Before June 24, 2011, injured employees were eligible for lifetime Temporary Total Disability (TTD) benefits for the duration of their disability. In 2011, the North Carolina legislature passed revisions to the Workers’ Compensation Act. One of the revisions altered N.C. Gen. Stat. § 97-29(b), which now states:
The employee shall not be entitled to compensation pursuant to this subsection greater than 500
weeks from the date of first disability unless the employee qualifies for extended compensation
under subsection (c) of this section.
In claims arising on or after June 24, 2011, employee’s are only entitled to 500-weeks of benefits
unless they qualify for extended benefits under N.C. Gen. Stat. § 97-29(c) which states:
An employee may qualify for extended compensation in excess of the 500-week limitation on
temporary total disability as described in subsection (b) of this section only if (i) at the time the
employee makes application to the Commission to exceed the 500-week limitation on temporary
total disability as described in subsection (b) of this section, 425 weeks have passed since the
date of first disability and (ii) pursuant to the provisions of G.S. §97-84, unless agreed to by the
parties, the employee shall prove by a preponderance of the evidence that the employee has
sustained a total loss of wage-earning capacity.
If an employee had a workers’ compensation claim on or after June 24, 2011, that employee could
be entitled to more than 500-weeks of TTD benefits. However, the request for extended TTD
benefits can only be made if the employee had already received 425-weeks of benefits and if the
employee can show, by a preponderance of the evidence, a total loss of wage-earning capacity.
Since these revisions to the North Carolina Workers’ Compensation Act, both employees and
employers have speculated how the Commission and the Courts would define the phrase “total
loss of wage-earning capacity.” Since an employee could not request extended TTD benefits
until after receiving 425-weeks of benefits, we have not yet received a definitive answer from the
Commission or the Courts. (Assuming an employee was injured on June 24, 2011, that employee
would have received 425 weeks of TTD on August 16, 2019.)
A recent decision from a North Carolina Deputy Commissioner appears to reflect a belief
that if an employee is simply able to prove that he/she is still disabled after 425 weeks, they are
entitled to extended TTD benefits beyond 500-weeks. This decision has been appealed to the Full
Commission.
In the next 12-months, courts in North Carolina will likely provide further clarity regarding the
meaning of “total loss of wage-earning capacity” and what type of evidence is required for an
employee to prove an entitlement to extended TTD benefits.
Joe Delfino
Charlotte, NC
(704) 602-8012
email
This publication is not intended to be all-encompassing and does not cover all situations and exceptions to general rules. To discuss the applicability or interpretation of any provision of the law to a specific situation, please contact an attorney at Hedrick Gardner Kincheloe & Garofalo, LLP.