Early Trends in North Carolina Extended Benefits Cases and How Comparable Jurisdictions in the Southeast Have Analyzed Similar Statutory Caps
Last Updated: February 2, 2022
The North Carolina Industrial Commission has recently issued decisions in the first round of extended benefits cases, in which claimants are arguing entitlement to temporary total disability benefits past the 500-week cap on benefits. Six cases have been heard and decided at the Deputy Commissioner level, and four of those cases are on appeal to the Full Commission. To obtain benefits beyond the 500-week cap, the claimant must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. The claimant is only eligible to request a hearing on this issue after 425 weeks have passed from the first date of disability. In the cases that have been decided so far, the decisions are split.
North Carolina: Statutory Language
N.C.G.S § 97-29(c) outlines the physical and mental requirements for showing an entitlement to extended benefits. As stated above, to obtain benefits beyond the 500-week cap, the claimant must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. It should be noted that pursuant to N.C.G.S § 97-29(d) there are certain claims which allow for automatic permanent and total disability benefits (i.e., catastrophic cases where a claimant loses two or more limbs). These claimants are entitled to lifetime benefits without findings concerning work ability or wage-earning capacity. Three other categories of claims create a rebuttable presumption of permanent and total disability benefits: (1) spinal injuries involving severe paralysis of both arms, both legs, or the trunk; (2) severe brain or closed-head injuries evidenced by severe and permanent motor or communication disturbances; and (3) second- or third-degree burns to 33% or more of the total body surface. Under these three categories of claims, if the employer can prove that the claimant is capable of suitable employment, then permanent and total disability would not be due and payable.
Brief Historical Context of North Carolina Legislation
Prior to discussing the cases that have come down to date, it is helpful to revisit the context and history regarding how this legislation developed. The Worker’s Compensation Act as originally enacted contained a limitation on permanent and total disability to a maximum of 400 weeks. In 1973, the Legislature removed that limitation. The General Assembly never reintroduced limitations on N.C.G.S. § 97-29 benefits, and the result was that there was essentially no limitation on how long a claimant could receive benefits. This resulted in a huge increase in indemnity exposure throughout the 1990s.
Sweeping legislative reform eventually took place in 2011, and one of the main goals of the defense bar was to put a limitation back on N.C.G.S. § 97-29 benefits. One of the last pieces of the legislation discussed during the legislative reform was the language for extended benefits. The initial legislation did not have any extended benefits language and N.C.G.S. § 97-29 benefits ended at 500 weeks. Governor Perdue threatened a veto stating that she did not want seriously injured workers, who may not qualify for permanent and total disability, to have to rely on support from the State. The Governor wanted some type of provision concerning extended benefits beyond the 500 weeks for claimants who were seriously and/or catastrophically injured but did not qualify for permanent and total disability benefits under the statute. As a result, the extended benefits language was added to ensure the reform passed.
When analyzing the traditional concept of permanent and total disability under prior case law, the Courts routinely referenced a total loss of any wage-earning capacity. The Gupton case specifically uses language that if the power or capacity to earn is totally obliterated, the claimant is entitled to total and permanent disability under N.C.G.S. § 97-29. Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674 (1987).
Accordingly, as the Form 33 Requests for Hearing are filed in these extended benefits cases, defendants argue that the claimant will have to prove a total loss of any wage-earning capacity and/or that their wage-earning capacity has been totally obliterated. The plaintiff’s bar is taking a different approach and arguing the standard for extended benefits beyond 500 weeks is the same as it is within the 500 weeks. Defendants argue that the General Assembly does not pass legislation that is irrelevant; essentially asking the question: Why would the 2011 Reform have addressed the 500-week cap or extended benefits issue whatsoever, if the threshold is the same?
Defendants’ argument is that if the claimants has even some wage-earning capacity, they have not proven their entitlement to extended benefits, or a total loss of wage-earning capacity. Defendants should also continue to make the policy argument that this entire analysis needs to be framed within the bigger picture of the 2011 Reform. It is worthwhile to emphasize that the 2011 Reform Bill was titled a “Return to Work Act.” The system is designed to encourage people to return to work whenever possible. Therefore, unless the claimant has a total loss of any wage-earning capacity or their wage-earning capacity has been totally obliterated, they should be limited to 500 weeks of temporary total disability benefits under N.C.G.S. § 97-29 from the date of first disability or a total of 500 weeks of temporary partial disability benefits under N.C.G.S. § 97-30. Defendants should continue to rely on the way the Supreme Court has discussed and analyzed total loss of wage-earning capacity.
