11 NCAC 23A .0609A      Medical Motions and Emergency Medical Motions

(a)  Medical motions brought pursuant to G.S. 97-25 and responses thereto shall be brought before either the Office of the Chief Deputy Commissioner or the Executive Secretary and shall be submitted in accordance with Rule .0108 of this Subchapter. For parties to whom the electronic filing requirements of Rule .0108(b) of this Subchapter apply, motions, responses, and notices of appeal shall be submitted under the EDFP category "Medical Motions and Responses." The submitting party shall contemporaneously serve a copy of the filing to the opposing party or opposing party's counsel, if represented.

(b)  In addition to any notice of representation contained in a medical motion or response, an attorney who is retained by a party to prosecute or defend a medical motion or appeal before the Commission shall file a notice of representation in accordance with Rule .0108 of this Subchapter and send a copy of the notice to all other counsel and all unrepresented parties involved in the proceeding.

(c)  Motions submitted pursuant to G.S. 97-25 and requesting medical relief other than emergency relief shall contain the following:

(1)           a designation as a "Medical Motion" brought pursuant to G.S. 97-25 and a statement directly underneath the case caption clearly indicating the request is for either an administrative ruling by the Executive Secretary or an expedited full evidentiary hearing before a Deputy Commissioner;

(2)           a statement of the treatment or relief requested;

(3)           a statement of the medical diagnosis of the employee and the name of any health care provider having made a diagnosis or treatment recommendation that is the basis for the motion;

(4)           a statement as to whether the claim has been admitted on a Form 60, Employer's Admission of Employee's Right to Compensation, Form 63, Notice to Employee of Payment of Compensation without Prejudice (G.S. 97-18(d)) or Payment of Medical Benefits Only without Prejudice (G.S. 97-2(19) & 97-25), Form 21, Agreement for Compensation for Disability, or is subject to a prior Commission Opinion and Award or Order finding compensability, with supporting documentation attached;

(5)           a statement of the time-sensitive nature of the request, if any;

(6)           an explanation of opinions known and in the possession of the movant by any relevant experts, independent medical examiners, and second opinion examiners;

(7)           if the motion requests a second opinion examination pursuant to G.S. 97-25, the motion shall specify whether the employee has made a prior written request to the defendants for the examination, as well as the date of the request and the date of the denial, if any;

(8)           a representation that informal means of resolving the issue have been attempted in good faith, and a statement of the opposing party's position or that there has been a reasonable attempt to contact the opposing party and ascertain its position; and

(9)           a proposed Order in Microsoft Word format, in accordance with Rule .0609 of this Section.

(d)  Motions submitted pursuant to G.S. 97-25 and requesting emergency medical relief shall contain the following:

(1)           a boldface or otherwise emphasized designation as "Emergency Medical Motion";

(2)           if the employee is unrepresented, the employee's telephone number and, if available, the employee's email address and fax number;

(3)           the adjuster's name, email address, telephone number, and fax number if counsel for the employer/carrier has not been retained;

(4)           an explanation of the medical diagnosis and treatment recommendation of the health care provider that requires emergency attention;

(5)           a statement of the need for a shortened time period for review, including relevant dates and the potential for adverse consequences if the recommended relief is not provided emergently;

(6)           an explanation of opinions known and in the possession of the movant by any relevant experts, independent medical examiner, and second opinion examiners;

(7)           a representation that informal means of resolving the issue have been attempted in good faith, and a statement of the opposing party's position or that there has been a reasonable attempt to contact the opposing party and ascertain its position;

(8)           documents known and in the possession of the movant relevant to the request, including relevant medical records; and

(9)           a proposed Order in Microsoft Word format, in accordance with Rule .0609 of this Section.

(e)  Upon receipt of an emergency medical motion, the non-moving party(ies) shall be advised by the Commission of any time allowed for response and whether informal telephonic oral argument is necessary. The Commission shall consider the interests of justice or judicial economy when determining the time allowed for response and whether informal telephonic oral argument is necessary.

