Commission is prohibited. Insurance carriers, self-insureds, attorneys and other parties may photocopy reproduce approved forms for their own use, provided:

(a) The color of the paper upon which the form is printed may be substantially identical to that used on the approved Industrial Commission’s form, at the option of the Employer or Carrier/Administrator and the Employee.

(b)(a) No statement, question, or information blank contained on the approved Industrial Commission’s form is omitted from the substituted form.

(c)(b) Such substituted form is substantially identical in size and format with the approved Industrial Commission’s form.

(3) The following forms may be utilized in preparing routine orders for the signature of a Commissioner or Deputy Commissioner, and are appended at the end of these Rules:

Form I Order for Third Party Recovery Distribution per N.C. Gen. Stat. § 97-10.2

Form IIa Order Approving Compromise Settlement Agreement (admitted liability, medical paid) and Third Party Distribution

Form IIb Order Approving Compromise Settlement Agreement (denied liability, unpaid medical) and Third Party Distribution

Form IIIa Order for Approving Compromise Settlement Agreements (admitted liability, medical paid)

Form IIIb Order for Approving Compromise Settlement Agreements (denied liability, unpaid medical)

(4) Copies of rules, forms and Industrial Commission Minutes can be obtained by contacting the Administrator’s Office of the Industrial Commission, 430 N. Salisbury Street, Raleigh, North Carolina 27611 4319 Mail Service Center, Raleigh, NC 27699-4319.

(5) The Amendments to this Rule are effective March 15, 1995, except as to Form 28T, Form 28U, and Form 62 which are effective February 15, 1995.

(Amended effective January 1, 1992; Amended

An 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 one day 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 or carrier/administrator 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 Section, North Carolina Industrial Commission, 4334 Mail Service Center, Raleigh, NC 28799-4334 within two years of the date of your injury or last payment of medical compensation. For occupational diseases, the claim must be filed within two years of the date of disability and the date your doctor told you that you have a work-related disease, whichever is later.”

ARTICLE II. NOTICE OF ACT

Rule 201
Notice of Employment Subject to the Act

(1) Pursuant to the provisions of N.C. Gen. Stat. § 97-93, all employers subject to the provisions of the Workers’ Compensation Act shall post in a conspicuous location in places of employment a Form 17, Workers’ Compensation Notice, to give notice to the employees that they are in an employment subject to the provisions of the Workers’ Compensation Act and that their employer has obtained workers’ compensation coverage or has qualified as self-insured for workers’ compensation purposes.

(2) Should the employer allow its workers’ compensation coverage to lapse or cease to qualify as a self-insured, the employer shall remove within five (5) working days any Form 17 and any other notice indicating otherwise.

(3) The Amendments to this Rule are effective March 15, 1995.

ARTICLE III. INSURANCE

Rule 301
Proof of Insurance Coverage

Every employer coming within subject to the provisions of the Act shall file with the Industrial Commission proof that it has obtained workers’ compensation insurance pursuant to of compliance with the insurance provisions of the Act. This requirement may be accomplished satisfied by:

(1) A notice from the employer’s insurance carrier, through the North Carolina Rate Bureau, certifying that coverage has been received.

(2) A notice from the North Carolina Department of Insurance, through the Rate Bureau, certifying that the employer has qualified as a self-insured employer or as a member of a self-insurance fund pursuant to the Act.

(3) All employers have an affirmative obligation to report to the Rate Bureau any changes in coverage within 30 days.

(4) All employers must notify the Department of Insurance when it becomes a member of a self-insurance fund.

ARTICLE IV. DISABILITY, COMPENSATION, FEES

Rule 401
When Disability Begins for Purpose of Computing Compensation

(1) If the injured employee is not paid wages for the entire day on which the injury occurred, the seven-day waiting period prescribed by the Act shall include the day of injury regardless of the hour of the injury.

(2) If the injured employee is paid wages for the entire day on which he is injured and fails to return to work on his next regular workday because of the injury, the seven-day waiting period shall begin with the first calendar day following his injury, even though this may or may not be a regularly scheduled workday.

(3) All days, or parts of days, when the injured employee is unable to earn a full day’s wages, or is not paid a full day’s wages due to injury, shall be counted in computing the waiting period even though the days may not be consecutive, and even though these are not regularly scheduled workdays.

(4) If the permanent disability period, when added to the temporary disability period, exceeds twenty-one 21 days, there is no waiting period.

In all cases involving a fractional part of a week, the daily wage shall be computed on the basis of one-seventh of the average weekly wage.

(1) All payments of compensation must be made directly to the employee, dependent, guardian or personal representative entitled thereto unless otherwise ordered by the Industrial Commission. At the employee’s request, payment of compensation shall be mailed by first class mail, postage pre-paid, to an address specified by the employee, unless otherwise directed by the Industrial Commission.

(2) All payments of compensation must be made in strict accordance with the award issued by the Industrial Commission.

(1) Payments of compensation undertaken pursuant to an award of the Industrial Commission shall continue until the terms of the award have been fully satisfied. provided, however, that In cases where the award is to pay compensation during disability, there is a rebuttable presumption that disability continues until the employee returns to suitable employment. work. No application to terminate or suspend compensation shall be approved without a formal hearing if the effect of such approval is to set aside the provisions of an award of the Industrial Commission.

(2) When an employer or carrier/administrator seeks to terminate or suspend compensation being paid pursuant to N.C. Gen. Stat. § 97-29 for a reason other than those specified in N.C. Gen. Stat. § 97-18(d), payment without prejudice, or N.C. Gen. Stat. § 97-18.1(b), trial return to work, the employer or carrier/administrator shall should notify the employee and the employee’s attorney of record, if any, on Form 24 rev., "Application to Stop Payment of Compensation." The employer or carrier/administrator shall specify the legal grounds and the alleged facts supporting the application, and shall complete the blank space in the "Important Notice to Employee" portion of Form 24 rev. by inserting a date seventeen 17 days from the date the employer or carrier/administrator deposits the completed Form 24 rev. in the mail to the employee and the employee’s attorney of record, if any. The original of the Form 24 rev. and the attached documents shall be sent to the Industrial Commission at the same time and by the same method by which a copy of the Form 24 rev. and attached documents are sent to the employee and the employee’s attorney of record, if any. The Form 24 rev. shall specify the number of pages of documents attached which are to be considered by the Industrial Commission. Failure to specify the number of pages may result in the refusal of the Industrial Commission to accept the same for filing. If the employee or the employee’s attorney of record, if any, objects by the date inserted on the employer’s Form 24 rev., or within such additional reasonable time as the Industrial Commission may allow, the Industrial Commission shall set the case for an informal hearing, unless waived by the parties in favor of a formal hearing. A copy of any objection shall be sent, with any supporting documents, to the employer and carrier/administrator. The term "carrier/administrator" also includes any successor in interest.

(3) If an employee does not object within the allowed time, the Industrial Commission shall review the Form 24 rev. and any attached documentation, and an Administrative Decision and Order may be rendered without an informal hearing as to whether compensation shall be terminated or suspended, except as provided in paragraph (6) below. Either party may seek administrative review of the Administrative Decision and Order as provided by Rule 703.

