2020 Forecast: Overview of Upcoming Issues in Workers’ Compensation
The New Year will bring a number of issues to the forefront of workers’ compensation. Though some are familiar, there are a few new issues we anticipate will take center stage in 2020.
“Form 63, box 2”
In 2019, the “Form 63, box 2,” also known as the medical-only Form 63, became very unpopular with the plaintiff’s bar. We started seeing “Motions to Compel Defendants to File a Form 60 or Form 61” with greater frequency, and those motions were often granted. Plaintiffs argue the medical-only Form 63 gives defendants the ability to accept a claim “halfway,” allowing defendants to cover medical expenses, without prejudice, with the option to deny the claim at any time. Though essentially true, defendants argue it is crucial to allow proper investigation of the claim and provision of necessary medical treatment without delay, while also allowing time to evaluate compensability and causation.
We expect to see more of these motions in 2020, as well as a potential future push for a legislative change to remove this section entirely. Even so, we continue to recommend use of the medical-only Form 63, where appropriate, with the understanding that defendants may be required to file a Form 60 or Form 61 in the future. In addition, although the plaintiff’s bar dislikes it, they have not proposed any viable alternatives. Eliminating it in its entirety could increase the number of claims that are denied initially due to a lack of information or questions regarding compensability. Whereas, the current practice allows for at least some medical treatment despite these issues.
We anticipate the possibility that even more psych claims will arise in 2020. Even outside of the proposed legislation to give law enforcement officers and first responders benefits for Post-Traumatic Stress Disorder (PTSD), we are seeing more psychological claims being filed, including claims for depression, anxiety, and PTSD. These claims are either being filed on their own, or in conjunction with physical claims. Notably, the increase in psychological claims matches an overall increase in anxiety and depression in members of the general public over the last several years. This increase emphasizes the importance of obtaining complete pre-injury records, specifically primary care physician records, at the outset of the claim.
We will certainly be discussing extended benefits often in 2020. There have been no decisions on any of the total loss of wage earning capacity claims yet, but claimants injured shortly after the 2011 reform are now permitted to request a hearing on the issue.
As a refresher, for claims arising on or after June 24, 2011, the claimant may collect TTD benefits for a maximum of 500 weeks from the first date of disability. This includes periods of time where the claimant returns to work. That cap can be extended if the claimant can show extended disability under N.C.G.S. § 97-29(c). To show this, the claimant must request a hearing and present evidence supporting a total loss of wage earning capacity. The claimant is only eligible to request a hearing on this after 425 weeks from the first date of disability, which allows a 75 week period for litigation before the termination of benefits at the 500 week mark. In 2019 we started to see the first Form 33 Requests for Hearing on this issue. This is becoming a more frequent topic at mediation and could start to become incorporated into settlement demands. One thing to note on this issue is that defendants will be entitled to a credit for any Social Security retirement benefits, not Social Security disability, received by a claimant.
We believe the plaintiff’s bar is carefully vetting cases with the best factual issues to present to the IC and Court on the extended benefits issue. Similarly, defendants need to be very careful in deciding which cases to appeal. In light of the uncertainty regarding how courts will decide this issue, it is worthwhile to discuss the benefits of full and final settlement of long-term cases that have potential for extended benefits, in the event the case would not make for an ideal “test case.” This is the exact type of legal issue where “bad facts can make bad law” in a litigated setting. Whereas, in the area of settlement, we have the ability to control which cases make their way up the chain to the North Carolina Court of Appeals or North Carolina Supreme Court. Additionally, defendants should start preparing to present the best possible evidence to show a claimant has wage earning capacity after the 500 week benchmark to properly defend the against a request for extended benefits.