Sturdivant v. N.C. Dep't of Pub. Safety

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-421
Filed 21 March 2023
North Carolina Industrial Commission I.C. No. Y18418
MARTIN B. STURDIVANT, Employee, Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Employer, SELF-
INSURED (CCMSI, Third-Party Administrator), Defendant.
Appeal by Plaintiff from Decision and Order entered 28 February 2022 by Vice-
Chair Myra L. Griffin for the North Carolina Industrial Commission. Heard in the
Court of Appeals 15 November 2022.
Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson, for the Plaintiff-
Appellant.
Attorney General Joshua H. Stein, by Assistant Attorney General J.D. Prather,
for the Defendant-Appellee.
Lennon Camak & Bertics, PLLC, by Michael W. Bertics, and The Harper Law
Firm, PLLC, by Richard B. Harper and Joshua O. Harper, for Amicus Curae
North Carolina Advocates for Justice
Brewer Defense Group, by Joy H. Brewer and Ginny P. Lanier, and Wilson &
Ratledge by Frances M. Clement and Kristine L. Prati, and Teague Campbell
by Tracey L. Jones, Logan Shipman & Lindsay Underwood, for Amicus Curae
North Carolina Association of Defense Attorneys, et al.
DILLON, Judge.
This appeal involves an issue of first impression, namely the proper
STURDIVANT V. NC DEPT. OF PUBLIC SAFETY
Opinion of the Court
interpretation of a subsection added to our Workers’ Compensation Act (“Act”) in
2011, codified in Section 97-29(c), which provides for “extended” benefits beyond the
500-week cap in benefits for a temporary, total disability provided in Section 97-29(b).
Here, Plaintiff Martin B. Sturdivant (“Plaintiff”) seeks extended disability
benefits for a back injury he suffered in 2011, after exhausting the maximum 500
weeks of disability benefits allowable Section 97-29(b). After considering the evidence
offered at the hearing before a Deputy Commissioner, the Full Commission denied
Plaintiff’s claim for extended benefits. Plaintiff appeals from that denial. We affirm.
I. Background
In 2006, Plaintiff suffered a compensatory back injury while working for a
private company.
In 2007, after Plaintiff left the private company, Plaintiff began working as a
corrections officer for Defendant-Employer Department of Public Safety
(“Defendant”). On 31 August 2011, Plaintiff experienced back pain while
transporting an inmate. Plaintiff immediately sought disability benefits under the
Act for his back issues.
In October 2013, the parties entered a Consent Order, which was approved by
the Full Commission, whereby Defendant accepted compensability and agreed to
begin paying temporary, total disability benefits pursuant to Section 97-29(b).
In 2020, after receiving temporary, total disability benefits for over 425 weeks,
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Plaintiff filed a Form 33, seeking to qualify for “extended benefits” pursuant to
Section 97-29(c) beyond the maximum 500 weeks of benefits allowed for a temporary,
total disability under Section 97-29(b). Defendant responded by filing a Form 33R,
alleging that Plaintiff could not carry his burden to show he was entitled to extended
benefits.
In May 2021, after a hearing on the matter, a Deputy Commissioner entered
an order denying Plaintiff’s claim requesting an extension of benefits. Plaintiff
appealed to the Full Commission. In February 2022, the Full Commission affirmed
the Deputy Commissioner’s order, making its own findings and concluding Plaintiff
failed to establish that he had suffered a total loss of wage-earning capacity. Plaintiff
appeals this 2022 order of the Full Commission to our Court.
II. Analysis
Under the Act, an employee who suffers a compensable injury generally
qualifies to receive “disability” benefits for the weeks he is not able to earn at least
the same wage he was earning at the time he suffered his injury. As explained by
our Supreme Court, in the context of workers’ compensation, the term “disability”
concerns “not the physical infirmity” suffered by the employee but rather the
employee’s “diminished capacity to earn wages” resulting from the injury. Saums v.
