REGULATORY ACTIVITY:

• On December 19, 2017, the Industrial Commission filed proposed rules for the utilization of opioids, related medications, and pain management treatment in workers’ compensation claims. The rules proposed for adoption are promulgated to ensure that injured workers are provided the services and care intended by the Workers’ Compensation Act and that medical costs are adequately contained.  “It is the Commission’s responsibility to ensure that injured workers receive reasonable and necessary care for their injuries.  As part of that responsibility, it is critical that the Commission take steps to identify best practices and adopt meaningful solutions to help address this crisis where possible,” stated Chairman Allen.  The proposed rules are intended to facilitate the timely and effective delivery of appropriate medical treatment for pain management in workers’ compensation claims. Notice of these rules will be published in the January 16, 2018 issue of the North Carolina Register. A public hearing is scheduled for March 2, 2018, and the Commission will accept written comments until March 19, 2018.  The earliest effective date of the proposed rules, if adopted by the Industrial Commission and approved by the Rules Review Commission, is May 1, 2018.  The proposed rules can be found on the Industrial Commission website at  www.ic.nc.gov/121917proposedopioidrules.pdf.  Any questions should be directed to Kendall Bourdon at kendall.bourdon@ic.nc.gov.

REGULATORY ACTIVITY:

• Consistent with current directives and recommendations as detailed below, as of June 1, 2020, mediations in Industrial Commission cases may be conducted either in-person or remotely by consent, though mediators have been advised by the Dispute Resolution Commission that mediations shall, to the fullest extent possible, be conducted remotely. In Industrial Commission cases where all parties have not consented to a remote mediation, any party may have the physical attendance requirement excused or modified by order of the Commission, pursuant to Rule 11 NCAC 23G .0104(b). The party seeking to have the physical attendance requirement excused or modified should file a motion pursuant to Rule 11 NCAC 23G .0104(b) and Rule 11 NCAC 23G .0111 and should address the motion to the Commission’s Dispute Resolution Coordinator, John Schafer. Current Directives and Recommendations: Chief Justice Beasley’s April 2, 2020 Order directed that all superior and district court proceedings be scheduled or rescheduled for a date no sooner than June 1, 2020, unless the proceeding is conducted remotely or unless another exception applies. The Dispute Resolution Commission thereafter advised that through May 31, 2020, mediations may be conducted remotely by consent; otherwise, the mediation should be scheduled or rescheduled for on or after June 1, 2020. On May 14, 2020, the Dispute Resolution Commission transmitted a memo to all certified mediators concerning the safety of mediators and other participants and the recommended procedures to follow as of June 1, 2020. The memo advised that as of June 1, 2020, mediations may be conducted in-person or remotely by consent. The memo further stated, “Mediations shall, to the fullest extent possible, be conducted remotely via video or teleconference.” Additionally, the memo stated, “Any mediation conducted in person shall be done in strict compliance with all executive orders and social distancing requirements. All parties to the mediation shall use appropriate social distancing practices and safety procedures.”  To view the above information, go to http://www.ic.nc.gov/index.html.
• The Industrial Commission intends to adopt a temporary rule amendment to Rule 11 NCAC 23G .0104. The Industrial Commission held a public hearing on this proposed temporary rule amendment, via teleconference only, on Thursday June 25, 2020 at 2 p.m. The Industrial Commission will accept written comments on the proposed temporary rule amendment from June 15, 2020 through July 8, 2020. Written comments may be sent to Gina Cammarano, Rulemaking Coordinator, via email at gina.cammarano@ic.nc.gov or via U.S. mail at 1240 Mail Service Center, Raleigh NC 27699-1240. Please note that emailing your written comments to Gina Cammarano is the preferred method at this time due to Industrial Commission staff working remotely, to the greatest extent possible, during the COVID-19 pandemic. To view this notice, go to http://www.ic.nc.gov/news.html#hot.