(f)  A party may appeal an Order of the Executive Secretary on a motion brought pursuant to G.S. 97-25(f)(1) or receipt of a ruling on a motion to reconsider filed pursuant to Rule .0702(b) of this Subchapter by filing notice of appeal in accordance with Rule .0108 of this Subchapter within 15 calendar days of receipt of the Order. Notices of appeal shall be submitted via EDFP under the category "Medical Motions and Responses." A letter or motion expressing an intent to appeal a decision of the Executive Secretary shall be considered a request for an expedited hearing pursuant to G.S. 97-25 and G.S. 97-84. The letter or motion shall specifically identify the Order from which the appeal is taken and shall indicate that the appeal is from an administrative Order by the Executive Secretary entered pursuant to G.S. 97-25(f)(1). After receipt of a notice of appeal, the appeal shall be assigned to a Deputy Commissioner and an Order under the name of the Deputy Commissioner to which the appeal is assigned shall be issued within five days of receipt of the notice of appeal.

(g)  Depositions, if requested by the parties or ordered by the Deputy Commissioner, shall be taken in accordance with Rule .0612 of this Section and on the Deputy Commissioner's order pursuant to G.S. 97-25. In full evidentiary hearings conducted by a Deputy Commissioner pursuant to G.S. 97-25(f)(1) and (f)(2), depositions shall be completed and all transcripts, briefs, and proposed Opinion and Awards filed with the Deputy Commissioner in accordance with Rule .0108 of this Subchapter within 60 days of the filing of the motion or appeal. The Deputy Commissioner may reduce or enlarge the timeframe contained in this Paragraph for good cause shown or upon agreement of the parties.

(h)  A party may appeal the decision of a Deputy Commissioner filed pursuant to G.S. 97-25(f)(2) by filing notice of appeal to the Full Commission within 15 calendar days of receipt of the decision in accordance with Rule .0108 of this Subchapter. A letter expressing an intent to appeal a Deputy Commissioner's decision filed pursuant to G.S. 97-25 shall be considered notice of appeal to the Full Commission, provided that the letter specifically identifies the decision from which appeal is taken and indicates that the appeal is taken from a decision by a Deputy Commissioner pursuant to G.S. 97-25(f)(2). After receipt of notice of appeal, the appeal shall be acknowledged by the Commission within three days by sending an Order under the name of the Chair of the Panel to which the appeal is assigned. The Order shall set the schedule for filing briefs. A Full Commission hearing on an appeal of a medical motion filed pursuant to G.S. 97-25 shall be held telephonically and shall not be recorded unless unusual circumstances arise and the Commission so orders. All correspondence, briefs, and motions related to the appeal shall be addressed to the Chair of the Panel and shall be filed in accordance with Rule .0108 of this Subchapter.

(i)  A party may appeal the administrative decision of the Chief Deputy Commissioner or the Chief Deputy Commissioner's designee filed pursuant to G.S. 97-25(f)(3) by filing notice of appeal electronically in accordance with Rule .0108 of this Subchapter within 15 calendar days of receipt of the Order. A letter or motion expressing an intent to appeal the Chief Deputy Commissioner's or the Chief Deputy Commissioner's designee's Order filed pursuant to G.S. 97-25(f)(3) shall be considered a notice of appeal, provided that the letter specifically identifies the Order from which appeal is taken and indicates that the appeal is from an Order of a Deputy Commissioner entered pursuant to G.S. 97-25(f)(3). After receipt of notice of appeal, the appeal shall be acknowledged within five days by sending an Order under the name of the Deputy Commissioner to whom the appeal is assigned. The appeal of the administrative decision of the Chief Deputy Commissioner or the Chief Deputy Commissioner's designee shall be subject to G.S. 97‑25(f)(2) and G.S 97‑84.

History Note:        Authority G.S. 97-25; 97-78(f)(2); 97-78(g)(2); 97-80(a); S.L. 2014-77;

Eff. January 1, 2011;

Amended Eff. February 1, 2016; November 1, 2014;

Recodified from 04 NCAC 10A .0609A Eff. June 1, 2018;

Amended Eff. December 1, 2018.