Deputy Commissioner and Full Commission Extended Benefits Decisions to Date
Now that we have a good understanding of the idea behind the 2011 Reform, including the extended benefits provision, we can discuss the six cases that have come down recently at the Deputy Commissioner level. The first case, Milton Nobles v. North Carolina DHHS and CCMSI, was issued by Deputy Commissioner Robert Harris on January 25, 2021. The claimant in that case had no formal education outside of a high school diploma. He had work experience primarily as a health care technician. On June 26, 2011, the claimant was working for a hospital and sustained injuries while breaking up a fight, which ultimately resulted in headaches, PTSD, and depressive disorder. The Deputy Commissioner emphasized the severity of the fight and the resulting injuries to claimant as well as claimant’s limited job history and low IQ. Dr. Thomas Gualtieri saw the claimant for a one-time neuropsychiatric evaluation in September 2011 and opined that claimant was malingering. He testified in line with the same at hearing. Claimant then began seeing Dr. Edwin Hoeper, a psychiatrist, on his own starting in May 2012. Claimant was still seeing him as of the date of the hearing. Dr. Hoeper provided testimony for claimant that his PTSD would never be cured and that his treatment could only improve his life slightly. Dr. Hoeper testified that claimant was permanently and totally disabled, and unemployable in any job. Dr. Manish Fozdar also conducted a one-time independent medical examination of claimant. Dr. Fozdar found claimant to be uncooperative and opined claimant was malingering. He opined any further mental health treatment was not related to his initial injury. Defendants also hired a rehabilitation professional, who produced a labor market survey and identified several positions she believed claimant could perform. The defendants’ vocational expert never met with claimant and claimant did not hire his own vocational expert.
Deputy Commissioner Harris determined that claimant was entitled to extended benefits beyond the 500 weeks. The Deputy found that claimant had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C.G.S. § 97-29(c) and had proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Dr. Hoeper’s testimony was given more weight than that of Dr. Fozdar, Dr. Gualtieri, and of the vocational rehabilitation professional. Thus, the claimant was entitled to extended benefits.
Defendants appealed to the Full Commission. On September 29, 2021, the Full Commission entered an Opinion and Award reversing Deputy Commissioner Harris’ Opinion and Award and denying claimant’s right to extended benefits beyond the 500 weeks, as well as his claim for PTSD. The Full Commission panel consisted of Commissioner Myra Griffin, Commissioner Kenneth Goodman and Deputy Commissioner David Hullender. The Full Commission reviewed the evidence and testimony and noted that claimant had received no medical treatment for his physical injuries since 2012 and had no work restrictions related to those injuries. Additionally, the Full Commission noted that the Parsons presumption did not apply to claimant’s allegations of PTSD as it was not an accepted condition in the claim and found Dr. Gualtieri’s and Dr. Fozdar’ s testimony more creditable that that of claimant’s treating physician, Dr. Hoeper. The Full Commission concluded that Dr. Hoeper relied solely on claimant’s subjective complaints without any diagnostic testing or objective finds to support his diagnosis of PTSD. They specifically noted that Dr. Fozdar and Dr. Gualtieri performed objective testing which led them to conclude that claimant’s alleged mental conditions were not related to his work injury. Accordingly, the Full Commission opined that claimant failed to prove that he suffered from PTSD or depression as a result of his work injury and did not prove that he lacks total wage-earning capacity as a result of his June 26,2011 right eye, mouth or right shoulder injuries. The Full Commission denied medical treatment for claimant’s alleged PTSD and denied his claim for extended benefits beyond the 500 week cap.
The next case, Mary Betts v. North Carolina Department of Health and Human Services – Cherry Hospital, was issued on March 12, 2021, also by Deputy Commissioner Robert Harris. The claimant in that case graduated from high school and had CNA qualifications. She was a certified EMT, but her certifications had lapsed. The claimant worked as a health care technician and sustained her injury on August 12, 2011, while trying to restrain a combative patient. She sustained an injury to the ankle which resulted in multiple surgeries. The claimant had sedentary work restrictions, but the claimant’s treating physicians noted that even while performing sedentary work, she would still experience pain and swelling and would need to elevate her foot every hour. Evidence showed that claimant remained involved with the Girls Scouts as a troop leader and summer camp director, volunteered with the PTA, cut her own grass, and did crafts. The vocational expert hired by claimant testified that claimant’s condition prevented her from being employable. Defendants also hired a vocational expert who did not meet or speak with the claimant and who did not contact any potential employers to discuss the claimant’s limitations. The vocational expert was unaware of claimant’s need to elevate her foot to prevent swelling and pain. The Deputy Commissioner found the defendants’ vocational expert report to be too general and not tailored specifically to the claimant. Accordingly, the Deputy found that claimant 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, claimant was entitled to extended benefits.
Defendants appealed to the Full Commission. On February 1, 2022, the Full Commission entered an Opinion and Award reversing Deputy Commissioner Harris’ Opinion and Award and denying claimant’s right to extended benefits beyond the 500 weeks, as well as her claim for a right shoulder injury. The Full Commission panel, consisting of Wanda Blanche Taylor, James Gillen, and Adrian Phillips, gave greater weight to the testimony of claimant’s long-time treating physician rather than the pain management physician as it relates to claimant’s work restrictions. The Full Commission noted that Dr. Thompson, the authorized treating physician, at no time opined that claimant needed to elevate her leg above her heart. Additionally, the Full Commission noted there was no expert testimony or opinion that claimant was incapable of performing work. Furthermore, the Full Commission gave greater weight to the Defendant’s vocational expert as her testimony was consistent with the medical evidence indicating claimant had the ability to perform sedentary work and was more consistent with claimant’s demonstrated ability to perform valuable services, including organization, scheduling, supervision, and her reliability in her continued volunteer work. The Full Commission noted that claimant was a likely candidate to perform flexible work from home or part-time work. The Full Commission went on to note that at oral argument, claimant’s counsel conceded that she could perform one to two hours of work a week for wages.
The Full Commission concluded that the extended benefits statute in N.C.G.S. § 97-29(c) does not invoke “disability” as defined in N.C.G.S. § 97-2(9), nor does it require the employee to prove that she is unable to obtain competitive employment. The Full Commission noted that the statute on its face requires the employee to prove “by a preponderance of the evidence that the employee has sustained a total loss of wage-earning capacity.” The Full Commission interpreted this statutory language by using the plain, ordinary, and literal meaning of the words contained in the statute. The Full Commission cited the Webster Dictionary which defined “total” as “complete;” “utter” and “loss” as “to bring to ruin or destruction;” and “capacity” as “ability.” The Full Commission concluded using these definitions that claimant must prove by a preponderance of the evidence that she sustained a complete destruction of the ability to earn wages [emphasis added]. The Full Commission noted claimant’s ability to perform sedentary work in her volunteer activities, and claimant’s claim for extended benefits beyond the 500 weeks was denied.
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 claimant was working as a teacher’s assistant at a high school on February 24, 2012, when she sustained an injury. The claimant worked for the county in multiple capacities in the past, including bus driver, substitute teacher, tennis coach, and band director, and had experience as a CNA, truck dispatcher, cashier, food preparation, a line worker, and phlebotomist. The claimant had permanent sedentary work restrictions; however, no doctor testified she could not work in at least some capacity. The claimant testified that she rode a motorcycle a few times during the summer, used a riding lawnmower, could walk one to two miles without issue, bowled twice a week, cared for multiple animals, and actively swam. A vocational expert provided a labor market survey that showed the availability of jobs within claimant’s work restrictions. The claimant presented no evidence that she continued to suffer a total loss of wage-earning capacity. The Deputy found that the claimant could at least work a part-time, sedentary job. The claimant’s claim for extended benefits was denied.
