If a WC Claimant refuses medical treatment due to COVID-19 contamination fears, can benefits be cut off?

Under NC Law (NCGS 97-25(d)), Defendants cannot unilaterally suspend or terminate benefits if the claimant refuses medical treatment offered by Defendants. The statute provides:

The refusal of the employee to accept any medical compensation when ordered by the Industrial Commission shall bar the employee from further compensation until such refusal ceases, and no compensation shall at any time be paid for the period of suspension unless in the opinion of the Industrial Commission the circumstances justified the refusal. Any order issued by the Commission suspending compensation pursuant to G.S. §97-18.1 shall specify what action the employee should take to end the suspension and reinstate the compensation.

This means that if a claimant refuses medical treatments Defendants are offering, Defendants must first file a Motion to Compel Compliance with the NC Commission, asking the Commission to issue an Order compelling the claimant to comply and attend treatment. If the Commission issues such an Order, then Defendants should continue to offer the treatment and if the claimant continues to show non-compliance with treatment, Defendants can then file a Motion to Suspend Compensation (Form 24), arguing the non-compliance has continued after the Commission Order. The Commission has discretion to determine whether to issue the Order suspending benefits during the period of non-compliance. In so doing, it will consider the claimant’s arguments and ultimately decide if the refusal to attend treatments was justified.

There is some legal precedent for the Commission to consider the claimants “reasonable fear” for not returning to work at a specific job and the Commission may be willing to extend the same rationale to medical treatment due to COVID-19 fears. When we return to more normal business routines and social distancing and sheltering become less mandatory, Defendants will likely have stronger arguments to argue non-compliance issues with the Commission in this context.

If the claimant is currently out of work due to light-duty work restrictions, which the employer cannot accommodate due to either temporary or permanent closure of business, will the Defendants have to continue paying benefits?

The Defendant will have to continue paying benefits unless the NC Industrial Commission orders suspension or termination of benefits. Benefits cannot be unilaterally terminated. If Temporary Total Disability (TTD) benefits were being paid to the claimant, Defendants can argue to the Commission in a Form 24 Motion to Suspend/Terminate Compensation that light-duty work would have been offered but for the shutdown of operations due to COVID-19.

This argument would probably not be successful at the Commission without additional vocational evidence that other employment opportunities in the labor market (within a 50-mile radius of claimant’s residence) exist for claimant. Claimant’s light duty work restrictions create an impairment to wage earning capacity and, in order to have a reasonable chance of having the Commission grant a Form 24 Motion to Terminate Compensation, Defendants would have to present sufficient evidence that other suitable jobs exist in the surrounding labor market which claimant has a reasonable chance of obtaining. Again, the Commission has the sole discretion to rule on the Form 24 and Defendants will have to present sufficient vocational evidence to persuade the Commission to grant the Motion. In North Carolina, TTD payments can continue for up to 500 weeks from the date of first disability, subject to a possible extension of benefits beyond 500 weeks if the claimant petitions the Commission for extended benefits after 425 weeks of disability have passed.

If the claimant had actually been working for the employer in a light-duty job and, the business then closes either temporarily or permanently due to COVID-19, the Defendants do not have a duty to immediately start TTD payments when the claimant goes out of work. The burden is on the claimant to prove an entitlement to payment of TTD benefits, and they would need to show evidence of an unsuccessful job search, post-termination, which persuades the Commission the employee has been unable to find other work because of the injuries in the same or in any other employment. In these cases, a claimant may file a Form 23 Motion to Reinstate Payment of Compensation with the Commission and seek Commission approval of same to compel payment of TTD benefits.

If a claimant is released to full duty with no work restrictions, but cannot return to work (RTW) because his employer has ceased operations due to COVID-19, can Defendants terminate or suspend TTD benefits?

Defendants cannot unilaterally terminate or suspend TTD benefits and still must file a Form 24 seeking Commission approval to stop benefits. However, Defendants have a much stronger argument that the claimant’s ongoing inability to work has nothing to do with his original workplace injuries but instead is related solely to the economic situation of his employer having to close the business due to COVID-19. CSH Law has made similar arguments successfully to the Commission in similar cases where the claimant was released to RTW with no restrictions but the employer was no longer in business due to economic reasons.