This article will discuss the definition and meaning of “disability,” and the critical statutes and cases. It will provide an outline for proving disability in a workers’ compensation proceeding that arises out of an injury by accident, specific traumatic incident, and some occupational diseases. This article does not cover disability arising out of asbestosis and silicosis.
DEFINITION OF DISABILITY
“Disability” is defined in the Workers’ Compensation Act as follows:
The term ‘disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.
Our courts have consistently held that disability is related to wage loss and not to physical infirmity. Disability is the event of being incapacitated from the performance of normal labor. Disability is more than a mere physical injury. It is also markedly different from technical or functional disability. Proving disability is a pre-requisite to an award of compensation, unless the injured worker chooses to accept benefits under the schedule of injuries. If there is no loss of earning capacity, then there is no disability within the meaning of the Workers’ Compensation Act except for the scheduled benefits.
Disability falls into four categories. “Total disability” is generally awarded pursuant to G.S. § 97-29. Practitioners and the Commission refer to total disability as either “temporary total” or “permanent total.” Only “partial disability” is awarded under G.S. § 97-30. Again, practitioners and the Commission refer to “temporary partial” and “permanent partial.”
The term “permanent partial” is also used as a reference to benefits payable under G.S. § 97-31. Under that statute, the injured worker can receive a “scheduled benefit” that is determined from a “permanent partial impairment rating” typically assigned by a treating or evaluating physician. The worker does not need to prove loss of wage earning ability. The scheduled benefit conclusively presumes that a person has wage loss because of the seriousness of the physical injury he has suffered. The ratings are merely a way to quantify the conclusive presumption so that the worker can be compensated with a finite amount of money, determined by applying his impairment rating to the schedule and multiplying by his compensation rate.
PRESUMPTION OF ONGOING DISABILITY
A presumption of wage loss disability arises when the Industrial Commission awards ongoing weekly disability payments under either G.S. § 97-29 or G.S. § 97-30, but one is unlikely to have this presumption available without a final Opinion and Award that provides for ongoing benefits. The presumption of continuing disability probably gets more discussion, particularly in political circles, than it currently merits.
A Form 21 or Form 26 compensation agreement by which the injured worker would be paid “for necessary weeks”, once approved by the Commission, is an award of the Commission and gives rise to a “presumption of continuing disability”. However, in 1994 the General Assembly enacted the current G.S. § 97-18 (1994). As a result, the forms procedure has become extinct for the purpose of temporary total disability payments. In fact, this practitioner has not seen a new Form 21 or 26 “for necessary weeks” for at least a decade. There is no need for employers and insurance carriers to enter into these form agreements in light of the 1994 reform act, because they can simply use a Form 60 or Form 62 procedure to admit liability for a claim and pay weekly benefits without giving rise to any presumption of disability. The presumption of continuing disability, while it still exists, becomes less of a factor as each year goes by.
You should therefore assume that you will have the burden of proving disability at each and every stage of the case. Even if the presumption of continuing disability exists, it can be rebutted by the Defendants and the Plaintiff would still have to move forward with evidence proving his injury-related loss of earning capacity. You may as well start from the beginning with the assumption that you will have to prove disability for each and every week of the claim.
Unless he is accepting the scheduled “rating” benefit, the burden is on the Plaintiff to prove disability. He must show, by the greater weight of the evidence, that he has suffered a loss of earning capacity due to the compensable injury. In Hilliard v. Apex Cabinet the Supreme Court laid out the three-prong test for proving disability. To support a conclusion of law of disability, the Industrial Commission must find these three elements:
(1) That the plaintiff was incapable after his injury of earning the same wages he earned before his injury in the same employment,
(2) That the plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment, and
(3) That the plaintiff’s incapacity to earn was caused by his compensable injury.
A frequently cited case, Russell v. Lowes Products Distribution, holds that an employee may meet this burden of proof in one of the following four ways:
(1) The production of medical evidence that he is physically or mentally, as a consequence of the work-related injury, incapable of work in any employment; or
(2) The production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; or
(3) The production of evidence that he is capable of some work but that it would be futile because of pre-existing conditions, i.e. age, inexperience, lack of education, to seek other employment; or
(4) The production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.
PARTIAL WAGE LOSS DISABILITY
The fourth prong of Russell deals with partial disability payable under N.C.G.S. § 97-30. This test will only apply when the Plaintiff has returned to work following a compensable injury, but is making less money than the pre-injury average weekly wage.
