The proper application of the Parsons presumption, which many workers’ compensation practitioners understood afforded injured employees the benefit of a presumption of a causal relationship between the originally accepted injury (or injury previously determined to be compensable) and the need for additional treatment for the accepted/compensable injury, continues to create a good deal of appellate activity. As indicated in my previous blog, the North Carolina Court of Appeals appeared to expand the presumption in the decision of Wilkes v. City of Greenville, which rejected the argument that the Parsons presumption did not apply to injuries that were not initially accepted.
Since Wilkes, the North Carolina Court of Appeals has issued two unpublished decisions, which, inter alia, addressed the proper application of the Parsons presumption. In Edwards v. Reddy Ice, the North Carolina Court of Appeals ignored Wilkes, noted that “Parsons specified that its presumption applied only ‘for the very injury that the Commission has previously determined to be the result of a compensable accident,’” and rejected the employee’s argument that he did not have the burden of proof with respect to an injury different from the injury deemed to be compensable.
In Henderson v. The Goodyear Tire & Rubber Company, a different panel of theNorth Carolina Court of Appeals, inter alia, rejected the employee’s argument (based on Wilkes) that he was entitled to a presumption that additional medical treatment for all other alleged injuries arising out of the same accident were compensable because defendants had accepted liability for a “musculoskeletal low back injury” pursuant to a Form 60, and it affirmed the conclusion of the Commission that the Parsons presumption did not apply to injuries to body parts other than the admittedly compensable injury. In rejecting the employee’s argument, the North Carolina Court of Appeals concluded that the Wilkes decision was inapposite because it involved psychological symptoms alleged to have arisen out of admittedly compensable physical injuries, while the case at bar involved physical injuries alleged to have arisen from the accident that were distinct from injuries previously acknowledged to be caused by the workplace accident. Since the North Carolina Court of Appeals distinguished Wilkes, it refused to address whether Wilkes conflicted with the precedents established in its prior decisions in Parsons and Clark.
Although of no precedential effect, the foregoing decisions suggest that there is a limit to the Parsons presumption, but do not clarify the limits of the presumption. This will, no doubt, give rise to additional litigation on this issue. However, clarity may be on the way for workers’ compensation practitioners, as the North Carolina Supreme Court has recently granted the petition for discretionary review in Wilkes.
Concurrent Receipt of 97-29 and 97-31 benefits
In Stevens v. United States Cold Storage, Inc., in an unpublished decision the North Carolina Court of Appeals affirmed an award of both total and permanent disability benefits pursuant to N.C. Gen. Stat. Section 97-29 and scheduled benefits pursuant to N.C. Gen St. Section 97-31 where there was competent evidence that plaintiff sustained “permanent and complete loss of wage earning capacity due solely to his compensable psychological condition such that he will not be able to return to the same wages he earned prior to his injury by accident.”
This decision is notable because it goes against the general rule that stacking of benefits for the same injury period is prohibited. However, as a 30 (e) decision it does not have precedential value, and, when confronted with this issue, an argument should be made that it is limited to the facts of the case, which included multiple trips to the Court of Appeals.