REGULATORY ACTIVITY:

• The Commission held the Public Hearing on the proposed amendments to 11 NCAC 23A.0108, .0109, .0302, 11 NCAC 23B .0104and .0105, and 11 NCAC 23L.0101, .0102, .0103, and .0105 on May 6, 2020. To view the transcript, go to http://www.ic.nc.gov/news.html#hot.
• Policies as of June 1, 2020 for Full Commission Hearings, Deputy Commissioner Medical Motion Hearings, and Executive Secretary’s Office Informal Hearings: Full Commission Hearings. Full Commission oral arguments scheduled in June 2020 will be conducted by teleconference. The Full Commission panel chair will provide the parties with a toll-free number and access code to dial into the conference call. Deputy Commissioner Medical Motion Hearings. Deputy Commissioner hearings on medical motions arising under G.S. §97-25(f) will be conducted in June 2020 with all parties appearing by teleconference, unless the Deputy Commissioner advises that the hearing will be conducted via WebEx videoconference(details regarding WebEx hearings will be provided in the near future). Based upon the parties’ stipulated facts and exhibits, the presiding Deputy Commissioner may excuse the parties from appearing at the G.S. §97-25(f) hearing if the parties and the Deputy Commissioner agree that no lay witnesses are needed to decide the case. If the parties are excused from appearing at the hearing because no lay witnesses are needed, the parties should proceed as usual with obtaining any expert medical testimony needed to close the record. Executive Secretary’s Office Informal Hearings. Consistent with normal operating procedures, the Executive Secretary’s Office will conduct informal hearings by teleconference. Deputy Commissioner Hearings (Non-Medical Motion Hearings) and Mediation: Policies as of June 1, 2020 will be Announced Shortly. Deputy Commissioner Hearings (Non-Medical Motion Hearings). On May 21, 2020, Chief Justice Beasley directed judicial officials to “make use of remote hearing technology to the greatest extent possible to limit in-person appearances.” In light of this Order, the Commission is developing hearing polices for June 2020 and future months that will be announced shortly. Mediation. The Dispute Resolution Commission is meeting on Thursday May 28, 2020, regarding remote attendance at mediation conferences during the COVID-19 pandemic. The Commission will adopt mediation policies that are consistent with the policies of the Dispute Resolution Commission. To view this notice, go to http://www.ic.nc.gov/news.html#hot.
• The Commission is pleased to announce that Deputy Commissioners will resume hearing all types of workers’ compensation cases in June 2020 through the use of WebEx technology. This policy is consistent with Chief Justice Cheri Beasley’s May 21, 2020 Order directing judicial officials to “make use of remote hearing technology to the greatest extent possible to limit in-person appearances” and will help prevent a future backlog of Deputy Commissioner cases. June 2020 Docket: For cases on the June 2020 docket where both parties are represented, the parties may jointly request a WebEx hearing by emailing the presiding Deputy Commissioner, and the Deputy Commissioner will make every effort to proceed with the WebEx hearing in June. If the Deputy Commissioner is unable to hold the WebEx hearing in June, the case will be set for a WebEx hearing in July or as soon as possible thereafter. Any case scheduled for June that is not heard via WebEx will be continued to be reset on a future docket. A Continuance Order will not be filed in each case, but the parties will be notified via email or U.S. mail (if email is not available) that the case has been continued. There will be no in-person hearings held in June unless otherwise ordered by the Commission. Note: The above applies to regular workers’ compensation hearings and NOT medical motion hearings arising under G.S. §97-25(f). For information regarding medical motion hearings, please see the prior announcement. July 2020 and Future Dockets: Beginning in July of 2020 and continuing until further notice, the Commission plans to docket all Deputy Commissioner hearings as WebEx hearings. If a party believes that a hearing should be held in-person while the State court system is under COVID-19 emergency directives, the party may file a motion for an in-person hearing with the presiding Deputy Commissioner. The moving party must show good cause as to why an in-person hearing should be allowed in light of the emergency directive to “make use of remote hearing technology to the greatest extent possible to limit in-person appearances.”  If a party believes that a case is neither appropriate for a WebEx hearing nor appropriate to be heard in-person at the present time, the party may file a motion to temporarily remove the case from the hearing docket with the presiding Deputy Commissioner. Consistent with existing Commission procedure, if the motion is granted, the case will be removed for an indefinite period of time, and it will not be necessary to file a new Form 33 to return the case to the hearing docket. Upon notification to the Clerk’s Office by the party requesting the temporary removal, the case will be set on the next available hearing docket. WebEx Hearing Requirements: The Commission will need an email address and phone number for each person who will participate in the WebEx hearing, including each witness who may be called to testify at the hearing. Each WebEx hearing participant will be sent a WebEx hearing invitation via email. The WebEx hearing can be joined by clicking on a link in the email. The only technological requirements for participation in a WebEx hearing are an email address, a computer or other device (such as a tablet or smart phone) equipped with a camera, and an internet connection. A free WebEx application is available to install on computers and other devices, but it is not necessary for participation. Hearing participants experiencing poor audio quality (or who have no microphone on their computer or other device) may establish an audio connection using a mobile phone or land line. Note: Regardless of how a participant connects for purposes of audio, the participant must appear by video, and therefore a computer or other device equipped with a camera is required.  To view this notice, go to http://www.ic.nc.gov/index.html.

