by Charles E. McGee, Sizemore McGee, PLLC
In workers’ compensation claims arising on or after 6/24/2011, N.C. Gen. Stat. § 97-29 limits the payment of temporary total disability (“TTD”) compensation to 500 weeks from the date of first disability, unless the claimant qualifies for extended compensation through N.C. Gen. Stat. § 97-29(c). To qualify for extended compensation, the claimant’s extension application must be made at least 425 weeks after the date of first disability, and unless otherwise agreed to by the parties, the claimant must prove by a preponderance of the evidence a total loss of wage-earning capacity. Deputy Commissioners have thus far entered decisions in eight cases addressing extended compensation; five of these have been appealed to the Full Commission, which very recently entered its first decision in the appeals.
- · In I.C. No. X51195, Nobles v. NC DHHS/Central Regional Hospital, Plaintiff sustained compensable injuries to his eye, mouth, and shoulder when he was assaulted by a patient on 6/26/2011. Deputy Commissioner Robert J. Harris awarded extended compensation on 1/25/2021. Much of the litigation focused on the compensability of Plaintiff’s alleged chronic post-traumatic stress disorder (“PTSD”) and major depression and alleged disability resulting therefrom. Two neuropsychiatrists authorized by Defendants deemed Plaintiff malingering, and a Rehabilitation Professional prepared a Labor Market Survey (“LMS”) identifying several positions Plaintiff could perform. Plaintiff presented evidence from a treating psychiatrist who opined his chronic PTSD and major depression were related to the 6/26/2011 incident and render him permanently and totally disabled and unemployable. The Deputy Commissioner gave greater weight to the testimony of Plaintiff’s treating psychiatrist over other expert testimony, noting the two neuropsychiatrists authorized by Defendants were one-time evaluators and the Rehabilitation Professional did not meet with Plaintiff and based her LMS entirely on the premise that Plaintiff was malingering and had no restrictions related to the 6/26/2011 incident. The Deputy Commissioner concluded Plaintiff’s chronic PTSD and major depression are causally related to the 6/26/2011 incident and result in a total loss of wage-earning capacity. Defendants appealed to the Full Commission. On 9/29/2021, the Full Commission issued a decision denying compensability for the alleged chronic PTSD and major depression and denying Plaintiff’s application for extended compensation. The Full Commission gave greater weight to the opinions of the two neuropsychiatrists authorized by Defendants, finding Plaintiff’s treating psychiatrist relied solely on Plaintiff’s subjective reports to support his diagnosis while the two neuropsychiatrists authorized by Defendants formed their opinions based upon both Plaintiff’s subjective reports and his objective testing performance. In addition, the Full Commission found Plaintiff had not treated for his eye, mouth, and shoulder injuries since 2012, had reached maximum medical improvement for the injuries, and did not retain any work restrictions stemming therefrom. Accordingly, the Full Commission concluded Plaintiff had not established a lack of total wage-earning capacity as a result of his compensable injuries and thus was not entitled to extended compensation. Vice-Chair Myra L. Griffin authored the Full Commission’s Opinion & Award, and Commissioner Kenneth L. Goodman and Deputy Commissioner David Mark Hullender concurred.
- · In I.C. No. X59367, Betts v. NC DHHS/Cherry Hospital, Plaintiff sustained an ankle injury while restraining a combative patient on 8/12/2011 and ultimately underwent six surgeries. Deputy Commissioner Harris awarded extended compensation on 3/12/2021. One authorized treating physician assigned sedentary work restrictions to Plaintiff, while another added that Plaintiff should be allowed to raise her foot to at least heart level. Plaintiff retained a Rehabilitation Professional who performed a vocational evaluation and opined Plaintiff’s ankle condition and restrictions prevent her from obtaining and maintaining employment in any setting due to the foot elevation requirements. Defendants retained a Rehabilitation Professional who opined it is more likely than not Plaintiff could return to wage-earning capacity, but if Plaintiff is required to keep her right foot elevated for at least twenty minutes every hour, there are no jobs in the national economy which Plaintiff could perform unaccommodated. The Deputy Commissioner gave greater weight to the testimony and opinions of the Rehabilitation Professional retained by Plaintiff, determining her analysis is more tailored to Plaintiff’s specific circumstances. In addition, the Deputy Commissioner found that while Plaintiff may be a candidate for a very flexible, part-time, stay-at-home position with an employer which offers on-the-job training, the possibility of such a position existing does not reach the level of providing a reasonable expectation that Plaintiff could earn wages in the competitive economy. Thus, the Deputy Commissioner found, Plaintiff met her burden of proof on extended compensation by showing there is no reasonable expectation she could earn wages in the competitive economy given her limitations and need for accommodation due to her injury, in combination with her age, limited education, and limited transferrable skills for sedentary work. Defendants have appealed to the Full Commission, which heard oral argument on 8/11/2021.