The fourth case is Martin Sturdivant v. North Carolina Department of Public Safety and CCMSI. The decision was issued by Deputy Commissioner Erin F. Taylor on May 5, 2021. The claimant sustained a compensable back injury on August 31, 2011. 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. The claimant had been on his church’s Board of Trustees since 2008. On the date of his injury, claimant was working transporting inmates. Four of the claimant’s physicians testified claimant could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Claimant only started looking for work in January 2020 and produced a job log, but some of the entries were inaccurate. Defendants’ vocational expert met with the claimant, performed a transferrable skills analysis, performed a labor market survey and identified several jobs in the surrounding area that claimant was capable of performing. Claimant’s vocational expert testified claimant was unable to work at all and disagreed with the treating physicians’ work restrictions. However, the vocational expert did not contact any potential employers, did not perform a transferable skills analysis and only looked for jobs in Anson County. As a result, the Deputy Commissioner afforded more weight to the defendants’ vocational expert and determined that claimant could not show a total loss of wage-earning capacity and was not entitled to extended benefits beyond the 500-week cap.
The fifth case is Glendell Murphy v. North Carolina Department of Public Transportation. The decision was issued by Deputy Commissioner Robert Harris on August 6, 2021. The claimant was 56 years old and suffered a compensable right knee injury while working at a youth center. Claimant had a high school diploma, worked at a chicken plant for two years, was in the US army, worked as a correctional officer, worked as a counselor at a Methodist home for children and worked as a delivery driver. He earned his associate degree in 2001, his bachelor’s degree in 2013 and his master’s degree in 2015, all in criminal justice. Claimant had prior issues with depression and treated through the VA, but never requested psychiatric treatment from defendants. Claimant testified he had not looked for work since 2016. The orthopedic authorized treating physician stated claimant could work and earn wages, but claimant’s unauthorized psychiatric doctor opined that he could not work at all. Defendants hired a vocational expert who met with claimant, reviewed claimant’s medical records and performed a labor market survey which identified 12 jobs that claimant could do within his orthopedic work restrictions. When the vocational expert was questioned about claimant’s depression, she testified that his psychiatric condition was a “concern regarding claimant’s employability.” Claimant did not hire a vocational expert, but the Deputy Commissioner opined that defendants’ vocational expert testimony did not support a finding that claimant had wage earning capacity, and as result, claimant was granted extended benefits.
The most recent case, as of the original date of this publication, is George E. Tyson, Jr. v. North Carolina Department of Health and Human Services and CCMSI. The decision was issued by Deputy Commissioner Kevin Howell on August 12, 2021. The claimant sustained a compensable injury to his lower back on October 8, 2011, while assisting a client from a wheelchair to a couch. The claimant was a 59 year old high school graduate with some college education and a cosmetology certification. Claimant had previously worked as a seafood picker, cosmetologist, singer, custodian and groundskeeper. Claimant was also an ordained minister and performed ceremonies for friends and family, but not for wages. He took online courses for psychology in 2016 and volunteered regularly at his church. Claimant’s treating physicians testified that claimant could work in the sedentary to light duty category. Defendants’ vocational expert also testified that the claimant had the capacity for work. The claimant testified that he did not think he could work but provided no expert testimony to support this claim. The Deputy Commissioner determined that the claimant could not show a total loss of wage-earning capacity; therefore, claimant was not entitled to extended benefits beyond the 500-week cap.
As you can see, the six decisions that have been issued to date have been almost 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 claimant has wage earning capacity. Defendants need to have good experts secured prior
to the hearing, along with possible surveillance and a labor market survey. It is also critical to have a complete picture of the claimant’s job history, educational background, skill set and ability to perform other activities, such as exercising, yardwork, or actively volunteering in the community.
These decisions show that there is no perfect workers’ compensation system. In the absence of a perfect or standard system, there is an argument to be made that the 2011 Reform created a more balanced system that provides a solid safety net for injured workers in North Carolina while simultaneously ensuring that North Carolina can maintain a successful business environment.
As we continue to forecast how the Court of Appeals will address extended benefits, we anticipate they will look to other jurisdictions with similar statutory caps on benefits. South Carolina, Virginia, Tennessee, and Georgia have similar statutes and their case law may provide guidance on how entitlement to extended benefits will be analyzed in North Carolina.
