?The North Carolina Full Commission, a quasi-judicial panel, recently issued a decision in Messick v. Walmart Stores, awarding the claimant extended benefits.
Previously, the issue of extended benefits was not an issue at the Deputy Commissioner level. The deputy commissioner issued an opinion, finding compensable aggravations to claimant’s preexisting left knee condition and mental health condition. The deputy commissioner awarded ongoing temporary total disability benefits and ordered payment for claimant’s dental treatment related to a post-accident fall. The defendants did not appeal the findings or conclusions related to causation, but appealed on the issue of whether the first date of disability versus the date of injury was controlling in regard to determining the indemnity benefits and/or extended benefits owed to claimant under N.C.G.S. § 97-29. Extended benefits are required when an employee qualifies for compensation in excess of the 500-week limitation on temporary total disability.
In this case, the claimant sustained two compensable injuries: one to her lumbar spine and another to her right knee. Her lumbar spine injury was pre-2011 statutory reform, and her right knee injury was post-2011 reform. Both injuries were accepted by defendants. Defendants also authorized benefits for psychological treatment as a part of the claim.
Ultimately, the claimant required, among other treatment, a spinal cord stimulator, a knee replacement surgery, and a knee replacement revision procedure, along with increased psychological treatment for depression, which included a 20-day psychological support and physical reconditioning program, where she weaned off oxycodone.
Eventually, the claimant’s left knee became problematic, and she required a left total knee replacement, which her doctor opined was the result of her right knee injury. She was ultimately assessed with failed back syndrome, chronic low lumbar pain, and chronic knee pain.
As a part of litigation, the parties deposed nine experts, consisting of the claimant’s medical providers and vocational expert. In terms of disability, many providers deferred to other providers and/or the vocational expert, and the claimant was assigned permanent sedentary restrictions with no repetitive bending or stooping, no lifting more than 20 pounds, no twisting, no kneeling, no climbing ladders or stairs, no walking more than 40 yards at a time, and no sitting or standing for more than 30 minutes at a time.
The claimant’s vocational expert concluded that there was no reasonable vocational probability that the claimant would be able to secure a job and maintain gainful employment. He testified she had a total loss of wage-earning capacity, despite noting that the claimant expressed multiple times she would prefer to be working and productive.
The good news is the Full Commission, in keeping with its other extend benefits decisions, clearly states that the standard in extended benefits cases is different than the normal standard for proving entitlement to temporary total disability benefits. Applying the revised standard set forth in the 2011 revisions to N.C. Gen. Stat. § 97-29(c), the Full Commission reiterated that to establish entitlement to extended compensation, a plaintiff must show that they have a total loss of the ability to earn wages in any employment.
However, the Full Commission found the vocational expert’s opinion credible and concluded there were no jobs in the job market within the claimant’s functional capabilities. The commission found ongoing disability for the claimant’s pre-reform injury and a total loss of wage-earning capacity due to the second post-reform injury. The claimant was awarded ongoing medical benefits and temporary total disability benefits for the pre-reform injury until she returns to work or until further order by the commission, as well as extended benefits for the post-reform injury. The commission focused on the claimant’s chronic pain, age, and length of time from being in any academic situation and relied on the only vocational expert to testify in the case to conclude that the claimant had sustained a total loss of her wage-earning capacity.
Takeaways for Defendants
This opinion once again demonstrates the importance of expert testimony in these extended benefit cases. The physicians deposed all found the claimant’s pain complaints credible and either would not comment on claimant’s ability to work or deferred to a vocational expert as to whether there were jobs available that the claimant could perform. The only vocational expert that was deposed clearly testified that the claimant had suffered a total loss of wage-earning capacity because of her restrictions and chronic pain complaints.
In order for defendants to successfully defend these cases, they must retain or have testimony from both medical and vocational experts that the claimant has some wage-earning capacity. If defendants can successfully present this evidence, past cases suggest that they will prevail, and extended benefits will not be awarded.
Tracey Jones and Heather T. Baker are lawyers with Teague Campbell in Raleigh, N.C. © 2022. All rights reserved. Reprinted with permission via Lexology.
