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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: