Breaking News: Legislative Response To Extended Benefits Cases
On September 22, 2023, the North Carolina General Assembly passed House Bill 259 which amended G.S. § 97-29 (c) of the Workers’ Compensation Act. Specifically, the Amendment clarified the meaning of “total loss of wage-earning capacity” related to a plaintiff’s entitlement to benefits past the 500-week cap provided in the 2011 reform. As previously discussed, Sturdivant v. NC Department of Public Safety held that the standard for disability does not change when a plaintiff applies for benefits beyond the 500-week cap. The Court further noted that a plaintiff could receive extended benefits even if not medically restricted from all work, if the plaintiff showed there were no jobs available to him/her. The overall impact of the Legislature’s change is to reinforce the original intent of G.S. § 97-29(c) from the 2011 reform, which established a different standard for a plaintiff to prove eligibility for extended benefits past the 500-week cap. The recent legislation has been passed by the General Assembly and is now awaiting approval by Governor Cooper before it can become law.
Amendment to G.S. § 97-29(c)
The 2023 Amendment to G.S. § 97-29(c) expressly states that, “[f]or the purposes of this subsection only, the term “total loss of wage-earning capacity” shall mean the complete elimination of the capacity to earn any wages. “Disability” as defined by G.S. 97-2(9) and “suitable employment” as defined by G.S. 97-2(22) shall not apply to this provision. The Commission may consider preexisting and injury-related physical and mental limitations, vocational skills, education, and experience in determining whether the employee has sustained a total loss of wage-earning capacity.”
Recommendations for Extended Benefits Claims in light of the Legislative Amendment
The 2023 Legislative Amendment to G.S. § 97-27(c) has provided some clarity on handling extended benefit claims. The plaintiff must prove, to a higher standard, the complete elimination of the capacity to earn any wages, which is more in line with the original legislative intent from the 2011 reform.
Despite the recent Sturdivant decision and 2023 Legislative Amendment, our recommendations for handling the extended benefits claims remain essentially the same. We recommend that Defendants are prepared to retain credible experts (both medical and vocational), investigate the plaintiff’s job search, hobbies, and non-work related activities and participation, obtain a detailed understanding of the plaintiff’s job history and educational background, and make sure your vocational expert meets with the plaintiff to identify possible jobs and explore work history.