(4) If the employee timely objects to the Form 24 rev., the Industrial Commission shall conduct an informal hearing within twenty-five 25 days of the receipt by the Industrial Commission of the Form 24 rev., unless the time is extended for good cause shown. The informal hearing may be by telephone conference between the Industrial Commission and the parties or their attorneys of record, if any. When good cause is shown, the informal hearing may be conducted with the parties or their attorneys of record, if any, personally present with the Industrial Commission in Raleigh or such other location as is selected by the Industrial Commission. The Industrial Commission shall make arrangements for the informal hearing with a view towards conducting the hearing in the most expeditious manner under the circumstances. Except for good cause shown, the informal hearing shall be no more than thirty 30 minutes, with each side given ten 10 minutes to present its case and five (5) minutes for rebuttal. Notwithstanding the above, the employer or carrier/administrator may waive the right to an informal hearing, and proceed to a formal hearing by filing a request for hearing on a Form 33. A decision on the application shall be made within five days after the completion of the informal hearing.

(5) A decision to terminate, suspend, or continue compensation shall be made within five days after the completion of the informal hearing. except as provided in paragraph (6) below. Either party may appeal the Administrative Decision and Order of the Industrial Commission as provided by Rule 703. A Deputy Commissioner shall conduct a hearing which shall be de novo. The hearing shall be peremptorily set and shall not require a Form 33. The employer has the burden of producing evidence on the issue of the employer’s application for termination or suspension of compensation. If the Deputy Commissioner reverses an order previously granting a Form 24 motion, the employer or carrier/administrator shall promptly resume compensation or otherwise comply with the Deputy Commissioner’s decision, notwithstanding any appeal or application for review to the Full Commission under N.C. Gen. Stat. § 97-85.

(6) In the event the Industrial Commission is unable to reach a decision after an informal hearing, the Industrial Commission shall issue an order to that effect which shall be in lieu of a Form 33 and place the case shall be placed on the formal hearing docket. If additional issues are to be addressed, and the employer or carrier/administrator shall be required within thirty 30 days of the date of the Administrative Decision and Order to file a Form 33 if additional issues are to be addressed, or to notify the Industrial Commission that a formal hearing is not currently necessary. The effect of placing the case on the docket shall be the same as if the Form 24 rev. were denied, and compensation shall continue until such time as the case is decided by a Commissioner or a Deputy Commissioner following a formal hearing.

(7) Any Administrative Decision and Order shall be mailed to the non-prevailing party by certified mail.

(8) No order issued as a result of an informal Form 24 hearing shall terminate or suspend compensation retroactively to a date preceding the filing date of the filing of the Form 24. Compensation may be terminated retroactively without a formal hearing where there is agreement by the parties, where allowed by statute, or where the employee is incarcerated. Otherwise, retroactive termination or suspension of compensation to a date preceding the filing of a Form 24 may be ordered as a result of a formal hearing. Additionally, nothing shall impair an employer’s right to seek a credit pursuant to N.C. Gen. Stat. § 97-42.

(9) The Amendments to this Rule are effective March 15, 1995.

(1) Except as provided in subparagraph (7), when compensation for total disability being paid pursuant to N.C. Gen. Stat. § 97-29 is terminated because the employee has returned to work for the same or a different employer, such termination is subject to the trial return to work provisions of N.C. Gen. Stat. § 97-32.1. When compensation is terminated under these circumstances, the employer or carrier/administrator shall, within 16 days of the termination of compensation, file a Form 28T with the Industrial Commission and provide a copy of it to the employee and the employee’s attorney of record, if any.

(2) If during the trial return to work period, the employee must stop working due to the injury for which compensation had been paid, the employee shall should complete and file with the Industrial Commission a Form 28U, without regard to whether the employer or carrier/administrator has filed a Form 28T as required by paragraph (1) above, and provide a copy of the completed form to the employer and carrier/administrator. A Form 28U shall contain a section which must be completed by the physician who imposed the restrictions or one of the employee’s authorized treating physicians, certifying that the employee’s injury for which compensation had been paid prevents the employee from continuing the trial return to work. If the employee returned to work with an employer other than the employer at the time of injury, the employee must complete the "Employee’s Release and Request For Employment Information" section of a Form 28U. An employee’s failure to provide a Form 28U does not preclude a subsequent finding by the Commission that the trial return to work was unsuccessful.

(3) Upon receipt of a properly completed Form 28U, the employer or carrier/administrator shall forthwith promptly resume payment of compensation for total disability. If the employee fails to provide the required certification of the an authorized treating physician as specified in subsection 2 above, or if the employee fails to execute the "Employee’s Release and Request" section of a Form 28U, if required pursuant to paragraph (2) above, the employer or carrier/administrator shall not be required to resume payment of compensation. Instead, in such circumstances, the employer or carrier/administrator shall forthwith promptly return a Form 28U to the employee and the employee’s attorney of record, if any, along with a statement explaining the reason the Form 28U is being returned and the reason compensation is not being reinstated.

(4) The reinstated compensation shall be due and payable and subject to the provisions of N.C. Gen. Stat. § 97-18(g) on the date and for the period commencing on the date the employer or carrier/administrator receives a properly completed Form 28U certifying an unsuccessful return to work. Such resumption of compensation shall not preclude the employee’s right to seek, nor the employer’s or carrier/administrator’s right to contest, the payment of compensation for the period prior or subsequent to such reinstatement. If it is thereafter determined that any temporary total or temporary partial compensation, including the reinstated compensation, was not due and payable, a credit shall be given against any other compensation determined to be owed.

(5) When the employer or carrier/administrator has received a properly completed Form 28U and contests the employee’s right to reinstatement of total disability compensation, it may suspend or terminate compensation only as provided in N.C. Gen. Stat. § 97-18.1 and/or pursuant to the provisions of N.C. Gen. Stat. § 97-83 and N.C. Gen. Stat. § 97-84.

(6) Upon resumption of payment of compensation for total disability, the employer or carrier/administrator shall complete and file a Form 62 and/or such other forms as may be required by the Workers’ Compensation Act or by Industrial Commission rule. A copy of the Form 62 shall be sent to the employee and the employee’s attorney of record, if any.

(7) The trial return to work provisions do not apply to the following:

(a) “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 Minutes;

(b) Cases in which the employee has missed fewer than eight (8) days from work;

(c) Cases wherein the employee has been released to return to work by the an authorized treating physician as specified in subsection 2 above without restriction or limitation except that if the authorized treating physician, within forty-five 45 days of the employee’s return to work date, determines that the employee is not able to perform the job duties assigned, then the employer or carrier/administrator must resume benefits. If within the same time period, the treating physician determines that the employee may work only with restrictions, then the employee is entitled to a resumption of benefits commencing as of the date of the report, unless the employer is able to offer employment consistent with the restrictions, in which case a trial return to work period shall be deemed to have commenced at the time of the employee’s initial return to work;

(d) Cases wherein the employee has accepted or agreed to accept compensation for permanent partial disability pursuant to N.C. Gen. Stat. § 97-31, unless the trial return to work follows reinstatement of compensation for total disability under N.C. Gen. Stat. § 97-29; and

(e) Claims pending on or filed after 1 January 1, 1995, when the employer or carrier/administrator contests a claim pursuant to N.C. Gen. Stat. § 97-18(d) within the time allowed thereunder.

(8) This Rule is became effective on 15 February 15, 1995, and applies to any employee who leaves work on or after that date due to a compensable injury.

(1) Amputation of any portion of the bone of a distal phalange of a finger or toe at or distal to the visible base of the nail will be considered as equivalent to the loss of one-fourth (¼) of such finger or toe.

