A BILL TO BE ENTITLED
AN ACT protecting and putting north carolina back to work by reforming the workers' compensation act to (1) define "suitable employment" pertaining to an employee's return to work within restrictions or after reaching maximum improvement; (2) make  willful misrepresentations grounds for disqualification from receiving benefits; (3) provide that  parties may reach a separate contemporaneous  agreement to resolve issues not covered by the act; (4) clarify the rights and responsibilities of employers and employees regarding medical examinations, treatment, and access to medical information; (5) cap the duration of compensation for temporary total disability; (6) extend from three hundred to five hundred the number of weeks an injured employee is eligible to receive compensation for partial incapacity; (7) increase the death benefit and burial expense allowance; (8) reduce the industrial commission from seven to five members subject to legislative confirmation; (9) provide that commissioners and deputy commissioners are subject to the code of judicial standards; and (10) repeal the commission's full exemption from the administrative procedure act, thereby subjecting the commission to rule making pursuant to article 2a of chapter 150b of the general statutes and requiring the commission to readopt rules pursuant to that article.
The General Assembly of North Carolina enacts:
SECTION 1.  This act shall be known as the "Protecting and Putting North Carolina Back to Work Act."
SECTION 2.  G.S. 97‑2 is amended by adding a new subsection to read:
"§ 97‑2.  Definitions.
When used in this Article, unless the context otherwise requires:
…
(22)	Suitable employment. – The term "suitable employment" means any employment available that (i) prior to reaching maximum medical improvement is within the employee's work restrictions including rehabilitative employment approved by the employee's treating health care provider or (ii) after reaching maximum medical improvement is employment which the employee is capable of performing considering the employee's education, physical limitations due to the injury, vocational skills, and experience."
SECTION 3.  Article 1 of Chapter 97 of the General Statutes is amended by adding a new section to read:
"§ 97‑12.1.  Willful misrepresentation in applying for employment.
No compensation shall be allowed under this Article for injury by accident or occupational disease if the employer proves that (i) at the time of hire or in the course of entering into employment, (ii) at the time of receiving notice of the removal of conditions from a conditional offer of employment, or (iii) during the course of a post‑offer medical examination:
(1)	The employee knowingly and willfully made a false representation as to the employee's physical condition;
(2)	The employer relied upon one or more false representations by the employee, and the reliance was a substantial factor in the employer's decision to hire the employee; and
(3)	There was a causal connection between false representation by the employee and the injury or occupational disease."
SECTION 4.  G.S. 97‑17 is amended by adding a new subsection to read:
"(e)	Nothing in this section prevents the parties from reaching a separate contemporaneous agreement resolving issues not covered by this Article." 
SECTION 5.  G.S. 97‑25 reads as rewritten:
"§ 97‑25.  Medical treatment and supplies.
Medical compensation shall be provided by the employer. 
The Industrial Commission may at any time upon the request of an employee order a change of treatment or health care provider  and in such a case the expense thereof shall be borne by the employer upon the same terms and conditions as hereinbefore provided in this section for medical and surgical treatment and attendance. The Commission must find that any change in treatment or health care provider is based upon clear and convincing medical evidence. The Commission shall disregard any opinions of an unauthorized health care provider who evaluated, diagnosed, or treated the employee before the employee's request to change treatment or health care provider was filed with the Commission.
The refusal of the employee to accept any medical, hospital, surgical or other treatment or rehabilitative procedure when ordered by the Industrial Commission shall bar the employee from further compensation until the 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, in which case, the Industrial Commission may order a change in the medical or hospital service.
If in an emergency on account of the employer's failure to provide the medical or other care as herein specified a physician other than provided by the employer is called to treat the injured employee, the reasonable cost of the service shall be paid by the employer if so ordered by the Industrial Commission.
"
SECTION 6.  G.S. 97‑25.6 reads as rewritten:
"§ 97‑25.6.  Reasonable access to medical information.
(a)	It is the policy of this State that the parties have reasonable access to all medical records, reports, and information that are pertinent to and necessary for the fair and swift resolution of workers' compensation claims. Therefore, an employer is entitled, without the express authorization of the employee, to obtain medical records of the employee and communicate with an employee's health care providers if the requested medical records, reports, and information are:
(1)	Restricted to the particular evaluation, diagnosis, or treatment of the injury or disease for which compensation, including medical compensation, is sought;
(2)	Reasonably related to the injury or diseases for which the employee claims compensation; or
(3)	Related to an assessment of the employee's ability to return to work or perform suitable employment as a result of the particular injury or disease.