Raleigh Community, 346 N.C. 760, 764, 487 S.E.2d 746, 750 (1997); see also Medlin
v. Weaver, 367 N.C. 414, 420, 760 S.E.2d 732, 736 (2014). Indeed, the term “disability”
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has long been defined under the Act as the “incapacity because of injury to earn the
wages which the employee was receiving at the time of the injury in the same or any
other employment.” N.C. Gen. Stat. § 97-2(9) (2011) (emphasis added).
A disability is “total” for a particular week where the employee has no wage-
earning capacity. However, an employee is considered only “partially” disabled if he
has the ability to earn some wage that week, though less than what he was earning
when he was injured. In the present case, the 2013 Consent Order, approved by the
Full Commission, deemed Plaintiff’s injury to be total.
A total disability is considered “temporary” if it is not caused by an injury
described in Section 97-29(d), which provides that “[a]n injured employee may qualify
for permanent total disability only if the employee has one of the [physical limitations
enumerated in that subsection] resulting from the injury[.]” Here, neither party
contends that Plaintiff’s back injury constituted a “permanent” injury under the Act.
Accordingly, Plaintiff’s back injury resulted in a temporary, total disability.
In any event, until 1973, an employee suffering a temporary, total disability
was entitled to receive benefits under Section 97-29 for a maximum of 400 weeks.
Whitley v. Columbia, 318 N.C. 89, 98, 348 S.E.2d 336, 341 (1986). However, in 1973,
the General Assembly removed this 400-week cap, such that an employee could
receive benefits indefinitely while he remained totally disabled. Id.-4-
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But in 2011, our General Assembly reinstated a cap on eligibility for
temporary, total disability benefits of 500 weeks “unless the employee qualifies for
extended compensation under subsection (c)[.]” N.C. Gen. Stat. § 97-29(b). An
employee qualifies for extended temporary, total disability benefits, beyond the 500-
week cap, 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.” N.C. Gen. Stat. § 97-29(c) (emphasis added).
Under the 2011 amendment, benefits for a partial disability have also been
capped at 500 weeks. However, no provision was included to allow for extended
benefits for a partial disability beyond 500 weeks. N.C. Gen. Stat. § 97-30.
Here, Plaintiff appeals the Full Commission’s denial of his application for
extended benefits under Section 97-29(c) for his 2011 back injury. He argues that the
Commission misconstrued the meaning of Section 97-29(c).
A. Meaning of “total loss of wage-earning capacity”
To qualify for total disability benefits for up to 500 weeks under Section 97-
29(b), an employee must prove that he is has suffered a “total disability”. Our
Supreme Court has described that “total disability” is present where an employee’s
“capacity to earn [has been] totally obliterated” by a compensable injury. Gupton v.
Builders Transport, 320 N.C. 38, 42, 357 S.E.2d 674, 678 (1987). But, our Supreme
Court has explained that an employee who has the capability to perform some type of
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work may still be deemed “totally disabled” if he shows that he cannot find a job
compatible with his limited capability after reasonable efforts. Specifically, the Court
has held that an employee can meet his burden of showing a total disability “through
any of the four methods articulated in [our Court’s decision in] Russell. Medlin, 367
N.C. at 422, 760 S.E.2d at 737. Pursuant to Russell, one method is by showing that
the employee demonstrates an inability to land a job after reasonable efforts to do so,
though possessing some work capabilities. Russell v. Lowes, 108 N.C. App. 762, 765,
425 S.E.2d 454, 457 (1993).
To qualify for extended benefits under Section 97-29(c) for a total disability
(beyond the 500 weeks allowed under Section 97-29(b)), an employee must prove that
he has suffered the “total loss of wage-earning capacity”. Here, the Commission
concluded that an employee who has some work capabilities but cannot find a
compatible job, though “totally disabled”, has not necessarily suffered a “total loss of
wage-earning capacity” to qualify for extended benefits under Section 97-29(c).
Defendant agrees with the Commission’s conclusion that the phrase “total loss of
wage-earning capacity” applies only to employees who are unable to perform any type
of work. However, Defendant contends that the phrase does not apply to employees
who have some work capabilities but cannot land a job after reasonable efforts.
