UPDATE: Sturdivant v. NC Dept. of Public Safety - Extended Benefits pursuant to N.C. Gen. Stat. § 97-29(c)
By: Melissa P. Woodard
RE-FILED: Sturdivant v. NC Dept. of Public Safety – Extended Benefits pursuant to N.C. Gen. Stat. § 97-29(c)
On April 18, 2023, the North Carolina Court of Appeals re-filed an opinion in Sturdivant v. NC Dept. of Public Safety. The Court amended a prior misstatement regarding the members of the three-judge panel that heard and decided the case, added a dissent from Judge Hampson, which was not included in the prior decision, and amended the opinion in some notable regards.
The March 21, 2023, slip opinion lists Judge Dillon, who authored the majority opinion, Judge Stroud, who concurred in result only, and Judge Gore, who does not appear to have voted on the decision. The April 18, 2023, slip opinion has replaced Judge Gore for Judge Hampson, who dissented in part and concurred in part.
With regard to the dissent, Judge Hampson noted he agreed that the Commission erred in its determination of what a total loss of wage-earning capacity entails for purposes of extended benefits. He also noted that Plaintiff is not entitled to a presumption of ongoing disability after the expiration of the 500-week period, but the dissent recommended remanding the claim to the Commission for further findings to determine whether plaintiff can, in fact, obtain the employment for which he is eligible and qualified, both physically and experientially. Judge Hampson also recommended that the Commission consider the fact that plaintiff has been out of work for approximately 500 weeks in its consideration of whether plaintiff can return to work. This appears problematic because it could result in self-proving disability, where a plaintiff will be considered able to receive extended benefits for the sole reason that they have been out of work and receiving temporary total disability benefits. This appears to eviscerate the dissent’s prior statement noting there should be no presumption of ongoing disability. It appears the dissent desires to give the plaintiff additional opportunities to prove futility and/or inability to obtain work for which he is qualified after a reasonable effort and/or job search.
Arguably, it is inappropriate to utilize this standard because these factors, taken from Russell v. Lowes, the progeny of Hilliard v. Apex Cabinet Co. and Peoples v. Cone Mills Corp. on which the dissent relies, define ways to prove “disability” under N.C. Gen. Stat. §§ 97-2(9) and 97-29(a), which should be distinct from “total loss of wage earning capacity” under N.C. Gen. Stat. § 97-29(c). Unfortunately, the Court ultimately holds these terms are indistinguishable despite the legislature’s use of distinct wording.
The Commission’s concluded that an employee with some work capabilities has not sustained a “total loss of wage earning capacity.” On the other hand, the Court’s holding and the dissent agree that a “total loss of wage-earning capacity” and “temporary total disability” are synonymous with one another. This leaves room for employees with work capabilities to prove disability in other ways, like futility and inability to find a job after a reasonable job search.
With that said, the initial March 21, 2023, slip opinion noted the burden of proving temporary total disability entitlement under § 97-29(b) and extended benefit entitlement under § 97-29(c) were the same. The April 18, 2023, slip opinion, on the other hand, notes on page 5 that the burden under § 97-29(c) is different than that under § 97-29(b), but on page 13, the opinion notes that the court “agree[s] 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).” Regardless, it appears that for all intents and purposes the Court holds that both the standard and burden of proof are the same for both subsections, and the sole difference the Court recognizes is that the plaintiff is not entitled to a presumption of ongoing disability after 500 weeks for purposes of establishing entitlement to extended benefits.
The practical implications of this holding remain to be seen. We have learned that the State of North Carolina has filed a petition for discretionary review, which we anticipate will be approved based on the implications this issue will have on our State, not only as an employer itself, but the business community therein. The decision has potentially catastrophic financial implications for the State of North Carolina given the magnitude of potential post-500 week cases the State has to contend with. Moreover, as an issue of first impression based on statutory interpretation and legislative intent, the Supreme Court appears to have sufficient grounds to grant a petition for discretionary review in this case.
Given the current makeup of the Supreme Court, we anticipate that the Justices will scrutinize the statutory interpretation of disability versus “total loss of wage earning capacity” very closely. If so, the potential decision that may result could be in line with the legislature’s original intent when N.C. Gen. Stat. § 97-29(c) was written. We will keep an eye on whether the petition for discretionary review has been approved or denied and update accordingly.