(b)	A party may communicate with the employee's health care providers by written and oral communication if the requesting party notifies the opposing party of the health care provider's response within 15 calendar days. The employer shall make every reasonable effort to limit unnecessary communication with the health care provider.
(c)	Upon motion by an employee or the health care provider from whom medical records, reports, or information are sought or upon its own motion, for good cause shown, the Commission may make any order which justice requires to protect an employee, health care provider, or other person from unreasonable annoyance, embarrassment, oppression, or undue burden or expense.
(d)	The provisions of this section shall not apply to communications concerning an independent medical evaluation for the purpose of expert testimony.
(e)	The Commission shall annually establish an appropriate medical fee to compensate health care providers for time spent communicating with the employer or representatives of the employee.
(f)	No cause of action shall arise and no health care provider shall incur any liability as a result of the release of medical records, reports, or information pursuant to this Article.
(g)	Any medical records or reports that reflect evaluation, diagnosis, or treatment of the particular injury or disease for which compensation is sought or is reasonably related to the injury or disease for which the employee seeks compensation shall be furnished by the employee to the employer when requested in writing by the employer.
(h)	For purposes of this section, the term "employer" means the employer, the employer's attorney, and the employer's insurance carrier or third‑party administrator, and the term "employee" means the employee, legally appointed guardian, or any attorney representing the employee.(i)	Notwithstanding any provision of G.S. 8‑53 to the contrary, and because discovery is limited under G.S. 97‑80,  records obtained and communications conducted pursuant to this section supersede the prohibition against ex parte communications, and privacy of medical records in the custody of health care providers in matters or proceedings under this Article.
"
SECTION 7.  G.S. 97‑27 reads as rewritten:
"§ 97‑27.  Medical examination; facts not privileged; refusal to be examined suspends compensation; other medical opinions; autopsy.
(a)	After an injury, and so long as the employee claims compensation, the employee, if so requested by his or her employer or ordered by the Industrial Commission, shall, subject to the provisions of subsection (b), submit to an independent medical examination, at reasonable times and places, by a  physician who is licensed and practicing in North Carolina and is designated and paid by the employer or the IndustrialCommission, even if the employee's claim has been denied pursuant to G.S. 97‑18(c).
(b)	The injured employee has the right to have present at the independent medical examination any physician provided and paid by the employee.
(c)	Notwithstanding the provisions of G.S. 8‑53, no fact communicated to or otherwise learned by any physician who may have attended or examined the employee, or who may have been present at any examination, shall be privileged in any workers' compensation case with respect to a claim pending for hearing before the Industrial Commission.
(d)	If the employee refuses to submit to or in any way obstructs the examination requested by and provided for by the employer, the employee's right to compensation and right to take or prosecute any proceedings under this Article shall be suspended immediately until the refusal or objection ceases, and no compensation shall at any time be payable for the period of obstruction, unless in the opinion of the Industrial Commission the circumstances justify the refusal or obstruction. 	
(e)	In any case arising under this Article in which the employee is dissatisfied with the percentage of permanent disability as provided by G.S. 97‑31 and determined by the authorized health care provider, the employee is entitled to another opinion solely on the issue of the percentage of permanent disability provided by a duly qualified physician of the employee's choosing who is licensed and practicing in North Carolina and designated by the employee. That physician is paid by the employer in the same manner as health care providers designated by the employer or the Industrial Commission are paid. The Industrial Commission shall disregard any opinions of the duly qualified physician chosen by the employee other than the physician's opinion on the percentage of permanent disability as described in G.S. 97‑31. No fact communicated to or otherwise learned by any physician who may have attended or examined the employee, or who may have been present at any examination, shall be privileged, either in hearings provided for by this Article or any action at law.
(f)	The employer, or the Industrial Commission, has the right in any case of death to require an autopsy at its expense."
SECTION 8.  G.S. 97‑29 reads as rewritten:
"§ 97‑29.  Rates and duration of compensation for total incapacity.