South Carolina places a 500-week limit on total disability. Their provision is stricter than North Carolina’s, and only allows extended benefits in very specific circumstances. S.C. Code Ann. § 42-9-10 establishes the cap on benefits. Any person determined to be totally and permanently disabled who, due to a compensable injury, is a paraplegic, a quadriplegic, or who has suffered physical brain damage is not subject to the 500-week limitation and shall receive benefits for life. Thus, there is no additional provision under the South Carolina statute that allows for proving extended benefits beyond the 500-week cap, outside of those circumstances outlined above. The main disagreements in South Carolina case law arise due to arguments regarding the “level of severity” of brain injuries.
For example, in Crisp v. SouthCo., 401 S.C. 627, 738 S.E.2d 835 (2013), the claimant sustained injury to the head and right hand while working in construction. The claimant was ultimately diagnosed with a cognitive disorder. When the claim went to a hearing, he alleged injured to his head, brain, neck, back, right upper extremity, and psyche, and sought continued temporary compensation benefits and continued medical treatment, including treatment in a traumatic brain injury program; and, in the alternative, sought a finding that he was permanently and totally disabled and entitled to lifetime compensation benefits due to “physical brain damage.” The claimant argued to the SC Supreme Court that the presence of any physical brain injury, regardless of degree, entitles the claimant to benefits beyond the 500-week cap on benefits, per the statute. The Supreme Court, however, emphasized that “inherent in the requirement that the injury to the brain be severe is the factor that the worker is unable to return to suitable gainful employment.” Thus, the analysis hinges on whether the claimant with the diagnosed brain injury can return to work in light of the severity of the injury.
Based on this type of precedent in South Carolina, we can see how difficult it would be for a claimant to prove entitlement to extended benefits outside of the specific circumstances outlined above. Similar to North Carolina, testimony about educational background, work history, and expert testimony on the issue of functionality seem to be important factors in determining return to work options for claimants with a brain injury, which is one of the few conditions that allow benefits beyond the 500-week cap.
Virginia is another comparable jurisdiction. They have a 500-week cap, which is enforced even where the claimant continues to have work restrictions after receiving 500 weeks of indemnity benefits and is unable to return to his pre-accident job or similar work. Va. Code Ann. § 65.2-503(c) outlines benefits for permanent and total incapacity. Under this code, a claimant may receive permanent total disability benefits when there is: (1) loss of both hands, both arms, both feet, both legs, both eyes, or any two of these body parts in the same work accident; (2) injury that results in total paralysis, as determined by the Virginia Commission on the medical evidence before it; or, (3) an injury to the brain that is traumatic and severe enough to render the worker permanently unemployable in gainful employment.
Most of the determinations of permanent and total incapacity in the Virginia system concern the level of permanent partial impairment ratings, coupled with the factors above. In practice, the courts consider wage-earning capacity and apply similar factors that the North Carolina courts will also be likely to consider.
In Georgia-Pac. Corp. v. Dancy, 24 Va. App. 430, 482 S.E.2d 867 (1997), aff’d, 255 Va. 248, 497 S.E.2d 133 (1998), the claimant’s legs were crushed by a conveyor while at work. The claimant attempted to return to work on one occasion but was sent home after a few hours. The claimant was seen by a company doctor who opined “I do not think that he is ever going to return to work under these circumstances.” Another physician completed a permanent disability assessment and assigned a 100% disability to one leg and a 15% disability to another leg. He was restricted to no standing longer than one hour, no sitting greater than two hours, and no climbing, stooping, crawling, or working on uneven ground. The record showed that the claimant had a tenth-grade education and had experience only in heavy physical labor jobs. A rehabilitation counselor testified that with the claimant’s limited education, time in the service, geographical location, and medical condition, there were some things he could do at least on a part time basis, providing there were no complications. For example, he could work at a nursery watering flowers, or work at a senior citizens’ home, or at a medical clinic preforming local driving tasks. The lower courts determined the claimant was permanently and totally disabled. The Virginia Court of Appeals cited Va. Code § 65.2-503, noting that permanent and total incapacity shall be awarded where there is loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof in the same accident. Even so, they stressed that in determining the extent of the loss of use of two members, the inability of the injured employee to engage in gainful employment is a proper element to consider. Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 858–59, 80 S.E.2d 537, 542 (1954). The medical evidence showed a rated loss of 100% and 15%, respectively, of his left and right legs. The Commission had found, despite the testimony concerning the ability to return to work including that from the rehabilitation counselor, evidence in the record that the combination of the losses to the legs rendered the claimant unemployable. The Court of Appeals agreed, finding that the proper inquiry was whether the rated loss of use in the claimant’s legs rendered both legs unusable. The court affirmed the finding of permanent and total incapacity and awarded extended benefits.
Although the case is unpublished, Hopkins v. RDA, Inc., No. 1053-11-4, 2012 WL 48156 (Va. Ct. App. Jan. 10, 2012), further demonstrates how courts examine the permanent and total disability analysis in Virginia. The claimant argued he was entitled to extended benefits. The courts first noted that the claimant’s physicians disagreed about whether he was permanently and totally disabled, and he saw a number of physicians. As to the ability to work, Dr. Harry Li, the authorized treating physician, testified claimant’s disability was total and permanent and that he should be removed from the work force. Dr. Zeena Doria, the authorized treating neurosurgeon stated that claimant was partially disabled due to his lumbar condition and stated claimant should receive permanent partial disability to the right leg only. Dr. Michael Shear stated that claimant was permanently and totally disabled and concluded he could not work for even an hour or so at a time. Dr. John Bruno, an orthopedic surgeon who conducted an independent evaluation, opined that claimant’s permanent partial impairment rating to his spine should be split to assign an 11.5% rating to each leg. Dr. Bruno reviewed claimant’s FCE and noted claimant was totally disabled from gainful employment. Dr. James Melisi and Dr. Charles Citron opined that there were no objective findings that claimant could not work in any capacity, and found claimant was not permanent or totally disabled. Dr. Anthony Debs specifically testified that claimant could work light duty or sedentary work. Dr. Debs also commented on “splitting the ratings” to each leg as suggested by Dr. Bruno, and disagreed, stating he would assign a rating to the right leg, but not the left leg. The Deputy Commissioner and Full Commission found claimant was not permanently and totally disabled. They gave little weight to Dr. Bruno’s ratings to both legs and noted that the evidence failed to demonstrate a loss of use of both lower extremities, and claimant failed to show he was unable to use his legs to any substantial degree in gainful employment. The Court of Appeals agreed with the Commission’s findings that the claimant was not permanently and totally disabled, and the decision was affirmed. The court found that there was credible evidence to support the Commission’s findings. Specifically, Dr. Dorai found claimant had no impairment to the left leg and Drs. Melisi, Citron, and Debs all opined claimant was capable of light duty or sedentary work and was not permanently disabled.
It appears that the main difference between the Georgia and Hopkins decisions lies in the lack of high ratings to both legs, as well as the inability of the claimant to demonstrate that he was
not capable of gainful employment due to said ratings. Though there was some evidence of the ability to work in the Georgia decision, the 100% rating to one leg, and additional rating to the other leg, outweighed that opinion. The Virginia case law again emphasizes the importance of obtaining credible expert physicians who will provide good evidence on disability and work ability. Further, it is interesting to note how the Virginia courts look to impairment ratings assigned to body parts as part of their analysis in determining entitlement to total disability.
Tennessee utilizes a 450-week cap on benefits similar to North Carolina. Tenn. Code Ann. § 50-6-102(15)(D) provides: “For injuries occurring on or after July 1, 2014, the maximum total benefit shall be four hundred fifty (450) weeks times one hundred percent (100%) of the state’s average weekly wage… except in instances of permanent total disability.” Tennessee courts also appear to analyze the amount of a permanent impairment rating when considering entitlement to extended benefits.
A claimant who is unable to return to any job in the open market because he retains a permanent disability from a work injury may be entitled to permanent total disability benefits. Bomely v. Mid-Am. Corp., 970 S.W.2d 929, 931 (Tenn. 1998). This benefit continues at the claimant’s compensation rate until the claimant is eligible for retirement based on their age under the Social Security Law.