(2) Amputation of any portion of the bone of the distal phalange of a finger or toe proximal to the visible base of the nail will be considered as equivalent to the loss of one-half (½) of such finger or toe.

(3) Amputation through the forearm at a point so distal to the elbow as to permit satisfactory use of a prosthetic appliance with retention of full natural elbow function shall be considered amputation of the hand. Otherwise, it shall be considered amputation of the arm.

(4) Amputation through the lower leg at a point so distal to the knee as to permit satisfactory use of a prosthetic appliance with retention of full natural knee function shall be considered amputation of the foot. Otherwise, it shall be considered amputation of the leg.

The Industrial Commission in its discretion will designate the interest rate and methods of computation to be used in arriving at the commuted value of unaccrued compensation payments.

(1) Subject to the provisions of N.C. Gen. Stat. § 97-25.3, "Preauthorization," the Industrial Commission shall adopt and publish a Fee Schedule, pursuant to the provisions of N.C. Gen. Stat. § 97-26(a), fixing maximum fees, except for hospital fees pursuant to N.C. Gen. Stat. § 97-26(b), which may be charged for medical, surgical, nursing, dental, and rehabilitative services, and medicines, sick travel, and other treatment, including medical and surgical supplies, original artificial members as may reasonably be necessary at the end of the healing period and the replacement of such artificial members when reasonably necessitated by ordinary use or medical circumstances. The fees prescribed in the applicable published Fee Schedule shall govern and apply in all cases. However, in special hardship cases where sufficient reason is demonstrated to the Industrial Commission, fees in excess of those so published may be allowed. Persons who disagree with the allowance of such fees in any case may make application for and obtain a full review of the matter before the Industrial Commission as in all other cases provided. Copies of this published Fee Schedule may be obtained from the Industrial Commission’s authorized vendor.

(2) A provider of medical compensation shall submit its statement for services within seventy-five 75 days of the rendition of the service or if treatment is longer, within thirty 30 days after the end of the month during which multiple treatments were provided, or within such other reasonable period of time as allowed by the Industrial Commission. However, in cases where liability is initially denied but subsequently admitted or determined by the Industrial Commission, the time for submission of medical bills shall run from the time the health care provider received notice of the admission or determination of liability. Within thirty 30 days of receipt of the statement, the employer, or carrier, or managed care organization, or administrator on its behalf, shall pay or submit the statement to the Industrial Commission for approval or send the provider written objections to the statement. If an employer, carrier/ administrator or managed care organization disputes a portion of the provider’s bill, it shall pay the uncontested portion of the bill and shall resolve disputes regarding the balance of the charges through its contractual arrangement or through the Industrial Commission. If any bill for medical compensation services is not paid within sixty 60 days after it has been approved by the Industrial Commission and returned to the responsible party, or, when the employee is receiving treatment through a managed care organization, within sixty 60 days after the bill has been properly submitted to an insurer or managed care organization, there shall be added to such unpaid bill an amount equal to ten percent 10%, which shall be paid at the same time as, but in addition to, such bill, unless late payment is excused by the Industrial Commission. When the ten percent 10% addition to the bill is uncontested, payment shall be made to the provider without notifying or seeking approval from the Industrial Commission. When the ten percent 10% addition to the bill is contested, any party may request a hearing by the Industrial Commission pursuant to N.C. Gen. Stat. § 97-83, and N.C. Gen. Stat. § 97-84.

(3) When the responsible party seeks an audit of hospital charges, and has paid the hospital charges in full, the payee hospital, upon request, shall provide all reasonable access and copies of appropriate records, without charge or fee, to the person(s) chosen by the payor to review and audit the records.

(4) The responsible employer or carrier/administrator shall pay the statements of medical compensation providers to whom the employee has been referred by the authorized treating physician, unless said physician has been requested to obtain authorization for referrals or tests; provided, that compliance with such request does not unreasonably delay the treatment or service to be rendered to the employee.

(5) It is the responsibility of the carrier, self-insured employer, group insured as certified by the North Carolina Department of Insurance, and statutory self-insured (state agency or political subdivision) to submit on a yearly basis a Form 51, Consolidated Fiscal Annual Report of "Medical Only" and "Lost Time" Cases.

(6) Employees shall be entitled to reimbursement for sick travel when the travel is medically necessary and the mileage is twenty 20 or more miles, round trip, at a rate to be established periodically by the Industrial Commission in its Minutes. Employees shall be entitled to lodging and meal expenses, at a rate to be periodically established by the Industrial Commission in its Minutes, when it is medically necessary that the employee stay overnight at a location away from the employee’s usual place of residence. An employee shall be entitled to reimbursement for the costs of parking or a vehicle for hire, when the costs are medically necessary, at the actual costs of the expenses, unless the Industrial Commission determines the expenses were not reasonable.

(7) The Amendments to this Rule are effective March 15, 1995.

(1) The Industrial Commission may enter an order as contemplated by N.C. Gen. Stat. § 97-25.1 providing for additional medical compensation on its own motion or pursuant to a stipulation of the parties or by approval of an agreement of the parties for additional medical compensation reflected in a Form 21 or a Form 26.

(2) If the parties have not reached an agreement regarding additional medical compensation, an employee may file a claim with the Industrial Commission for an order pursuant to the terms of N.C. Gen. Stat. § 97-25.1, for payment of additional medical compensation within two (2) years of the date of the last payment of medical or indemnity compensation, whichever shall last occur. The claim may be made on a Form 18M or by written request to the Industrial Commission. The filing of this claim tolls the time limit contained in this paragraph and in N.C. Gen. Stat. § 97-25.1. The original and one copy of the claim must be filed with the Industrial Commission’s Office of the Executive Secretary, one copy must be provided to the employer or carrier/administrator, and one copy must be provided to the attorney of record, if any.

(3) Upon receipt of the claim, the Industrial Commission will notify the employer or carrier/administrator that the claim has been received by providing a copy of a Form 18M or a written claim. The employer or carrier/administrator shall, within 30 days, send to the Industrial Commission and to the employee and the employee’s attorney of record, if any, a written statement as to whether the employee’s request is accepted or denied. If the request is denied, the employer or carrier/administrator shall state in writing the grounds for the denial and shall attach any supporting documentation to the statement of denial.

(4) In cases where the employee’s right to additional medical compensation is contested, the Form 18M, Request for Additional Medical Compensation, shall be treated as a Motion to the Executive Secretary for future medical compensation. Defendants shall have 30 days to respond. An administrative ruling shall thereafter be made subject to the right of either party to appeal such administrative decision by filing a Form 33, Request for Hearing, pursuant to the 15 day time limitation contained in Rule 703. An appeal of the Administrative Decision shall have the effect of staying the decision, provided that the stay may be dissolved in the discretion of the Commission for good cause shown. a request that a claim be assigned for hearing may be filed with the Industrial Commission on a Form 33.

(5) This Rule applies to injuries by accident occurring on or after July 5, 1994.

(6) This Rule is effective March 15, 1995.

(1) Report of Fatalities

(a) Any person claiming entitlement to death benefits under the Act shall give written notice to the employer of the occurrence of death allegedly arising out of and in the course of employment in accordance with N.C. Gen. Stat. § 97-22.

