To extend or not extend indemnity compensation beyond 500 weeks, that is the question. The Commission has now provided the legal framework to be applied.

By: Paul C. McCoy

            In Betts v. North Carolina Department of Health and Human Services (“Betts”), the Full Commission addressed for the first time its interpretation of N.C. Gen. Stat. § 97-29 with respect to an employee’s claim for indemnity compensation in excess of 500 weeks.

            Prior to the 2011 amendments to the Workers’ Compensation Act, an employee could theoretically receive indemnity benefits for the remainder of their life. The 2011 amendment to N.C. Gen. Stat. § 97-29(b) substantially reformed an employee’s ability to receive lifetime indemnity benefits. N.C. Gen. Stat. § 97-29 now states:

An employee may qualify for extended compensation in excess of the 500-week limitation on temporary total disability only if (i) at the time the employee makes application to the Commission to exceed the 500-week limitation on temporary total disability, 425 weeks have passed since the first date of disability and (ii) the employee shall prove by a preponderance of the evidence that the employee has sustained a total loss of wage earning capacity.

            Prior to the Full Commission’s decision in Betts, there was great debate as to whether the Commission would apply a “suitable or competitive employment” standard when interpreting N.C. Gen. Stat. § 97-29, or whether the Commission would strictly interpret the statute and deny claims for extended compensation unless total loss of wage earning capacity was proven. With its decision in Betts, the Commission has now spoken and clearly indicated that in order to qualify for extended compensation, an employee must prove that they have sustained a total loss of earning capacity.

            In Betts, plaintiff was a 53-year old high school graduate who was a certified CNA and EMT at the time of the injury. The majority of her work history included work at Dorothea Dix and Cherry Hospital. In 2010, plaintiff was transferred to Cherry Hospital where she was assigned to work with combative patients. Her employment with Cherry Hospital did not include any administrative duties.

            Plaintiff sustained a compensable right ankle injury on August 12, 2011 and returned to work for a short period of time after the injury. Thereafter, plaintiff underwent approximately six surgeries performed by her authorized treating provider, Dr. Thompson. Plaintiff was taken out of work on September 11, 2013 and did not return to work thereafter leading up to the time of the hearing. In the interim, plaintiff performed various volunteer related tasks and duties for several organizations.  On October 31, 2018, Dr. Thompson indicated that plaintiff had reached maximum medical improvement and assigned her permanent sedentary work restrictions.

            Plaintiff then sought treatment with Dr. Bagsby, who was not her treating physician, on two separate occasions. Dr. Bagsby was of the opinion that plaintiff could work for a few hours per day in a sedentary position only if her potential employer allowed her to elevate her leg.

            After filing her application for extended compensation, plaintiff retained Julie Sawyer, a licensed occupational therapist and certified rehabilitation counselor, to address her employability. Ms. Sawyer relied exclusively on Dr. Bagsby’s work restrictions when formulating her opinion. 

Ms. Sawyer made the following conclusions regarding plaintiff’s ability to return to work: (1) plaintiff’s prior work with patients would not transfer to sedentary work; (2) plaintiff’s prior certifications had expired; and (3) plaintiff’s transferable skills included patient care and understanding medical terminology. Ms. Sawyer opined that plaintiff’s sedentary restrictions and her prior employment history would not transition well to a clerical or computer type position.  Ms. Sawyer ultimately concluded that plaintiff was unable to return to any form of competitive employment.

            Defendants then retained Pamela Harris to perform a Labor Market Survey. Ms. Harris identified multiple positions for plaintiff, including positions as a receptionist in a doctor’s office and a patient admission representative. Ms. Harris based her opinion regarding plaintiff’s work abilities off of Dr. Thompson’s opinion that plaintiff could work in a sedentary position without elevating her leg and without working any reduced  hours.

            The Commission found that Dr. Thompson’s opinion on the issue of plaintiff’s work restrictions was more credible than that of Dr. Bagsby as Dr. Bagsby had only treated plaintiff two times. The Commission also found that Ms. Harris’ opinion regarding plaintiff’s earning capacity and employability was more credible than the opinion of Ms. Sawyer as Ms. Harris’ opinion was based upon medical testimony which the Commission found more credible.  The Commission also noted that there was no expert testimony indicating that plaintiff was incapable of performing work.

            In rendering its decision, the Full Commission strictly interpreted N.C. Gen. Stat. § 97-29(c) and held that in order to receive benefits beyond the 500-week cap, a plaintiff must prove that they have sustained a total loss of earning capacity as opposed to an alleged inability to find suitable or competitive employment.  

            At this point, it is unclear whether the plaintiff in Betts has appealed the decision to the Court of Appeals. However, we fully expect the decision will be appealed. The Appellate Court’s decision regarding the interpretation of N.C. Gen. Stat. § 97-29(c) will ultimately determine the plaintiff’s burden of proof when seeking to obtain benefits beyond the 500-week cap.