The Hinson case is particularly instructive. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675 (Tenn. 1983). In this case, the claimant fell off a ladder at work and sustained injury to the femur. The trial court held that claimant was permanently and totally disabled, and the Supreme Court of Tennessee agreed. Specifically, the court emphasized that “it must be kept in mind that this Court makes a clear distinction in worker’s compensation cases between anatomical impairment as determined by a physician and disability to work which results from such impairment.” Federated Mut. Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967). The court recognized that in determining what may constitute permanent and total disability, many pertinent factors should be considered, including the skills, education, and training of the claimant as well as job opportunities and other factors bearing upon employability. In determining the sufficiency of evidence to support disability, the extent of the disability should be determined through further medical evidence and lay testimony. The court also stated that the judge should not be bound by the physicians’ opinions only but should analyze evidence from expert and non-expert witnesses, including those outside of the medical field.
In another case, which is unpublished, Darnell v. Connecticut Indem. Co., No. M2003-00914-SC-WCMCV, 2005 WL 625885, at *1 (Tenn. Workers Comp. Panel Mar. 17, 2005), the claimant began working as a machinist out of high school when he sustained injuries to the right upper back and shoulder. The doctor that treated claimant assigned a 49% permanent partial impairment to the body as a whole. The claimant was only able to use his left arm. The claimant attended a second opinion with another physician and his diagnosis was confirmed. There was also testimony from a vocational counselor for the claimant, who concluded the claimant was permanently and totally disabled considering the medical opinions and educational history of claimant. Another vocational expert testified for the employer and was of the opinion there were jobs available in the labor market that could be performed with the use of one hand or arm. The trial court found claimant was totally disabled, and the workers’ compensation panel agreed. The record established that the claimant, a high school graduate, was right hand dominant. Although he occasionally managed to hunt and perform other functions, he was in constant pain, which caused him the need to lie down. The authorized treating physician testified that the claimant could perform work using his left arm. Although the vocational expert for defendants testified there were jobs available in the marketplace, there was no evidence presented that those jobs actually existed in the marketplace where the claimant lived. Considering the physical limitations of the claimant and other factors such as past work history, job skills, training, education, and job opportunities, it was concluded that the claimant was totally disabled.
This case emphasizes the factual specificity that may be important in extended benefits cases in North Carolina. For example, it is foreseeable that, even where a vocational expert provides good testimony on job availability and prospective employment, there may need to be additional considerations for geographical location and actual real-world availability.
Georgia has a 400-week limit on benefits per Ga. Code Ann. § 34-9-261. In the event of a catastrophic injury, there may be an entitlement to extended benefits. Ga. Code Ann. § 34-9-200.1 outlines the possible catastrophic injuries and defines this type of claim as one or more of the following: the claimant has a severe brain or closed head injury; the claimant has a spinal cord injury resulting in severe paralysis of the arm, leg, or trunk; the injury resulted in the amputation of an arm, hand, foot, or leg; the injury resulted in second or third degree burns covering a specific percentage of the body; the worker has a diagnosis of industrial or total blindness; or the injuries render him unable to perform his prior work, as well as any additional work available for which he is otherwise qualified. The last group, as expected, results in the most litigation and involves a more subjective analysis of entitlement to benefits. The courts have typically analyzed educational history, work background and experience, the current labor market, vocational experts and analysis, and the possibility of job training when considering whether the claimant is entitled to extended benefits under that classification.
In Reid v. Georgia Bldg. Auth., 283 Ga. App. 413, 641 S.E.2d 642 (2007), the claimant sustained a work-related hand injury and requested a hearing to determine whether her claim was catastrophic under the Act. The State Board of Workers’ Compensation found the injury was catastrophic and the appellate court agreed. The superior court reversed the state board and the claimant appealed. The Georgia Court of Appeals upheld the superior court’s ruling. The
claimant argued that her claim was catastrophic as it prevented her from returning to work. There was no dispute that she could not perform her pre-injury job. The only question was whether there was any work available within the national economy for which claimant was otherwise qualified. The evidence showed that claimant previously did housekeeping work that included “[s]weeping, mopping, dusting, and regular … cleaning,” and required the ability to “lift, push, pull, and carry heavy item[s].” Her physician released her to limited work of no heavy gripping, lifting, or carrying over 10 pounds. She returned to work, but was unable to perform her duties, so stopped working in any capacity altogether. Claimant’s physician ultimately concluded she was permanently and totally disabled from performing her previous job. The state board found that the claimant was 66 years old and had performed housekeeping work her entire life. She had no computer skills, completed school only through the 11th grade, and had no specialized training. It was further found that she could not perform work activities over four hours per day without experiencing swelling in the hand. The Court of Appeals found that the claimant did not present any competent evidence that she was unable to perform any work available in substantial numbers within the national economy. At the bare minimum, she should have tried to demonstrate that she attempted to obtain employment within her limitations. The sole evidence regarding her job search was a general statement at hearing that she “looked for work.” She also did not present a vocational expert. Thus, the court held there was insufficient evidence that the claimant was entitled to extended benefits.