REGULATORY ACTIVITY:

• In response to feedback from stakeholders, the Industrial Commission is now accepting all agreements that have been signed by one or more parties via DocuSign or a similar vendor that provides a graphic image of a signature placed on a document using secure software that verifies the identity of the user.
• In order to protect public health and safety by encouraging social distancing, and in light of Emergency Directive 5 contained in Chief Justice Beasley’s April 2, 2020 Order, the Industrial Commission has adopted the following policy, effective immediately and continuing until further notice: When it is required that any pleading, motion, petition, supporting affidavit, or other document of any kind to be filed at the Industrial Commission be verified, or that an oath be taken, it shall be sufficient if the subscriber affirms the truth of the matter to be verified by an affirmation or representation insubstantially the following language: “I(we) affirm, under the penalties for perjury, that the fore going representation(s) is(are) true. (Signed)_____________________.”
• Consistent with Chief Justice Beasley’s April 2, 2020 Order, all mediations held in Industrial Commission cases prior to June 1, 2020 shall be conducted with all parties appearing remotely or, in the alternative, be rescheduled for a date on or after June 1, 2020. If all parties do not consent to appear remotely, then the mediation must be rescheduled for a date on or after June 1, 2020.
• For the Commission to efficiently process forms and other filings while working remotely, it is essential that all filers comply with Rule 11NCAC 23A .0108 when filing forms and other documents. Represented parties and Insurance Carriers/TPAs/Self-Insured Employers are required to file forms and documents electronically via EDFP, with the following limited exceptions: 1.A Form 19 (in which case you are required to file the Form 19 via EDI, unless an exception listed in Paragraph (d) applies); 2.A form or document listed in Table 1 of 11 NCAC 23A .0108; or 3.A Notice of Appeal to the Court of Appeals. To view this notice and obtain additional information, go to http://www.ic.nc.gov/index.html.
• Based upon stakeholder feedback and effective immediately, extended compensation claims pursuant to G.S. 97-29(c) will be ordered into mediation under the same procedures that are applicable to other claims upon the filing of a Form 33 Request for Hearing.  To view this notice, go to http://www.ic.nc.gov/index.html
• Notice of Proposed Rulemaking- Proposed Amendments: 11 NCAC 23A .0108, .0109, and .0302; 11 NCAC 23B .0104 and .0105; 11 NCAC 23L .0101, .0102, .0103, and .0105. Please go to http://www.ic.nc.gov/efilingandotheramendments.html for the notice of proposed Industrial Commission Rulemaking published April 15, 2020 in the North Carolina Register (Volume 34, Issue 20). The Industrial Commission will accept written comments from April 15, 2020 through June 15, 2020. Written comments may be sent to Gina Cammarano, Rulemaking Coordinator, via e-mail at gina.cammarano@ic.nc.gov or via U.S. mail at 1240 Mail Service Center, Raleigh, NC 27699-1240. The Industrial Commission will hold a public hearing on the proposed rule amendments on May 6, 2020 at 2 p.m. Out of an abundance of caution and to address protective measures to help prevent the spread of COVID-19, the public hearing will be held via teleconference only instead of being held in person. The teleconference phone number is: 1-888-363-4735. The access code is: 4465746.
• Technical Amendments to Rules 11 NCAC 23E .0101 (Instructions for Filing a Petition for Rule-Making) and 11 NCAC 23E .0102 (Mailing List), Effective April 1, 2020 Pursuant to N.C. Gen. Stat. § 150B-21.5(a) (4), Rules 11 NCAC 23E .0101 (Instructions for Filing a Petition for Rule-Making) and 11 NCAC 23E .0102 (Mailing List) have been amended. The reason for these amendments was to correct the Mail Service Center address stated in these rules. Go to http://www.ic.nc.gov/news.html#hot  for a copy of amended Rule 11 NCAC 23E .0101. Go to http://www.ic.nc.gov/news.html#hot  for a copy of amended Rule 11 NCAC 23E .0102.
• Pursuant to N.C. Gen. Stat. § 150B-21.5(a), Rule 11 NCAC 23A .0619 (Foreign Language and Sign Language Interpreters) has been amended, effective April 1, 2020. The reason for this amendment is that the rule contained outdated information with regard to:
  • (1) the title of a publication of the Office of Administrative Courts;
  • (2) the section number of the Code contained in this publication of the Office of Administrative Courts; and
  • (3) the name of the Code contained in this publication of the Office of Administrative Courts.

