Can an injured worker receive benefits past the 500-week cap in North Carolina? If your first answer was no, then you have come to the right place!
In North Carolina, like many other states, there is a limit as to how long an injured worker can receive benefits, which is a maximum of 500 weeks. However, certain circumstances may warrant an extension of these benefits. Within this article we will explore the circumstances under which extended compensation may be granted in North Carolina.
According to N.C. Gen. Stat § 97-29(c), “An employee may qualify for extended compensation in excess of the 500-week limitation on temporary total disability as described in subsection (b) of this section only if (i) at the time the employee makes application to the Commission to exceed the 500-week limitation on temporary total disability as described in subsection (b) of this section, 425 weeks have passed since the date of first disability and (ii) pursuant to the provisions of G.S. 97-84, unless agreed to by the parties, the employee shall prove by a preponderance of the evidence that the employee has sustained a total loss of wage-earning capacity.”
The courts have been faced with the issue of determining when an injured worker is entitled to receive an extension of their benefits beyond the 500-week limit. There are two cases that are extremely important in consideration of this issue.
First, in Sturdivant v. North Carolina Department of Public Safety, the Plaintiff sought an extension of his disability benefits after exhausting the maximum 500 weeks of disability benefits. 2023 WL 2577171 (N.C. App. Mar. 21, 2023). After receiving benefits over 425 weeks, Plaintiff filed a Form 33 seeking to qualify for “extended benefits” pursuant to § 97-29(c). Id. at 1. After a hearing on the matter, a Deputy Commissioner entered an order denying Plaintiff’s claim requesting an extension of benefits. Id. Plaintiff appealed to the Full Commission, and the Full Commission affirmed the Deputy Commissioner Order, making its own findings and concluding that Plaintiff failed to establish that he suffered a total loss of wage-earning capacity. Id.
The North Carolina Court of Appeals began its analysis by distinguishing what it meant to suffer a “total loss of wage-earning capacity.” The Court indicated that a disability is “total” for a particular week where the employee has no wage-earning capacity. Id. at 2. The court further relied on the North Carolina’s Supreme Court’s interpretation of “total disability, where they described it as, “where an employee’s capacity to earn has been totally obliterated by a compensable injury.” Id. (citing Gupton v. Builders Transport, 320 N.C. 38, 42, 357 S.E.2d 674, 678 (1987)). The Supreme court further contended that an employee can meet his burden of showing a total disability through any of the four methods articulated in Russell. Id. This court cited the Full Commission’s reasoning that reflected: (1) Plaintiff had some transferable skills from his several decades of prior employment in various fields; (2) there were jobs in Plaintiff’s home country that were compatible with his skill; and (3) considering Plaintiff’s work history and his educational level, he would be able to obtain some employment, at a minimum, part-time work in a sedentary position. Id. at 4. The NC Court of Appeals further reasoned that although Plaintiff offered evidence that he cannot work, they reasoned that Plaintiff had the ability to perform some work based on the evidence presented. Id. at 4. Based on the foregoing, the North Carolina Court of Appeals affirmed the Full Commission’s decision that Plaintiff failed to meet his burden of showing that he qualified for extended benefits.
Second, in Betts v. North Carolina Department of Health and Human Services, the Plaintiff appealed the Full Commission’s denial of her claim for extended disability benefits. 888 S.E.2d 414, 2023 WL 4346794 (N.C. App. Jul. 5, 2023). The Full Commission concluded that since Plaintiff had the capacity to earn some wages, she has failed to prove by the preponderance of the evidence that she had sustained a “total loss of wage-earning capacity” due to her compensable injury. Id. at 1. The North Carolina Court of Appeals reasoned that unlike in Sturdivant, the Commission in this case failed to make findings demonstrating it considered the Russell factors to determine whether Plaintiff demonstrated a total loss of wage-earning capacity. Id. at 4. Thus, the North Carolina Court of Appeals remanded the Full Commission’s decision with instructions to consider the appropriate facts in determining whether Plaintiff met her burden in showing she qualified for extended benefits under § 97-29(c). Id.
Both of these cases establish that a Plaintiff can meet his or her burden of proof for extended benefits if he or she can meet one of the Russell factors discussed above. However, the case law is currently pending as the Sturdivant Defendants have filed a Petition for certiorari with the North Carolina Supreme Court.
So, let’s revisit our initially question: Can an injured worker receive benefits past the 500-week cap in North Carolina? After review of this article, I am pretty sure your answer has changed. You now are aware that an injured worker may be entitled to extended benefits under the North Carolina Workers’ Compensation Act if he or she can establish a total loss of wage-earning capacity through one of the Russell factors. Stay tuned for additional updates and developments if the North Carolina Supreme Court grants the Sturdivant Defendants’ Petition for Certiorari.
 The four factors in Russell for showing a total-loss of wage-earning capacity in one of the four ways: (1) by showing he is incapable of performing any work; (2) by showing that he is capable of work but that “after a reasonable effort on his part, been unsuccessful” in finding employment; (3) by showing that he is capable of work but that “it would be futile” to seek other employment “because of pre-existing conditions”; and (4) by showing he has obtained employment, but at a lower wage than he was earning before the accident.