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On February 1, 2022, the North Carolina Full Commission released a decision in the second extended benefits case since the Reform in 2011. The case was originally heard by Deputy Commissioner Robert Harris, who found that the claimant had proven by the preponderance of the evidence that she “sustained a total loss of wage-earning capacity” because of her compensable long-term ankle condition. The underlying facts are as follows: claimant, a 53-year-old healthcare technician, sustained an injury to her ankle while trying to restrain a combative patient. Her injury required multiple surgeries. Claimant was a high school graduate with CNA qualifications, was involved in several volunteer activities, including Girl Scouts and the PTA, cut her own grass, and did crafts, including making flowerpots out of old car tires. Claimant’s authorized treating orthopedic physician gave claimant sedentary work restrictions; however, claimant’s pain management physician, Dr. Elizabeth Bagsby, testified claimant would need a sedentary job that could accommodate elevating her leg above her heart and repositioning herself throughout the day.
Claimant’s vocational expert testified that claimant’s past employment history and education, as well as her sedentary work restrictions and need to elevate her leg throughout the workday, prevented her from being employable. Defendant’s vocational expert testified that claimant was employable and felt her need to elevate her foot could be accommodated in a sedentary position. The expert also identified several positions in the medical field that were sedentary in nature, which she believed claimant could perform. The Deputy Commissioner noted in his Opinion and Award that the Defendant’s vocational expert did not meet or speak with the claimant, nor contact any of the identified employers to discuss claimant’s ability to perform the jobs.
The Full Commission panel, consisting of Wanda Blanche Taylor, James Gillen, and Adrian Phillips, gave greater weight to the testimony of claimant’s long-time treating physician rather than the pain management physician as it relates to claimant’s work restrictions. The Full Commission noted that Dr. Thompson, the authorized treating physician, at no time opined that claimant needed to elevate her leg above her heart. Additionally, the Full Commission noted there was no expert testimony or opinion that claimant was incapable of performing work. Furthermore, the Full Commission gave greater weight to the Defendant’s vocational expert as her testimony was consistent with the medical evidence indicating claimant had the ability to perform sedentary work and was more consistent with claimant’s demonstrated ability to perform valuable services, including organization, scheduling, supervision, and her reliability in her continued volunteer work. The Full Commission noted that claimant was a likely candidate to perform flexible work from home or part-time work. The Full Commission went on to note that at oral argument, claimant’s counsel conceded that she could perform one to two hours of work a week for wages.
The Full Commission concluded that the extended benefits statute in N.C.G.S. § 97-29(c) does not invoke “disability” as defined in N.C.G.S. § 97-2(9), nor does it require the employee to prove that she is unable to obtain competitive employment. The Full Commission noted that the statute on its face requires the employee to prove “by a preponderance of the evidence that the employee has sustained a total loss of wage-earning capacity.” The Full Commission interpreted this statutory language by using the plain, ordinary, and literal meaning of the words contained in the statute. The Full Commission cited the Webster Dictionary which defined “total” as “complete;” “utter” and “loss” as “to bring to ruin or destruction;” and “capacity” as “ability.” The Full Commission concluded using these definitions that claimant must prove by a preponderance of the evidence that she sustained a complete destruction of the ability to earn wages [emphasis added]. The Full Commission noted claimant’s ability to perform sedentary work in her volunteer activities, and claimant’s claim for extended benefits beyond the 500 weeks was denied.
This case is an excellent indication of how difficult it should be for claimants to prove they are entitled to extended benefits beyond the 500-week cap. If the injured employee has any ability to earn wages, albeit small, defendants should prevail assuming all the Commissioners follow the standard articulated above. No doubt this case is probably heading to the North Carolina Court of Appeals, and we will keep you updated on its potential path through our Appellate Courts.
In the meantime, some practical takeaways when defending these extended benefit cases include:
Written by: Luke West and Tracey Jones
Originally appeared on Teague Campbell website.
As part of the employer’s and carrier’s prompt investigation of a claim, NCIC Rule 608 allows the taking of a recorded statement to determine the facts and circumstances surrounding the injury. Rule 608 is broad in scope. It requires the adjuster to tell the claimant the statement they are giving may be used to determine whether to pay or deny their claim. These frequently play a critical role in determining compensability of a claim or defending a denial, particularly when it seems the claimant did not experience an injury that arose “by accident” – e.g., where the claimant was doing nothing unusual at the moment of injury and performing his or her usual job tasks in the usual way. However, the utility of the recorded statement is far reaching and can be an important barometer of the claimant’s credibility.
As always, the burden to prove compensability of any claim lies with the claimant. In order to make an informed decision about compensability and prepare a proper defense, adjusters should take the following tips into consideration when taking the recorded statement:
Memories fade. Stories change. In many cases, the description of the claimant’s injury will be the only evidence you have when determining whether the injury is compensable. We recommend contacting the claimant as soon as possible after notice of the claim to take their statement – ideally before claimant retains representation. With time, the claimant’s description of that injury may change, but a contemporaneous description of the injury will often be the most reliable account of events leading to the injury.
The content of the recorded statement is decidedly broad and includes the “facts and circumstances surrounding the injury.” Therefore, it pays to be thorough.
Always obtain the claimant’s address and e-mail, relevant medical history, the claimed mechanism of injury, other plausible explanations of the injury including hobbies and sports activities, identification of witnesses, and the claimant’s employment history. In addition, it is wise to include questions on covering the following topics:
Ask enough questions for a full understanding of the exact mechanism that caused injury. Lifting a tire may cause a shoulder injury, but if the claimant lifted the tire in the same way and under the same circumstances he or she always encounters, the injury did not arise “by accident.” Also obtain a full description of the injury itself – what hurts and where the injury took place.
Be sure to ask for a full description of claimant’s job tasks, including whether they work in multiple locations, roles, or job descriptions. Identify anything new or unusual within the claimant’s job and the length of time that new or unusual activity has been a part of the claimant’s regular job.
Always request the identity and contact information of Claimant’s supervisor, any claimed witnesses, and the co-workers claimant most often encounters on a day-to-day basis to allow interviews and fact investigation with those individuals.
Additional things to look out for include a short tenure with the employer of injury, an unwitnessed injury or injury that the employer disputes, or a shifting description of the mechanism of injury.
Always include questions regarding the alleged injured body part and whether there has been treatment to that body part in the past. If so, get the name of the provider and practice and when the treatment occurred and the length of that treatment. While the law does generally find new exacerbations of chronic injuries to be compensable, depending on the circumstances, a claimant may assert a chronic condition to be a new and distinct injury when that is not really the case. These cases require a physician’s testimony to support causation.
Ask about motor vehicle accidents and injuries associated with same. We strongly encourage carriers to include questions regarding the name and contact information of claimant’s primary care physician and any other specialist they have seen.
While psychological-only claims are rare, a psychological component of a physical injury may arise much later. Therefore, carriers should ask questions in the recorded statement regarding a claimant’s history of mental illness and to identify any treatment providers for that issue.
In addition, primary care physician records can offer a wealth of knowledge about past problems and treatment that a claimant may overlook or forget.
You want to know if claimant is actively involved in any activities that may lead to injury such as archery, concerts, off-roading, hunting, weightlifting, or woodworking. Ask enough questions to understand how frequently and where hobbies and activities take place so that further investigation can be done.
In order to maximize the claimant’s post-injury earning capacity, be sure to identify enough background information to help gauge their candidacy for other work in the event permanent claim-related restrictions preclude the claimant’s pre-injury job at some point during the claim.
If the claimant is working from home, focus questions on their activities at the time of injury and the normal routine they have developed while working remotely. Questions should include a specific description of the home office layout and timeline of usual daily activities including personal activities.
Like any occupational disease, the claimant has the burden to prove they had an increased risk of contracting COVID-19 because of their specific job, as opposed to elsewhere in the general public. With that in mind, the recorded statement is a good opportunity to assess compensability and potential defenses. In addition to the usual topics, COVID-19 claims require a more specific line of questioning.