- · In I.C. No. Y18418, Sturdivant v. NC DPS, a prior Deputy Commissioner decision had deemed Plaintiff’s 8/31/2011 back injury compensable and awarded TTD. Deputy Commissioner Erin F. Taylor denied extended compensation on 5/5/2021. In rejecting Plaintiff’s argument that the prior decision is res judicata on the issues determined therein and entitles him to a presumption of ongoing disability, the Deputy Commissioner relied on the statutory language of N.C. Gen. Stat. § 97-29, which applies the compensation cap to instances “when a claim has been deemed compensable following a hearing,” and notes TTD compensation ends 500 weeks from the date of first disability “unless the employee qualifies for extended compensation” under subsection (c). In analyzing the merits of the extended compensation application, the Deputy Commissioner relied on Webster’s Dictionary for the plain, ordinary, and literal meaning of a “total loss” of wage-earning capacity, and concluded Plaintiff is required to show “a complete destruction of the ability to earn wages” to extend his compensation. Though Plaintiff testified he was unsuccessful in finding work and that his pain kept him from working, the Deputy Commissioner gave great weight to the opinions of four medical providers, some of whom provided restrictions but none of whom opined Plaintiff was unable to work. The Deputy Commissioner also gave greater weight to the opinions of the Rehabilitation Professional Defendants retained, noting the Rehabilitation Professional Plaintiff retained did not contact any prospective employers for additional information regarding job postings and restricted her LMS to Plaintiff’s home county. Plaintiff has appealed to the Full Commission, which heard oral argument on 9/15/2021.
- · In I.C. No. X72421, Tyson v. NC DHHS/O’Berry Neuro-Medical Treatment Center, Plaintiff sustained a low back injury on 10/8/2011 while transferring a client from a wheelchair. Deputy Commissioner Kevin V. Howell denied extended compensation on 8/12/2021. During depositions, Plaintiff’s pain management provider opined that although Plaintiff has been out of work for some time and his medication carries potentially negative side effects, Plaintiff could perform work in the sedentary-to-light physical level; a rheumatologist who also continued to treat Plaintiff agreed he is capable of work with restrictions even after considering his co-existing conditions. Defendants retained a Rehabilitation Professional who conducted an LMS and opined Plaintiff was capable of work and able to earn wages in some capacity. Though Plaintiff disputed his ability to return to work, the Deputy Commissioner gave greater weight to the opinions and testimony of the medical providers and the Rehabilitation Professional. In reviewing the 2011 changes to the Act, the Deputy Commissioner concluded N.C. Gen. Stat. § 97-29(c) utilizes a “new and different standard for weekly compensation beyond 500 weeks,” and its plain meaning prohibits TTD compensation beyond 500 weeks from the date of first disability “if the employee has any wage-earning capacity.” Thus, the Deputy Commissioner concluded, because Plaintiff has not demonstrated by a preponderance of the evidence that he sustained a total loss of wage-earning capacity, he is not entitled to extended compensation. Plaintiff has appealed to the Full Commission, and the appeal is in the Briefing stage.
- · In I.C. No. X59853, Kotsias v. Florida Health Care Properties, Plaintiff sustained a mid-back injury while transferring a patient on 8/17/2011. The case has an interesting fact pattern and winding procedural history. Though the issue of extended compensation was not identified in the parties’ 2014 Pre-Trial Agreement, it was subsequently raised, and Deputy Commissioner Tiffany M. Smith addressed it in an 8/12/2021 decision. Of note, the Deputy Commissioner found that Plaintiff was entitled to temporary partial disability compensation when employed in a make-work position in early 2014, but was thereafter capable of some work, did not perform a reasonable job search, and is not totally disabled due to her mid-back injury; in addition, the Deputy Commissioner found Plaintiff’s subsequently reduced and at times total lack of earnings did not arise out of her mid-back injury, Plaintiff had not made an application for extended TTD compensation, and Plaintiff had not demonstrated a total loss of wage-earning capacity. Both parties have appealed to the Full Commission, and the appeals are in the Briefing stage.
Going forward, it will be important for counsel to identify and track the legal standards and methods of proof applied by the Full Commission in its decisions in these extended compensation cases. While Sturdivant and Tyson indicate a “new and different” showing is required to prove a total loss of wage-earning capacity – i.e., “a complete destruction of the ability to earn wages” or a complete lack of “any wage-earning capacity,” buttressed by sufficient medical and vocational evidence – Betts indicates a showing of “no reasonable expectation [to] earn wages in the competitive economy” may be combined with a claimant’s age, education, and transferrable skills to demonstrate a total loss of wage-earning capacity. Though the appellate courts may ultimately weigh in on some or all of the cases, the Full Commission’s decisions will help clarify the applicable burdens and analyses in the meantime.
In addition, the defense bar has noted several issues arising during litigation of extended benefits cases, including: objection to the use of an LMS where the claimant did not take part in its formulation; attempts to require the institution of full vocational rehabilitation efforts in conjunction with an LMS; attempts to add new and even previously-denied body parts/conditions to bolster disability claims (including allegations of injury- and claim-induced psychological issues); and attempts to take voluntary dismissals without prejudice after filing a Hearing Request. Counsel would be well served to be aware of these potential issues going forward, and to anticipate the need to counter new or denied body parts/conditions and restrictions as well as efforts to extend litigation and thwart or blunt LMS evidence.
