On May 4, 2022, Commissioners Griffin, Gillen and Phillips affirmed Deputy Commissioner Howell’s August 11, 2021 decision to deny claimant’s request for extended benefits in George E. Tyson, Jr. v. North Carolina Department of Health and Human Services and CCMSI. 

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.

The parties waived oral arguments, and the Full Commission concluded that claimant had failed to establish that he had experienced a total loss of wage-earning capacity as a result of his October 8, 2011 injury.  In reaching this finding, the Full Commission noted that claimant was not medically restricted from all work and there were sedentary and light duty jobs within claimant’s restrictions in his geographical area. The Full Commission found that Ms. Deal, the defense vocational rehabilitation expert, provided a competent and credible opinion that claimant had transferrable skills to work in customer service positions based on his work history, and that there were open positions within his restrictions Additionally, the Full Commission found that claimant’s contention that he was unable to return to work in any position due to his pain and side effects from his medications was unpersuasive and that claimant had not established that he had experienced a total loss of wage earning capacity.

The Full Commission concluded that the General Assembly’s decision to use the language “total loss of wage-earning capacity” instead of “disability” denotes that Section 97-29(c) of the North Carolina General Statutes is a different standard than Section 97-29(b). See Ridge Cmty. Invs., Inc. v. Berry, 293 N.C. 688, 695, 239 S.E.2d 566, 570 (1977). Applying the revised standard set forth in the 2011 revisions to Section 97-29(c) of the North Carolina General Statutes, the Full Commission further concluded that to establish entitlement to extended compensation, a plaintiff must show that he has a total loss of the ability to earn wages in any employment. See N.C. Gen. Stat. § 97-29(c) (2021).

Implications for Defendants

As you can see from this case as well as the other cases decided recently by the Full Commission, rulings have been favorable for defendants.  The Commission is applying a “total wage loss” standard in requests for extended benefit cases.  As we have discussed previously:  testimony from medical providers and a vocational rehabilitation specialist are necessary to support a finding that a claimant has wage earning capacity. Defendants should ensure they have credible 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.

If you have questions about this recent Full Commission decision, please reach out to a member of Teague Campbell’s Workers’ Compensation Team.