We recommend obtaining a 14-day timeline prior to the date of the first symptoms. For that period of time, you will want to know:
You will need to know the claimant’s vaccination status. If the claimant is vaccinated, find out which vaccine they have and whether and when they received a booster. If the claimant is not vaccinated, find out why. Determine whether and under what circumstances the claimant wears a mask and whether the mask is an N95 or KN95.
Consider the claimant’s job (e.g., healthcare, retail, service, professional) and trace work-related contacts as described above for a 14-day period prior to the date of first symptoms or positive testing. In addition,
A claimant’s refusal to give a recorded statement can support a denial of the claim on the grounds that they will not comply with the investigation or provide enough details from which to determine compensability. By and large, claimants comply with the request for a recorded statement and Rule 608 tells adjusters to advise the claimant that the statement may be used to determine whether the claim will be paid or denied, and) to provide a copy to the claimant within 45 days after a request for a copy or after a Form 33 hearing request is filed. Failure to comply with the rule can prohibit introduction of the recorded statement at a hearing.
By incorporating these principles into your recorded statements, you will have a clearer understanding of the compensability of your claims, reduce the frequency and potential cost of litigation, and provide defense counsel with a head start in our defense of the claim. If you have questions about recorded statements or wish to discuss further, reach out to a member of our workers’ compensation team.
By Tracey Jones, Lindsay Underwood, Elizabeth Ligon, and Heather Baker
The North Carolina Industrial Commission has recently issued decisions in the first round of extended benefits cases, in which claimants are arguing entitlement to temporary total disability benefits past the 500-week cap. Seven cases have been heard and decided at the Deputy Commissioner level, and we recently received a decision from the Full Commission.
To obtain indemnity benefits beyond the 500-week cap, the claimant must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. It should be noted that, pursuant to N.C.G.S § 97-29(d), there are certain claims which allow for automatic permanent and total disability benefits (i.e., catastrophic cases where a claimant loses two or more limbs). These claimants are entitled to lifetime benefits without findings concerning work ability or wage-earning capacity. 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 claimant is capable of suitable employment, then permanent and total disability would not be due and payable.
Deputy Commissioner Extended Benefits Decisions to Date
The first case, Milton Nobles v. North Carolina DHHS and CCMSI, was issued by Deputy Commissioner Robert Harris on January 25, 2021. The claimant in that case had no formal education outside of a high school diploma. He had work experience primarily as a health care technician. On June 26, 2011, the claimant was working for a hospital and sustained injuries while breaking up a fight, which ultimately resulted in headaches, PTSD, and depressive disorder. The Deputy Commissioner emphasized the severity of the fight and the resulting injuries to claimant as well as claimant’s limited job history and low IQ. Dr. Thomas Gualtieri saw the claimant for a one-time neuropsychiatric evaluation in September 2011 and opined that claimant was malingering. He testified in line with the same at hearing. Claimant then began seeing Dr. Edwin Hoeper, a psychiatrist, on his own starting in May 2012. Claimant was still seeing him as of the date of the hearing. Dr. Hoeper provided testimony for claimant that his PTSD would never be cured and that his treatment could only improve his life slightly. Dr. Hoeper testified that claimant was permanently and totally disabled, and unemployable in any job. Dr. Manish Fozdar also conducted a one-time independent medical examination of claimant. Dr. Fozdar found claimant to be uncooperative and opined claimant was malingering. He opined any further mental health treatment was not related to his initial injury. Defendants also hired a rehabilitation professional, who produced a labor market survey and identified several positions she believed claimant could perform. The defendants’ vocational expert never met with claimant and claimant did not hire his own vocational expert.
Deputy Commissioner Harris determined that claimant was entitled to extended benefits beyond the 500 weeks. The Deputy Commissioner found that claimant had long-term chronic PTSD and chronic major depression, and that he had satisfied the requirements under N.C.G.S. § 97-29(c) and had proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Dr. Hoeper’s testimony was given more weight than that of Dr. Fozdar, Dr. Gualtieri, and the vocational rehabilitation professional. Thus, claimant was awarded extended benefits.
Defendants appealed to the Full Commission. On September 29, 2021, the Full Commission entered an Opinion and Award reversing Deputy Commissioner Harris’s Opinion and Award and denying claimant’s right to extended benefits beyond the 500 weeks, as well as his claim for PTSD. The Full Commission panel consisted of Commissioner Myra Griffin, Commissioner Kenneth Goodman, and Deputy Commissioner David Hullender. The Full Commission reviewed the evidence and testimony and noted that claimant had received no medical treatment for his physical injuries since 2012 and had no work restrictions related to those injuries. Additionally, the Full Commission noted that the Parsons presumption did not apply to claimant’s allegations of PTSD as it was not an accepted condition and found Dr. Gualtieri’s and Dr. Fozdar’ s testimony more creditable that that of claimant’s treating physician, Dr. Hoeper. The Full Commission concluded that Dr. Hoeper relied solely on claimant’s subjective complaints without any diagnostic testing or objective finds to support his diagnosis of PTSD. They specifically noted that Dr. Fozdar and Dr. Gualtieri performed objective testing, which led them to conclude that claimant’s alleged mental conditions were not related to his work injury. Accordingly, the Full Commission opined that claimant failed to prove that he suffered from PTSD or depression as a result of his work injury and did not prove that he lacked total wage-earning capacity. The Full Commission denied medical treatment for claimant’s alleged PTSD and denied his claim for extended benefits beyond the 500-week cap.
The next case, Mary Betts v. North Carolina Department of Health and Human Services and CCMSI, was issued on March 12, 2021, also by Deputy Commissioner Robert Harris. The claimant in that case graduated from high school and had CNA qualifications. She was a certified EMT, but her certifications had lapsed. Claimant worked as a health care technician and sustained her injury on August 12, 2011, while trying to restrain a combative patient. She sustained an injury to the ankle, which resulted in multiple surgeries. Claimant had sedentary work restrictions, but the treating physicians noted that, even while performing sedentary work, she would still experience pain and swelling and would need to elevate her foot every hour. Evidence showed that claimant remained involved with the Girls Scouts as a troop leader and summer camp director, volunteered with the PTA, cut her own grass, and did crafts. The vocational expert hired by claimant testified that claimant’s condition prevented her from being employable. Defendants also hired a vocational expert who did not meet or speak with the claimant and who did not contact any potential employers to discuss the claimant’s limitations. The vocational expert was unaware of claimant’s need to elevate her foot to prevent swelling and pain. The Deputy Commissioner found the defendants’ vocational expert report to be too general and not tailored specifically to claimant. Accordingly, the Deputy found that claimant had proven by the preponderance of the evidence in view of the entire record that she “has sustained a total loss of wage-earning capacity” because of this compensable long-term ankle condition. As such, claimant was entitled to extended benefits.
The third case, Michelle Brown v. NC Department of Public Instruction/Surry County Schools and Sedgwick, was issued on May 4, 2021, by Deputy Commissioner Jesse Tillman, III. The claimant was working as a teacher’s assistant at a high school on February 24, 2012, when she sustained an injury. Claimant worked for the county in multiple capacities in the past, including bus driver, substitute teacher, tennis coach, and band director, and had experience as a CNA, truck dispatcher, cashier, food preparation, a line worker, and phlebotomist. The claimant had permanent sedentary work restrictions; however, no doctor testified she could not work in at least some capacity. Claimant testified she rode a motorcycle a few times during the summer, used a riding lawnmower, could walk one to two miles without issue, bowled twice a week, cared for multiple animals, and actively swam. A vocational expert provided a labor market survey that showed the availability of jobs within claimant’s work restrictions. Claimant presented no evidence that she continued to suffer a total loss of wage-earning capacity. The Deputy Commissioner found that claimant could at least work a part-time, sedentary job. As a result, this claim for extended benefits was denied.