(a)	Where the incapacity for work resulting from the injury or occupational disease is total, the employer shall pay or cause to be paid, as hereinafter provided, to the injured employee during such total disability a weekly compensation equal to sixty‑six and two‑thirds percent (662/3%) of his average weekly wages, but not more than the amount established annually to be effective October 1 as provided herein, nor less than thirty dollars ($30.00) per week.(b)	In cases of temporary total disability, compensation, including medical compensation, shall be paid for by the employer but in no case shall the period covered by the compensation be greater than 500 weeks from the date of the injury, except as provided by subsection (c) of this section. Where an employee can show both a disability pursuant to this section or G.S. 97‑30 and a specific physical impairment pursuant to G.S. 97‑31, regardless of whether the employee sustained multiple scheduled injuries as a result of the accident, the employee may not collect benefits pursuant to both this section or G.S. 97‑30 and G.S. 97‑31 after reaching  maximum medical improvement, but rather is entitled to select the statutory compensation which provides the more favorable remedy.
(c)	In cases of total and permanent disability compensation, compensation including medical compensation, shall be paid for by the employer during the lifetime of the injured employee. If death results from the injury or occupational disease, then the employer shall pay compensation in accordance with the provisions of G.S. 97‑37. An injured employee is presumed to be totally and permanently disabled and qualified for lifetime compensation only if the injured employee has an injury consisting of one or more of the following:
(1)	The loss of both hands, both arms, both feet, both legs, or both eyes as provided by G.S. 97‑31(17).
(2)	Spinal injury involving severe paralysis of both arms, both legs, or the trunk.
(3)	Severe brain or closed‑head injury as evidenced by severe and permanent:
a.	Sensory or motor disturbances;
b.	Communication disturbances;
c.	Complex integrated disturbances of cerebral function; or
d.	Neurological disorders.
(4)	Second‑degree or third‑degree burns of thirty‑three percent (33%) or more of the total body surface unless the employer shows that the employee is capable of returning to suitable employment as defined in G.S. 97‑2(22).
(d)	The weekly compensation payment for members of the North Carolina National Guard and the North Carolina State Defense Militia shall be the maximum amount established annually in accordance with the last paragraph of this section per week as fixed herein. The weekly compensation payment for deputy sheriffs, or those acting in the capacity of deputy sheriffs, who serve upon a fee basis, shall be thirty dollars ($30.00) a week as fixed herein.
(e)	An officer or member of the State Highway Patrol shall not be awarded any weekly compensation under the provisions of this section for the first two years of any incapacity resulting from an injury by accident arising out of and in the course of the performance by him of his official duties if, during such incapacity, he continues to be an officer or member of the State Highway Patrol, but he shall be awarded any other benefits to which he may be entitled under the provisions of this Article.
(f)	Notwithstanding any other provision of this Article, on July 1 of each year, a maximum weekly benefit amount shall be computed. The amount of this maximum weekly benefit shall be derived by obtaining the average weekly insured wage in accordance with G.S. 96‑8(22), by multiplying such average weekly insured wage by 1.10, and by rounding such figure to its nearest multiple of two dollars ($2.00), and this said maximum weekly benefit shall be applicable to all injuries and claims arising on and after January 1 following such computation. Such maximum weekly benefit shall apply to all provisions of this Chapter and shall be adjusted July 1 and effective January 1 of each year as herein provided."
SECTION 9.  G.S. 97‑30 reads as rewritten:
"§ 97‑30.  Partial incapacity.
Except as otherwise provided in G.S. 97‑31, where the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such disability, a weekly compensation equal to sixty‑six and two‑thirds percent (66 2/3%) of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than the amount established annually to be effective October 1 as provided in G.S. 97‑29 a week, and in no case shall the period covered by such compensation be greater than 500 weeks from the date of injury. In case the partial disability begins after a period of total disability, the latter period shall be deducted from the maximum period herein allowed for partial disability. An officer or member of the State Highway Patrol shall not be awarded any weekly compensation under the provisions of this section for the first two years of any incapacity resulting from an injury by accident arising out of and in the course of the performance by him of his official duties if, during such incapacity, he continues to be an officer or member of the State Highway Patrol, but he shall be awarded any other benefits to which he may be entitled under the provisions of this Article."
SECTION 10.  G.S. 97‑32 reads as rewritten:
"§ 97‑32.  Refusal of injured employee to accept suitable employment as suspending compensation.
If an injured employee refuses suitable employment as defined by G.S. 97‑2(22), the employee shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified. Nothing in this Article prohibits an employer from contacting the employee directly about returning to suitable employment."
SECTION 11.  G.S. 97‑38 reads as rewritten:
"§ 97‑38.  Where death results proximately from compensable injury or occupational disease; dependents; burial expenses; compensation to aliens; election by partial dependents.
