Workers' Compensation

The shutdown is not expected to interrupt either existing Medicare or Social Security benefits, as those programs are already funded for the year. However, it could delay those applying for benefits or seeking verification of their status. If the shutdown is extended, over half of CMS’s employees could be furloughed, including the staff members who review MSA’s. It is anticipated that new MSA applications will not be reviewed until the shutdown ends. An extended shutdown is therefore likely to delay settlements in which an MSA is needed, which would of course extend the employer’s and insurer’s liability in accepted cases.

The shutdown would not affect cases in which a $0 MSA is appropriate. As of July 2025, CMS no longer accepts or reviews $0 MSA applications. In the case in which a $0 MSA is applicable, the parties should document how the criteria for a $0 MSA have been met by establishing one or more of the following per Section 4.2 of the WCMSA Reference Guide:

• The individual’s treating physician documents in medical records that to a reasonable degree of medical certainty the individual will no longer require any treatments or medications related to the settling WC injury or illness; or

• The workers’ compensation insurer or self-insured employer denied responsibility for benefits under the state workers’ compensation law and the insurer or self-insured employer has made no payments for medical treatment or indemnity (except for investigational purposes) prior to settlement, medical and indemnity benefits are not actively being paid, and the settlement agreement does not allocate certain amounts for specific future or past medical or pharmacy services as a condition of settlement; or

• A Court/Commission/Board of competent jurisdiction has determined, by a ruling on the merits, that the workers’ compensation insurer or self-insured employer does not owe any additional medical or indemnity benefits, medical and indemnity benefits are not actively being paid, and the settlement agreement does not allocate certain amounts for specific future medical services; or

• The workers’ compensation claim was denied by the insurer/self-insured employer within the state statutory timeframe allowed to pay without prejudice (if allowed in that state) during investigation period, benefits are not actively being paid, and the settlement agreement does not allocate certain amounts for specific future medical services.

We welcome any inquiries you may specific to any of claims.  Please reach out to one of our workers’ compensation defense attorneys.

Recently, the North Carolina Court of Appeals weighed in on the issue of upholding an award of disability benefits based on employment in Kersey v. Perdue Farms Inc., No. COA24-455 (filed Dec. 31, 2024).

It was an appeal by Defendants from an Opinion and Award by the Commission ordering that Plaintiff receive disability benefits beginning May 5, 2021.

On May 5, 2021, Plaintiff experienced a sharp, electric pain in his neck and shoulder, while manually cranking a gear that required an unusual amount of exertion due to a potential malfunction or inadequate lubrication of the landing gear he was working on. Plaintiff’s claims were denied, and he went on to obtain medical treatment on his own. Plaintiff did not work after the May 5, 2021, injury and Perdue Farms did not offer him any light duty, modified, or full duty return to work options. At hearing, Plaintiff testified that he believed he remained employed by Perdue Farms because he was still using the company’s health insurance and he had not received any termination notification.

On April 6, 2023, a Deputy Commissioner found that Plaintiff had suffered a compensable injury to his neck on May 5, 2021, and awarded indemnity benefits from that date and continuing until Plaintiff returned to suitable employment or further order of the Commission, which was confirmed by the Full Commission.

On appeal, Defendants argued that the Commission erred in finding that Plaintiff remained employed as of the date of the evidentiary hearing, which was rejected by the Court of Appeals in part due to Plaintiff’s hearing testimony. Defendants also argued that work restrictions had not been assigned, which was rejected by the Court of Appeals as one physician noted Plaintiff was “not to drive, operate heavy machinery or make important decisions while taking narcotics, muscle relaxants, or neuroleptic”; a second physician stated Plaintiff should not drive a truck until he was assessed by a surgeon and testified at deposition that he “would have absolutely kept this patient out of work”; and the surgeon subsequently signed an out of work note. In addition, the Court of Appeals agreed with the Commission that Plaintiff’s treating physicians recommended surgery, and his work restrictions were pending the surgery, so it would be unreasonable to expect Plaintiff to seek other employment.

As a result of the above findings, the Court of Appeals found competent evidence to support the Commission’s findings that Plaintiff believed he remained employed by Perdue Farms and no evidence of termination existed; that two physicians placed work restrictions on Plaintiff preventing him from returning to his pre-injury position; and Defendant did not offer Plaintiff suitable employment. Furthermore, there was competent evidence that Plaintiff remained available for work within his restrictions, and given his non-MMI status and continued employment, it was premature for him to seek alternative employment.

Why is this case so important and what does it mean for you?  Contact our workers’ compensation defense team to find out.

On December 13, 2024, the North Carolina Supreme Court filed its long-awaited decision in Sturdivant v. NC Dept of Public Safety, providing what should be the final word on the standard to be used in cases involving claims for Extended Compensation beyond the 500 week cap provided by N.C. Gen. Stat. § 97-29.  The decision is a vindication of the arguments advanced by the defense since the start of the litigation in these matters – that the term “total loss of wage-earning capacity” is different from the analysis of temporary total disability.

In Friday’s decision, the Supreme Court says the Legislature’s 2023 “clarification” that the term “total loss of wage-earning capacity” means the complete elimination of the capacity to earn any wages was really unnecessary, since the plain meaning of N.C. Gen. Stat. § 97-29 was clear when enacted in 2011:  “In sum, when the Industrial Commission interpreted the phrase ‘total loss of wage-earning capacity,’ it did so correctly.  The Commission properly concluded that the phrase means an employee’s ‘total loss of the ability to earn wages in any employment.’”  As a result, the Supreme Court rejected the Court of Appeals’ interpretation of the phrase “total loss of wage-earning capacity” and affirmed the denial of extended compensation to Plaintiff.

Read the full Order here.

With this decision, claims for Extended Compensation beyond the 500th week should be reserved for the extraordinary situation in which the injured worker’s capacity to earn wages is completely eliminated.  The ability to earn any wages whatsoever, in any capacity, should be a bar to Extended Compensation.

The North Carolina Industrial Commission has established the maximum weekly benefit for 2024 pursuant to N.C. Gen. Stat. § 97-29.  Effective January 1, 2024, the maximum weekly benefit applicable to all injuries arising on and after January 1, 2024, shall be $1,330.00.

A copy of the Notice can be found here.

If you are interesting in receiving Wilson Ratledge’s 2024 Cheat Sheet, contact one of our workers’ compensation defense attorneys.