Our firm has recently started receiving inquiries regarding the possibility of claimants receiving extended benefits beyond the 500 week cap on TTD in G.S. 97-29.  In addition, the issue is also now being raised by eligible injured employees. There have been no decisions on any of the total loss of wage earning capacity claims yet, but employees injured shortly after the 2011 WC Reform are now permitted to request a hearing on the issue.

As a refresher, a major change in the in North Carolina Workers’ Compensation law occurred with the 2011 Reforms.  For claims arising on or after June 24, 2011, the employee may collect TTD benefits for a maximum 500 weeks from the first date of disability.  This includes periods of time where the employee returns to work. In other words, the 500 week cap on TTD begins running on the first date the employee is unable to work following the accident and ends 500 weeks thereafter, regardless of whether the employee returns to work in the interim.

However, the 2011 Reforms also included a process for obtaining compensation beyond the 500 period for an employee who has been seriously hurt in a work-related accident and suffered a total loss of wage earning capacity. 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. The 2011 Reform selected 425 weeks as the filing threshold to allow employees 75 weeks for possible litigation of the extended benefits. Otherwise, if the employee had to wait until the 500 weeks lapsed, there could be a period of time when the issue was in litigation and the ongoing benefits could be terminated.

While the first extended benefits post 2011 Reforms is not payable until after January 21, 2021, starting August 16, 2019, which was the first possible date following the 2011 Reforms, an injured employee could start the process of requesting a hearing for extended benefits.  Again, our firm has seen a few of these claims filed, but there have been no decisions on this issue to date.

Finally, there are a few additional issues to remember when dealing with extended compensation claims.

• If the employee qualifies for extended compensation, the employer is entitled to a 100% credit for any and all Social Security retirement benefits received by the employee. The credit applies only to TTD benefits received past 500 week and does not apply to Social Security disability
• There are certain claims which allow for automatic permanent and total disability benefits (i.e., catastrophic cases where a claimant actually loses two or more limbs), meaning that these employees are entitled to lifetime benefits without regard to whether they return to work or not.
• 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 employee is capable of suitable employment, then permanent and total disability would not be due and payable.

There is no credit for Social Security retirement benefits for catastrophic injuries that fall under these categories of claims.

These cases will likely be litigated over the next 2-3 years through the Industrial Commission and courts and will likely need to eventually be decided by the North Carolina Supreme Court on the exact criteria for a claimant to qualify for extended benefits.  However, employers and carriers should plan their strategy early in the claim in order to present the best possible evidence showing a claimant has some wage earning capacity in order to properly defend a request for extended benefits.

Please reach out to a member of our workers’ compensation team with any questions.