The first consideration is to make sure the pre-injury average weekly wage is accurately calculated. Secondly, make sure that the new job, whether with the same employer or another, is a job available in the competitive market place and for which the Plaintiff is qualified and capable of doing given his limitations and restrictions. In other words, it must be “suitable employment.”
After the Plaintiff has satisfied those considerations, the post-injury earnings at this position will be considered “strong but not conclusive evidence” of the Plaintiff’s post-injury earning capacity. If the Plaintiff was engaged in concurrent employment at the time of his compensable injury, then the wages from both employments can be aggregated to establish the pre-injury average weekly wage for the purposes of partial disability under § 97-30. Once the Plaintiff has shown a loss of earning capacity upon his return to work, and established a link between this loss and his injury, the burden shifts to the Defendants to show that the worker is actually capable of earning more money and can also obtain employment with higher earnings. A Plaintiff can have a loss of earning capacity post-injury even if he seems to be making his pre-injury earnings, if his post-injury earnings are exaggerated by an increase in the hours he is required to work.
The Commission is required to make findings as to whether the post-injury job accurately reflects the Plaintiff’s ability to earn wages, and whether any loss of income is related to the injury. The comments below concerning job search evidence are also applicable to this fourth test.
TOTAL WAGE LOSS DISABILITY
The first three Russell tests deal with total disability. The first test is purely medical. The second and third tests encompass medical facts and the concept of “suitable employment.”
Under the first Russell test, the most obvious way to prove disability is to present medical evidence that clearly states the injured worker is unable to work in any capacity. This could take the form of an out-of-work note from the authorized treating physician or deposition testimony in which the physician asserts that the worker is not able to do any kind of work due to the injury. These cases are the simplest in which to prove total disability. If you are not deposing the doctor, make sure the necessary medical records are stipulated into evidence.
A common scenario occurs when the Plaintiff has suffered a significant injury and the treating doctor has placed work restrictions on his activities. In this instance, you will not be able to prove disability with medical evidence alone. If the employer of injury can accommodate those restrictions with a light-duty job that is not “make work” or otherwise “unsuitable”, then the Plaintiff will be required to accept that light-duty position or face losing his indemnity in a Form 24 proceeding. If the employer is unable to accommodate the restrictions but is content to leave the Plaintiff on the rolls as an employee, then the employee can show medical evidence, supplemented by the inability of the employer to accommodate the restrictions, in support of his disability claim under the first test.
When this occurs in an accepted case and the insurance carrier pays temporary total disability payments, then essentially the parties have agreed informally that the Plaintiff is disabled and that benefits are due and payable. Absent an award of the Commission, however, the presumption of continuing disability does not arise.
This situation becomes considerably more difficult when the insurance carrier has denied the claim. If the employee is still included on the rolls as an employee of the Defendant, but the carrier has denied the benefits, then can an employee rely on the refusal of his employer to provide light duty accommodations as his evidence of disability? Or, should the employee began a job search, looking for light duty employment within his restrictions, even though he is still carried on the rolls as an employee of the Defendant?
Being restricted to light duty, with an employer that will not accommodate the restrictions and an insurance carrier that will not pay indemnity benefits, standing alone may not be enough to prove disability under the Hilliard and Russell tests. Hilliard indicates that a worker must show that he is incapable of earning the same wages in the same employment and “in any other employment” because of the injury. Under Russell, the fact that he has restrictions suggests that he can do some work, so he would not be able to prove his disability under the first test. Although the Employer’s refusal to accommodate the restrictions will support a finding of disability, this is a marginal level of proof. He should therefore use the second Russell test and produce evidence that he is capable of some work, within his restrictions, but that after reasonable effort on his part, he has been unsuccessful in obtaining employment. The Plaintiff should proceed with a diligent job search when the employer has refused to allow him to return on light duty and indemnity is not being paid.
Under the third test, the employee must produce evidence that he is capable of some work but that it would be futile to look for a job due to pre-existing conditions. As an example, a 55 year old injured employee who had been with the Defendant for twenty-five years working as an auto mechanic, and who had no other significant employment skills, may be able to carry his burden of proof on the third test. His pre-existing conditions would be age, inexperience in other areas of work, lack of education, and lack of ability to do other jobs. Presumably his restrictions would preclude him from doing the same type of mechanical work for another employer. Fortunately, the Commission is not allowed to consider whether the average employee with Plaintiff’s injury is capable of working and earning wages, but only whether this particular injured employee has such capacity.
