NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Written by: Lindsay Underwood
The North Carolina Court of Appeals issued a new decision concerning medical treatment, and what evidence is necessary to prove causation and establish compensability.
In Mahone v. Home Fix Custom Remodeling, the claimant worked for a home remodeling company. On July 24, 2018, the claimant climbed into the attic of a potential customer to take measurements for an estimate and the floor beneath him collapsed. The claimant fell twenty feet and landed in the staircase area of the lower level of the home. He suffered severe injuries to his cervical and thoracic spine, and fractured ribs on his left side. When EMS responded to the injury, the claimant was unconscious. The claimant underwent an immediate surgery for his spinal injuries. Following surgery, a cognitive screening and mental assessment was completed to evaluate for a possible traumatic brain injury (TBI). It was determined inpatient neuropsychological services were not warranted, though the claimant was provided with verbal and written information regarding treatment for a mild TBI. On November 2, 2018, Dr. Lance Goetz wrote a letter stating the claimant was hospitalized and under his care. In that letter, Dr. Goetz stated the claimant had incurred a traumatic brain injury with loss of consciousness. Dr. Goetz was not deposed as part of the case, and the physician who was deposed did not provide an opinion on the TBI or causation either in his records or during his testimony.
Defendants denied the claim on the basis that there was no employer/employee relationship. At the Deputy Commissioner level, the main issues presented were whether the claimant was permanently and totally disabled, and what attendant care the claimant was entitled to. Following the hearing, Defendants accepted compensability of the spine, rib fractures, and hematoma of the parietal bone. The TBI was not accepted. The Deputy Commissioner found that claimant had failed to present evidence regarding how many hours per day he required attendant care, or the appropriate rate of care. Further, it was not yet possible to determine whether the claimant met the requirements for permanent total disability. The claimant appealed to the Full Commission. The Commission entered an Opinion and Award finding the claimant had not presented sufficient medical evidence of causation linking his TBI to the July 24, 2018 incident, and, thus, the claimant was not entitled to medical compensation for the treatment of his TBI. The Commission found the claimant required attendant care but there was insufficient evidence in the record on which to base such an award. Both parties appealed to the Court of Appeals.
The Court ultimately found the Commission applied the incorrect legal standard in denying that the claimant’s TBI was not compensable. The Court opined the Commission erred in stating that the claimant was required to present expert testimony, either at a hearing or deposition, to a reasonable degree of medical certainty, that the TBI was causally related to the accident. The Court held the appropriate standard is that the claimant is required to present expert opinion evidence, not necessarily in the form of testimony, that it is likely that the accident caused the claimant’s injury. Thus, the letter written by Dr. Goetz in which he opined that the claimant’s TBI was likely the result of his July 24, 2018 incident was sufficient to establish causation. The Court reversed the Commission’s Opinion and Award with respect to the compensability of the claimant’s TBI and remanded to the Commission to make findings and conclusions applying the correct standards of proof.
Though we do not have the final decision on remand, this case is a good reminder that if you want to contest compensability or causation of a specific aspect of the claim, you must have evidence to combat the claimant’s evidence, even if said evidence is in the form of a letter or a medical record. In this case, it was likely assumed that since Dr. Goetz did not testify, and did not provide an opinion specifically to a reasonable degree of medical certainty, that his causation opinion would not be sufficient. The Court of Appeals clearly disagreed, and specifically noted that testimony is not required by the Court to establish causation. All that is necessary is opinion evidence. In the event you are presented with a medical report or correspondence from a physician, in which it appears causation is established, even if not to a reasonable degree of medical certainty, it is a necessary next step for defendants to obtain counter evidence, and take deposition testimony of both the claimant’s physician, and any IME or 2nd opinion physician, to support the defense.
Written by: Julie Hooten, Tracey Jones, and Shivani Shah
In a recent decision issued by the North Carolina Court of Appeals, Judge Chris Dillion remanded Blackwell v. N.C. Dep’t of Pub. Instruction back to the Full Commission where a claimant’s appeal to convert her weekly benefits to a single, lump-sum award was denied.