(b) An employer shall notify the Commission of the occurrence of a death resulting from an injury or occupational disease allegedly arising out of and in the course of employment by timely filing a Form 19 within five days of knowledge thereof. In addition, an employer or carrier/administrator shall file with the Industrial Commission a Form 29, "Supplementary Report for Fatal Accidents," within 45 days of knowledge of a death or allegation of death resulting from an injury or occupational disease arising out of and in the course of employment.

(2) Identifying Beneficiaries

(a) An employer or carrier/administrator shall make a good faith effort to discover the names and addresses of decedent’s beneficiaries under N.C. Gen. Stat. § 97-38 and identify them on the Form 29.

(b) In all cases involving minors or incompetents who are potential beneficiaries, a guardian ad litem shall be appointed pursuant to Rule 604.

(c) If an issue exists as to whether a person is a beneficiary under N.C. Gen. Stat. § 97-38, the employer or carrier/administrator and/or any person asserting a claim for benefits may file a Form 33 Request for Hearing for a determination by a Deputy Commissioner.

(3) Liability Accepted by Employer

(a) If the employer or carrier/administrator accepts liability for a claim involving an employee’s death and there are no apparent issues necessitating a hearing for determination of beneficiaries and/or their respective rights, the parties shall submit an Agreement for Compensation for Death executed by all interested parties or their representatives on Industrial Commission Form 30. All agreements must be submitted to the Industrial Commission on a Form 30 as set forth in Rule 501(4), (5) and (6).

(b) Said agreement shall be submitted along with all relevant supporting documents, including death certificate of the employee, any relevant marriage certificate and birth certificates for any dependents.

(4) Liability Denied by Employer

(a) If the employer or carrier/administrator denies liability for a claim involving an employee’s death, the employer or carrier/administrator shall send a letter of denial to all potential beneficiaries, their attorneys of record, if any, all known providers of health care providers that have submitted bills to the employer or carrier/administrator, and the Industrial Commission. The denial letter shall specifically state the reasons for the denial and shall further advise of a right to hearing.

(b) Any potential beneficiary or the employer or carrier/administrator may request a hearing as provided in Rule 602.

(5) Payment of Death Benefits

(a) Upon approval of the Industrial Commission of a Form 30, Agreement for Compensation for Death, or the issuance of a final order of the Industrial Commission directing payment of death benefits pursuant to N.C. Gen. Stat. § 97-38, payment may be made by the employer or carrier/administrator directly to the beneficiaries, with the following exceptions: (1) any applicable award of attorney fees shall be paid directly to the attorney; and (2) benefits due to a minor or incompetent.

(b)

(i) Subject to the discretion of the Industrial Commission, any benefits due to a minor pursuant to N.C. Gen. Stat. § 97-38 may be paid directly to the parent as natural guardian of the minor for the use and benefit of the minor if the minor remains in the physical custody of the parent as natural guardian. If the minor is not in the physical custody of the parent as natural guardian, the Industrial Commission may order that payment be made through some other proper person appointed by a court of competent jurisdiction.

(ii) In order to protect the interests of an incompetent beneficiary, the Industrial Commission in its discretion may order that benefits be paid to the beneficiary’s duly appointed general guardian for the beneficiary’s exclusive use and benefit, or to the Clerk of Court in the county in which he resides for the beneficiary’s exclusive use and benefit as determined by the Clerk of Court.

(iii) Upon a change in circumstances, any interested party may request that the Industrial Commission amend the terms of any award with respect to a minor or incompetent to direct payment to another party on behalf of the minor or incompetent. When a beneficiary reaches the age of 18, any remaining benefits due him shall be paid directly to him the benficiary.

(c) In the case of commuted benefits, only those sums which have not accrued at the time of the entry of the Order are subject to commutation.

(6) Procedure for Award of Death Benefits Based on Stipulated Facts

(a) Where the parties seek a written opinion and award from the Commission regarding the payment of death benefits in uncontested cases in lieu of presenting testimony at a hearing before a Deputy Commissioner, the parties may make application to the Commission for a written opinion by filing a written request with the Dockets Director.

(b) The parties shall file the following information by joint stipulation, affidavit or certified document:

a. a stipulation regarding all jurisdictional matters;

b. the decedent’s name, social security number, employer, insurance carrier or servicing agent, and the date of the injury giving rise to this claim;

c. a Form 22 or stipulation as to average weekly wage;

d. any affidavits regarding dependents;

e. the death certificate;

f. I.C. Form 29;

g. Guardian ad Litem forms, if any beneficiary is a minor or incompetent;

h. proof of beneficiary status, such as marriage license, birth certificate, or divorce decree;

i. medical records, if any;

j. a statement of payment of medical expenses incurred, if any; and

k. a funeral bill or stipulation as to payment of the funeral benefit.

(c) Upon receipt of said information and notice to potential beneficiaries, the Deputy Commissioner shall render a written Opinion and Award.

(7) Any attorney seeking fees for the representation of an uncontested claim shall file an affidavit or itemized statement in support of an award of attorney’s fees.

ARTICLE V. AGREEMENTS

Rule 501
Agreements for Payment of Compensation

(1) To 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 §97-30 and N.C. Gen. Stat. §97-31 has 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 Section 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.

(1) All compromise settlement agreements must be submitted to the Industrial Commission for approval. Only those agreements deemed fair and just and in the best interest of all parties will be approved.

(2) No compromise agreement will be approved unless it contains the following language or its equivalent:

(a) Where liability is admitted, that the employer or carrier/ administrator undertakes to pay all medical expenses to the date of the agreement.

(b) Where liability is denied, that the employer or carrier/ administrator undertakes to pay all unpaid medical expenses to the date of the agreement. However, where application of this Rule shall work an injustice, it this requirement may be waived in the discretion of the Industrial Commission. When submitting an agreement for approval, the employee or employee’s attorney, if any, shall advise the Commission in writing of the amount of the unpaid medical expenses.

(c) That the employee knowingly and intentionally waives the right to further benefits under the Workers’ Compensation Act for the injury which is the subject of this agreement.

(d) That the employer or carrier/administrator will pay all costs incurred.

(e) That no rights other than those arising under the provisions of the Workers’ Compensation Act are compromised or released.

(f) That the employee has, or has not, returned to a job or position at the same or a greater average weekly wage as was being earned prior to the injury or occupational disease.

(g) Where the employee has not returned to a job or position at the same or a greater wage as was being earned prior to the injury or occupational disease, that the employee has, or has not, returned to some other job or position, and, if so, the description of the particular job or position, the name of the employer and the average weekly wage earned. This subsection of the Rule shall not apply where the employee is represented by counsel or, even if the employee is not represented by counsel, where the employee certifies that partial wage loss due to an injury or occupational disease is not being claimed.

(h) Where the employee has not returned to a job or position at the same or a greater average weekly wage as was being earned prior to the injury or occupational disease, the agreement shall summarize the employee’s age, educational level, past vocational training, past work experience, and any impairment, emotional, mental or physical, which predates the current injury or occupational disease. The parties will be relieved of this duty only upon a showing that providing such information creates an unreasonable burden upon them. This subsection of the Rule shall not apply where employee is represented by counsel or, even if the employee is not represented by counsel, where the employee certifies that total wage loss due to an injury or occupational disease is not being claimed.

(3) No compromise agreement will be considered unless the following additional requirements are met:

(a) 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 employer.

(b) The Pparties and all attorneys of record must have signed the agreement.

(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.

(4) When a settlement has been reached, the written agreement must be submitted to the Industrial Commission within a reasonable time. All compromise settlement agreements 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 compromise settlement agreements shall be directed to the Executive Secretary of the Industrial Commission.

