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Written by: Lindsay Underwood
One of the hot topics in Workers’ Compensation over the past few years has been entitlement to extended benefits and what standard the courts would apply to determine the same. Most recently, the Court of Appeals issued a decision in one of the cases currently pending – Sturdivant v. NC Department of Public Safety. Interestingly, the opinion has since been withdrawn, and it is unclear how the Court will move forward at this juncture. Even so, the opinion merits discussion.
As a reminder, the key question presented by the extended benefits cases is what analysis the courts would use to determine entitlement to benefits beyond the 500 weeks. The plaintiff’s bar argued that the standard remains the same in pre-500 week and post-500 week cases. Defendants argued that benefits beyond the 500-week cap have an increased standard, such that a claimant has the burden to show a total loss of wage-earning capacity.
In Sturdivant, the claimant sustained a compensable injury to the back in 2011. Claimant was a high school graduate. 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. Four of the 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 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. However, the vocational expert did not contact any potential employers, and only looked for jobs in Anson County. As a result, Deputy Commissioner Erin Taylor 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 on benefits.
Plaintiff appealed to the Full Commission, and the Full Commission affirmed the decision finding claimant failed to meet his burden to establish a total loss of wage-earning capacity. Plaintiff appealed to the Court of Appeals. The Court of Appeals agreed with the lower courts and affirmed the denial of extended benefits, but specifically noted that the standard for total loss of wage-earning capacity and total disability are the same. Though they found that claimant still has the burden of proof to show they sustained the loss, the standard for disability does not change when a claimant applies for benefits beyond the 500 week cap. The Court further noted claimant could receive extended benefits even if not medically restricted from all work, if he showed there were no jobs available to him. Since the claimant did not meet his burden, he was not entitled to extended benefits in this case.
Though a victory for the Defendants in this specific case, the conclusion that there is no higher standard for disability once the claimant applies for extended benefits creates significant additional exposure for Defendants. However, as noted above, the Court has now withdrawn its opinion. It is unclear how they will proceed, or what this means for extended benefit cases moving forward. It should be noted that Mary Betts v. North Carolina Department of Health and Human Services – Cherry Hospital, is still pending before the Court of Appeals and a decision has not been issued in that case.
As we are somewhat back to square one when it comes to guidance in light of the withdrawal, our recommendations for handling remain the same: retain credible experts (both medical and vocational), investigate claimant’s job search, hobbies, and non-work related activities and participation, obtain a detailed understanding of claimant’s job history and educational background, and make sure your vocational expert meets with claimant to identify possible jobs and explore work history.