Sep. 26 2023

North Carolina State Legislature Amends N.C.G.S. 97-29(c): Clarifies Standard for Extended Benefits Beyond 500 Weeks

On March 21, 2023, the North Carolina Court of Appeals entered an opinion in Sturdivant v. NC Department of Public Safety (COA22-421). Sturdivant was the first appellate case interpreting N.C.G.S. 97-29(c), which states that an employee can be entitled to temporary total disability benefits after 500 weeks if 425 weeks have passed since the date of first disability and the employee proves by a preponderance of the evidence that the employee has sustained a “total loss of wage earning capacity.”

With regard to the standard for allowing extended benefits, the Court of Appeals in Sturdivant decided that “total loss of wage earning capacity” was the same as “total disability,” resulting in a further softening of the 500-week cap. “Total disability” means incapacity because of injury to earn pre-injury wages in the same or other employment.

The North Carolina State legislature has weighed in on the Court of Appeals decision, revising N.C. Gen. Stat. 97-29(c) to include a definition of “total loss of wage earning capacity.” The legislature has now defined “total loss of wage earning capacity” as the complete elimination of the capacity to earn any wages. The legislature explicitly stated that this complete elimination of wage earning capacity is different from the definition of “total disability” used to assess pre-500 weeks cases, and also noted that the assessment of disability for purposes of extending the 500-week cap would not be confined by the definition of suitable employment found in N.C. Gen. Stat. 97-2(22). Rather, the statute now states that the Commission may consider preexisting and injury-related physical and mental limitations, vocational skills, education and experience in determining whether the employee has sustained a total loss of wage-earning capacity.

These revisions by the legislature override the prior holding of the North Carolina Court of Appeals and shall apply to all cases, including cases accrued or pending. By revising N.C. Gen. Stat. 97-29 to include this definition of “total loss of wage earning capacity” and clarifying the factors to be considered in making the post-500 week disability assessment, the North Carolina State legislature has provided a higher standard that must be met for post-500-week benefits to be awarded, relative to regular temporary total disability benefits.

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