The claimant was a former high school teacher who was injured on the job breaking up a fight. She was diagnosed with multiple physical and mental injuries and the Full Commission found her to be permanently and totally disabled and awarded weekly benefits. The claimant later requested her award to be converted into a single, lump-sum payment, as per by N.C. Gen. Stat. §97-44 (2018). Both the Deputy Commissioner and the Full Commission denied her request and she appealed. The sole issue on appeal was whether the Commission erred in concluding that a lump-sum award under Section 97-44 is never allowed where the sum of future installments is uncertain. The Commission relied on the “Uncommuted Value Clause” of N.C. Gen. Stat. §97-44 and reasoned that it prohibits any lump-sum award which would exceed the sum of the future installments that are being replaced. The Commission denied the claimant’s request on the basis that a lump sum award was not allowed in any situation where the number of future payments was uncertain. Under the original Opinion and Award, the claimant was eligible to receive weekly benefits for the rest of her life. As a result, the number of future installments the claimant was entitled to receive was unknowable because her weekly compensation could be terminated upon her death or a showing that she is capable of returning to suitable employment. The Commission thus concluded that a lump-sum award could exceed the amount she would have otherwise received had she continued to receive her benefits in weekly installments.
In its decision, the Court of Appeals noted that it has held that awards for permanent disability may be paid in weekly installments or in one lump sum. The Court acknowledged that the Commission has the authority, in unusual cases, to award a lump-sum even where the sum of future benefits is not certain, if there is competent evidence tending to show how long the claimant was reasonably likely to receive future benefits. Competent evidence would include a mortality table to determine life expectancy. The Court also indicated that the Commission should discount the sum of expected future benefits when there is competent evidence to set an appropriate discount rate.
The Court’s decision was, essentially, a roadmap for the Commission. First, the Commission should determine whether the claimant has shown her situation to be an “unusual case.” Second, the Commission should consider any competent evidence, such as the mortality table in N.C. Gen. Stat. §8-46, to determine the number of installments that the claimant is expected to receive under her current award. Lastly, in calculating the award, the Commission may discount the expected future installments to a present value.
The Court of Appeals established steps for the Commission to determine whether a lump-sum award is appropriate. The conclusion by the Court of Appeals that a lump sum payment for ongoing weekly installments may be an option is concerning for defendants in workers’ compensation cases. In permanent and total cases, it would behoove the Plaintiff’s Bar to request a lump sum payment in every case in order to collect a fee and ensure their client receives the most benefits he or she can get. However, the Court of Appeals did note that the lump sum award should be ”in the best interest of the employee” and that phrase should be “construed narrowly.” The Court specifically said that trying to reduce credit card debt would not be a reason to grant such an award.
It will be interesting to see how the Commission defines “unusual” in this case. If it is read narrowly, defendants may not have as much to worry about and the implications of this case may be minimal, but if the Commission defines “unusual” broadly, defendants will surely see the ramifications of this case for years to come. We will continue to monitor this case to determine its full impact.
If you have questions about the recent court decision, or other aspects of a workers’ compensation claim in North Carolina, reach out to a member of our Workers’ Compensation team.
Written by: Matthew Flammia
In North Carolina, an injured employee may recover damages from both the workers’ compensation carrier as well as a third-party tortfeasor. In accepted claims, where a third-party causes the compensable injury, the workers’ compensation carrier is provided an automatic lien against any third-party recovery that the injured employee receives arising out of the compensable incident. North Carolina General Statute § 97-10.2 even creates a right for the workers’ compensation carrier to seek subrogation against the third party independently.
According to the statute, the injured employee has the exclusive right to file a suit against the third-party for twelve (12) months. Thereafter, the workers’ compensation carrier has the right to file a subrogation claim until sixty (60) days before the expiration of the statute of limitations. Finally, the injured employee and workers’ compensation carrier can always work together and jointly pursue the third-party claim.