(5) Once a compromise settlement agreement has been approved by the Industrial Commission, the employer or carrier/administrator shall furnish an executed copy of said agreement to the employee or his attorney of record, if any.

An agreement for the payment of compensation approved by the Industrial Commission shall thereupon become an award of the Industrial Commission and shall be a part of the record in any further proceedings in the matter.

ARTICLE VI. CONTESTED CASES

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.

Except as provided by Rule 611(1), Contested claims are shall be set on the hearing docket only upon the written request of one of the parties, unless the Industrial Commission orders on its own motion, a hearing or rehearing of the case in dispute. A claim will not be set on the hearing docket unless The request for hearing shall contains the following:

(1) The basis of the disagreement between the parties, including a statement of the specific issues raised by the requesting party.

(2) The date of the injury.

(3) The part of the body injured.

(4) The city and county where the injury occurred.

(5) The names and addresses of all doctors and other expert witnesses whose testimony is needed by the requesting party.

(6) The names of all lay witnesses to be called to testify for the requesting party.

(7) An estimate of the time required for the hearing of the case.

(8) The telephone number(s) and address(es) of the party(ies) requesting the hearing.

Utilization of A Form 33, Request for Hearing, which is completed in full, shall be the sole means of constitute compliance with this Rule. A copy of the Request for Hearing shall be forwarded to the self-insured employer or insurance carrier if not represented, or to the defendant’s attorney, if one has been retained.

No later than forty-five 45 days from receipt of the Request for Hearing, the self-insured employer, insurance carrier, or counsel for the defendant(s) shall file with the Industrial Commission a response to the Request for Hearing.

This response shall contain the following:

(1) The basis of the disagreement between the parties, including a statement of the specific issues raised by the plaintiff which are conceded and the specific issues raised by the plaintiff which are denied.

(2) The date of the injury, if it is contended to be different than that alleged by the plaintiff.

(3) The part of the body injured, if it is contended to be different than that alleged by the plaintiff.

(4) The city and county where the injury occurred, if they are contented to be different than that alleged by the plaintiff.

(5) The names and addresses of all doctors and other expert witnesses whose testimony is needed by the defendant(s).

(6) The names of all lay witnesses known by the defendant(s) whose testimony is to be taken.

(7) An estimate of the time required for the hearing of the case.

(8) The telephone number(s) and address(es) of the party(ies) responding to the Request for Hearing.

Utilization of a Form 33R, Response to Request for Hearing, which is completed in full, shall be the sole means of compliance with this Rule. A copy of the Response to Request for Hearing shall be forwarded to all opposing parties or their attorneys, if such have been retained. In the event of a request for hearing by a defendant, the employee shall not be required to respond. Extensions of time within which to file a response shall be granted for good cause shown.

(1) In all cases where it is proposed that minors or incompetents shall sue by their guardian ad litem, the Industrial Commission shall appoint such guardian ad litem upon the written application of a reputable disinterested person closely connected with such minor or incompetent; but if such person will not apply, then, upon the application of some reputable citizen; and the Industrial Commission shall make such appointment only after due inquiry as to the fitness of the person to be appointed.

(2) In no event, however, shall any compensation be paid directly to the guardian ad litem. Rather, compensation payable to a minor or incompetent shall be paid as provided in N.C. Gen. Stat. § 97-48 and N.C. Gen. Stat. § 97-49. The use of the word "guardian" in N.C. Gen. Stat. § 97-49 shall mean a general guardian appointed by the General Courts of Justice and shall does not mean a guardian ad litem.

(3) The Amendments to this Rule are effective March 15, 1995.

In addition to depositions and production of books and records provided for in N.C. Gen. Stat. § 97-80, parties may obtain discovery by the use of interrogatories as follows:

(a1) Any party may serve upon any other parties written interrogatories, up to thirty 30 in number, including subparts thereof, to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available from the party interrogated.

Interrogatories may, without leave of the Industrial Commission, be served upon any party after the filing of a Form 18, Form 18B, or Form 33, or after approval of Form 21.

Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them and the objections signed by the party making them. The party on whom the interrogatories have been served shall serve a copy of the answers, and objections, if any, within thirty 30 days after service of the interrogatories. The parties may stipulate to an extension of time to respond to the interrogatories. A motion to extend the time to respond shall represent that an attempt to reach agreement with the opposing party to informally extend the time for response has been unsuccessful and the opposing parties’ position or that there has been a reasonable attempt to contact the opposing party to ascertain its position.

If there is an objection to or other failure to answer an interrogatory, the party submitting the interrogatories may move the Industrial Commission for an order compelling answer. If the Industrial Commission orders answer to an interrogatory within a time certain and no answer is made or the objection is still lodged, the Industrial Commission may issue an order with appropriate sanctions, including but not limited to the sanctions specified in Rule 37 of the North Carolina Rules of Civil Procedure.

(b2) Interrogatories may relate to any matters which are not privileged which are relevant to the subject matter in the pending action an issue presently in dispute or which the requesting party reasonably believes may later be disputed. It is not grounds for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence, nor is it grounds for objection that the examining party has knowledge of the information as to which discovery is sought. Signature of a party or attorney serving interrogatories constitutes a certificate by such person that he or she has personally read each of the interrogatories, that no such interrogatory will oppress a party or cause any unnecessary expense or delay, that the information requested is not known or equally available to the requesting party and that the interrogatory relates to an issue presently in dispute or which the requesting party reasonably believes may later be in dispute. A party may serve an interrogatory, however, to obtain verification of facts relating to an issue presently in dispute. Answers to interrogatories may be used to the extent permitted by the rules of evidence.

(c3) Additional methods of discovery as provided by the North Carolina Rules of Civil Procedure may be used only upon motion and approval by the Industrial Commission or by agreement of the parties.

(d4) Notices of depositions, discovery requests and responses pertinent to a pending motion, responses to discovery following a motion or order to compel, and post-hearing discovery requests and responses shall be filed with the Commission, as well as served on the opposing party. Otherwise, discovery requests and responses, including interrogatories and requests for production of documents, shall not be filed with the Commission.

(e5) Sanctions may be imposed under this Rule for failure to comply with a Commission order compelling discovery. A motion by a party or its attorney to compel discovery under this Rule and Rule 607 shall represent that informal means of resolving the discovery dispute have been attempted in good faith and state briefly the opposing parties’ position or that there has been a reasonable attempt to contact the opposing party and ascertain its position.

(Amended effective January 1, 1992.)

Discovery may not be conducted after the initial hearing on the merits of a case unless allowed by order of a Commissioner or Deputy Commissioner.

Rule 607
Discovery of Records and Reports

(1) Upon written request, any party shall furnish, without cost, the requesting party a copy of any and all medical, vocational and rehabilitation reports, and employment records, Industrial Commission forms, and written communications with medical providers in its possession, within thirty 30 days of the request, unless objection is made within that time period. This obligation exists whether or not a request for hearing has been filed. This obligation is a continuing one, and any such reports and records which come into the possession of a party after receipt of a request pursuant to this Rule shall be provided to the requesting party within fifteen 15 days from its receipt of these reports and records.