SATISFYING THE BURDEN AFTER TERASAKA
The Plaintiff should put on as much evidence as he can for each of the three separate Russell total disability tests and pursue a decision on each prong. Failure to do so can be fatal to the case.
In a 2005 decision, Terasaka v. AT&T, the Court of Appeals reversed a Full Commission decision awarding continuing temporary total disability benefits. The Commission held that the Plaintiff, a clerical employee, developed compensable bilateral carpal tunnel syndrome and was disabled from all employment following her surgery and “continuing until further order” of the Commission.
The Commission’s disability finding was based on the Plaintiff’s testimony. She testified that she was not able to use her hands for her previous work, typing, and that her activities of daily living were severely compromised. She had hand cramps sporadically and did not feel safe driving a car. She did not believe she would be able to use her hands on a regular basis in a job. The Court of Appeals held that the finding of disability was supported by this evidence and was therefore conclusive on appeal.
However, the Court also held that “since the Commission conclusively found ‘Plaintiff was unable to work in any capacity due to her carpal tunnel syndrome,’ the only Russell prong applicable on these facts is the first prong.” The majority also held that because the Plaintiff had failed to offer medical evidence meeting the first prong burden of proof, she failed to prove total disability. The Court conceded that a plaintiff can ordinarily prove disability under any of the four Russell prongs but held that on the particular facts of this case, the finding discussed above “is conclusively established and precludes us from considering any of the other Russell prongs.”
Because the medical evidence only showed that the Plaintiff “could not return to any job which required repetitive motion of the hands and wrist” she failed to offer medical evidence sufficient to prove total disability from any job. The majority held that “we cannot remand for additional findings because the transcripts reveal no medical evidence that could support a finding that Plaintiff was incapable of work in any employment.” Therefore, the Commission erred by concluding that the Plaintiff proved that she was temporarily totally disabled. The decision was reversed.
Judge Greer dissented, pointing out that the Plaintiff had, in fact, put on evidence of disability under the second and third Russell tests, and that evidence should be considered under previous Court of Appeals decisions. The Plaintiff testified that she had made approximately five hundred attempts to find jobs, using the Internet, newspaper, and telephone, but she had received no job offers. The Commission found that “prior to the hearing before the Deputy Commissioner, Plaintiff had looked extensively for other types of work and had not received any job offers.” As Judge Greer pointed out, this finding of fact referred to the second method of proof from Russell. The majority held its ground.
Terasaka is on appeal to the Supreme Court. In the meantime, what does it mean to Plaintiffs’ counsel?
Certain practical recommendations can be drawn from Terasaka and other Russell cases. First, do not limit yourself to trying to prove total disability under just one of the three available Russell tests. Put on evidence that tends to support total disability under each of the applicable prongs. Unless you have medical evidence that unequivocally supports a finding and conclusion that the Plaintiff is totally disabled from any employment whatsoever, you must proceed under the second and/or third prong. Under the second prong, substantial credible evidence of a diligent job search is crucial. The mere testimony of a plaintiff that he has applied for jobs over a particular period of time will not be sufficient, because it will probably not be accepted as credible. The Plaintiff must produce evidence that documents the job search. This evidence can take the form of rejection letters, want ads clipped from the newspaper, Employment Security Commission job search records, a job search diary created contemporaneously by the Plaintiff, written reports and testimony from vocational rehabilitation providers, and other similar evidence. The Plaintiff who is unemployed but capable of doing some work should consider a job search as his full-time job and spend several hours a day trying to find work. If the Plaintiff is in fact spending this much time searching for work, keeping time records could bolster his credibility at hearing.
In order to prevail on the third prong of Russell, medical evidence of any other health conditions would be required, along with educational history, work history, and probably a vocational assessment prepared by a vocational rehabilitation expert. The concept of “futility” certainly contemplates the totality of circumstances associated with the injured worker. It would make sense to go all the way back into junior high school if necessary to establish the educational, experience, and skill levels of the Plaintiff.