If there has been an accepted workers’ compensation claim caused by a third-party tortfeasor, insurance carriers may have subrogation rights, and there is a chance that an insurer could recover some of the money paid towards the claim. If the injury is caused by third-party negligence, immediately place all parties on notice of the insurer’s subrogation rights and begin to investigate the claim on the best way to recover money paid towards the claim.
If you have questions about subrogation rights or other aspects of a workers’ compensation claim in North Carolina, reach out to Matthew Flammia or a member of our Workers’ Compensation team.
By Nicole Graci of Hamberger & Weiss LLP (NY) and Daniel Hayes of Teague Campbell Dennis & Gorham LLP (NC)
The NWCDN has re-established its Medicare Compliance Committee, and what great timing! On January 10, 2022, the Centers for Medicare and Medicaid Services (CMS) updated the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide, which it does periodically, but this update sent shockwaves throughout the Medicare compliance community. As our first act as a committee, we offer the following analysis of what has become known as “The 4.3 Update.”
CMS’ 1/11/22 update to Section 4.3 of the WCMSA Reference Guide is a strong message about CMS’ view of evidence based or non-submit WCMSA products. On March 15, 2022, CMS updated the Reference Guide again, to clarify that message.
CMS expressed its concern that products commonly called “evidence-based” or “non-submit” MSAs are not adequately protecting Medicare’s interests. Here is the full text of the 1/10/22 update,
4.3 The Use of Non-CMS-Approved Products to Address Future Medical Care
A number of industry products exist with the intent of indemnifying insurance carriers and CMS beneficiaries against future recovery for conditional payments made by CMS for settled injuries. Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.” 42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement. As a matter of policy and practice, CMS will deny payment for medical services related to the WC injuries or illness requiring attestation of appropriate exhaustion equal to the total settlement less procurement costs before CMS will resume primary payment obligation for settled injuries or illnesses. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount.
There has been an increase in the use of evidence based or non-submit WCMSA products in the last few years. Under the theory that CMS’ method for calculating a WCMSA results in inflated medical and prescription expense, resulting in higher settlement costs, evidence based or non-submit MSAs are calculated using alternative methods, resulting in reduced treatment and medication over a claimant’s lifetime and less expense. These products are often accompanied by “guarantees,” offers of post-settlement professional administration of MSA funds, structured WCMSAs and, in some cases, reversionary interests. In response to the 1/11/22 update, the purveyors of evidence based or non-submit MSA products immediately published analyses, arguing that CMS was contradicting the well-established legal reality that CMS pre-settlement approval of a WCMSA is voluntary. Detailed arguments were presented, outlining how CMS was overreaching its authority. CMS responded with the subsequent update on March 15, 2022.
However, a close reading of the January and March updates and review of the Medicare Secondary Payer statute and accompanying federal regulations reveals that the updates are consistent with CMS’ long standing policy that CMS pre-settlement approval, although not required by law, has been and continues to be recommended. The March 15, 2022 update softened the language of the January update, notably changing “will deny” to “may at its sole discretion deny” in reference to post-settlement payment of Medicare covered, causally related services. In addition, the beneficiary/claimant’s burden to attest to proper expenditure of the MSA funds is clarified to include a showing that, “both the initial funding of the MSA was sufficient, and utilization of MSA funds was appropriate.” CMS also clarified that its policy applies to notifications of settlements using evidence based or non-submit MSAs from 1/11/22 forward, but that it is flagging pre-1/11/22 notifications as well. CMS went on to reiterate the legal requirement of the Medicare Secondary Payer statute, regulations, and CMS memorandum that primary payers are obligated to consider Medicare’s interests at settlement, while recognizing that all settlements do not meet the CMS work review thresholds for pre-settlement approval of a WCMSA. It is well known that the CMS work review thresholds are internal and are not safe harbors.
