In Sturdivant v. NC Department of Public Safety (No. COA22-421), the North Carolina Court of Appeals affirms Full Commission Opinion and Award denying extended benefits under N.C.G.S. 97-29 (c)
On August 31, 2011, Plaintiff suffered a compensable back injury while working for Defendant-Employer. After having received temporary total disability (“TTD”) benefits for over 425 weeks, Plaintiff filed a Form 33 Request for Hearing in 2020, seeking to qualify for extended benefits beyond the maximum of 500 weeks allowed under N.C.G.S. 97-29(b). The 500 week cap on temporary total disability benefits was instituted as part of the 2011 amendment to the NC Workers’ Compensation Act and applies to claims with a date of injury on or after June 24, 2011.
In May 2021, Deputy Commissioner Erin F. Taylor entered an Opinion and Award denying Plaintiff’s request for extended benefits. Plaintiff appealed to the Full Commission. In February 2022, the Full Commission affirmed Deputy Commissioner Taylor’s Opinion and Award, finding and concluding that Plaintiff failed to establish a total loss of wage-earning capacity as is required for extended benefits to be awarded pursuant to N.C.G.S. 97-29(c). Plaintiff then appealed to the NC Court of Appeals.
In a case of first impression, the NC Court of Appeals affirmed the denial of extended benefits. In its analysis, the Court first examined the meaning of “total loss of wage-earning capacity,” which must be shown in order to qualify for extended benefits under NCGS 97-29(c). The Industrial Commission found that “total loss of wage-earning capacity” was a higher standard for an employee to meet than “total disability.” Specifically, the Industrial Commission found and concluded that an employee who had some work capabilities, but could not find a suitable job, was “totally disabled,” but had not necessarily suffered a “total loss of wage-earning capacity.” The Court disagreed, finding that the standard for “total loss of wage-earning capacity” and “total disability” should be the same.
The Court next determined which party has the burden of proof in an extended benefits case. In analyzing the language of NCGS 97-29 (c), the Court noted the plain language of the statute stated that in order to qualify for extended benefits, the employee “shall prove” that they have “sustained a total loss of wage-earning capacity.” As such, the Court found that the burden of proof in in an extended benefits case lies with the employee.
Finally, the Court analyzed whether Plaintiff had met his burden of proof. The Court noted Deputy Commissioner Taylor had found the following: (1) Plaintiff has some transferrable skills from his several decades of prior employment in various field; (2) There were jobs in Plaintiff’s home county 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. The Court held these findings were supported by the evidence of Record in the Hearing before Deputy Commissioner Taylor, including the testimonies of Defendants’ medical and vocational experts.
Plaintiff argued the testimony of Defendants’ vocational expert should not have been considered by the Full Commission. The Court found that because Plaintiff did not object to the expert testimony at the Hearing before the Deputy Commissioner, it could not be reversible error for the Full Commission to consider the testimony. This would be true even if the testimony of Defendants’ vocational expert was incompetent under the NC Rules of Evidence.
Plaintiff also argued the Full Commission set an erroneous standard in requiring Plaintiff to show he was medically restricted from all work in order to meet the standard of total loss of wage-earning capacity. The Court held Plaintiff could, in fact, still qualify for extended benefits even if he was not medically restricted from all work, IF there were no jobs available for him. However, the Court noted the evidence presented in this case showed there were, in fact, jobs available for Plaintiff. The Court also held Plaintiff had failed to meet his burden of proof by not offering evidence he had made reasonable efforts to find a job suitable to the capabilities he was found to have by the Commission.
As such, the Court found and concluded Plaintiff had failed to meet his burden of showing that he qualifies for extended benefits under NCGS 97-29(c), and the decision of the Full Commission was affirmed.
This is a case of first impression of NCGS 97-29 by the NC Court of Appeals. The most important legal rulings include the findings that “total loss of wage-earning capacity” is NOT a higher standard than “total disability,” as well as the fact employees have the burden of proof in proving they are entitled to extended benefits. When handling extended benefits cases, the evidence presented by both medical and vocational experts will be absolutely critical to the case. The medical experts will be required to set the appropriate work restrictions for the employee. Assuming the medical experts do not state the employee is completely incapable of any type of work, the next step is the vocational expert. In order to successfully contest an extended benefits case, Defendants must present evidence showing there are suitable jobs available to the employee within a reasonable distance. Without evidence that suitable jobs are available, the employee is likely to prevail.