Go to http://www.ic.nc.gov/news.html#hot for a copy of the amended Rule.

REGULATORY ACTIVITY:

• Governor Roy Cooper has nominated Wanda Blanche Taylor for appointment as a Commissioner to the North Carolina Industrial Commission for a six-year term, pending confirmation by the North Carolina General Assembly. Ms. Taylor is a native of Plymouth, North Carolina. She is a Fellow of the College of Workers’ Compensation Lawyers and received her Juris Doctor at the University Of North Carolina School Of Law at Chapel Hill and her undergraduate degree at Duke University. Currently, Ms. Taylor is the Director of Litigation/Counsel at Key Risk Insurance (a Berkley Company), and she also serves as a member of the North Carolina Board of Certified Public Accountant Examiners. Ms. Taylor is a former Chief Deputy Commissioner of the North Carolina Industrial Commission, where she served as an adjudicator for twenty years. She also has represented both employees and employers/insurers in private practice.
• In order to protect public health and safety, and in light of Chief Justice Beasley’s March 13, 2020 Order requiring local courts to postpone most cases in district and superior court for at least 30 days, the Industrial Commission has instituted the following policies for hearings, effective immediately and continuing until further notice. These policies apply to all hearings that are scheduled to take place on or after Monday, March 16, 2020:

Deputy Commissioner Hearings

With the exception of hearings on medical motions arising under G.S. §97-25(f), all Deputy Commissioner hearings scheduled to be heard in March or April of 2020 will be continued to be reset on the next available docket, unless the parties are notified otherwise. Deputy Commissioner Hearings on medical motions arising under G.S. §97-25(f), which are statutorily required to be held within 30 days of the filing of the motion or appeal, will not be continued. The Deputy Commissioner before whom the hearing is scheduled may, however, excuse the parties from appearing at the G.S. §97-25(f) hearing if the parties and the Deputy Commissioner agree that no lay witnesses are needed to decide the case, based on the parties’ stipulated facts and exhibits. If the parties are excused from appearing at the hearing because no lay witnesses are needed, the parties should proceed as usual with obtaining any expert medical testimony needed to close the record.

Full Commission Hearings

All Full Commission oral arguments will be conducted by conference call. The Full Commission panel chair will provide the parties with a toll-free number and access code to dial into the conference call. Consistent with the existing procedure, all oral arguments will continue to be recorded by a court reporter, with the exception of medical motion oral arguments made pursuant to 11 NCAC 23A .0609A(h).

Executive Secretary Hearings

Consistent with the existing procedure, all informal telephonic hearings conducted by the Executive Secretary’s Office will be by conference call.

Effective March 23, 2020, and continuing through the end of April 2020, the Commission’s COVID-19 procedure for medical motion hearings arising under G.S. §97-25(f) is amended as follows: All medical motion hearings before Deputy Commissioners shall be conducted with the parties appearing remotely. The presiding Deputy Commissioner will provide the parties a toll-free number and access code to dial into the remote hearing. Consistent with the existing procedures, hearing testimony will be recorded by a court reporter. Upon approval by the Deputy Commissioner, the parties will not be required to appear remotely if they stipulate that no lay witness testimony is necessary or agree to take any needed lay witness testimony by deposition. In such cases, the parties shall submit a Pre-Trial Agreement and a set of stipulated exhibits, and then proceed to take medical depositions. Parties are strongly encouraged to explore options to avoid the necessity of appearing remotely by stipulating to facts in the Pre-Trial Agreement and/or by agreeing to take any needed lay witness testimony by deposition.