(1) At the outset of taking a statement, the employer or his agent shall advise the employee that the statement is being taken to be used in part to determine whether the claim will be paid or denied. Any plaintiff who shall gives to his employer, or to the its carrier on the risk, or to any agent either a written or recorded statement of the facts and circumstances surrounding his injury shall be furnished a copy of such statement within thirty 45 days after request. Further, any plaintiff who shall give a written or recorded statement of the facts and circumstances surrounding his injury shall, without request, be furnished a copy no less than thirty 45 days from the filing of a Form 33 Request for Hearing. prior to a pending hearing. Such copy shall be furnished at the expense of the person, firm or corporation at whose direction the statement was taken.

(2) If any person, firm or corporation fails to comply with this rule, then an order may be entered by a Commissioner or Deputy Commissioner prohibiting that person, firm or corporation, or its representative, from introducing the statement into evidence or using any part of it.

(1) Motions brought before the Commission shall be addressed as follows:

(a) All motions in cases which are currently calendared for hearing before a the Full Commissioner or Deputy Commissioner shall be sent directly to the Chair of the Full Commission panel that Commissioner or Deputy Commissioner before whom the case is pending at the Industrial Commission.

(b) Motions filed before a case is calendared before a Deputy Commissioner, or once a case has been continued, or removed from a Deputy Commissioner calendar, or after the filing of an Opinion and Award when the time for taking appeal has run, motions shall be directed to the Executive Secretary of the Industrial Commission. Motions to reconsider or amend an Opinion and Award, made prior to giving notice of appeal to the Full Commission, shall be directed to the Deputy Commissioner who authored the Opinion and Award.

(c) Motions filed after notice of appeal to the Full Commission has been given but prior to the calendaring of the case shall be directed to the Chair of the Industrial Commission.

(d) If a case has been continued from the Full Commission hearing docket, motions shall be directed to the Chair of the panel of Commissioners who ordered the continuance.

(e) Motions filed after the filing of an Opinion and Award by the Full Commission but prior to giving notice of appeal to the Court of Appeals shall be directed to the Commissioner who authored the Opinion and Award.

(2) A motion shall state with particularity the grounds on which it is based, the relief sought, and a brief statement of the opposing party’s position, if known. Service shall be made on all opposing attorneys of record, or on all opposing parties, if not represented.

(3) Motions to continue or remove a case from the hearing calendar on which the case is set must be made well in advance of the scheduled hearing and may be made in written or oral form. In all cases the moving party must provide just cause for the motion and state that the other parties have been advised of the motion and relate the position, if known, of the other parties regarding the motion. Oral motions must be followed with a written confirmation from the moving party.

(4) The responding party to a motion shall have ten (10) 10 days after a motion is served during which to file and serve copies of response in opposition to the motion. The Industrial Commission may shorten or extend the time for responding to any motion.

(5) Notwithstanding the provisions of paragraph (4) above, a motion may be acted upon at any time by the Commission, despite the absence of notice to all parties, and without awaiting a response thereto. A party who has not received actual notice of such a motion or who has not filed a response at the time such action is taken and who is adversely affected by the action may request that it be reconsideredation, vacatedion, or modifiedcation thereof. Motions will be determined without oral argument, unless the Industrial Commission orders otherwise.

(6) In all cases where correspondence relative to a case before the Industrial Commission is sent to the Industrial Commission, copies of such correspondence shall be contemporaneously sent by the same method of transmission to the opposing party or, if represented, to opposing counsel or, if none, to the opposing party. Written communications, whether addressed directly to the Commission or copied to the Commission, may not be used as an opportunity to introduce new evidence or to argue the merits of the case, with the exception of the following instances:

(7) All motions made before the Industrial Commission must include a proposed Order to be considered by the Industrial Commission.

(8) Except as otherwise expressly provided by statute, rule, or by order of the Commission, in computing any period of time prescribed or allowed by the Commission’s Rules, by order of the Commission, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or a legal holiday. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday. Whenever a party has the right to do some act or take some proceedings within a prescribed period after the service of any document, three (3) days shall be added to the prescribed period.

(1) A Commissioner or Deputy Commissioner may order the parties to appear at a pre-trial conference to determine specific matters. This conference may be conducted at such place and by such method as the Commissioner or Deputy Commissioner deems appropriate, including conference telephone calls.

(2) Any party may request a pre-trial conference when that party deems that such a conference would aid in settling the case or resolving some issues prior to trial. Requests for such pre-trial conferences shall be directed to the Chief Deputy Commissioner before whom the claim has been calendared, or to the Team Coordinator for the geographical area, if any. unless the claim has already been calendared before a Commissioner or Deputy Commissioner, in which instance, the request shall be directed to that Commissioner or Deputy Commissioner.

(3) Without a pre-trial conference, a A Commissioner or a Deputy Commissioner may issue a Pre-Trial Order requiring the parties to submit a Pre-trial Agreement. The parties shall have 15 days following the hearing within which to schedule the taking of medical depositions unless otherwise extended by the Commission. order the parties to prepare a Pre-Trial Agreement. Such Agreement shall be prepared in a form which substantially complies with the Order on Final Pre-Trial Conference adopted in the North Carolina Rules of Practice for the Superior and District Courts. Should the parties fail to comply with an Pre-Trial Order, to prepare a Pre-Trial Agreement, the Commissioner or Deputy Commissioner may remove the case from the hearing docket. Should the parties thereafter comply with the Pre-Trial Order to prepare a Pre-Trial Agreement after the removal of the case, the Pre-Trial Agreement must be directed to the Commissioner or Deputy Commissioner who removed the case from the docket; and the Commissioner or Deputy Commissioner will order the case returned to the hearing docket as if a Request for Hearing had been filed on the date of the Order to return the case to the hearing docket. No new Form 33 Request for Hearing is required.

(1) The Industrial Commission may on its own motion order a hearing or rehearing of any case in dispute.

(2) The Industrial Commission shall set a contested case for hearing in a location deemed convenient to witnesses and the Industrial Commission, and conducive to an early and just resolution of disputed issues.

(3) In setting contested cases for hearing, cases in which the payment of workers’ compensation benefits is at issue shall take precedence over those cases in which the payment of workers’ compensation benefits is not at issue.

(4) The Industrial Commission will give reasonable notice of hearings in every case. Postponement or continuance of a duly scheduled hearing will rest entirely in the discretion of a Commissioner or Deputy Commissioner. Where a party has not notified the Industrial Commission of the attorney representing the party prior to the mailing of calendars for hearing, notice to that party shall constitute notice to the party’s attorney.

(5) Prior to hearing The only parts of the Industrial Commission file of a contested case which are a part of the record on which a decision will be rendered are prior Opinion and Awards, form agreements, awards, and orders by the Industrial Commission; provided, however, that if provisions of the Workers’ Compensation Act designate other documents as part of the record, such documents shall also be a part of the record. Any other documents which the parties wish to have included in the record must be introduced and received into evidence.

(6) Hearing costs shall be assessed in each case set for hearing, including those cases which are settled after being calendared and notices mailed, and shall be payable upon receipt of a statement from the Industrial Commission.

(7) In the event of inclement weather or natural disaster, hearings shall be cancelled if the proceedings in the General Court of Justice in the county in which the hearings are set are cancelled.