The full text of the March 15, 2022 update is below, with changes highlighted,
4.3 The Use of Non-CMS-Approved Products to Address Future Medical Care
A number of industry products exist for the purpose of complying with the Medicare Secondary Payer regulations without participation in the voluntary WCMSA review process set forth in this reference guide. Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.” 42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement. As a matter of policy and practice, CMS may at its sole discretion deny payment for medical services related to the WC injuries or illness, requiring attestation of appropriate exhaustion equal to the total settlement as defined in Section 10.5.3 of this reference guide, less procurement costs and paid conditional payments, before CMS will resume primary payment obligation for settled injuries or illnesses, unless it is shown, at the time of exhaustion of the MSA funds, that both the initial funding of the MSA was sufficient, and utilization of MSA funds was appropriate. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount. Notes: This official policy shall apply to all notifications of settlement that include the use of a non-CMS-approved product received on, or after, January 11, 2022; however, flags in the Common Working File for notifications received prior to that date will be set to ensure Medicare does not make payment during the spend-down period. CMS does not intend for this policy to affect any settlement that would not otherwise meet review thresholds. This comment does not relieve the settling parties of an obligation to consider Medicare’s interests as part of the settlement; however, CMS does not expect notification or submission where thresholds are not met.
CMS did not change its prior WCMSA Reference Guide language, making it clear that the submission process is completely voluntary, as follows:
There are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review. If you choose to use CMS’ WCMSA review process, the Agency requests that you comply with CMS’ established policies and procedures.
WCMSA Reference Guide., pp. 1, 9 (emphasis original). Of note, this italicized language is found twice in the Reference Guide.
The Medicare Secondary Payer statute and accompanying regulations have always afforded CMS the authority to deny payment for work-related treatment if a settlement does not adequately protect Medicare’s interests. See 42 C.F.R. 411.46, emphasis added:
§ 411.46 Lump-sum payments.
(a) Lump-sum commutation of future benefits. If a lump-sum compensation award stipulates that the amount paid is intended to compensate the individual for all future medical expenses required because of the work-related injury or disease, Medicare payments for such services are excluded until medical expenses related to the injury or disease equal the amount of the lump-sum payment.
(b) Lump-sum compromise settlement.
(1) A lump-sum compromise settlement is deemed to be a workers' compensation payment for Medicare purposes, even if the settlement agreement stipulates that there is no liability under the workers' compensation law or plan.
(2) If a settlement appears to represent an attempt to shift to Medicare the responsibility for payment of medical expenses for the treatment of a work-related condition, the settlement will not be recognized. For example, if the parties to a settlement attempt to maximize the amount of disability benefits paid under workers' compensation by releasing the workers' compensation carrier from liability for medical expenses for a particular condition even though the facts show that the condition is work-related, Medicare will not pay for treatment of that condition.
(c) Lump-sum compromise settlement: Effect on services furnished before the date of settlement. Medicare pays for medical expenses incurred before the lump-sum compromise settlement only to the extent specified in § 411.47.
(d) Lump-sum compromise settlement: Effect on payment for services furnished after the date of settlement -
(1) Basic rule. Except as specified in paragraph (d)(2) of this section, if a lump-sum compromise settlement forecloses the possibility of future payment of workers' compensation benefits, medical expenses incurred after the date of the settlement are payable under Medicare.
(2) Exception. If the settlement agreement allocates certain amounts for specific future medical services, Medicare does not pay for those services until medical expenses related to the injury or disease equal the amount of the lump-sum settlement allocated to future medical expenses.