The fourth case is Martin Sturdivant v. North Carolina Department of Public Safety and CCMSI. The decision was issued by Deputy Commissioner Erin F. Taylor on May 5, 2021. In this case, claimant sustained a compensable back injury on August 31, 2011. He was a high school graduate and had completed some post-graduate courses. He was certified to drive a forklift, had training in blueprint reading, and had CPR experience. The claimant had been on his church’s Board of Trustees since 2008. On the date of his injury, claimant was working transporting inmates. Four of claimant’s physicians testified he could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Claimant only started looking for work in January 2020 and produced a job log, but some of the entries were inaccurate. Defendants’ vocational expert met with claimant, performed a transferrable skills analysis, performed a labor market survey, and identified several jobs in the surrounding area that claimant was capable of performing. Claimant’s vocational expert testified claimant was unable to work at all and disagreed with the treating physicians’ work restrictions. However, the vocational expert did not contact any potential employers, did not perform a transferable skills analysis, and only looked for jobs in Anson County. As a result, the Deputy Commissioner afforded more weight to the defendants’ vocational expert and determined that claimant could not show a total loss of wage-earning capacity and was therefore not entitled to extended benefits beyond the 500-week cap.
The fifth case is Glendell Murphy v. North Carolina Department of Public Transportation. The decision was issued by Deputy Commissioner Robert Harris on August 6, 2021. Claimant was 56 years old and suffered a compensable right knee injury while working at a youth center. Claimant had a high school diploma, worked at a chicken plant for two years, was in the US army, worked as a correctional officer, worked as a counselor at a Methodist home for children, and worked as a delivery driver. He earned his associate degree in 2001, his bachelor’s degree in 2013, and his master’s degree in 2015; all in criminal justice. Claimant had prior issues with depression and treated through the VA, but never requested psychiatric treatment from defendants. Claimant testified he had not looked for work since 2016. The orthopaedic authorized treating physician stated claimant could work and earn wages, but claimant’s unauthorized psychiatric doctor opined that he could not work at all. Defendants hired a vocational expert who met with claimant, reviewed claimant’s medical records, and performed a labor market survey, which identified 12 jobs that claimant could do within his orthopaedic work restrictions. When the vocational expert was questioned about claimant’s depression, she testified that his psychiatric condition was a “concern regarding claimant’s employability.” Claimant did not hire a vocational expert, but the Deputy Commissioner opined that defendants’ vocational expert testimony did not support a finding that claimant had wage earning capacity, and as result, claimant was granted extended benefits.
The sixth case is George E. Tyson, Jr. v. North Carolina Department of Health and Human Services and CCMSI. The decision was issued by Deputy Commissioner Kevin Howell on August 12, 2021. Claimant in this case sustained a compensable injury to his lower back on October 8, 2011, while assisting a client from a wheelchair to a couch. 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. Claimant testified that he did not think he could work but provided no expert testimony to support this claim. The Deputy Commissioner determined that 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 most recent case, as of the date of early November 2021, is Tapper v. Penske Logistics, LLC. This decision was issued by Deputy Commissioner Wes Saunders on October 7, 2021. Claimant sustained two compensable injuries to his back while delivering newspapers. He was 64 years old when the Opinion and Award was issued. His first date of disability was July 25, 2011. Following several surgeries, Dr. Dennis Bullard opined that claimant was totally disabled and precluded from gainful employment. Claimant was referred to Rex Pain Clinic for pain management, but his care was subsequently transferred to his primary care provider, Dr. Kirsten Avery, due to a lack of improvement. Dr. Avery saw claimant once every three months for medication refills. She testified that claimant lacked the functional capacity to return to work in any capacity. Deputy Commissioner Saunders found her testimony credible based on her familiarity with claimant and her status as claimant’s primary care provider for over twelve years.
Prior to the hearing, claimant obtained a second opinion evaluation with Dr. Charles Goodno and retained Michael Fryar as an expert in vocational counseling. Dr. Goodno did not have a complete copy of claimant’s medical records and did not consider that claimant was recovering from several unrelated surgeries when he tested claimant’s physical abilities. Consequently, Dr. Goodno’s testimony was given less weight by Deputy Commissioner Saunders because his opinions were based on incomplete information. However, Mr. Fryar testified that, because claimant had not been released to return to work in any capacity by any of his medical providers, his search for employment would be futile. Deputy Commissioner Saunders found Mr. Fryar’s testimony credible and concluded claimant had carried his burden of proving a total loss of wage earning capacity through Dr. Avery and Mr. Fryar’s expert testimony. Claimant was awarded extended benefits and ongoing medical compensation.
Practical Takeaways for Jurisdictions with Statutory Caps
The decisions issued to date help to forecast what issues North Carolina appellate courts will consider when analyzing extended benefits cases. Below is a list of general takeaways on how to defend a claim for benefits beyond the statutory cap:
1. Each case will be fact specific; documentation and communication remain critical.
2. The claim will require the use of credible and, in many cases, multiple experts.
3. Defendants should obtain solid expert opinions, both medical and vocational, that clearly support a finding that a claimant can participate in some form of employment.
4. It is important to elicit detailed testimony, including dates, times, and follow-ups, from the claimant regarding his or her job search, or lack thereof.
5. The vocational expert should meet with the claimant in person to identify jobs within the claimant’s labor market that are readily available in light of his or her work restrictions and educational and vocational background. Additionally, the vocational counselor should contact those potential employers to determine the likelihood that the claimant can secure employment within his or her work restrictions.
6. The vocational expert should be provided an accurate summary of claimant’s work restrictions regardless of whether the condition has been accepted by defendants. Providing the vocational expert with claimant’s hearing testimony prior to his or her deposition should be considered.
7. It is important to have a detailed understanding of the claimant’s job history, educational background, and daily activities, including volunteer activities, as evidence of the claimant’s wage-earning ability.
8. It will benefit the defense to develop solid medical evidence about the claimant’s loss of use or impairment ratings by highlighting the functionality of the injured body part.
Hearing requests for extended benefits are on the rise right now since there has been no guidance from the North Carolina Court of Appeals regarding the correct standard to be used when deciding these cases. These cases are fact specific and a full and complete understanding of the claimant’s medical, educational, and vocational history will be imperative. Defendants will need clear and strong expert testimony to prevail in these cases.
We will continue to monitor extended benefits
cases as they work their way through our court system. If you have any
questions about extended benefits, please contact a member of our Teague
Campbell’s workers’ compensation team.
Written by: Tracey Jones and Luke West
Originally appeared on Teague Campbell Dennis & Gorham LLP website
We saw during March 2020 the great migration for businesses to a mainly, and at times exclusively, work from home model. While businesses have re-opened their offices to their employees, data from the Pew Research Center shows that many Americans are still working from home and would want to continue to work from home even after the Coronavirus outbreak ends.
For businesses, there are benefits to having a work from home model from employees. It can be cost-effective in reducing overhead with less need for office space and lower energy costs. However, there are also risks employers should consider when allowing employees to work from home.
From a workers’ compensation perspective, for a work from home injury to be compensable, Plaintiff must prove that an accident occurred which arose out of and in the course and scope of employment.
When an injury occurs at home, it is imperative to collect as much information as possible about the event. Knowing specific details of the injury, like the location of the injury, the layout of the workspace, the time the injury occurred and normal work from home routine are essential in determining the compensability of a claim.
A few considerations for employers who intend to utilize a work from home model, wholly or partially, should include:
Because each and every claim is fact-specific, feel free to contact one of our workers’ compensation attorneys with any questions.
Written by: John Tomei
Originally appeared on Teague Campbell Dennis & Gorham website
Ordinarily, bad faith claims against insurance carriers are brought in the Superior Court in the General Courts of Justice in North Carolina. These claims are based upon the law of contracts and torts. The law provides that there is an implied covenant between an insured and a carrier for the carrier to act in good faith. A carrier’s failure to do so can subject that carrier to liability, including punitive damages. However, when dealing with workers’ compensation coverage and bad faith claims, other issues regarding jurisdiction and venue arise.
Specifically, who has jurisdiction over a claim asserted against a workers’ compensation insurance carrier for bad faith? Is it the North Carolina Industrial Commission or the Superior Court in the General Courts of Justice?
