November 3, 1994
Senator Fountain Odom Co-Chair, Chiropractic Care LRC ATTN: Stephen J. Schanz 545 Legislative Office Building Raleigh, North Carolina 27603
RE: Advisory Opinion; Employee Selection of Chiropractic Treatment in Workers’ Compensation Claim; N.C.G.S. § 90-157.1 and § 97-25
Dear Senator Odom:
You have requested our opinion on the following question:
"An employee of a state agency suffers a work-related injury. Employee wishes to consult a chiropractor regarding his injuries but is told by the employing agency that treating providers must be selected from a list provided by the agency. Such a list does not include chiropractors among the providers. Does N.C.G.S. § 90-157.1 or § 97-25 control in this situation?"
For reasons which follow, the employee may consult a chiropractor only if approved by the Industrial Commission, as provided in N.C.G.S. § 97-25.
N.C.G.S. § 90-157.1 provides:
"No agency of the State, county or municipality, nor any commission or clinic, nor any board administering relief, social security, health insurance or health service under the laws of the State of North Carolina shall deny to the recipients or beneficiaries of their aid or services the freedom to choose a duly licensed chiropractor as the provider of care or services which are within the scope of practice of the profession of chiropractic as defined in this Chapter."
N.C.G.S. § 97-25 provides:
"Medical compensation shall be provided by the employer. In case of a controversy arising between the employer and employee relative to the continuance of medical, surgical, hospital, or other treatment, the Industrial Commission may order such further treatments as may in the discretion of the Commission be necessary.
The Commission may at any time upon the request of an employee order a change of treatment and designate other treatment suggested by the injured employee subject to the approval of the Commission, 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 refusal of the employee to accept any medical, hospital, surgical or other treatment or rehabilitative procedure when ordered by the Industrial Commission shall bar said 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 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 such service shall be paid by the employer if so ordered by the
Industrial Commission.
Provided, however, if he so desires, an injured employee may select a physician of his own
choosing to attend, prescribe and assume the care and charge of his case, subject to the approval
of the Industrial Commission.”
In the situation set forth, the State employee has suffered a compensable injury pursuant to the
North Carolina Workers’ Compensation Act. N.C.G.S. §97-1, et. seq. The North Carolina
Industrial Commission has exclusive jurisdiction of the rights and remedies afforded in such
cases. Hedgepeth v. Lumbermen’s Mut. Cas. Co., 209 N.C. 45, 182 S.E.2d 704 (1935). It was the
purpose of the General Assembly that the Industrial Commission should have a continuing
jurisdiction of all proceedings begun before the Commission for compensation in accordance
with its terms. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.Ed.2d 477 (1985). Neither the
State nor the employee may reject the provisions of that Article relative to payment and
acceptance of compensation. N.C.G.S. §97-7.
If there is a conflict between the two statues set out above, it is our opinion that the provisions of
the Workers’ Compensation Act in N.C.G.S. § 97-25 must control.
Although N.C.G.S. § 97-25 provides that the employer provide medical compensation, it also
provides for the employee to select a physician of his own choosing subject to the approval of the
Industrial Commission and to request a change of medical treatment and to suggest other
treatment subject to the approval of the Industrial Commission. What treatment is appropriate for
a particular employee is a matter within the exclusive jurisdiction of the Industrial Commission.
North Carolina Chiropractic Ass’n. v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312
(1988). There is no question as to whether chiropractic treatment is or may be provided or
approved. This statute specifically allows an employee freedom to consult a chiropractor
regarding his injuries subject to approval.
Elisha H. Bunting, Jr.
Special Deputy Attorney General
Ann Reed
Senior Deputy Attorney General