Equally crucial at the Deputy Commissioner level is the drafting of the proposed Opinion and Award. Putting on all the proper evidence is only half the battle. The written Contentions must then remind the Deputy of the evidence and its significance. The evidence should be linked to one of the Russell tests. The proposed Opinion and Award should make specific findings of fact pertaining to the various factors. The Hilliard decision indicates that findings and conclusions must track the three-prong disability test regardless of which Russell test is used. The proposed Opinion and Award should also include specific conclusions of law pertaining to each of the relevant Russell tests. Many times, on appeal the Full Commission will affirm a Deputy decision with few (if any) minor modifications, so a well written Deputy Commissioner Opinion and Award can go a long ways towards a Full Commission decision that withstands Court of Appeals review.
1 N.C. Gen. Stat. § 97-2(9) (2001)
2 McCubbins v. Fieldcrest Mills, Inc., 79 N.C. App. 409 cert. denied, 316 N.C. 732.
3 Pruitt v. Knight Publishing Company, 27 N.C. App. 254, 218 S.E.2d 876 (1975), rev. on other grounds, 289 N.C. 254, 221 S.E.2d 335 (1976).
5 Anderson v. Northwestern Motor Company, 233 N.C. 372, 64
S.E.2d 265 (1951).
6 Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438 (1951).
7 A person who loses two limbs is conclusively presumed to
be “permanently and totally disabled” under G.S. § 97-31.
8 G.S. 97-31
10 Rice v. City of Winston-Salem, 154 N.C. App. 680, 572 S.E.2d 794 (2002) (Cites omitted).
11 Sims v. Charms/Arby’s Roast Beef, 142 N.C. App. 154, 542 S.E.2d 277, rev. den. 353 N.C. 729, 550 S.E.2d 782 (2001); Johnson v. Southern Tire, 358 N.C. 701, 599 S.E.2d 508 (2004).
12 Moore v. Davis Auto, 118 N.C. App. 624, 456 S.E.2d 847 (1995) (Defendants can rebut proof of disability by showing that Plaintiff could probably get a job if he made a diligent search, even though he was not offered a job).
13 Hilliard v. Apex Cabinet, 305 N.C. 593, 290 S.E.2d 682 (1982).
15 Id., 305 N.C. at 595, 290 S.E.2d @ 683.
16 Russell v. Lowes Products Dist., 108 N.C. App. 762, 425
S.E.2d 454 (1993).
17 Id., 108 N.C. App. at 765, 425 S.E. 2d at 457
18 See, NCIC Rules for Rehabilitation Providers, Rule III (G)
19 Hendrix v. Linn-Corriher, 317 N.C. 179, 189, 345 S.E.2d 374, 380 1986).
20 See, e.g., IC 963607 Paul Graham v. Tompkins Johnston and Travelers, Full Commission Opinion and Award filed 6 December 2001
21 Moore, supra.
22 Harris v. North American Products, 125 N.C. App. 349, 481 S.E.2d 321 (1997).
23 Baker v. Sam’s Club, 161 N.C. App. 712, 589 S.E.2d 387 (2003).
24 Russell, 108 N.C. App. at 765, 425 S.E.2d at 765, accord, Stavissky v. Comark, COA05-176, Filed 17 January 2006, unpublished
25 The second and third prongs of Russell require either a job search or a showing that a job search would be futile. In order to evaluate those concerns, you must first consider what would be “suitable employment” for the Plaintiff.
26 See, Workers’ Compensation Rule 404; Peoples v. Cone Mills, 316 N.C. 426, 342 S.E.2d 798 (1986).
27 Watson v. Winston-Salem Transit, 92 N.C. App. 473, 374 S.E.2d 483 (1988).
28 Id. In Watson, a presumption of continuing disability was present. One doctor held Plaintiff out of work and two doctors felt Plaintiff could return to work with restrictions. The Employer was concerned about safety. Thus, multiple factors were present to support the finding of disability. See also Gilberto v. Wake Forest University, 152 N.C. App. 112, 566 S.E.2d 788 (2002) for a discussion of what is not a diligent job search.
29 Thomas v. Hanes Printables, 91 N.C. App. 45, 370 S.E.2d 419 (1988).
30 Terasaka v. AT&T, ___N.C. App. ___, 622 S.E.2d 145 (2005)
31 Id. at 148.
32 Id. at 149.
35 Id. at 150. Judge Geer cited White v. Weyerhaeuser Co., 167 N.C.App. 658, 672, 606 S.E.2d 389, 399
(2005) for the proposition that “the absence of medical evidence does not preclude a finding of disability under one of the other three [Russell] tests.”
36 Id. at 150.
37 Gilberto, supra,. Stavissky, supra. .
Written by: Bobby L. Bollinger Jr.