The general rule is that all claims arising from an employer’s or insurer’s processing and handling of a workers’ compensation claim fall within the exclusive jurisdiction of the Industrial Commission, regardless of whether the alleged conduct was intentional or merely negligent. Bowden v. Young, 762 S.E. 2d 622, 625 (N.C. Ct. App. 2015) While the North Carolina Workers’ Compensation Act provides the exclusive remedy for work-related injury matters, the Act has also been construed to give the Industrial Commission jurisdiction not only over those work-related injury claims but also any claims “ancillary” to the original injury—including those against insurance carriers. Ancillary claims have included those related to fraud, bad faith, civil conspiracy, unfair and deceptive trade practices, and intentional infliction of emotional distress. Johnson v. First Union Corp., 131 N.C. App 142, 144, 504 S.E. 2d 808, 810 (1998).
There are some rare exceptions to the general rule. Three of those exceptions include:
There are pitfalls for the unwary in defending bad faith claims. When dealing with a bad faith claim in the context of a workers’ compensation insurance policy, it is important to be aware that the North Carolina Industrial Commission will likely have jurisdiction over those claims. Having attorneys who are experienced in dealing not only with coverage and bad faith claims, but also with appearing before the Industrial Commission, is vitally important in successfully defending these bad faith and other coverage-related matters.
Written by: Lindsay Underwood
Originally posted on Teague Campbell Dennis & Gorham website.
While COVID-19 continues to spread, many businesses are working to keep their doors open and stave off another shutdown. As part of that effort, and because of the recent full FDA approval of the Pfizer vaccine, we are seeing a trend toward mandatory vaccination policies. This raises questions about how mandatory vaccines, and possible adverse reactions, could result in new workers’ compensation claims. We can reference existing vaccine policies to determine when insureds could bear the responsibility for providing benefits where an employee sustains an adverse reaction to a mandatory vaccine. We will argue that when a vaccine is encouraged, but not mandated, any adverse reaction does not arise out of the employment. However, once it is mandated, it is nearly impossible to argue that any compensable occupational disease or injury by accident arising out of that mandatory vaccine no longer arises out of the employment.
N.C.G.S. § 97-53 (13) provides that an occupational disease must be “due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.” The NC Supreme Court has held that this provision requires that the disease is (1) characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged; (2) not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and, (3) there must be a causal connection between the disease and the claimant’s employment. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93-94, 301 S.E.2d 350 (1983).
In cases where the employment exposed the employee to a greater risk of developing the disease than the general public, the first two elements listed above are satisfied. Thus, any employee arguing an entitlement to benefits after sustaining an adverse reaction from a mandatory COVID-19 vaccine will have to prove they are at an increased risk of developing their condition as a result of the employment, and also establish a causal connection between their reaction and employment. NC courts require a link between the nature of the employment and the alleged disease.
If an employee is required to receive a COVID-19 vaccine as a term of their employment, any medically connected adverse reaction to that vaccine would likely be determined to have placed the employee at an “increased risk” of developing that reaction due to the employment. The third element of the Rutledge test is satisfied where the occupational exposure “significantly contributed to, or was a significant causal factor in, the disease’s development.” The NC Supreme Court has held that where expert opinion testimony is based upon speculation and conjecture, it is not sufficiently reliable to qualify as competent evidence on medical causation. The evidence must take the case out of the realm of conjecture and remote possibility.
In one case, Kai-Ling Fu v. UNC Chapel Hill, 188 N.C. App. 610, 655 S.E.2d 907 (2008), the employee reported an adverse reaction after being required to be vaccinated against a Venezuelan virus as part of her research position. The employee reported that, after the vaccination, she experienced headaches, fever, and shortness of breath. She was prescribed an inhaler and was referred to counseling due to anxiety. She was also instructed to remain out of work due to fatigue. The Court of Appeals held that the employee was at a higher risk than the general public of developing her symptoms. It was specifically noted that when an individual has to take a vaccine because of their employment they are likely at an increased risk for having systemic side effects, as opposed to that of the general public.
Based on the above, it is likely that any adverse reaction from a mandatory COVID-19 vaccine would result in exposure for a workers’ compensation claim. As in any other alleged occupational disease claim, the employee would still need to prove the elements of the Rutledge test, to include showing a causal relationship between any symptoms and the vaccine. We may also have a defense under the “peculiar sensitivity” theory, where an employee’s sensitivity to a vaccine makes their reaction unique. Though that defense is difficult to prove, it should be part of any post-injury investigation. Although most of the cases will be analyzed under the occupational disease standard, we may end up with injury by accident exposure as well. If the vaccine itself is not administered properly and the employee is injured during the administration of the vaccine, that could be seen as an injury by accident. Under either argument, the main investigation will be whether the alleged adverse reaction is truly from the vaccine and not from some other pre-existing condition that the employee might have.
Written by: Elizabeth Ligon
On October 7, 2021, Deputy Commissioner Wes Saunders issued an Opinion and Award in Tapper v. Penske Logistics, LLC, awarding the claimant extended benefits. This is the seventh decision on extended benefits that has been issued at the Deputy Commissioner level.
By way of background, the claimant sustained two compensable injuries to his back while delivering newspapers for Defendant-Employer. The claimant was 64 years old when the Opinion and Award was issued. His first date of disability was July 25, 2011. Following several surgeries, Dr. Dennis Bullard opined that the claimant was totally disabled and precluded from gainful employment. The claimant was referred to Rex Pain Clinic for pain management, but his care was subsequently transferred to his primary care provider, Dr. Kirsten Avery, due to a lack of improvement. Dr. Avery saw the claimant once every three months for medication refills. She testified that the claimant lacked the functional capacity to return to work in any capacity. Deputy Commissioner Saunders found her testimony credible based on her familiarity with the claimant and her status as the claimant’s primary care provider for over twelve years.
Prior to the hearing, the claimant obtained a second opinion evaluation with Dr. Charles Goodno and retained Michael Fryar as an expert in vocational counseling. Dr. Goodno did not have a complete copy of the claimant’s medical records and did not consider that the claimant was recovering from several unrelated surgeries when he tested the claimant’s physical abilities. Consequently, Dr. Goodno’s testimony was given less weight by Deputy Commissioner Saunders because his opinions were based on incomplete information. However, Mr. Fryar testified that because the claimant had not been released to return to work in any capacity by any of his medical providers, his search for employment would be futile. Deputy Commissioner Saunders found Mr. Fryar’s testimony credible and concluded the claimant had carried his burden of proving a total loss of wage earning capacity through Dr. Avery and Mr. Fryar’s expert testimony. Plaintiff was awarded extended benefits and ongoing medical compensation.
This claim is a good reminder that defendants need solid expert opinions, both medical and vocational, that support a finding that a claimant is capable of participating in some form of employment. It is not enough to merely attack the credibility of claimant’s expert witnesses. It is also helpful to have a detailed understanding of claimant’s job history, educational background, and daily activities, including volunteer activities.
Our team will continue to monitor extended benefits cases as they work their way through our court system. If you have any questions about extended benefits, contact a member of our workers’ compensation team.
Written by: Tracey Jones
On September 29, 2021, the Full Commission entered an Opinion and Award in Milton Nobles v. North Carolina DHHS and CCMSI. The Full Commission reversed Deputy Commissioner Harris’ Opinion and Award and denied claimant’s right to extended benefits beyond the 500 weeks, as well as his claim for PTSD. The Full Commission panel consisted of Commissioner Myra Griffin, Commissioner Kenneth Goodman and Deputy Commissioner David Hullender.
By way of background, Deputy Commissioner Robert J. Harris entered an Opinion and Award on January 25, 2021, awarding claimant extended benefits beyond the 500 weeks and finding that claimant’s PTSD was compensable. On June 26, 2011, the claimant was working for a hospital and sustained physical injuries to his right eye, mouth and right shoulder, which were accepted. At the hearing, claimant alleged that he also developed PTSD as a result of his work injuries. In awarding extended benefits, Deputy Harris noted that the claimant had no formal education outside of a high school diploma, and his work experience was primarily as a health care technician. Additionally, Deputy Harris emphasized the severity of the fight and the resulting injuries to claimant as well as claimant’s limited job history and low IQ.
