North Carolina: Patillo v. Goodyear Tire and Rubber Company: Another Review of the Parsons Presumption and Reasonableness of a Job Search
Last winter we examined the Court of Appeals decision in Wilkes v. City of Greenville and its seemingly a radical extension of the Parsons presumption to injuries not initially accepted as part of the claim. The decision Wilkes was appealed to the North Carolina Supreme Court and is set for oral argument in mid-February 2017. However, the show must go on, and, in its recent holding in Patillo, the Court of Appeals once again examines the Parsons presumption and its application in North Carolina workers’ compensation cases, as well as the reasonableness of a job search.
Patillo suffered a low back injury on February 16, 2011 while working as a press operator for Defendant-Employer. He was evaluated at the on-site medical clinic and was restricted to “off-standard” work, which meant that he could not perform all his job functions without assistance. Patillo remained on off-standard work until April 4, 2011. The following day he returned to on-standard work. Then, on May 13, 2011, Patillo was restricted to two weeks of sit-down work only, which was not available, so he went out of work on May 13, 2011.
Patillo later filed a Form 33 Request for Hearing. No Form 60, 61, or 63 was ever filed. The parties later entered a consent order that Patillo suffered “some level of contusion to the lower back as a result of [the] accident.” Following a hearing, the Deputy Commissioner issued an Opinion and Award finding the low back injury compensable. The decision also awarded temporary total disability benefits between March 6, 2012 and the time of the hearing, but denied Patillo’s request for prior temporary total disability benefits between May 13, 2011 and March 6, 2012.
Defendants appealed to the Full Commission. It concluded that that the parties’ consent order created a rebuttable presumption that Patillo’s current low back condition was related to his compensable accident and that Defendants failed to rebut the presumption. Even without the presumption, the Commission concluded that Patillo had proven that his at-work injury caused ongoing non-mechanical back pain and awarded him ongoing medical treatment. The Commission also concluded that Patillo failed to prove that he was disabled after March 6, 2012 because he had not shown that he made a reasonable effort to return to work or that a job search would have been futile. Both parties appealed to the Court of Appeals.
The Court affirmed the Commission’s application of the Parsons presumption and conclusion that Defendants had not rebutted the presumption that Patillo’s medical treatment was related to the at-work injury. The Court cited the Parsons and Perez cases, noting that a presumption of compensability for medical treatment applies to future symptoms allegedly related to the original injury, not just for the original injury itself. The Court rejected Defendants’ argument that no presumption applied because they had only admitted the compensability of a low back contusion. The Court further concluded that Defendants had not rebutted the presumption of compensability because they were unable to show, through the medical testimony, that Plaintiff’s current low back pain was separate and distinct from his original work injury.
The decision again highlights the burden shift in accepted claims where Defendants must rebut the presumption that an injured worker’s medical treatment is related to the compensable injury. Unlike Wilkes, this decision does not radically extend the application of the Parsons presumption to injuries that are not “the very injury” accepted as part of the claim. Instead, it highlights the importance of investigating new injuries or conditions soon after they are discovered to determine whether evidence exists to rebut the presumption, and also to establish that there is evidence that new injuries and conditions are “separate and distinct” from the original accepted injury.
The Court also examined the issue of futility and reasonableness of the job search performed by Patillo. It reversed the Commission’s decision and stated that the determination that Patillo had not conducted a reasonable job search was not supported by competent evidence. The Court acknowledged that there is no set rule for determining the reasonableness of a job search and stated that, although the determination of reasonable is discretionary, the Commission must make findings of fact to support its determination of reasonableness. Therefore, the case was remanded to the Commission for further findings.
The holding in Patillo does not constitute as drastic a shift from the application of the Parsons presumption as the Court’s holding in Wilkes. However, both cases are an important reminder to be prepared to produce evidence that additional claimed injuries are not causally related to accepted conditions. Also, stay tuned for further developments in the application and interpretation of the Parsons presumption by North Carolina courts.