In another case, Caswell, Inc. v. Spencer, 280 Ga. App. 141, 633 S.E.2d 449 (2006), the claimant argued his back claim was catastrophic in nature and he was entitled to extended benefits. The State Board of Workers’ Compensation found his injuries were catastrophic and cited, among other things, the claimant’s age of 62 years, stating it rendered him unable to even adapt to light duty work. Defendants appealed and were granted a hearing with an administrative law judge, who rejected the state board’s decision and found that the injuries were not catastrophic. The appellate division of the board agreed. Claimant then appealed to superior court, arguing that the board failed to consider his age. The superior court agreed and remanded the case. The case was then appealed to the Court of Appeals. The court found that the record showed the claimant’s age was fully considered, it was simply that the administrative law judge and appellate division of the board found the testimony from a vocational specialist to be more credible. The vocational expert disagreed with the statement that someone who is 62 years old is unable to learn new skills, noting he was not aware of any rule or school of thought that supported that contention. The vocational expert also provided research that many retired individuals were going back to work. The expert also testified that, in the national economy, there were something like four million jobs the claimant could perform. The Court of Appeals found that the superior court’s decision that age was not considered was unfounded. Thus, the claim was remanded to the board for reconsideration.
Practical Takeaways for Jurisdictions with Statutory Caps
The case law and jurisdictional analyses above help to forecast what issues North Carolina appellate courts will consider when analyzing extended benefits cases in the days to come. What is less clear is whether North Carolina courts will adopt an analysis similar to Georgia, which requires more of an “obliteration” or complete loss of any wage-earning capacity, or whether it will be similar to Virginia where the medical aspect of the case, as well as “loss of use,” is extremely important to the outcome.
When we examine the trends from this analysis, a list of general takeaways emerges on how to defend a claim for benefits beyond the statutory cap:
- Each case will be fact specific; documentation and communication remain critical.
- The claim will require the use of credible, and in many cases, multiple experts.
- Defendants should obtain solid expert opinions, both medical and vocational, that clearly support a finding that a claimant can participate in some form of employment.
- It is important to elicit detailed testimony, including dates, times and follow-ups, from the claimant regarding his or her job search, or lack thereof.
- The vocational expert should meet with the claimant in person to identify jobs within the claimant’s labor market that are readily available in light of his or her work restrictions and educational and vocational background. Additionally, the vocational counselor should contact those potential employers to determine the likelihood that the claimant can secure employment within his or her work restrictions.
- The vocational expert should be provided an accurate summary of claimant’s work restrictions regardless of whether the condition has been accepted by defendants. Providing the vocational expert with claimant’s hearing testimony prior to his or her deposition should be considered.
- It is important to have a detailed understanding of the claimant’s job history, educational background and daily activities, including volunteer activities, as evidence of the claimant’s wage-earning ability.
- It will benefit the defense to develop solid medical evidence about the claimant’s loss of use or impairment ratings by highlighting the functionality of the injured body part.
Hearing requests for extended benefits are on the rise right now since there has been no guidance from the North Carolina Court of Appeals on the correct standard to be used when deciding these cases. Our analysis of the Deputy Commissioners’ decisions and research and review of similar jurisdictions, has demonstrated that these cases are fact specific and a full and complete understanding of the claimant’s medical, educational and vocational history will be imperative. Defendants will need clear and strong expert testimony to prevail in these cases.
Our team will continue to monitor the developments as this issue works its way through our court system. If you have questions or wish to discuss how to best position yourself in potential extended benefits matters, please reach out to Tracey Jones, Lindsay Underwood, or a member of our Workers’ Compensation Team.