Dr. Thomas Gualtieri saw the claimant for a one-time neuropsychiatric evaluation in September of 2011 and opined that claimant was malingering. He testified in line with the same at hearing. Claimant then began seeing Dr. Edwin Hoeper, a psychiatrist, on his own starting in May of 2012. Claimant was still seeing Dr. Hoeper as of the date of the hearing and Dr. Hoeper provided testimony for claimant that his PTSD was related to the work injury, would never be cured and that his treatment could only improve his life slightly. Dr. Hoeper testified that claimant was permanently and totally disabled, and unemployable in any job. Dr. Manish Fozdar also conducted a one-time independent medical examination of claimant. Dr. Fozdar found claimant to be uncooperative and opined claimant was malingering. He opined any further mental health treatment was not related to his initial injury. Defendants also hired a vocational rehabilitation professional, who produced a labor market survey and identified several positions she believed claimant could perform. Defendants’ vocational expert never met with claimant and claimant did not hire his own vocational expert. Deputy Commissioner Harris determined that claimant was entitled to extended benefits beyond the 500 weeks. Deputy Harris found that claimant had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C.G.S. § 97-29(c) and had proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Dr. Hoeper’s testimony was given more weight than that of Dr. Fozdar, Dr. Gualtieri, and of the vocational rehabilitation professional.
The Full Commission reviewed the evidence and testimony and noted that claimant had received no medical treatment for his physical injuries since 2012 and had no work restrictions related to those injuries. Additionally, the Full Commission noted that the Parsons presumption did not apply to claimant’s allegations of PTSD as it was not an accepted condition in the claim and found Dr. Gualtieri’s and Dr. Fozdar’s testimony more credible than that of claimant’s treating physician, Dr. Hoeper. The Full Commission concluded that Dr. Hoeper relied solely on claimant’s subjective complaints without any diagnostic testing or objective findings to support his diagnosis of PTSD. They specifically noted that Dr. Fozdar and Dr. Gualtieri performed objective testing which led them to conclude that claimant’s alleged mental conditions were not related to his work injury. Accordingly, the Full Commission conculded that claimant failed to prove that he suffered from PTSD or depression as a result of his work injury and did not prove that he lacks total wage-earning capacity as a result of his June 26, 2011, right eye, mouth or right shoulder injuries. The Full Commission denied medical treatment for claimant’s alleged PTSD and denied his claim for extended benefits beyond the 500-week cap.
Employers and adjusters should carefully draft Form 63s or Form 60s. When completing these forms, only list the body parts that are truly accepted, and list them with specificity.
Although it is unclear whether the Full Commission would have still reached the same conclusion if the mental component had been accepted in light of Dr. Fozdar’s and Dr. Gualtieri’s testimony and examinations, the Parsons presumption is a difficult one for defendants to overcome. (The Parsons presumption states that if a condition is listed on the Form 63 than there is a presumption that the condition listed and all future treatment for that condition is related to the original injury absent evidence to the contrary.) Additionally, the Opinion reiterates the importance of expert testimony that is based on objective diagnostic testing
Written by: Tracey Jones
Last Updated: September 30, 2021
The North Carolina Industrial Commission has recently issued decisions in the first round of extended benefits cases, in which claimants are arguing entitlement to temporary total disability benefits past the 500-week cap on benefits. Six cases have been heard and decided at the Deputy Commissioner level, and four of those cases are on appeal to the Full Commission. To obtain benefits beyond the 500-week cap, the claimant must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. The claimant is only eligible to request a hearing on this issue after 425 weeks have passed from the first date of disability. In the cases that have been decided so far, the decisions are split.
N.C.G.S § 97-29(c) outlines the physical and mental requirements for showing an entitlement to extended benefits. As stated above, to obtain benefits beyond the 500-week cap, the claimant must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. It should be noted that pursuant to N.C.G.S § 97-29(d) there are certain claims which allow for automatic permanent and total disability benefits (i.e., catastrophic cases where a claimant loses two or more limbs). These claimants are entitled to lifetime benefits without findings concerning work ability or wage-earning capacity. 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 claimant is capable of suitable employment, then permanent and total disability would not be due and payable.
Prior to discussing the cases that have come down to date, it is helpful to revisit the context and history regarding how this legislation developed. The Worker’s Compensation Act as originally enacted contained a limitation on permanent and total disability to a maximum of 400 weeks. In 1973, the Legislature removed that limitation. The General Assembly never reintroduced limitations on N.C.G.S. § 97-29 benefits, and the result was that there was essentially no limitation on how long a claimant could receive benefits. This resulted in a huge increase in indemnity exposure throughout the 1990s.
Sweeping legislative reform eventually took place in 2011, and one of the main goals of the defense bar was to put a limitation back on N.C.G.S. § 97-29 benefits. One of the last pieces of the legislation discussed during the legislative reform was the language for extended benefits. The initial legislation did not have any extended benefits language and N.C.G.S. § 97-29 benefits ended at 500 weeks. Governor Perdue threatened a veto stating that she did not want seriously injured workers, who may not qualify for permanent and total disability, to have to rely on support from the State. The Governor wanted some type of provision concerning extended benefits beyond the 500 weeks for claimants who were seriously and/or catastrophically injured but did not qualify for permanent and total disability benefits under the statute. As a result, the extended benefits language was added to ensure the reform passed.
When analyzing the traditional concept of permanent and total disability under prior case law, the Courts routinely referenced a total loss of any wage-earning capacity. The Gupton case specifically uses language that if the power or capacity to earn is totally obliterated, the claimant is entitled to total and permanent disability under N.C.G.S. § 97-29. Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674 (1987).
Accordingly, as the Form 33 Requests for Hearing are filed in these extended benefits cases, defendants argue that the claimant will have to prove a total loss of any wage-earning capacity and/or that their wage-earning capacity has been totally obliterated. The plaintiff’s bar is taking a different approach and arguing the standard for extended benefits beyond 500 weeks is the same as it is within the 500 weeks. Defendants argue that the General Assembly does not pass legislation that is irrelevant; essentially asking the question: Why would the 2011 Reform have addressed the 500-week cap or extended benefits issue whatsoever, if the threshold is the same?
Defendants’ argument is that if the claimants has even some wage-earning capacity, they have not proven their entitlement to extended benefits, or a total loss of wage-earning capacity. Defendants should also continue to make the policy argument that this entire analysis needs to be framed within the bigger picture of the 2011 Reform. It is worthwhile to emphasize that the 2011 Reform Bill was titled a “Return to Work Act.” The system is designed to encourage people to return to work whenever possible. Therefore, unless the claimant has a total loss of any wage-earning capacity or their wage-earning capacity has been totally obliterated, they should be limited to 500 weeks of temporary total disability benefits under N.C.G.S. § 97-29 from the date of first disability or a total of 500 weeks of temporary partial disability benefits under N.C.G.S. § 97-30. Defendants should continue to rely on the way the Supreme Court has discussed and analyzed total loss of wage-earning capacity.
Now that we have a good understanding of the idea behind the 2011 Reform, including the extended benefits provision, we can discuss the six cases that have come down recently at the Deputy Commissioner level. The first case, Milton Nobles v. North Carolina DHHS and CCMSI, was issued by Deputy Commissioner Robert Harris on January 25, 2021. The claimant in that case had no formal education outside of a high school diploma. He had work experience primarily as a health care technician. On June 26, 2011, the claimant was working for a hospital and sustained injuries while breaking up a fight, which ultimately resulted in headaches, PTSD, and depressive disorder. The Deputy Commissioner emphasized the severity of the fight and the resulting injuries to claimant as well as claimant’s limited job history and low IQ. Dr. Thomas Gualtieri saw the claimant for a one-time neuropsychiatric evaluation in September 2011 and opined that claimant was malingering. He testified in line with the same at hearing. Claimant then began seeing Dr. Edwin Hoeper, a psychiatrist, on his own starting in May 2012. Claimant was still seeing him as of the date of the hearing. Dr. Hoeper provided testimony for claimant that his PTSD would never be cured and that his treatment could only improve his life slightly. Dr. Hoeper testified that claimant was permanently and totally disabled, and unemployable in any job. Dr. Manish Fozdar also conducted a one-time independent medical examination of claimant. Dr. Fozdar found claimant to be uncooperative and opined claimant was malingering. He opined any further mental health treatment was not related to his initial injury. Defendants also hired a rehabilitation professional, who produced a labor market survey and identified several positions she believed claimant could perform. The defendants’ vocational expert never met with claimant and claimant did not hire his own vocational expert.
