In 2011, the NC General Assembly changed the law regarding Temporary Total Disability benefits for injured workers. Before the change, there was no limit or duration cap on the amount of time that the most seriously disabled workers could draw TTD payments. So long as the person remained totally disabled, he or she could continue to receive the weekly TTD checks.
But all that changed on June 24, 2011. On that date, and applying to all injuries that occurred on or after that date, our General Assembly put a 500 week limit on disability payments.
Now. 500 weeks is a long time, over nine (9) years. But here is the thing about that--anyone who has been totally disabled for 9 years is disabled. Unless they are visited by a Biblical miracle, they don't suddenly become non-disabled on week 501!
Because this limit was so harsh and inhumane, the legislature was persuaded to put an exception into the law. If a person is able to go before the Industrial Commission and prove, after 425 weeks of disability, that they are likely to have a "total loss of earning capacity" as of the end of the 500 weeks, then they can obtain "extended benefits" and their TTD benefits can be ordered to continue beyond the 500 week limit.
The trick is, how does one prove that he or she has suffered a "total loss of earning capacity" after nine years of disability? This question has been the source of discussion ever since the law was changed in 2011, and we recently got a bit of an answer from the NC Court of Appeals.
The Court released its very first "extended benefits" decision on April 18, 2023, in Sturdivant v. NC Department of Public Safety, COA 22-421. Although the injured worker, Mr. Sturdivant, lost the case, the Court gave us some helpful guidance on how to prove the "extended benefits" claim for other injured workers. The Court basically concluded that "total loss of wage-earning capacity" is a phrase that has been explained in other appellate cases over the years, and is not some new, unattainable standard, which is what the insurance companies have contended. The Court told us that we can prove entitlement to extended benefits in the same way we have proved total disability for years under the law that existed before the 2011 changes. That is very helpful to us as lawyers, because there is a body of law on that point. Essentially, there are three ways to prove disability-- the treating doctor says you cannot do any work at all, or the doctor says you can work, but you have restrictions on what you can do, and you have diligently looked for work within those restrictions but have not been hired by anyone, or, your total situation-- your injury, restrictions, work experience, age, education, health, and other factors, render it futile for you to even look for a job.
This is a very fair decision because anyone that was hurt at work so badly that they cannot work again, after nine years of disability, does not magically become employable, and cutting off that person from benefits is simply cruel and inhumane. So now, at least, we have a reasonable chance of getting extended benefits for the most seriously injured and disabled workers in North Carolina.