Plaintiff, though, contends the Commission erred by concluding that his
burden to show a “total loss of wage-earning capacity” under Section 97-29(c) is higher
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than his burden to show he had suffered a “total disability” to qualify for the initial
500 weeks of benefits under Section 97-29(b). For the reasoning below, we agree with
Plaintiff that “total loss of wage-earning capacity” and “total disability” are the same.
We are persuaded in our interpretation by the fact that our Supreme Court has
used the phrase “loss of wage-earning capacity” synonymously with “disability” both
prior to and after the 2011 amendment. See, e.g., Wilkes v. City of Greenville, 369
N.C. 730, 745, 799 S.E.2d 838, 849 (2017); Harrell v. Harriet, 314 N.C. 566, 575, 336
S.E.2d 47, 53 (1985). Based on these cases, it reasonably follows that “total disability”
(under Section 97-29(b)) and “total loss of wage-earning capacity” (under Section 97-
29(c)) are synonymous.
More importantly, our General Assembly expressly defines “disability” in the
Act as the “incapacity . . . to earn wages[.]” N.C. Gen. Stat. § 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”.
B. Plaintiff’s burden of proof for extended benefits under Section 97-29(c)
An employee seeking temporary, total disability benefits has the burden to
show his disability for each week he seeks benefits. Clark v. Wal-Mart, 360 N.C. 41,
43, 619 S.E.2d 491, 493 (2005) (holding that the burden is on the employee to prove
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“the existence of [his] disability and its extent”). However, in 1971, our Supreme
Court held that an initial award by the Commission of weekly disability benefits
(whether partial or total) creates a presumption in favor of the employee. This
presumption, known as the Watkins presumption, states that the disability continues
each week until “the employee returns to work at wages equal to those he was
receiving at the time his injury occurred.” Watkins v. Central Motor Lines, 279 N.C.
132, 137, 181 S.E.2d 588, 592 (1971). That is, until an employee who has been
awarded total disability benefits under Section 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.
Of course, the Watkins presumption is just that, a rebuttable presumption.
Stone v. G&G Builders , 346 N.C. 154, 157, 484 S.E.2d 365, 367 (1997). Therefore,
an employee who has been awarded benefits for a total disability continues to qualify
for benefits in subsequent weeks without needing to offer evidence of his continued
disability “unless and until the employer . . . comes forward with evidence to show
not only suitable jobs are available, but also that the plaintiff is capable of getting
one, taking into account both physical and vocational limitations.” Saums, 346 N.C.
at 763, 487 S.E.2d at 749.
Our Supreme Court has never determined whether this Watkins presumption,
available for continued benefits under Section 97-29(b), applies beyond the 500-week
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cap. Based on the language of Section 97-29, we conclude an employee who seeks
extended benefits under Section 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 Section 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.1
C. Plaintiff has failed to meet his burden
Even if the Commission’s order contains erroneous conclusions of law, as
Plaintiff argues, the Commission’s findings of fact support its ultimate decision to
deny Plaintiff extended benefits when applying our interpretation of Section 97-29.
We need not remand to correct erroneous conclusions of law, as the “Commission’s
conclusions of law are reviewed de novo.” McRae v. Toastmaster, 358 N.C. 488, 496,
597 S.E.2d 695, 701 (2004).
The Commission weighed conflicting evidence in the record created during the
proceedings before the Deputy Commissioner and found that (1) “Plaintiff has some
1 This is not to say that an employee is not entitled to a presumption for continued extended
benefits once he shows that he qualifies for extended benefits. Indeed, Section 97-29(c) suggests that
once an employee meets his initial burden of showing he is entitled to extended benefits, the burden
then shifts to the employer to prove “by a preponderance of the evidence that the employee no longer
has a total loss of wage-earning capacity” for the extended benefits to cease.
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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 of the hearing before
the Deputy Commissioner, including the testimonies of Defendant’s medical and
vocational experts.
