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Raleigh Estate Planning and Corporate Law Attorneys

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    • Lesley W. Bennett
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Workers' Compensation

COA Latest Award of Benefits

January 16, 2025 By Marissa Adkins

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.

NC Supreme Court Sets Standard for Extended Benefits

December 16, 2024 By Marissa Adkins

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.

Two Speakers at 2024 NCIC Conference

August 15, 2024 By Marissa Adkins

The North Carolina Industrial Commission’s 29th Annual Workers’ Compensation Educational Conference will be held at the Raleigh Convention Center, September 30, 2024 through October 2, 2024. 

We are thrilled to announce that attorneys Kristine L. Prati and Daniel C. Pope, Jr., who are both board certified workers’ compensation specialists, will be presenting at this year’s conference.

Kristine will be speaking before other professionals on “Best Practices for Communicating with Physicians in Workers’ Compensation Cases” and Dan will lead the discussion, “Back to Basics – Injury by Accident“.

Registration for the event is now open.  Visit the North Carolina Industrial Commission website for more details.

2024 Max Comp Rate

December 1, 2023 By Marissa Adkins

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.

CEU Approved

October 16, 2023 By Marissa Adkins

In need of end-of-year CEU credits and interested in learning more about extended compensation benefits in North Carolina?  Contact one of our workers’ compensation defense attorneys for a Lunch and Learn! 

The Fix is In?? The Tale of Extended Compensation has been approved for 1 CEU North Carolina credit, and features the history of extended compensation benefits in North Carolina with recommendations from a Vocational Rehabilitationist.  

What’s New for Extended Compensation

April 19, 2023 By Marissa Adkins

Less than two weeks after the North Carolina Court of Appeals made a decision in Sturdivant v. N.C. Dept. of Public Safety, which would have ultimately determined how claims for extended compensation were handled, the court’s opinion was withdrawn, without explanation.

However, on April 18, 2023, the North Carolina Court of Appeals filed a new decision in the case of first impression on extended compensation in North Carolina.  Unfortunately, the Court of Appeals maintained that the term “total loss of wage-earning capacity” in the extended compensation (post-500 weeks) section of the statute is no different that the term “total disability” in the temporary total disability section of the statute.  In doing so, the Court of Appeals added to its decision that the 2011 amendment to the Workers’ Compensation Act did not create a higher burden of proof in order for an employee to qualify for extended compensation.  Instead, the Court of Appeals wrote, the standard of proof for an award of extended compensation is the very same standard of proof for an award of TTD benefits during the initial 500 week period.  We believe (as did the Industrial Commission) that the Legislature intended the burden of proving extended disability to be significantly higher than the burden for ordinary TTD, and anticipate that the parties will seek review by the Supreme Court. 

Our workers’ compensation defense attorneys will monitor Sturdivant for an appeal to the North Carolina Supreme Court, and a decision in the companion case, Betts v. N.C. Dep’t of Health & Hum. Ser., for any changes to the interpretation of “total loss of wage-earning capacity” in extended compensation cases. 

We welcome any inquiries you may have about the Sturdivant decision or extended compensation in North Carolina.

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