Early Trends in North Carolina Extended Benefits Cases
The Commission has recently issued decisions in the first extended benefits cases, in which plaintiffs are arguing entitlement to benefits past the 500-week cap provided in the 2011 reform. The cases have only been heard at the Deputy Commissioner level but give some additional insight into how they may be treated in the near future while we await inevitable appeals to the Full Commission and Court of Appeals. As a reminder, to obtain benefits beyond the 500-week cap, the injured employee must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. The employee is only eligible to request a hearing on this issue after 425 weeks have passed from the first date of disability. In the cases below, the decisions are split.
The first case, Milton Nobles v. North Carolina DHHS and CCMSI, was issued by Deputy Commissioner Robert Harris on January 25, 2021. The plaintiff in that case had no formal education but did have a high school diploma. He had work experience primarily as a health care technician. On June 26, 2011, he was working for a hospital and sustained injury while breaking up a fight. He experienced a significant beating, which ultimately resulted in headaches, PTSD, and depressive disorder. Deputy Commissioner Harris determined that was entitled to extended benefits beyond the 500 weeks. The Deputy found that plaintiff had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C. Gen. Stat. § 97-29(c), and he has proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Thus, he was entitled to extended benefits. The plaintiff presented expert evidence that the plaintiff was totally disabled from any employment and the defendants presented medical evidence that the plaintiff was not disabled at all. The case basically hinged on which medical expert was found to be most credible.
The next case, Mary Betts v. North Carolina Department of Health and Human Services and CCMSI, was issued on March 12, 2021, also by Deputy Commissioner Robert Harris. The plaintiff in that case graduated from high school and had CNA qualifications. She was a certified EMT, but her certifications had lapsed. Plaintiff worked as a health care technician and sustained her injury on August 12, 2011, while trying to restrain a combative patient. She sustained injury to the ankle which resulted in multiple surgeries. Plaintiff had sedentary work restrictions. Evidence showed that plaintiff remained involved with the Girls Scouts as a troop leader and summer camp director, volunteered with PTA, cut her own grass, and does crafts. The vocational expert testified that plaintiff’s condition prevented her from being employable. The Deputy found that plaintiff had proven by the preponderance of the evidence in view of the entire record that she “has sustained a total loss of wage-earning capacity” because of this compensable long-term ankle condition. As such, Plaintiff was entitled to extended compensation.
The third case, Michelle Brown v. NC Department of Public Instruction/Surry County Schools and Sedgwick, was issued on May 4, 2021, by Deputy Commissioner Jesse Tillman, III. The plaintiff was working as a teacher’s assistant at a high school on February 24, 2012 when she sustained injury. Plaintiff worked for the County in multiple capacities in the past, including bus driver, substitute teacher, tennis coach, band director, and had experience as a CNA, truck dispatcher, cashier, food preparation, a line worker, and phlebotomist. Plaintiff had permanent sedentary work restrictions. Plaintiff testifies that she rides a motorcycle a few times during the summer, uses a riding lawnmower, can walk 1-2 miles without issue, bowls twice a week, cares for multiple animals, and actively swims. A vocational expert provided a labor market survey that showed the availability of jobs within plaintiff’s work restrictions. Plaintiff presented no evidence that she continued to suffer a total loss of wage-earning capacity. The Deputy found that plaintiff could at least work a part-time, sedentary job. Plaintiff’s claim for extended benefits was denied.
The last new case is Martin Strudivant v. North Carolina Department of Public Safety and CCMSI. The decision was issued by Deputy Commissioner Erin F. Taylor on May 5, 2021. Plaintiff sustained a compensable back injury on July 23, 2013. He was a high school graduate and had completed some post-graduate courses. He was certified to drive a forklift, had training in blueprint reading, and had CPR experience. Plaintiff had been on his church’s Board of Trustees since 2008. On the date of his injury, plaintiff was working transporting inmates. Four of plaintiff’s physicians testified plaintiff could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Defendants’ vocational expert also testified that plaintiff had capacity for work. It was determined that plaintiff could not show a “total loss” of wage-earning capacity and that the plaintiff’s wage earning capacity had not been destroyed. Thus, plaintiff could not show entitlement to compensation beyond the 500-week cap on benefits.
As you can see, the four decisions that have been issued to date have been a 50-50 split on entitlement to extended benefits. The cases are also very fact specific. What is clear from the decisions where entitlement to extended benefits has been denied is that the testimony from medical providers and a vocational rehabilitation specialist are necessary to support a finding that a plaintiff has wage earning capacity. Defendants should make sure to have good experts secured prior to the hearing, along with possible surveillance and a labor market survey. It is also helpful to have a complete picture of the plaintiff’s job history, educational background, and other activities outside of work or education, like the ability to exercise, do yardwork, or maintain positions on boards or as a volunteer. We will continue to monitor cases as they are issued at the Deputy level, and as they are appealed to the Full Commission and Court of Appeals.