Plaintiff argues that the Commission erred in relying on the testimony of
Defendant’s vocational expert by failing to determine whether the testimony was
admissibility under Rule 702 of our Rules of Evidence. However, as found by the
Commission in its order, Plaintiff did not object to the testimony at that hearing
before the Deputy Commissioner. Accordingly, even if the testimony of Defendant’s
vocational expert was incompetent under our Rules of Evidence, we conclude it would
not have been reversible error for the Full Commissioner, as the fact-finder, to
consider said testimony and to assign whatever weight to it the Commission deemed
appropriate. Indeed, our Supreme Court has held that any objections to evidence in
a worker’s compensation case must be made when first offered in the hearing before
the Deputy Commissioner. Maley v. Thomasville, 214 N.C. 589, 593, 200 S.E.2d 438,
441 (1939) (wherein our Supreme Court stated that “a subsequent formal objection to
the evidence filed before the Full Commission, accompanied by a motion to strike,
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comes too late.”) And “where testimony sufficient to establish a fact at issue has been
received in evidence without objection, a nonsuit cannot be sustained even if the only
evidence tending to establish the disputed fact is incompetent.” Reeves v. Hill, 272
N.C. 352, 362, 158 S.E.2d 529, 537 (1968). Of course, the Commission was not
required to consider the testimony of Defendant’s experts, even if competent;
however, it was not error for the Commission to do so, as Plaintiff failed to object to
it when initially offered.
Plaintiff further argues that the Commission erred in “relying on evidence that
Plaintiff is not medically restricted from all work,” contending that the Commission’s
order “implies that Plaintiff would need to be medically restricted from all work in
order to meet the standard of ‘total loss of wage-earning capacity’.” As stated above,
Plaintiff could still qualify for extended benefits, even if he was not medically
restricted from all work, if there were no available jobs for him. However, the
Commission did not rely solely on this finding in making its decision. The
Commission also found that there were suitable jobs in the market based on the
testimony of Defendant’s vocational expert. And Plaintiff otherwise failed to meet
his burden to offer evidence that he made reasonable efforts to find a job suitable to
the capabilities the Commission found him to have.
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In sum, based on the findings of the Commission supported by the evidence in
the record, we conclude that Plaintiff failed to meet his burden of showing that he
qualifies for extended benefits under Section 97-29(c).
III. Conclusion
Section 97-29(c) states that an employee receiving total disability benefits
under Section 97-29(b) may qualify for “extended benefits” if he proves he “has
sustained a total loss of wage-earning capacity.” N.C. Gen. Stat. § 97-29(c). We agree
with Plaintiff that his burden of showing a “total loss of wage-earning capacity” under
Section 97-29(c) is the same as his burden of showing a “total disability” to receive
benefits under Section 97-29(b). For instance, one who can perform some work may
still qualify for extended benefits if no one would hire him.
However, we agree with Defendant that Plaintiff, when seeking extended
benefits under Section 97-29(c), 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 totally disabled under Section 97-29(b).
Accordingly, we conclude the Commission’s findings support its denial of
extended benefits based on our conclusions regarding the proper interpretation of
Section 97-29(c). Although Plaintiff offered evidence that he cannot work, the
Commissioner did not err in finding that Plaintiff has the ability to perform some
work based on conflicting evidence offered by Defendant. Further, Plaintiff did not
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meet his burden of presenting evidence that he had searched for jobs suitable to his
work abilities, and the Commission did not otherwise err in finding that suitable jobs
were indeed available based on the testimony of Defendant’s vocational expert.
Ultimately, Plaintiff had the burden of showing “total loss of wage-earning
capacity”, and the Commission did not err in finding that Plaintiff failed to meet his
burden of showing he qualifies for extended benefits under Section 97-29(c).
Therefore, we affirm the Commission’s order denying Plaintiff extended benefits.
AFFIRMED.
Judge Gore concurs.
Chief Judge STROUD concurs in result only.
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