Extended Benefits pursuant to N.C. Gen. Stat. § 97-29(c)
By: Melissa P. Woodard
As you may recall, in 2011, the North Carolina legislature overhauled the Workers’ Compensation Act. Significantly, it placed a cap on indemnity entitlement for an injured worker of 500 weeks, but as a compromise to both sides, it provided for an injured worker to qualify for extended indemnity entitlement under N.C. Gen. Stat. § 97-29(c) if the plaintiff could show he “sustained a total loss of wage-earning capacity.” The plaintiff is then able to petition the Commission for a determination of extended benefits entitlement but only after at least 425 weeks have passed. Accordingly, the first cases regarding extended benefits are just now making their way through the litigation and appeals process. Sturdivant v. NC Dept. of Public Safety is the first Court of Appeals decision on this new issue.
In this case, the plaintiff sustained a compensable back injury in 2007 while working as a corrections officer for NCDPS. On August 31, 2011, he sustained another back injury while transporting an inmate. Defendants agreed to accept compensability pursuant to a consent order, and Plaintiff received temporary total disability benefits for more than 425 weeks. In 2020, Plaintiff filed a hearing request seeking extended benefits pursuant to N.C. Gen. Stat. § 97-29(c).
In Sturdivant, neither party contended plaintiff had sustained permanent disability as a result of his back injury under the Workers’ Compensation Act. The Deputy Commissioner denied the plaintiff’s claim for extended benefits, and The Full Commission found that the plaintiff had not sustained a total loss of his wage-earning capacity. The plaintiff appealed the denial of his entitlement to extended benefits to the Court of Appeals arguing the Full Commission misconstrued the requirements under N.C. Gen. Stat. § 97-29(c) for benefits beyond 500 weeks.
This is the first case from the Court of Appeals interpreting an extended benefits award or denial under the Workers’ Compensation Act 2011 amended statute, so the issue is that of first impression. The primary debate among the plaintiffs’ and defense bar has been whether the standard for extended benefits would be the same as temporary total disability for the 500-week period or more stringent. The Court in Sturdivant held that proving a total loss of wage-earning capacity is the same as proving “total disability” for temporary total disability benefits: “one who can perform some work may still qualify for extended benefits if no one would hire him.” Sturdivant v. NC Dept. Of Pub. Safety, ___ N.C. App. ___ (March 21, 2023).
The Court went on to determine, however, that the plaintiff “is not entitled to a presumption that he continues to suffer from a total loss of wage-earning capacity based on a prior determination” that he was entitled to indemnity benefits during the 500-week period. Id. Essentially, the Commission must re-weigh the disability evidence anew when an argument for extended benefits is raised. In Sturdivant, the plaintiff failed to prove that he had made a reasonable job search for suitable employment within his abilities under Russell v. Lowes. Moreover, the defendants’ vocational expert showed there were, in fact, suitable jobs available. Accordingly, the Court held that the plaintiff failed to carry his burden of proving a “total loss of wage-earning capacity.”
Notably, while there is no dissenting opinion, Chief Judge Stroud concurred in result only, which may indicate that she feels that there actually is a distinction between proving “total disability” and proving a “total loss of wage-earning capacity.” As the issue of extended benefits is hotly contested, heavily debated, and financially significant for both plaintiffs and defendants, we anticipate one or both parties may appeal to the Supreme Court for further clarification.