(1) When additional testimony is necessary to the disposition of a case, a Commissioner or Deputy Commissioner may order the deposition of witnesses, such depositions to be taken on or before a day certain not to exceed sixty 60 days from the date of the ruling; provided, the date time allowed may be postponed enlarged for good cause shown. Within 30 days following hearing, the parties shall stipulate or each apply to the Commissioner or Deputy Commissioner for an order setting depositions for all expert witnesses they anticipate deposing if the case is not resolved upon the lay testimony. A motion shall be supported by a statement that the moving party has made reasonable attempts to obtain an agreement among the expert and the parties on the date, place and time of the deposition, and whether the expert or opposing party consents to the date proposed. If the parties cannot so stipulate, the Commissioner or Deputy Commissioner shall issue a written order setting the time within which such deposition shall be taken. The costs of such depositions shall be borne by the defendants for those medical witnesses who examined plaintiff at defendants’ expense, in those instances in which defendants are requesting the depositions, and in any other case which, in the discretion of the Commissioner or Deputy Commissioner, it is deemed appropriate.

(2) In cases where a party, or an attorney for either party, refuses to stipulate medical reports and the case must be reset or depositions ordered for testimony of medical witnesses, a Commissioner or Deputy Commissioner may in his discretion assess the costs of such hearing or depositions, including reasonable attorney fees, against the attorney or his client party who refused the stipulation.

(3) Except under unusual circumstances, all lay evidence must be offered at the initial hearing. Lay evidence can only be offered after the initial hearing by order of a Commissioner or Deputy Commissioner. The costs of obtaining lay testimony by deposition shall be borne by the party making the request unless otherwise ordered by the Commission. (Amended effective January 1, 1992.)

(a) No claim filed under the Workers’ Compensation Act shall be dismissed without prejudice at plaintiff’s instance except upon order of the Industrial Commission and upon such terms and conditions as justice requires; provided, however, that no voluntary dismissal shall be granted after the record in a case is closed.

(b) Unless otherwise ordered by the Industrial Commission, a plaintiff shall have one year from the date of the Order of Voluntary Dismissal to reinstitute refile his claim.

(c) Upon proper notice and an opportunity to be heard, any claim may be dismissed with or without prejudice by the Industrial Commission on its own motion or by motion of any party for failure to prosecute or to comply with these Rules or any Order of the Commission.

(a) A claim may be removed from the hearing docket by motion of the party requesting the hearing or by the Industrial Commission upon its own motion.

(b) A removed case may be reinstated by motion of either party; provided that cases wherein the issues have materially changed since the Order of Removal or where the motion to reinstate is filed more than one year after the Order of Removal, a Form 33 Request for Hearing will be required. When a plaintiff has not requested a hearing within a year of the filing of an Order of Removal requested by the plaintiff or necessitated by plaintiff’s conduct, and not pursued the claim, the opposing party, or the Industrial Commission upon its own motion, may move the Industrial Commission to dismiss with prejudice for failure to prosecute. (Amended effective January 1, 1992.)

(c) When a plaintiff has not requested a hearing within two years of the filing of an Order of Removal requested by the plaintiff or necessitated by the plaintiff’s conduct, and not pursued the claim, upon proper notice and an opportunity to be heard, any claim may be dismissed with prejudice by the Industrial Commission on its own motion or by motion of any party.

(1) Any attorney who is retained by a party accepts employment in a proceeding before the Industrial Commission shall immediately file a notice of appearance with notify in writing the Industrial Commission of an appearance, at which time the attorney shall be attorney of record. A copy of this notice shall be served on all other counsel and to on all unrepresented parties. Thereafter, all notices required to be served on a party shall be served upon the attorney. at the business address provided, and No direct contact or communication concerning or affecting contested matters may be made with a represented party the attorney’s client by the opposing party or any person on its behalf, without the attorney’s permission except providers of medical compensation and except as otherwise required as permitted by law or Industrial Commission Rules and Forms.

(2) Any attorney who wishes to withdraw from representation employment in a proceeding before the Industrial Commission shall file with the Industrial Commission, in writing:

(a) A Motion to Withdraw which shall contain a statement of reasons for the request and a statement that the reasons for that the request have has been served on the client or clients from whose employment the attorney wishes to be allowed to withdraw.

(b) A Motion to Withdraw before an award is made shall state whether the withdrawing attorney requests an attorney fee from the represented party once an award of compensation is made or approved. An attorney replacing a withdrawn attorney shall be deemed to have received notice of the request of the withdrawing attorney in regards to the attorney fee request.

(3) The employment of An attorney so petitioning for permission to may withdraw from representation may be terminated only by written permission order of the Industrial Commission. The issuance of an award of the Industrial Commission does not release an attorney as the attorney of record. The attorney of record may, upon Motion to Withdraw, be released by written permission of the Industrial Commission.

(5) The Amendments to this Rule are effective March 15, 1995.

In his their discretion, any Commissioners or Deputy Commissioners may disqualify recuse themselves himself from the hearing of any case before the Industrial Commission. For good cause shown, a majority of the Full Commission may remove a Commissioner or Deputy Commissioner from hearing a case.

(1) Services of Foreign Language Interpreters Required.

When a person who does not speak or understand the English language is called to testify in a hearing, other than in an informal hearing conducted pursuant to G.S. § 97-18.1, the person, whether a party or a witness, shall be assisted by a qualified foreign language interpreter.

(2) Qualifications of Interpreters.

To qualify as a foreign language interpreter, a person must possess sufficient experience and education, or a combination of experience and education, speaking and understanding English and the foreign language to be interpreted, to qualify as an expert witness pursuant to N.C. Gen. Stat. § 1C-1, Rule 702. A person qualified as an interpreter under this Rule shall not be interested in the claim and must make a declaration under oath or affirmation to interpret accurately, truthfully and without any additions or deletions, all questions propounded to the witness and all responses thereto.

(3) Notice to Industrial Commission and Opposing Party of Need for Interpreter.

Any party who is unable to speak or understand English, or who intends to call as a witness a person who is unable to speak or understand English, shall so notify the Industrial Commission and the opposing party, in writing, not less than 21 days prior to the date of the hearing. The notice shall state with specificity the language(s) that must be interpreted for the Commission.

(4) Designation of Interpreter by Employer or Insurer.

Upon receiving or giving the notice required in paragraph (3) of this Rule, the employer or insurer shall retain a qualified, disinterested interpreter, either agreed upon by the parties or approved by the Industrial Commission, to appear at the hearing and interpret the testimony of all persons for whom the notice in paragraph (3) has been given or received.

(5) Interpreter Fees.

The interpreter’s fee shall constitute a cost as contemplated by N.C. Gen. Stat. § 97-80. A qualified interpreter who interprets testimony for the Industrial Commission shall be entitled to payment of the fee agreed upon by the interpreter and employer or insurer that retained the interpreter. Except in cases where a claim for compensation has been prosecuted without reasonable ground, the fee agreed upon by the interpreter and employer or insurer shall be paid by the employer or insurer. Where it is ultimately determined by the Commission that the request for an interpreter was unfounded, attendant costs may be assessed against the movant.

ARTICLE VII. APPEALS

Rule 701
Appeal to the Full Commission

(1) A letter expressing an intent to appeal shall be considered notice of appeal to the Full Commission within the meaning of N.C. Gen. Stat. § 97-85, provided that it clearly specifies the Order or Opinion and Award from which appeal is taken.

