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Home / Courts / N.C. Court of Appeals / Workers’ Compensation – First Impression – Temporary Total Disability – Extended Benefits – Burden of Proof

Workers’ Compensation – First Impression – Temporary Total Disability – Extended Benefits – Burden of Proof

On a matter of first impression, the court construes the “extended benefits” available under G.S. § 97-29(c), i.e., temporary total disability benefits past the usual 500 weeks, to be available under the same terms as temporary total disability benefits; however, a plaintiff seeking extended benefits no longer enjoys a presumption of continuing disability and must prove he remains temporarily totally disabled.

We affirm the Industrial Commission’s denial of plaintiff’s claim for extended benefits.

As the 500-week limit on his temporary total disability benefits neared, plaintiff filed a Form 33, seeking to qualify for extended benefits. Defendant presented evidence that there were jobs available that plaintiff could perform, despite his compensable back injury.

According to § 97-29(c), an employee qualifies for extended temporary, total disability benefits, beyond the 500-week cap set out in § 97-29(b), if “pursuant to the provisions of G.S. 97-84, . . . the employee shall prove by a preponderance of the evidence that the employee has sustained a total loss of wage-earning capacity.”

We agree with plaintiff that the Industrial Commission erred by concluding that his burden to show a “total loss of wage-earning capacity” under § 97-29(c) is higher than his burden to show he had suffered a “total disability” to qualify for the initial 500 weeks of benefits under § 97-29(b).

Our Supreme Court has used the phrase “loss of wage-earning capacity” synonymously with “disability” both prior to and after the 2011 amendment which added § 97-29(c). Based on such cases, it reasonably follows that “total disability” (under § 97-29(b)) and “total loss of wage-earning capacity” (under § 97-29(c)) are synonymous. More importantly, our General Assembly expressly defines “disability” in the Act as the “incapacity . . . to earn wages[.]” G.S. § 97-2(9). Applying the plain language of this statutory definition of “disability,” it reasonably follows that “total disability” means “total incapacity to earn wages.” The phrase “total incapacity to earn wages” conveys the same idea as the phrase “total loss of wage-earning capacity.”

Under Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971), until an employee who has been awarded total disability benefits under § 97-29(b) returns to work, it is presumed that (1) he has no wage-earning capacity and (2) his compensable injury continues to be the cause of his incapacity to earn a wage.

Our Supreme Court has never determined whether the Watkins presumption applies beyond the 500-week cap. Based on the language of § 97-29, we conclude an employee who seeks extended benefits under § 97-29(c) is not entitled to a presumption that he has suffered a total loss of wage-earning capacity merely because it was previously determined that he had suffered a disability under § 97-29(b). Section 97-29(c) plainly states that to qualify for extended benefits, the employee “shall prove” that he “has sustained a total loss of wage-earning capacity.” There is no indication that our General Assembly intended an injured employee to rely on a prior determination of total disability beyond the 500-week cap.

Here, the Commission weighed conflicting evidence in the record and found that (1) “Plaintiff has some transferable skills from his several decades of prior employment in various fields”; (2) there were jobs in plaintiff’s home county that were compatible with his skill; and (3) “[c]onsidering Plaintiff’s work history [and] his educational level,” he “would be able to obtain some employment, at a minimum, part-time work in a sedentary position.” These findings are supported by evidence in the record, including the testimonies of defendant’s medical and vocational experts.

Since plaintiff did not offer evidence that he made reasonable efforts to find a job suitable to the capabilities the Commission found him to have, he failed to meet his burden of showing that he qualifies for extended benefits under § 97-29(c).


Sturdivant v. North Carolina Department of Public Safety (Lawyers Weekly No. 011-041-23, 13 pp.) (Chris Dillon, J.) (Donna Stroud, C.J., concurring in result only without separate opinion) Appealed from the Industrial Commission. Stewart Poisson for plaintiff; J.D. Prather for defendant; Michael Bertics, Richard Harper, Joshua Harper, Joy Brewer, Ginny Lanier, Frances Clement, Kristine Prati, Tracey Jones, Logan Shipman and Lindsay Underwood for amici curiae. N.C. App.

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