The Developing Disability Dilemma
Recent rulings from The North Carolina Supreme Court and Court of Appeals have set Workers’ Compensation Defendants somewhat adrift regarding the burdens of proof relating to disability. With this uncertainty, and to counter the testimony historically provided by Plaintiffs seeking indemnity benefits, Defendants involved in complicated disability disputes should consider early involvement of a vocational expert well in advance of hearings. Otherwise, Defendants risk even strong defenses turning sour, and the higher ranges of exposure being reached.
Recall, first, the matters of Hilliard and Russell historically provided a meaningful structure to evaluate a Plaintiff’s burden of proof. Hilliard v. Apex Cabinet Co., 54 N.C. App. 173, 282 S.E.2d 828 (1981), rev’d on other grounds, 305 N.C. 593, 290 S.E.2d 682 (1982); Russell v Lowes Prod. Distribution, 108 N.C. App 762, 425 S.E.2d 454 (1993). Those matters established that proving disability requires specific and objectively supported persuasive evidence produced by Plaintiff.
With the advent of Wilkes v City of Greenville, ____ N.C. ____, 799 S.E. 2d 838, (2017) , in combination with Neckles v. Teeter, No. COA 16-569-2, 2018 WL 944070, (N.C. Ct. App. Feb. 20, 2018) and Adame v. Aerotek, 809 S.E.2d 922 (N.C. Ct. App. Feb. 20, 2018) however, the evidentiary structure provided by Hilliard and Russell has somewhat unraveled. Wilkes is the landmark case decided by the Supreme Court which held that Plaintiff could prove disability in ways outside of the Russell framework and suggested that the Industrial Commission may rely upon competent lay testimony to prove disability. In Neckles, the Court of Appeals held that the Full Commission did not properly address plaintiff’s wage earning capacity in light of his pre-existing and co-existing conditions. In Adame, the Court of Appeals held that Defendants failed to meet their shifted burden to prove Plaintiff was not disabled. Defendants in Adame utilized a vocational expert who performed a labor market survey and offered testimony; however the expert had limited knowledge of Plaintiff’s education and qualifications. Plaintiffs may argue these newer rulings reduce their burden of proof to a burden of production, which, if met, shifts the burden of proof to Defendants to disprove disability.
While this potential burden shifting is, itself, concerning, the time needed for Defendants to obtain persuasive evidence is, perhaps, even more harrowing. Following notice of a request for hearing, Defendants typically have four to six months to gather and present evidence before the case will be heard. This timeframe can be further reduced depending on when the file is assigned to defense counsel and whether any discovery disputes arise between the parties.
Since Plaintiffs may now be able to meet their burden and demonstrate a job search is futile by offering evidence that their age, education, and experience render future job searches futile, Defendants must spend the limited months available to them before hearing to locate jobs the Plaintiff is actually capable of obtaining given both his work-related and non-work related limitations and present that evidence in a format which will persuade a Deputy Commissioner to rely on it over Plaintiff’s own testimony. This can be challenging given that the Workers’ Compensation Act must be liberally interpreted in Plaintiffs’ favor.
Wilkes, Neckles and Adame leave Defendants wondering how to approach this developing dilemma. Utilization of a well-qualified vocational expert will be essential in many cases, but prudent employers should heed the guidance provided by these recent decisions.
The Industrial Commission has indicated a willingness to consider labor market surveys, but the above cases demonstrate that a labor market survey alone may not be enough. Employers who recognize the need for vocational evidence and retain an appropriate expert must also prepare the expert to both obtain an appropriate labor market survey and offer well-informed testimony at a hearing. This requires Defendants to obtain comprehensive information about Plaintiff’s pre-existing and co-existing limitations in discovery and to ensure the vocational expert has reviewed and considered this information in preparing his or her report and rendering opinions. Satisfying these standards will require early diligent planning by Defendants well in advance of hearing, but appears inevitable in the post-Wilkes era.
Please contact any member of our Workers’ Compensation team with questions or to discuss these issues in more detail.