If death results proximately from a compensable injury or occupational disease and within six years thereafter, or within two years of the final determination of disability, whichever is later, the employer shall pay or cause to be paid, subject to the provisions of other sections of this Article, weekly payments of compensation equal to sixty‑six and two‑thirds percent (66 2/3%) of the average weekly wages of the deceased employee at the time of the accident, but not more than the amount established annually to be effective October 1 as provided in G.S. 97‑29, nor less than thirty dollars ($30.00), per week, and burial expenses not exceeding ten thousand dollars ($10,000), to the person or persons entitled thereto as follows:
…
(3)	If there is no person wholly dependent, and the person or all persons partially dependent is or are within the classes of persons defined as "next of kin" in G.S. 97‑40, whether or not such persons or such classes of persons are of kin to the deceased employee in equal degree, and all so elect, he or they may take, share and share alike, the commuted value of the amount provided for whole dependents in (1) above instead of the proportional payment provided for partial dependents in (2) above; provided, that the election herein provided may be exercised on behalf of any infant partial dependent by a duly qualified guardian; provided, further, that the Industrial Commission may, in its discretion, permit a parent or person standing in loco parentis to such infant to exercise such option in its behalf, the award to be payable only to a duly qualified guardian except as in this Article otherwise provided; and provided, further, that if such election is exercised by or on behalf of more than one person, then they shall take the commuted amount in equal shares.
When weekly payments have been made to an injured employee before his death, the compensation to dependents shall begin from the date of the last of such payments. Compensation payments due on account of death shall be paid for a period of 500 weeks from the date of the death of the employee; provided, however, after said 500‑week period in case of a widow or widower who is unable to support herself or himself because of physical or mental disability as of the date of death of the employee, compensation payments shall continue during her or his lifetime or until remarriage and compensation payments due a dependent child shall be continued until such child reaches the age of 18.
Compensation payable under this Article to aliens not residents (or about to become nonresidents) of the United States or Canada, shall be the same in amounts as provided for residents, except that dependents in any foreign country except Canada shall be limited to surviving spouse and child or children, or if there be no surviving spouse or child or children, to the surviving father or mother."
SECTION 12.  G.S. 97‑77(a) reads as rewritten:
"(a)	There is hereby created a commission to be known as the North Carolina Industrial Commission, consisting of five commissioners who shall devote their entire time to the duties of the Commission. The Governor shall appoint the members of the Commission for terms of six years. Two commissioners shall be persons who, on account of their previous vocations, employment or affiliations, can be classed as representatives of employers. Two commissioners shall be persons who, on account of their previous vocations, employment or affiliations, can be classed as representatives of employees. No person may serve more than two terms on the Commission. Service for any part of a term counts as a term. For the purpose of this paragraph, service prior to its effective date shall be counted in the calculation."
SECTION 13.  G.S. 97‑77 is amended by adding a new subsection to read:
"(a1)	Appointments of commissioners are subject to confirmation by the General Assembly by joint resolution. The names of commissioners to be appointed by the Governor shall be submitted by the Governor to the General Assembly for confirmation by the General Assembly on or before March 1 of the year of expiration of the term. If the Governor fails to timely submit nominations, the General Assembly shall appoint to fill the succeeding term upon the joint recommendation of the President Pro Tempore of the Senate and the Speaker of the House of Representatives in accordance with G.S. 120‑121 not inconsistent with this section.
In case of death, incapacity, resignation, or vacancy for any other reason in the office of any commissioner prior to the expiration of the term of office, a nomination to fill the vacancy for the remainder of the unexpired term shall be submitted by the Governor within four weeks after the vacancy arises to the General Assembly for confirmation by the General Assembly. If the Governor fails to timely nominate a person to fill the vacancy, the General Assembly shall appoint to fill the remainder of the unexpired term upon the joint recommendation of the President Pro Tempore of the Senate and the Speaker of the House of Representatives in accordance with G.S. 120‑121 not inconsistent with this section. If a vacancy arises or exists pursuant to this subsection when the General Assembly is not in session, and the appointment is deemed urgent by the Governor, the commissioner may be appointed and serve on an interim basis pending confirmation by the General Assembly. For the purpose of this subsection, the General Assembly is not in session only (i) prior to convening of the Regular Session,  (ii) during any adjournment of the Regular Session for more than 10 days, and (iii) after sine die adjournment of the Regular Session.
No person while in office as a commissioner may be nominated or appointed on an interim basis to fill the remainder of an unexpired term, or to a full term that commences prior to the expiration of the term that the commissioner is serving."