Deputy Commissioner Harris determined that claimant was entitled to extended benefits beyond the 500 weeks. The Deputy found that claimant had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C.G.S. § 97-29(c) and had proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Dr. Hoeper’s testimony was given more weight than that of Dr. Fozdar, Dr. Gualtieri, and of the vocational rehabilitation professional. Thus, the claimant was entitled to extended benefits.
Defendants appealed to the Full Commission. On September 29, 2021, the Full Commission entered an Opinion and Award reversing Deputy Commissioner Harris’ Opinion and Award and denying claimant’s right to extended benefits beyond the 500 weeks, as well as his claim for PTSD. The Full Commission panel consisted of Commissioner Myra Griffin, Commissioner Kenneth Goodman and Deputy Commissioner David Hullender. The Full Commission reviewed the evidence and testimony and noted that claimant had received no medical treatment for his physical injuries since 2012 and had no work restrictions related to those injuries. Additionally, the Full Commission noted that the Parsons presumption did not apply to claimant’s allegations of PTSD as it was not an accepted condition in the claim and found Dr. Gualtieri’s and Dr. Fozdar’ s testimony more creditable that that of claimant’s treating physician, Dr. Hoeper. The Full Commission concluded that Dr. Hoeper relied solely on claimant’s subjective complaints without any diagnostic testing or objective finds to support his diagnosis of PTSD. They specifically noted that Dr. Fozdar and Dr. Gualtieri performed objective testing which led them to conclude that claimant’s alleged mental conditions were not related to his work injury. Accordingly, the Full Commission opined that claimant failed to prove that he suffered from PTSD or depression as a result of his work injury and did not prove that he lacks total wage-earning capacity as a result of his June 26,2011 right eye, mouth or right shoulder injuries. The Full Commission denied medical treatment for claimant’s alleged PTSD and denied his claim for extended benefits beyond the 500 week cap.
The next case, Mary Betts v. North Carolina Department of Health and Human Services and CCMSI, was issued on March 12, 2021, also by Deputy Commissioner Robert Harris. The claimant in that case graduated from high school and had CNA qualifications. She was a certified EMT, but her certifications had lapsed. The claimant worked as a health care technician and sustained her injury on August 12, 2011, while trying to restrain a combative patient. She sustained an injury to the ankle which resulted in multiple surgeries. The claimant had sedentary work restrictions, but the claimant’s treating physicians noted that even while performing sedentary work, she would still experience pain and swelling and would need to elevate her foot every hour. Evidence showed that claimant remained involved with the Girls
Scouts as a troop leader and summer camp director, volunteered with the PTA, cut her own grass, and did crafts. The vocational expert hired by claimant testified that claimant’s condition prevented her from being employable. Defendants also hired a vocational expert who did not meet or speak with the claimant and who did not contact any potential employers to discuss the claimant’s limitations. The vocational expert was unaware of claimant’s need to elevate her foot to prevent swelling and pain. The Deputy Commissioner found the defendants’ vocational expert report to be too general and not tailored specifically to the claimant. Accordingly, the Deputy found that claimant had proven by the preponderance of the evidence in view of the entire record that she “has sustained a total loss of wage-earning capacity” because of this compensable long-term ankle condition. As such, claimant was entitled to extended benefits.
The third case, Michelle Brown v. NC Department of Public Instruction/Surry County Schools and Sedgwick, was issued on May 4, 2021, by Deputy Commissioner Jesse Tillman, III. The claimant was working as a teacher’s assistant at a high school on February 24, 2012, when she sustained an injury. The claimant worked for the county in multiple capacities in the past, including bus driver, substitute teacher, tennis coach, and band director, and had experience as a CNA, truck dispatcher, cashier, food preparation, a line worker, and phlebotomist. The claimant had permanent sedentary work restrictions; however, no doctor testified she could not work in at least some capacity. The claimant testified that she rode a motorcycle a few times during the summer, used a riding lawnmower, could walk one to two miles without issue, bowled twice a week, cared for multiple animals, and actively swam. A vocational expert provided a labor market survey that showed the availability of jobs within claimant’s work restrictions. The claimant presented no evidence that she continued to suffer a total loss of wage-earning capacity. The Deputy found that the claimant could at least work a part-time, sedentary job. The claimant’s claim for extended benefits was denied.
The fourth case is Martin Strudivant v. North Carolina Department of Public Safety and CCMSI. The decision was issued by Deputy Commissioner Erin F. Taylor on May 5, 2021. The claimant sustained a compensable back injury on July 23, 2013. He was a high school graduate and had completed some post-graduate courses. He was certified to drive a forklift, had training in blueprint reading, and had CPR experience. The claimant had been on his church’s Board of Trustees since 2008. On the date of his injury, claimant was working transporting inmates. Four of the claimant’s physicians testified claimant could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Claimant only started looking for work in January 2020 and produced a job log, but some of the entries were inaccurate. Defendants’ vocational expert met with the claimant, performed a transferrable skills analysis, performed a labor market survey and identified several jobs in the surrounding area that claimant was capable of performing. Claimant’s vocational expert testified claimant was unable to work at all and disagreed with the treating physicians’ work restrictions. However, the vocational expert did not contact any potential employers, did not perform a transferable skills analysis and only looked for jobs in Anson County. As a result, the Deputy Commissioner afforded more weight to the defendants’ vocational expert and determined that claimant could not show a total loss of wage-earning capacity and was not entitled to extended benefits beyond the 500-week cap.
The fifth case is Glendell Murphy v. North Carolina Department of Public Transportation. The decision was issued by Deputy Commissioner Robert Harris on August 6, 2021. The claimant was 56 years old and suffered a compensable right knee injury while working at a youth center. Claimant had a high school diploma, worked at a chicken plant for two years, was in the US army, worked as a correctional officer, worked as a counselor at a Methodist home for children and worked as a delivery driver. He earned his associate degree in 2001, his bachelor’s degree in 2013 and his master’s degree in 2015, all in criminal justice. Claimant had prior issues with depression and treated through the VA, but never requested psychiatric treatment from defendants. Claimant testified he had not looked for work since 2016. The orthopedic authorized treating physician stated claimant could work and earn wages, but claimant’s unauthorized psychiatric doctor opined that he could not work at all. Defendants hired a vocational expert who met with claimant, reviewed claimant’s medical records and performed a labor market survey which identified 12 jobs that claimant could do within his orthopedic work restrictions. When the vocational expert was questioned about claimant’s depression, she testified that his psychiatric condition was a “concern regarding claimant’s employability.” Claimant did not hire a vocational expert, but the Deputy Commissioner opined that defendants’ vocational expert testimony did not support a finding that claimant had wage earning capacity, and as result, claimant was granted extended benefits.
The most recent case, as of the date of this publication, is George E. Tyson, Jr. v. North Carolina Department of Health and Human Services and CCMSI. The decision was issued by Deputy Commissioner Kevin Howell on August 12, 2021. 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.
As you can see, the six decisions that have been issued to date have been almost a 50-50 split on entitlement to extended benefits. The cases are also very fact specific. What is clear from the decisions where entitlement to extended benefits has been denied is that the testimony from medical providers and a vocational rehabilitation specialist are necessary to support a finding that a claimant has wage earning capacity. Defendants need to have good 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.
These decisions show that there is no perfect workers’ compensation system. In the absence of a perfect or standard system, there is an argument to be made that the 2011 Reform created a more balanced system that provides a solid safety net for injured workers in North Carolina while simultaneously ensuring that North Carolina can maintain a successful business environment.
As we continue to forecast how the Court of Appeals will address extended benefits, we anticipate they will look to other jurisdictions with similar statutory caps on benefits. South Carolina, Virginia, Tennessee, and Georgia have similar statutes and their case law may provide guidance on how entitlement to extended benefits will be analyzed in North Carolina.
