Motions to Preserve – Primer and Practical Tips

By: Bryan L. Cantley

In our last blog post, we discussed the affirmative defense of intoxication under N.C. Gen. Stat. § 97-12.  In this blog post, we will discuss the most effective way for proving intoxication—Motions to Preserve—and helpful practice tips for such Motions.

What is a Motion to Preserve?

A Motion to Preserve is an administrative Motion filed with the Executive Secretary of the North Carolina Industrial Commission seeking an Order directing a health care provider to preserve blood, urine, or serum samples taken from an injured worker upon admission shortly following his or her injury.  The Motion typically states the date of injury, where the injured worker is treating (usually a hospital), and requests an Order directing the hospital to preserve samples and send them to a private lab for testing.

Procedure for Motions to Preserve

If you have reason to believe the injured worker was impaired at the time of his or her injury, the first and most important step to take in preserving samples, even prior to filing the Motion to Preserve, is to contact the hospital’s risk management department or lab.  Let the hospital’s point of contact know that a Motion to Preserve will be filed with the Industrial Commission and request that they do not discard any samples taken from the injured worker.  Be sure to tell them that once the Order is received, you will forward it to the point of contact with instructions on where to send the samples.  This important first step can be taken by the insurance adjuster, a nurse case manager assigned to the file, or one of our experienced workers’ compensation attorneys.

In our experience, we have found that most hospitals discard samples within 48 hours.  Therefore, time is of the essence when it comes to notifying the hospital of your intention to file a Motion to Preserve and requesting that they do not discard the samples.  If possible, contact the hospital on the day the claimant is admitted.

The next step is preparing and filing the Motion.  You will need an attorney to file the Motion.  Lewis & Roberts routinely handles Motions to Preserve and can typically have one filed on the same business day.  The Executive Secretary’s office usually grants Motions to Preserve within 24 hours.  Once the Order granting the Motion is obtained, contact the hospital to let them know the Motion has been granted, and the Order will be sent along with instructions on how to send the samples to the lab.

After the Order is obtained, a letter enclosing the Order, as well as chain of custody forms and instructions, will need to be sent to the hospital.  We also typically send a prepaid FedEx airbill to make the hospital’s job of sending the samples out as easy as possible.

The samples will need to be sent to an accredited lab for testing with directions for which tests you would like to be performed.  Depending on the lab, results typically come in within a week or two.  At that point, you have taken an important step in establishing your affirmative defense of intoxication under N.C. Gen. Stat. § 97-12!

Helpful Practice Tips

• Again, time is of the essence. Contacting the hospital on the date the claimant is admitted is the most important aspect of preserving samples and filing a Motion to Preserve. The adjuster or one of our attorneys can establish contact with the hospital early on. Alternatively, assigning a nurse case manager familiar with the hospital to take care of this important step could be helpful in certain situations.

• Be sure that the hospital preserves a sufficient amount of blood for the tests to be conducted by the lab. Ask the hospital how much was preserved, and if the sample is insufficient, ask them to take more if possible. Instructions from the lab should specify the sample amount required for testing.

• A common misconception is that an Industrial Commission file number is required to file the Motion, and that the adjuster should wait until one is assigned before referring the file to an attorney. This is not the case. In fact, the Executive Secretary’s office will grant a Motion to Preserve filed under “I.C. File No. TBA.”

• If you have any questions about Motions to Preserve, please contact one of our experienced workers’ compensation attorneys.

  Answer: Just-ICE (😂🧊)