SECTION 14.  Article 1 of Chapter 97 of the General Statutes is amended by adding a new section to read:
"§ 97‑78.1.  Standards of judicial conduct to apply to commissioners and deputy commissioners.
The standards of judicial conduct provided for judges in Article 30 of Chapter 7A of the General Statutes shall apply to commissioners and deputy commissioners. Commissioners and deputy commissioners shall be liable to impeachment for the causes and in the manner provided for judges of the General Court of Justice in Chapter 123 of the General Statutes. Commissioners and deputy commissioners shall not engage in any other employment, business, profession, or vocation while in office."
SECTION 15.  G.S. 97‑80(a) reads as rewritten:
"(a)	The Commission shall adopt rules, in accordance with Article 2A of Chapter 150B of the General Statutes and not inconsistent with this Article, for carrying out the provisions of this Article. 
."
SECTION 16.  G.S. 97‑84 reads as rewritten:
"§ 97‑84.  Determination of disputes by Commission or deputy.
The Commission or any of its members shall hear the parties at issue and their representatives and witnesses, and shall determine the dispute in a summary manner. The Commission shall decide the case and issue findings of fact based upon the preponderance of the evidence in view of the entire record. The award, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue shall be filed with the record of the proceedings, within 180 days of the close of the hearing record unless time is extended for good cause by the Commission, and a copy of the award shall immediately be sent to the parties in dispute. The parties may be heard by a deputy, in which event the hearing shall be conducted in the same way and manner prescribed for hearings which are conducted by a member of the Industrial Commission, and said deputy shall proceed to a complete determination of the matters in dispute, file his written opinion within 180 days of the close of the hearing record unless time is extended for good cause by the Commission, and the deputy shall cause to be issued an award pursuant to such determination."
SECTION 17.(a)  G.S. 150B‑1(c) reads as rewritten:
"(c)	Full Exemptions. – This Chapter applies to every agency except:
(1)	The North Carolina National Guard in exercising its court‑martial jurisdiction.
(2)	The Department of Health and Human Services in exercising its authority over the Camp Butner reservation granted in Article 6 of Chapter 122C of the General Statutes.
(3)	The Utilities Commission.
	
(5)	The Employment Security Commission.
(6)	The State Board of Elections in administering the HAVA Administrative Complaint Procedure of Article 8A of Chapter 163 of the General Statutes.
(7)	The North Carolina State Lottery.
(8)	(Expires June 30, 2012) Except as provided in G.S. 150B‑21.1B, any agency with respect to contracts, disputes, protests, and/or claims arising out of or relating to the implementation of the American Recovery and Reinvestment Act of 2009 (Public Law 111‑5)."
SECTION 17.(b)  G.S. 150B‑(1)(e) is amended by adding a new subdivision to read:
"(e)	Exemptions From Contested Case Provisions. – The contested case provisions of this Chapter apply to all agencies and all proceedings not expressly exempted from the Chapter. The contested case provisions of this Chapter do not apply to the following:
…
(18)	The Industrial Commission."
SECTION 17.(c)  The Industrial Commission shall adopt all rules contained in Title 4 of Chapter 10 of the North Carolina Administrative Code as of the effective date of this act in accordance with Article 2A of Chapter 150B of the General Statutes. Any existing rule that has not been readopted by  December 31, 2012, shall expire.
SECTION 17.(d)  This section becomes effective May 1, 2011, and applies to claims filed and to rule making commenced on or after that date.
SECTION 18.  As of February 1, 2011, the terms of the seven members of the Industrial Commission are as follows:
(1)	One serves a term expiring April 30, 2011.
(2)	Two serve terms expiring June 30, 2012.
(3)	One serves a term expiring April 30, 2013.
(4)	One serves a term expiring June 30, 2014.
(5)	One serves a term expiring April 30, 2015.
(6)	One serves a term expiring June 30, 2016. 
The reduction from seven commissioners to five commissioners provided by Section 9 of this act is effective by not filling the two offices that expire June 30, 2012, pursuant to subdivision (2) of this section. The reduction from three commissioners to two in the employee and employer categories of qualification and the qualifications of the fifth commissioner as provided by G.S. 97‑77(a) become effective July 1, 2012.
SECTION 19.  This act is effective when it becomes law, with Sections 4, 5, 6, and 7 applying as to claims pending on or after that date. Sections 2, 3, 8, 9, 10, 11, and 16 of this act become effective July 1, 2011, and apply to claims arising on or after that date.