(2) After receipt of notice of appeal, the Industrial Commission will supply to the appellant Form 44 Application for Review upon which appellant he must state the grounds for his the appeal. The grounds must be stated with in particularity, including the specific errors allegedly committed by the Commissioner or Deputy Commissioner and, when applicable, the pages in the transcript on which the alleged errors are recorded. Failure to state with particularity the grounds for appeal shall result in abandonment of such grounds, as provided in paragraph (3). The Appellant’s completed Form 44 and brief completed by appellant, along with appellant’s brief must be filed and served with the Industrial Commission, copies to appellee, within twenty-five 25 days of appellant’s receipt of the transcript of the record, or receipt of notice that there will be no transcript, unless the use of such form shall, in the discretion of the Industrial Commission, in its discretion, be waives the use of the Form 44. The time for filing a notice of appeal from the decision of the Deputy Commissioner under these rules shall be tolled until a timely motion to amend the decision has been ruled upon by the Deputy Commissioner.

(3) Particular grounds for appeal not set forth in the application for review shall be deemed to be abandoned, and argument thereon shall not be heard before the Full Commission. A non-appealing party is not required to file conditional assignments of error in order to preserve his rights for possible further appeals.

(4) When an appeal is made to the Full Commission, Appellant’s Form 44 and brief if any, in support of his grounds for appeal shall be filed in triplicate with the Industrial Commission, with written statement of a certificate indicating service of copy on appellee by mail or in person on appellee, with the Form 44 upon which he has stated particular grounds for his appeal, within twenty-five 25 days after receipt of the transcript, or receipt of notice that there will be no transcript. Thereafter, appellee shall have twenty-five 25 days from receipt service of appellant’s brief within which to file a reply brief in triplicate with the Industrial Commission, with written statement of service of copy by mail or in person on appellant. If When an appellant fails to file a no brief, appellee shall file his brief within twenty-five 25 days after appellant’s time for filing brief has expired. When A party who fails to an appeal has not filed a brief he will not be allowed oral argument before the Full Commission. If both parties appeal, they shall each file an appellant’s and appellee’s brief on the schedule set forth herein. The parties may file with the Docket Director a written stipulation to a single extension of time for each party, not to exceed 30 days, if the matter has not been calendared for hearing.

(5) During the process After notice of appeal has been given to the Full Commission, any motions by either party related to the issues before the Full Commission shall be filed in triplicate with the Full Commission, copy to with service on the other parties.

(6) No new evidence will be presented to or heard by the Full Commission unless the Commission in its discretion so permits.

(7) Cases should be cited by North Carolina Reports and, preferably, to Southeastern Reports as well. Counsel shall not discuss matters outside the record, assert personal opinions or relate personal experiences, or attribute unworthy acts or motives to opposing counsel unless it is alleged in good faith that such materially affected the case.

(8) The Industrial Commission or any one of the parties with permission of the Industrial Commission may waive oral argument before the Full Commission. In the event of such waiver, the Full Commission will file a decision, based on the record, assignments of error exceptions and briefs. if any, will be filed by the Full Commission.

(9) A plaintiff appealing the amount of a disfigurement award shall personally appear before the Full Commission to permit the Full Commission to view the disfigurement.

(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)].

(1) Except as otherwise provided in N.C. Gen. Stat. § 97-86, in every case appealed to the North Carolina Court of Appeals, the rules governing appeals in ordinary civil actions as set forth in the Rules of Appellate Procedure shall apply. The running of the time for filing and serving a notice of appeal is tolled as to all parties by a timely motion filed by any party to amend, to make additional findings or to reconsider the decision, and the full time for appeal commences to run and is to be computed from the entry of an Order upon any of these motions, in accordance with Rule 3 of the Rules of Appellate Procedure.

(2) If the parties cannot agree on the record on appeal, appellant shall furnish the Chairman of the Industrial Commission, or his designee, one (1) copy of the proposed record on appeal, objections and/or proposed alternative record on appeal at the time along with a timely request is made to the Chairman, or his designee, to settle the record on appeal same. The hearing to settle the record on appeal shall be held at the offices of the Industrial Commission or by telephone conference.

(3) The amount of the appeal bond shall be set by the Chairman, or his designee, and may be waived in accordance with N.C. Gen. Stat. § 97-86. (Amended effective January 1, 1992.)

When a case is remanded to the Commission from the appellate courts, each party 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.

(1) Orders, Decisions, and Awards made in a summary manner, without detailed findings of fact, including Decisions on applications to approve agreements to pay compensation and medical bills, applications to approve the termination or suspension of compensation, applications for change in treatment or providers of medical compensation, applications to change the interval of payments, and applications for lump sum payments of compensation may be appealed reviewed by filing a Motion for Reconsideration with the Industrial Commission and addressed to the Administrative Officer who made the Decision or may be appealed by requesting a hearing within fifteen 15 days of receipt of the Decision or receipt of the ruling on a Motion to Reconsider. Said These issues may also be raised and determined at a subsequent hearing.

(2) Motions for Reconsideration shall not stay the effect of the Order, Decision or Award; provided, that the Administrative Officer making the Decision or a Commissioner may enter an Order staying its effect pending the ruling on the Motion for Reconsideration or pending a Decision by a Commissioner or Deputy Commissioner following a formal hearing. In determining whether or not to grant a stay, the Commissioner or Administrative Officer will consider whether granting the stay will frustrate the purposes of the Order, Decision, or Award.

(3) Any appeal review made by requesting a hearing shall be made to the Industrial Commission and filed with the Industrial Commission’s Docket Director. The Industrial Commission shall designate a Commissioner or Deputy Commissioner to hear the appeal review. The Commissioner or Deputy Commissioner hearing the matter shall consider all issues de novo, and no issue shall be considered moot solely because the Order has been fully executed during the pendency of the hearing.

(4) The Amendments to this Rule are effective March 15, 1995.

ARTICLE VIII. RULES OF THE COMMISSION

Rule 801
Waiver of the Rules

In the interest of justice, these rules may be waived by the Industrial Commission. The rights of any unrepresented plaintiff will be given special consideration in this regard, to the end that a plaintiff without an attorney shall not be prejudiced by mere failure to strictly comply with any one of these rules.

(1) Upon failure to comply with any of the aforementioned rules, the Industrial Commission may subject the violator to any of the sanctions outlined in Rule 37 of the North Carolina Rules of Civil Procedure, including reasonable attorney fees to be taxed against the party or his counsel whose conduct necessitates the order.

Prior to adopting, deleting, or amending any Workers’ Compensation Rule of the Industrial Commission which affects the substantive rights of parties, the Industrial Commission will give at least thirty 30 days’ notice of the proposed change in rules. Such notice will be given by publishing, in a newspaper or newspapers of general circulation in North Carolina, notice of such proposed change. Such notice will include an invitation to any interested party to submit in writing any objection, suggestion or other comment with respect to the proposed rule change or to appear before the Full Commission at a time and place designated in the notice for the purpose of being heard with respect to the proposed rule change.

ARTICLE IX. REPORT OF EARNINGS

Rule 901
Check Endorsement

If a self-insured employer, carrier or third party administrator places "check endorsement" language on the back of an employee's check, the following language ( or similar language approved by the Industrial Commission) shall be used:

By endorsing this check, I certify that I have not worked for or earned wages from any business or individual during the period covered by this check, or that I have reported any earnings to the employer/carrier paying me workers' compensation benefits. I understand that making a false statement by endorsing this benefit check may result in civil or criminal penalties.

A self-insured employer, carrier or third party administrator shall not use check endorsement language on the back of an employee's workers' compensation benefit check unless the employee has been provided the following Notice sent by certified mail return receipt requested:

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.