Essentially, the January and March 2022 updates did not change anything regarding a primary payer’s obligation to protect the Medicare fund by considering Medicare’s future interests at time of settlement. Similarly, the updates did not change the CMS work review thresholds for pre-settlement approval of a WCMSA. Most importantly, the updates did not change the well-established tenet that CMS pre-settlement approval of a WCMSA is voluntary. Rather, the updates simply made clear CMS’ position that evidence based or non-submit MSAs will be scrutinized for consistency with the methodology that CMS uses to evaluate WCMSAs that are voluntarily submitted. This should not come as a surprise, as CMS put considerable resources behind developing a methodology for WCMSA review, engaging review contractors, and promulgating its methods through memorandum, town hall teleconferences, webinars, a robust website, and the WCMSA Reference G.
Certainly, finding a primary payer that never disagreed with a CMS counter-higher WCMSA proposal would be akin to finding a unicorn. All primary payers can cite examples of CMS approved WCMSAs that include outlandish prescription medications, surgeries that will never take place and treatments extending a lifetime for claimants who will cease treatment shortly following settlement. An evidence based/non-submit MSA is a permissible way for a primary payer to address those concerns, but not the only way. Depending on risk tolerance of the parties, CMS submission may still be preferred. Careful preparation of a WCMSA for submission to CMS, especially one prepared by counsel, includes implementation of legal strategies based on state specific workers’ compensation laws and treatment guidelines, and use of contrary medical evidence and/or litigation to effectively reduce prescriptions or treatment BEFORE submission to CMS. The resulting, palatable, CMS approved MSA effectuates settlement, as both the primary payer and the Medicare beneficiary/claimant can be secure in the knowledge that CMS has blessed their schism, evidenced by a CMS pre-settlement approval letter.
Practice Tip: As always, parties should adequately consider Medicare’s interests, whether or not the settlement will qualify for voluntary submission to CMS for formal review. The decision to participate in the voluntary submission process or use an evidence based or non-submit MSA should be made in consultation with counsel or other vendors who are well versed in Medicare compliance matters, and with full cooperation of the parties, on a case-by-case basis.
References:
https://www.cms.gov/files/document/wcmsa-reference-guide-version-35.pdf
Stay tuned for more activity by your Medicare
Compliance Committee - paperless conditional payments, forthcoming Section 111
reporting penalties, Medicare Advantage Plan Liens and more coming your way!
Meet the members live in Nashville at the NWCDN national conference, where we
will be presenting a Medicare Compliance update. Please contact Nicole
Graci of Hamberger & Weiss LLP (NY) or Daniel Hayes of Teague Campbell
Dennis & Gorham, LLP (NC) for more in
Written by: Julia Hooten
Employers and adjusters in North Carolina have encountered the seven-day waiting period requirement when an employee is injured on the job and is out of work. While seemingly clear and straightforward, actual application of the seven-day waiting period to certain occupations or situations can be daunting.
In North Carolina, the first seven days of disability are not payable to an injured employee unless that injury results in a disability of more than twenty-one days.
N.C. Gen. Stat. §97-28, the statute governing the seven-day waiting period, specifies:
“No compensation, as defined in G.S. 97-2(11), shall be allowed for the first seven calendar days of disability resulting from an injury, except the benefits provided for in G.S. 97-25. Provided however, that in the case the injury results in disability of more than 21 days, the compensation shall be allowed from the date of the disability. Nothing in this section shall prevent an employer from allowing an employee to use paid sick leave, vacation or annual leave, or disability benefits provided directly by the employer during the first seven calendar days of disability.” [emphasis added]
But what if the injured employee is someone who works twenty-four-hour shifts, and what if the days missed are not consecutive? Or, what if the employer continues an employee’s salary, does that count toward the waiting period? Let’s take a deeper dive into these frequently asked questions related to the seven-day waiting period.
First, let’s examine the seven-day waiting period for an employee who may work irregular hours or a longer shift. In the situation of an employee who works twenty-four hour shifts fewer days per week rather than the standard work week of five days, the employer and adjuster should be thinking in hours instead days. In this situation, if the twenty-four-hour shift employee misses more than forty hours, then they would be eligible for total indemnity benefits if they missed more than the hourly equivalent of twenty-one days (840 hours).