• Industrial Commission Request to Attorneys Working Remotely

The Executive Secretary’s Office has been receiving a high volume of phone calls from legal assistants inquiring about the status of orders in cases where the orders already have been emailed to the attorneys. The Commission requests that attorneys working remotely please advise their assistants when orders are received. In the alternative, the Commission will transmit orders to both the attorney and the legal assistant if both email addresses are provided on the proposed order.

• COVID-19 Response: Industrial Commission Secure Leave Policy

The Industrial Commission recognizes that the COVID-19 pandemic will result in attorneys having to reschedule vacations, non-emergency medical procedures, and other plans for which secure leave was obtained. The rescheduled plans may then fall within the same calendar year for which three weeks of secure leave already has been granted and/or may not be known until less than 90 days before the requested secure leave period. Any attorney faced with this situation may file a motion under 11 NCAC 23E .0301 (Waiver of Rules) asking for a waiver or variance of the requirements or provisions of 11 NCAC 23E .0104 (Secure Leave Period for Attorneys). This motion should be filed in conjunction with the new secure leave written request.

• Industrial Commission Accepting Agreements Signed Via DocuSign

The Industrial Commission has received inquiries about allowing employees to sign agreements via DocuSign in order to encourage social distancing. Because DocuSign is widely used in the North Carolina legal community for agreements and other transactions, the Industrial Commission is accepting all agreements that have been signed by one or more parties via DocuSign. This includes, but is not limited to, Compromise Settlement Agreements, Form 26As and other Form agreements, and Consent Agreements.  An employee himself or herself must sign via DocuSign; an employee’s attorney cannot sign via DocuSign on behalf of an employee.

REGULATORY ACTIVITY:

• The Commission held the Public Hearing on the proposed adoption of 11 NCAC 23B .0106 and proposed amendments to 11 NCAC 23A.0104, .0408, .0409, 0501, .0903, 11 NCAC 23E .0104, and 11 NCAC 23L .0103 on January 30, 2020. To view this notice, go to http://www.ic.nc.gov/news.html#hot.
• The Form 33 Request for Hearing has been updated to allow a party to indicate that a claim for extended compensation is being filed pursuant to G.S. 97-29(c). In addition, a new document type, “Form 33- Request for Extended Compensation,” has been added to the EDFP menu. Claimants seeking a determination of entitlement to extended compensation prior to reaching the 500-week limitation should timely file a claim when eligible pursuant to G.S. 97-29(c). Given the statutory period between eligibility to file a claim for extended compensation and the 500-week limitation, parties will not be ordered into mediation when a claim for extended compensation is filed, and the claim will proceed to a hearing. However, parties are encouraged to mediate either before or after the hearing if the parties believe mediation may be fruitful in resolving the claim.   To view this notice, go to http://www.ic.nc.gov/news.html#hot.  To view the new form, go to http://www.ic.nc.gov/forms.html#claims.

FEE SCHEDULE NEWS:

• The state has published an update to their Professional, DME and Laboratory Fee Schedule with an effective date of January 1, 2020. The next expected update is in January 2021.

REGULATORY ACTIVITY:

