Both sides of the bar have been anxiously awaiting decisions from the North Carolina Court of Appeals that will determine how claims for extended compensation pursuant to N.C. Gen. Stat. § 97-29(c) are handled. The first decision in this line of cases has now arrived.
In Sturdivant v. N.C. Dept. of Public Safety, the plaintiff sought benefits beyond the 500 weeks for his back injury. On appeal, plaintiff argued that he had “total loss of wage-earning capacity,” and that the Industrial Commission erred in concluding that his burden of proof was higher than the standard for proving “total disability.” The defense bar disagrees with this definition, and in their Amicus Brief (co-authored by Wilson Ratledge attorneys Frances M. Clement and Kristine L. Prati), the North Carolina Association of Defense Attorneys (NCADA) argued that in 2011, the Legislature created a separate section for extended compensation and specifically used the term “total loss of wage-earning capacity” instead of the term “disability,” therefore indicating that a different standard applies for an award of extended compensation.
The Court of Appeals unfortunately agreed with plaintiff’s argument that “total loss of wage-earning capacity” is synonymous with “total disability.” However, the Court of Appeals agreed with defendants’ argument that the burden of proof rests with plaintiff, and ultimately upheld the Industrial Commission’s denial for an extension of benefits, as the evidence showed that there were jobs available for plaintiff, and that plaintiff was capable of performing those jobs given his physical restrictions, education, and work history.
We will be monitoring this case for any appeal to the N.C. Supreme Court, as well as a decision in two other extended compensation cases pending at the Court of Appeals.
Read the full decision here
If you have any questions about this case or extended compensation, please contact one of the workers’ compensation attorneys!