Likewise, if an employee is disabled for more than twenty-one days because of the work injury, regardless of whether those days are consecutive, the employee is entitled to the waiting period.
If an employee misses more than twenty-one days as a result of a work-related injury, the employee would be entitled to the initial seven-day waiting period, but additional payment would not necessarily be owed since salary was continued.
In contrast, if an employee used sick pay for that first week of disability and was later out for more than twenty-one days, the employee would have to be reimbursed – paid weekly indemnity benefits – for that initial period.
When thinking about when the seven-day waiting period begins, employers and adjuster should confirm whether the employee was paid for the date of injury. If the employee was paid, then the waiting period begins the next workday when the employee was scheduled to return to work. If they were not paid for that workday, it begins on the date of injury.
Similarly, if an employee is partially disabled as a result of the work injury, they may still be entitled to the waiting period if unable to work a full work week. In that case, the employer or adjuster would compare the employee’s post-injury reduction in hours. If the employee misses more than the hourly equivalent of twenty-one days, they are entitled to the initial waiting period.
Is an employee, who was not disabled but ultimately receives a rating which exceeds three weeks/twenty-one days, entitled to the waiting period? Simply put, yes. If the permanent disability is more than twenty-one days in and of itself or if the permanent disability is more than twenty-one days when added to the period of temporary disability, the employee is entitled to payment for the initial seven-day waiting period.
Navigating whether an employee in North Carolina is entitled to the waiting period in certain circumstances can be less than clear for employers and adjusters. It helps to keep accurate records of the employee’s post-injury work schedule and earnings. Be mindful that even with diligent recordkeeping, questions can arise.
If you have questions about the seven-day waiting period, or other aspects of a workers’ compensation claim in North Carolina, reach out to Julia Hooten or a member of our Workers’ Compensation team.
Written by Matt Flammia
In North Carolina, most COVID-19-related workers’ compensation cases are rightfully being denied. The thought initially with COVID-19 claims, and still to a degree with the Delta variant, was that while a claimant will have a difficult time establishing a compensable claim, there are several occupations (i.e., health care workers, first responders, etc.) that could have some compensable situations. However, with the spread and infection rate of the Omicron variant, there is an argument to be made that no COVID-19 claims are compensable at this time and that COVID-19, like the flu, should now be considered an ordinary disease to which the public is generally exposed nationwide as well as in North Carolina.
For COVID-19 workers’ compensation claims in North Carolina, a claimant has the burden of proving: (1) That they were at an increased risk of contracting the virus when compared to members of the general public; and (2) a causal connection between their specific infection and their employment. In other words, the claimant must prove that they were infected while at work, as opposed to outside of work. Further, the claimant’s employment must have placed them at an increased risk of contracting COVID-19.
We are close to two years since the beginning of the pandemic and there still has not been a filed decision from the North Carolina Industrial Commission on the compensability of a COVID-19 claim. This speaks to how the COVID-19 claims are being handled in North Carolina.
Based on recent numbers from the North Carolina Industrial Commission, there have been approximately 5,364 COVID-19 claims filed with either a Form 18 or Form 19. Of those, approximately 40% have no response to the filed Form 19. Of the remaining 3,252 claims that do have some type of a response, it appears that approximately 65% of them were denied with a Form 61; approximately 13% were accepted on a Form 60; and approximately 21% were paid pursuant to a Form 63, without prejudice. In comparison to prior pandemic figures, it appears that the Form 61 denial rate has increased slightly.
Looking ahead, the denial rate likely will increase as additional Omicron variant claims are filed. Simply put, as the transmissibility of the COVID-19 variants increases, there is less of an increased risk in most employment settings, except for limited situations. Compared to the start of the pandemic, contact tracing has become impossible as individuals are more active, and masks have become optional throughout the State of North Carolina. For these reasons, we contend that COVID-19 should now be considered an ordinary disease to which the public is generally exposed and argue that almost no COVID-19 claims are compensable at this time.
If you have questions about the compensability of COVID-19, or other aspects of a workers’ compensation claim in North Carolina, reach out to Matthew Flammia or a member of our Workers’ Compensation team.
Written by: Lindsay Underwood
The most recent case to analyze futility has been issued by the North Carolina Court of Appeals. The case, Monroe v. MV Transportation, relies heavily on the Griffin v. Absolute Fire Control, Inc. case that came down last year to support its findings.
In Monroe, the claimant was in her late 40’s when she sustained her injury. She had a bachelor’s degree, but was working part time as a bus dispatcher and driver for the employer, earning $10.50 per hour. She had been receiving SSD benefits since 1994 for an unrelated medical condition (PTSD). On the date of injury, the claimant slipped while inspecting a bus, hit her left shin, and twisted her back and right knee. On November 7, 2016, she received restrictions of alternating between sitting and standing, and no lifting over 20 pounds.
The claimant’s claim was denied initially but was ultimately heard before Deputy Commissioner Lori A. Gaines and the claim was determined to be compensable. The claimant’s disability was also an issue for hearing, and the claimant introduced medical records that showed her work status as “unable to work secondary to dysfunction.” Her medical providers testified they would have recommended work restrictions. Deputy Commissioner Gaines found that the claimant was disabled from November 7 through November 14, 2016, when she was written out of work. Further, Deputy Commissioner Gaines held that the claimant had been disabled thereafter until she returned to work. The Full Commission disagreed. It was noted that the claimant was 51 years old, was a part-time dispatcher and bus driver earning $10.50 per hour and had been receiving SSD since 1994. The Full Commission found that the claimant had not produced sufficient evidence to demonstrate a post-injury job search, or that looking for employment would be futile. Thus, because she had not looked for work, she was not disabled and could not meet her burden.
The claimant appealed to the Court of Appeals and argued futility. Under Russell, a plaintiff can meet her burden of proving disability by showing she is capable of some work, but it would be futile to look for other work because of pre-existing conditions like age, unrelated conditions, or lack of education. In this case, The claimant argued that the Commission’s findings of fact were insufficient to support the conclusion that she failed to provide any evidence of futility. Specifically, she argued the record contained ample evidence of futility considering her restrictions and other factors unrelated to the injury. The Court in this case cited Griffin. In that case, the claimant was 49 years old with a ninth-grade education, prior work experience limited to construction, and permanent restrictions of no lifting greater than 20 pounds as a result of the work injury. The Court in Griffin found that the Commission’s conclusion that there was “no evidence” to support futility misapplied the law and they reversed for additional findings as to whether the claimant demonstrated futility since the only factual findings in the record were consistent with a conclusion of futility.
The Court felt this case is analogous to Griffin. The claimant was in her 50s at the time of the hearing, had been receiving SSD benefits unrelated to the work injury for several decades, and despite her bachelor’s degree, was working a part-time transportation job earning $10.50 per hour, and was restricted to no lifting over 20 pounds. The Commission still concluded the claimant had not otherwise presented evidence to establish disability and made no findings regarding the claimant’s medical records labeling her work status as “unable to work secondary to dysfunction.” The Court was essentially unable to reconcile the Commission’s findings “or lack thereof” to its conclusion that the claimant failed to present any evidence showing futility.
This case was ultimately vacated and remanded to the Full Commission for additional findings as to whether, under Russell, the evidence the claimant presented is sufficient to establish disability by futility. This case is yet another reminder of how the Court will treat disability arguments regarding futility. Based on this decision, as well as Griffin, it is a good idea for defendants to have labor market surveys, or other vocational assessments completed to support their defense that a claimant is not disabled as alleged. It is also important to note that this case does not eliminate other “futility” factors that need to be present like age, education level, and work experience, to demonstrate that returning to work is futile.
If you have questions about disability arguments regarding futility, reach out to Lindsay Underwood or another member of our Workers’ Compensation team.
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.