• As of January 1, 2020, the IRS mileage rate for business travel is $0.575 per mile. This is the rate to be used for reimbursement for mileage incurred for medical treatment in workers' compensation cases. The updated Form 25T Itemized Statement of Charges for Travel reflects this change.
• Notice is hereby given in accordance with G.S. 150B-21.2 that the Industrial Commission intends to adopt the rule cited as 11 NCAC 23B .0106 and amend the rules cited as 11 NCAC 23A .0104, .0408, .0409, .0501, .0903; 23E .0104; and 23L .0103.  Proposed Effective Date:  June 1, 2020. Public Hearing: Date:  January 30, 2020 Time:  2:00 p.m. Location:  Room 240, 2nd Floor, Dept. of Insurance, Albemarle Bldg., 325 N. Salisbury St., Raleigh NC 27603. Reason for Proposed Action:  The Industrial Commission (hereinafter "Commission") has deemed the proposed adoption of the new rule cited as 11 NCAC 23B .0106 necessary to give clarity to the regulated entities in State tort claims regarding when notice is complete for decisions, orders, and other documents served on the regulated entities by the Commission via electronic mail. Additionally, on its own initiative, the Commission conducted an internal review of its existing rules and sought informal stakeholder feedback. The proposed amendments to the rules cited as 11 NCAC 23A.0104, .0408, .0409, .0501, and .0903 reflect changes the Commission has deemed necessary to clarify the rules, provide for increased efficiency, or update the rules to reflect current practices. The proposed amendment to the rule cited as 11 NCAC 23E .0104 was deemed necessary by the Commission to clarify and update its secure leave policy, to align the Commission's secure leave policy with the recent changes made to Rule 26 of the North Carolina Rules of General Practice, and to update the rule to reflect current practices. The proposed amendment to the rule cited as 11 NCAC 23L .0103 is a form change deemed necessary by the Commission in light of the proposed amendment to the rule cited as 11 NCAC 23A .0501. To view the notice, go to http://www.ic.nc.gov/proposedGroup3TortSecureLeaveand26ARules.html.

REGULATORY ACTIVITY:

• As part of the Commission’s commitment to investigating fraud by claimants and non insured employers under the Workers’ Compensation Act and investigating reports of employee misclassification under the Employee Fair Classification Act, and to improve compliance with statutory mandates, the Commission’s Employee Classification Section now operates under the newly formed Criminal Investigations & Employee Classification Division. This reorganization provides expanded resources to investigate allegations of employee misclassification.
• Pursuant to N.C. Gen. Stat. § 150B-21.5(a) (4), Rule 11 NCAC 23A .0406 (Discount rate to be used in determining commuted values) has been amended, effective October 1, 2019. The only amendment made to the Rule was an amendment to correctly reflect the Internal Revenue Service's website address for obtaining a copy of the Index of Applicable Federal Rate (AFR) Rulings. The correct website address, as reflected in the amended Rule, is https://apps.irs.gov/app/picklist/list/federalRates.html.
• The Industrial Commission is pleased to announce that Tim Frost will join the Commission as its Chief Information Officer (CIO). Mr. Frost graduated from North Carolina State University with a BA, majoring in Business Administration and minoring in Information Systems. Mr. Frost has over 20 years of IT experience in both the private and public sectors. For the last 13years, Mr. Frost has served the North Carolina Department of Transportation in multiple roles, including application development, project management, and data analytics and reporting. Mr. Frost is also a certified Project Management Professional (PMP).

REGULATORY ACTIVITY:

• North Carolina Industrial Commission is pleased to announce the appointment of Erin F. Taylor as a Deputy Commissioner. Ms. Taylor has an extensive background in workers’ compensation law, having practiced for over 20 years as a workers’ compensation attorney at the law firm of Cranfield, Sumner & Hertzog, LLP. Her areas of workers’ compensation expertise include asbestos-related claims and other occupational diseases. Ms. Taylor has been a frequent speaker at Continuing Legal Education seminars, where she has presented on a variety of workers’ compensation topics, including return to work issues, communications with medical providers, case law updates, and Medicare issues. She earned her J.D. from Campbell University School of Law, where she was an academic scholarship recipient. Ms. Taylor will be hearing cases assigned to the Charlotte Regional Office.
• The North Carolina Industrial Commission has established the maximum weekly benefit for 2020 pursuant to N.C. Gen. Stat. § 97-29. Effective January 1, 2020, the maximum weekly benefit applicable to all injuries and claims arising on and after January 1, 2020, shall be one thousand sixty-six dollars ($1,066.00).

REGULATORY ACTIVITY:

• Registration is now open for the 24th Annual North Carolina Workers' Compensation Educational Conference, which will take place at the Raleigh Convention Center on Wednesday-Friday, October 2-4, 2019. The conference is presented by the North Carolina Industrial Commission, in association with the International Workers' Compensation Federation.  For additional information, go to http://www.ic.nc.gov/news.html#hot.