South Carolina places a 500-week limit on total disability. Their provision is stricter than North Carolina’s, and only allows extended benefits in very specific circumstances. S.C. Code Ann. § 42-9-10 establishes the cap on benefits. Any person determined to be totally and permanently disabled who, due to a compensable injury, is a paraplegic, a quadriplegic, or who has suffered physical brain damage is not subject to the 500-week limitation and shall receive benefits for life. Thus, there is no additional provision under the South Carolina statute that allows for proving extended benefits beyond the 500-week cap, outside of those circumstances outlined above. The main disagreements in South Carolina case law arise due to arguments regarding the “level of severity” of brain injuries.
For example, in Crisp v. SouthCo., 401 S.C. 627, 738 S.E.2d 835 (2013), the claimant sustained injury to the head and right hand while working in construction. The claimant was ultimately diagnosed with a cognitive disorder. When the claim went to a hearing, he alleged injured to his head, brain, neck, back, right upper extremity, and psyche, and sought continued temporary compensation benefits and continued medical treatment, including treatment in a traumatic brain injury program; and, in the alternative, sought a finding that he was permanently and totally disabled and entitled to lifetime compensation benefits due to “physical brain damage.” The claimant argued to the SC Supreme Court that the presence of any physical brain injury, regardless of degree, entitles the claimant to benefits beyond the 500-week cap on benefits, per the statute. The Supreme Court, however, emphasized that “inherent in the requirement that the injury to the brain be severe is the factor that the worker is unable to return to suitable gainful employment.” Thus, the analysis hinges on whether the claimant with the diagnosed brain injury can return to work in light of the severity of the injury.
Based on this type of precedent in South Carolina, we can see how difficult it would be for a claimant to prove entitlement to extended benefits outside of the specific circumstances outlined above. Similar to North Carolina, testimony about educational background, work history, and expert testimony on the issue of functionality seem to be important factors in determining return to work options for claimants with a brain injury, which is one of the few conditions that allow benefits beyond the 500-week cap.
Virginia is another comparable jurisdiction. They have a 500-week cap, which is enforced even where the claimant continues to have work restrictions after receiving 500 weeks of indemnity benefits and is unable to return to his pre-accident job or similar work. Va. Code Ann. § 65.2-503(c) outlines benefits for permanent and total incapacity. Under this code, a claimant may receive permanent total disability benefits when there is: (1) loss of both hands, both arms, both feet, both legs, both eyes, or any two of these body parts in the same work accident; (2) injury that results in total paralysis, as determined by the Virginia Commission on the medical evidence before it; or, (3) an injury to the brain that is traumatic and severe enough to render the worker permanently unemployable in gainful employment.
Most of the determinations of permanent and total incapacity in the Virginia system concern the level of permanent partial impairment ratings, coupled with the factors above. In practice, the courts consider wage-earning capacity and apply similar factors that the North Carolina courts will also be likely to consider.
In Georgia-Pac. Corp. v. Dancy, 24 Va. App. 430, 482 S.E.2d 867 (1997), aff’d, 255 Va. 248, 497 S.E.2d 133 (1998), the claimant’s legs were crushed by a conveyor while at work. The claimant attempted to return to work on one occasion but was sent home after a few hours. The claimant was seen by a company doctor who opined “I do not think that he is ever going to return to work under these circumstances.” Another physician completed a permanent disability assessment and assigned a 100% disability to one leg and a 15% disability to another leg. He was restricted to no standing longer than one hour, no sitting greater than two hours, and no climbing, stooping, crawling, or working on uneven ground. The record showed that the claimant had a tenth-grade education and had experience only in heavy physical labor jobs. A rehabilitation counselor testified that with the claimant’s limited education, time in the service, geographical location, and medical condition, there were some things he could do at least on a part time basis, providing there were no complications. For example, he could work at a nursery watering flowers, or work at a senior citizens’ home, or at a medical clinic preforming local driving tasks. The lower courts determined the claimant was permanently and totally disabled. The Virginia Court of Appeals cited Va. Code § 65.2-503, noting that permanent and total incapacity shall be awarded where there is loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof in the same accident. Even so, they stressed that in determining the extent of the loss of use of two members, the inability of the injured employee to engage in gainful employment is a proper element to consider. Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 858–59, 80 S.E.2d 537, 542 (1954). The medical evidence showed a rated loss of 100% and 15%, respectively, of his left and right legs. The Commission had found, despite the testimony concerning the ability to return to work including that from the rehabilitation counselor, evidence in the record that the combination of the losses to the legs rendered the claimant unemployable. The Court of Appeals agreed, finding that the proper inquiry was whether the rated loss of use in the claimant’s legs rendered both legs unusable. The court affirmed the finding of permanent and total incapacity and awarded extended benefits.
Although the case is unpublished, Hopkins v. RDA, Inc., No. 1053-11-4, 2012 WL 48156 (Va. Ct. App. Jan. 10, 2012), further demonstrates how courts examine the permanent and total disability analysis in Virginia. The claimant argued he was entitled to extended benefits. The courts first noted that the claimant’s physicians disagreed about whether he was permanently and totally disabled, and he saw a number of physicians. As to the ability to work, Dr. Harry Li, the authorized treating physician, testified claimant’s disability was total and permanent and that he should be removed from the work force. Dr. Zeena Doria, the authorized treating neurosurgeon stated that claimant was partially disabled due to his lumbar condition and stated claimant should receive permanent partial disability to the right leg only. Dr. Michael Shear stated that claimant was permanently and totally disabled and concluded he could not work for even an hour or so at a time. Dr. John Bruno, an orthopedic surgeon who conducted an independent evaluation, opined that claimant’s permanent partial impairment rating to his spine should be split to assign an 11.5% rating to each leg. Dr. Bruno reviewed claimant’s FCE and noted claimant was totally disabled from gainful employment. Dr. James Melisi and Dr. Charles Citron opined that there were no objective findings that claimant could not work in any capacity, and found claimant was not permanent or totally disabled. Dr. Anthony Debs specifically testified that claimant could work light duty or sedentary work. Dr. Debs also commented on “splitting the ratings” to each leg as suggested by Dr. Bruno, and disagreed, stating he would assign a rating to the right leg, but not the left leg. The Deputy Commissioner and Full Commission found claimant was not permanently and totally disabled. They gave little weight to Dr. Bruno’s ratings to both legs and noted that the evidence failed to demonstrate a loss of use of both lower extremities, and claimant failed to show he was unable to use his legs to any substantial degree in gainful employment. The Court of Appeals agreed with the Commission’s findings that the claimant was not permanently and totally disabled, and the decision was affirmed. The court found that there was credible evidence to support the Commission’s findings. Specifically, Dr. Dorai found claimant had no impairment to the left leg and Drs. Melisi, Citron, and Debs all opined claimant was capable of light duty or sedentary work and was not permanently disabled.
It appears that the main difference between the Georgia and Hopkins decisions lies in the lack of high ratings to both legs, as well as the inability of the claimant to demonstrate that he was
not capable of gainful employment due to said ratings. Though there was some evidence of the ability to work in the Georgia decision, the 100% rating to one leg, and additional rating to the other leg, outweighed that opinion. The Virginia case law again emphasizes the importance of obtaining credible expert physicians who will provide good evidence on disability and work ability. Further, it is interesting to note how the Virginia courts look to impairment ratings assigned to body parts as part of their analysis in determining entitlement to total disability.
Tennessee utilizes a 450-week cap on benefits similar to North Carolina. Tenn. Code Ann. § 50-6-102(15)(D) provides: “For injuries occurring on or after July 1, 2014, the maximum total benefit shall be four hundred fifty (450) weeks times one hundred percent (100%) of the state’s average weekly wage… except in instances of permanent total disability.” Tennessee courts also appear to analyze the amount of a permanent impairment rating when considering entitlement to extended benefits.
A claimant who is unable to return to any job in the open market because he retains a permanent disability from a work injury may be entitled to permanent total disability benefits. Bomely v. Mid-Am. Corp., 970 S.W.2d 929, 931 (Tenn. 1998). This benefit continues at the claimant’s compensation rate until the claimant is eligible for retirement based on their age under the Social Security Law.
