With respect to workplace injuries, The North Carolina Workers’ Compensation Act is a legislative fix to a common law problem. The Act is sometimes called “the grand compromise” because it was crafted so as to balance the competing interests of industry and labor, to benefit society at large.
The Act is almost 100 years old, and during most of its life, the Act has hewed closely to its original purpose: to provide a swift, certain, and limited remedy for those work-related events that it covers. Notwithstanding the fact that the Act is a creature of statute, in the mid-1980s, North Carolina’s judiciary expanded the Act’s remedies dramatically, with decisions like Whitley, Gupton, and Peoples. These legal foundation for these opinions, and others too, rested upon very broad interpretations of the concepts of “disability” and “suitable employment.”
A quarter-century later, North Carolina’s legislature served notice to its judiciary that it didn’t share the judiciary’s ideas about its law should be applied. As part of its effort to restore balance to the Act, in 2011, the legislature specifically revised NCGS 97-29. NCGS 97-29 is North Carolina’s statute that outlines how payments of compensation are made for “total” disability. After the 2011 revisions, NCGS 97-29 specifically incorporated a presumptive 500-week cap on payments for total disability.
It is an unfortunate reality that some claimants suffer truly catastrophic injuries. And, for some of those specific types of injuries, NCGS 97-29 includes narrow exceptions to the presumptive 500-week limit on compensation. It is also a reality that not every fact-pattern can be predicted and accounted for, so NCGS 97-29 also eliminated the 500-week bar for some other claimants, if their claims qualified for “extended compensation,” at subsection (c). However, like the specifically identified types of claims that qualified for compensation payments in excess of 500 weeks, the path for claims that might qualify at subsection (c) was intended to be narrow.
After 2011, to “qualify for extended compensation in excess of the 500-week limitation,” a claimant had to establish, by a preponderance of the evidence, that the claimant had sustained “a total loss of wage-earning capacity.” The first 500-week cases reached that threshold in late 2021. And, the first appellate decisions that interpreted NCGS 97-29(c) were released earlier this year. Those appellate decisions, in very general terms, concluded that the legislature’s changes to NCGS 97-29(c) did not materially change the way that the North Carolina Industrial Commission should evaluate “disability” and “suitable employment” issues in extended benefit claims.
Last week, the North Carolina legislature amended NCGS 97-29(c) so as to reiterate what many people thought was already very clear. The new version of NCGS 97-29(c) is the old version, except that it now includes a definition of “total loss of wage-earning capacity,” within NCGS 97-29 itself. That definition specifically says that “total loss of wage earning capacity” means the “complete elimination” of wage earning capacity. It also says that this legal standard is intended to be different from the concepts of “disability” and “suitable employment,” which are defined in an entirely separate statute, NCGS 97-2.
Bottom Line? Except in very unusual cases, The North Carolina Workers’ Compensation Act does not provide for compensation for total disability beyond 500 weeks.