Change to Framework for Proving Disability in North Carolina Supreme Court’s Landmark Wilkes Decision
In addition to creating a medical presumption for accepted claims, the North Carolina Supreme Court’s decision in Wilkes v. City of Greenville has significantly altered the landscape for proving disability. The Court has held that an employee can prove a disability outside of the four methods outlined in Russell v. Lowes Product Distribution. The Court also stated that an employee may rely upon competent lay testimony, as to how the employee’s injury and related symptoms have affected his activities, to prove disability. In addition, the Court held that if an employee demonstrates an inability to work after taking into account his work-related conditions and pre-existing limitations, expert testimony is not required to prove a job search is futile.
Wilkes calls into question the framework parties have used to evaluate disability in workers’ compensation claims for more than two decades and leaves employers and carriers unsure of the standard to defend disability claims in the future. Wilkes suggests that disability can be proven by methods other than those outlined in Russell, but does not specify all of the ways an employee may prove disability. Also, the Court’s statement in Wilkes that the Court may rely on competent lay testimony to support a disability claim may result in a greater number of disability determinations and is contrary to the prior conclusion of the Court of Appeals on the same issue. In cases of contested disability, employers and carriers should consult with defense counsel and consider obtaining expert review of medical and vocational issues to refute disability.
Wilkes involved a compensable motor vehicle accident and a later dispute about whether Mr. Wilkes had an ongoing disability which was litigated by the parties. Regarding disability, The Deputy Commissioner found that it would be futile for Mr. Wilkes seek employment due to pre-existing conditions that were personal to him, including his age, IQ, work history, and physical conditions as a result of the at-work injury. Defendants appealed and the Full Commission reversed the Deputy Commissioner’s decision on disability, concluding that Mr. Wilkes had presented insufficient evidence that a job search would be futile. Mr. Wilkes appealed and the Court of Appeals held that he had successfully demonstrated that searching for work would be futile based on his pre-existing, personal conditions.
The Supreme Court affirmed the Court of Appeals, holding that the Commission failed to adequately evaluate plaintiff’s wage-earning capacity. Significantly, the Court expressly stated that it has not adopted the Russell methods of proving disability and that there are other ways an employee can prove disability. The Court noted the employee still bears the burden of proving disability and that once the employee has done so, the burden shifts to defendants to show not only that suitable jobs are available, but also that the employee is capable of getting one, taking into account both physical and vocational limitations. The Commission must consider the employee’s work-injury-related condition, age, education, prior work experience, pre-existing and co-existing conditions.
The Court held that Russell did not apply in Mr. Wilkes’ case because, unlike in Russell, Mr. Wilkes had numerous preexisting limitations, including being over age 60, having a limited IQ, education and work experience. Also, the Court concluded that where an employee demonstrates a total incapacity to work, expert testimony is not required to show a job search would be futile. The Court also suggests, in dicta, that expert testimony is not required to prove disability at all and further, that an employee’s own testimony and the testimony of other lay witnesses can be used to prove disability.
The Court then noted the Commission had denied Mr. Wilkes claim for anxiety and depression, but found his severe tinnitus was compensable. As such, the Court found that the Commission did not adequately address Mr. Wilkes’ wage earning capacity and remanded the case to the Industrial Commission to make specific findings of fact and, if necessary, take additional evidence regarding whether his compensable tinnitus, preexisting and coexisting conditions impacted his eligibility for future disability benefits.