Goodbye, Parsons Presumption

Written by: Robert J. McCune, Esq.

It is of course the plaintiff’s initial burden of proof to establish that their work-related accident caused compensable injuries. What happens when the plaintiff develops different injury claims arising from that same accident? In Parsons v. Pantry, Inc., 126 N. C. App. 540 (1997), our Court of Appeals determined that the burden was on the defendant to rebut causation as to the new injuries, where plaintiff had already established causation in a prior hearing. The reasoning was that “[t]o require plaintiff to re-prove causation each time she seeks treatment for the very injury that the Commission has previously determined to be the result of a compensable accident is unjust and violates our duty to interpret the Act in favor of injured employees.”It is of course the plaintiff’s initial burden of proof to establish that their work-related accident caused compensable injuries. What happens when the plaintiff develops different injury claims arising from that same accident? In Parsons v. Pantry, Inc., 126 N. C. App. 540 (1997), our Court of Appeals determined that the burden was on the defendant to rebut causation as to the new injuries, where plaintiff had already established causation in a prior hearing. The reasoning was that “[t]o require plaintiff to re-prove causation each time she seeks treatment for the very injury that the Commission has previously determined to be the result of a compensable accident is unjust and violates our duty to interpret the Act in favor of injured employees.”

Thus a rebuttable presumption was born in the plaintiff’s favor, holding that once a plaintiff has proven causation, or causation has been admitted, between the work-related accident and the claimed injuries, that the presumption thereafter at any hearing is that their new complaints were related to the compensable accident.

Thereafter another case, Wilkes v. City of Greenville, N.C. App., 777 S.E.2d 282 (2015) was decided, once again using the Parsons presumption to shift the burden of proof from the plaintiff to the defendant, regarding new complaints by the plaintiff following her initial award.  In Wilkes the defendant accepted plaintiff’s original claim as compensable, but described the injury as “MVA and had multiple injuries to ribs, neck, legs and entire left side.”  Thereafter plaintiff sought a hearing for work-related injuries including “depression, ringing in ears [tinnitus], memory loss, speech changes, dizziness, balance, etc.,” and that plaintiff was in need of further additional treatment, in the form of an evaluation by a neurosurgeon.  The Commission determined that the plaintiff met his burden as to the tinnitus, but did not meet his burden as to the depression. Upon plaintiff’s appeal, the Court of Appeals applied the Parsons presumption, and determined that it was up to the defendant to challenge the rebuttable presumption that these new and completely different injuries were not related to the original compensable injury.

The North Carolina Supreme Court took the case up on discretionary review at the request of the defendant, and addressed for the first time the Court of Appeals holding in Parsons and following cases. Unfortunately, the Supreme Court affirmed the Court of Appeals and the Parsons presumption in general.

Faced now with a final Supreme Court ruling solidifying the Parsons presumption for future cases, the North Carolina Workers’ Compensation defense bar went into action.

N.C. House Bill 26 (2017) was ratified on June 29, 2017, just 20 days after the North Carolina Supreme Court’s decision in Wilkes v. City of Greenville on June 9, 2017.  Governor Roy Cooper signed the Bill on July 20, 2017, and the Parsonspresumption was specifically done eliminated.  N.C.G.S. 97-82(b) now provides that an award of the Commission, either pursuant to agreement for compensation or “direct payment” (N.C.G.S. § 97-18(B) and (D)) “shall NOT create a presumption that medical treatment for an injury or condition not identified in the form prescribed by the Commission . . . is causally related to the compensable injury.  An employee may request a hearing pursuant to G.S. 97-84 to prove that an injury or condition is causally related to the compensable injury.”  Therefore the Parsons presumption is history, and pursuant to the new statute, if an injury was not previously identified as compensable, it must now be proven to be causally related by the plaintiff – not the defendant.

While plaintiff’s Workers’ Compensation attorneys will lament this new legislation, it is the defense’s position that this legislation simply puts the burden of proof where it belongs – on the plaintiff, when that plaintiff seeks compensation for new or different injuries than originally awarded or accepted by the defendant.