State News : North Carolina

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.