The Hinson case is particularly instructive. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675 (Tenn. 1983). In this case, the claimant fell off a ladder at work and sustained injury to the femur. The trial court held that claimant was permanently and totally disabled, and the Supreme Court of Tennessee agreed. Specifically, the court emphasized that “it must be kept in mind that this Court makes a clear distinction in worker’s compensation cases between anatomical impairment as determined by a physician and disability to work which results from such impairment.” Federated Mut. Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967). The court recognized that in determining what may constitute permanent and total disability, many pertinent factors should be considered, including the skills, education, and training of the claimant as well as job opportunities and other factors bearing upon employability. In determining the sufficiency of evidence to support disability, the extent of the disability should be determined through further medical evidence and lay testimony. The court also stated that the judge should not be bound by the physicians’ opinions only but should analyze evidence from expert and non-expert witnesses, including those outside of the medical field.
In another case, which is unpublished, Darnell v. Connecticut Indem. Co., No. M2003-00914-SC-WCMCV, 2005 WL 625885, at *1 (Tenn. Workers Comp. Panel Mar. 17, 2005), the claimant began working as a machinist out of high school when he sustained injuries to the right upper back and shoulder. The doctor that treated claimant assigned a 49% permanent partial impairment to the body as a whole. The claimant was only able to use his left arm. The claimant attended a second opinion with another physician and his diagnosis was confirmed. There was also testimony from a vocational counselor for the claimant, who concluded the claimant was permanently and totally disabled considering the medical opinions and educational history of claimant. Another vocational expert testified for the employer and was of the opinion there were jobs available in the labor market that could be performed with the use of one hand or arm. The trial court found claimant was totally disabled, and the workers’ compensation panel agreed. The record established that the claimant, a high school graduate, was right hand dominant. Although he occasionally managed to hunt and perform other functions, he was in constant pain, which caused him the need to lie down. The authorized treating physician testified that the claimant could perform work using his left arm. Although the vocational expert for defendants testified there were jobs available in the marketplace, there was no evidence presented that those jobs actually existed in the marketplace where the claimant lived. Considering the physical limitations of the claimant and other factors such as past work history, job skills, training, education, and job opportunities, it was concluded that the claimant was totally disabled.
This case emphasizes the factual specificity that may be important in extended benefits cases in North Carolina. For example, it is foreseeable that, even where a vocational expert provides good testimony on job availability and prospective employment, there may need to be additional considerations for geographical location and actual real-world availability.
Georgia has a 400-week limit on benefits per Ga. Code Ann. § 34-9-261. In the event of a catastrophic injury, there may be an entitlement to extended benefits. Ga. Code Ann. § 34-9-200.1 outlines the possible catastrophic injuries and defines this type of claim as one or more of the following: the claimant has a severe brain or closed head injury; the claimant has a spinal cord injury resulting in severe paralysis of the arm, leg, or trunk; the injury resulted in the amputation of an arm, hand, foot, or leg; the injury resulted in second or third degree burns covering a specific percentage of the body; the worker has a diagnosis of industrial or total blindness; or the injuries render him unable to perform his prior work, as well as any additional work available for which he is otherwise qualified. The last group, as expected, results in the most litigation and involves a more subjective analysis of entitlement to benefits. The courts have typically analyzed educational history, work background and experience, the current labor market, vocational experts and analysis, and the possibility of job training when considering whether the claimant is entitled to extended benefits under that classification.
In Reid v. Georgia Bldg. Auth., 283 Ga. App. 413, 641 S.E.2d 642 (2007), the claimant sustained a work-related hand injury and requested a hearing to determine whether her claim was catastrophic under the Act. The State Board of Workers’ Compensation found the injury was catastrophic and the appellate court agreed. The superior court reversed the state board and the claimant appealed. The Georgia Court of Appeals upheld the superior court’s ruling. The
claimant argued that her claim was catastrophic as it prevented her from returning to work. There was no dispute that she could not perform her pre-injury job. The only question was whether there was any work available within the national economy for which claimant was otherwise qualified. The evidence showed that claimant previously did housekeeping work that included “[s]weeping, mopping, dusting, and regular … cleaning,” and required the ability to “lift, push, pull, and carry heavy item[s].” Her physician released her to limited work of no heavy gripping, lifting, or carrying over 10 pounds. She returned to work, but was unable to perform her duties, so stopped working in any capacity altogether. Claimant’s physician ultimately concluded she was permanently and totally disabled from performing her previous job. The state board found that the claimant was 66 years old and had performed housekeeping work her entire life. She had no computer skills, completed school only through the 11th grade, and had no specialized training. It was further found that she could not perform work activities over four hours per day without experiencing swelling in the hand. The Court of Appeals found that the claimant did not present any competent evidence that she was unable to perform any work available in substantial numbers within the national economy. At the bare minimum, she should have tried to demonstrate that she attempted to obtain employment within her limitations. The sole evidence regarding her job search was a general statement at hearing that she “looked for work.” She also did not present a vocational expert. Thus, the court held there was insufficient evidence that the claimant was entitled to extended benefits.
In another case, Caswell, Inc. v. Spencer, 280 Ga. App. 141, 633 S.E.2d 449 (2006), the claimant argued his back claim was catastrophic in nature and he was entitled to extended benefits. The State Board of Workers’ Compensation found his injuries were catastrophic and cited, among other things, the claimant’s age of 62 years, stating it rendered him unable to even adapt to light duty work. Defendants appealed and were granted a hearing with an administrative law judge, who rejected the state board’s decision and found that the injuries were not catastrophic. The appellate division of the board agreed. Claimant then appealed to superior court, arguing that the board failed to consider his age. The superior court agreed and remanded the case. The case was then appealed to the Court of Appeals. The court found that the record showed the claimant’s age was fully considered, it was simply that the administrative law judge and appellate division of the board found the testimony from a vocational specialist to be more credible. The vocational expert disagreed with the statement that someone who is 62 years old is unable to learn new skills, noting he was not aware of any rule or school of thought that supported that contention. The vocational expert also provided research that many retired individuals were going back to work. The expert also testified that, in the national economy, there were something like four million jobs the claimant could perform. The Court of Appeals found that the superior court’s decision that age was not considered was unfounded. Thus, the claim was remanded to the board for reconsideration.
The case law and jurisdictional analyses above help to forecast what issues North Carolina appellate courts will consider when analyzing extended benefits cases in the days to come. What is less clear is whether North Carolina courts will adopt an analysis similar to Georgia, which requires more of an “obliteration” or complete loss of any wage-earning capacity, or whether it will be similar to Virginia where the medical aspect of the case, as well as “loss of use,” is extremely important to the outcome.
When we examine the trends from this analysis, a list of general takeaways emerges on how to defend a claim for benefits beyond the statutory cap:
Hearing requests for extended benefits are on the rise right now since there has been no guidance from the North Carolina Court of Appeals on the correct standard to be used when deciding these cases. Our analysis of the Deputy Commissioners’ decisions and research and review of similar jurisdictions, has demonstrated that these cases are fact specific and a full and complete understanding of the claimant’s medical, educational and vocational history will be imperative. Defendants will need clear and strong expert testimony to prevail in these cases.
Our team will continue to monitor the developments as this issue works its way through our court system. If you have questions or wish to discuss how to best position yourself in potential extended benefits matters, please reach out to Tracey Jones, Lindsay Underwood, or a member of our Workers’ Compensation Team.
Written by: Tracey Jones and Luke West
We saw during March 2020 the great migration for businesses to a mainly, and at times exclusively, work from home model. While businesses have re-opened their offices to their employees, data from the Pew Research Center shows that many Americans are still working from home and would want to continue to work from home even after the Coronavirus outbreak ends.
For businesses, there are benefits to having a work from home model from employees. It can be cost-effective in reducing overhead with less need for office space and lower energy costs. However, there are also risks employers should consider when allowing employees to work from home.
From a workers’ compensation perspective, for a work from home injury to be compensable, Plaintiff must prove that an accident occurred which arose out of and in the course and scope of employment.
When an injury occurs at home, it is imperative to collect as much information as possible about the event. Knowing specific details of the injury, like the location of the injury, the layout of the workspace, the time the injury occurred and normal work from home routine are essential in determining the compensability of a claim.
A few considerations for employers who intend to utilize a work from home model, wholly or partially, should include:
Because each and every claim is fact-specific, feel free to contact one of our workers’ compensation attorneys with any questions.