In North Carolina workers’ compensation cases, there are three kinds of “disability” payments that an injured worker may qualify for due to the injury and restrictions. These are “temporary total disability” (TTD) paid when you are totally unable to work due to the injury, “temporary partial disability” (TPD) when an injured person is able to work but unable to earn as much as her pre-injury gross pay (AWW) due to the injury or restrictions, and “permanent partial disability” (PPD) which is paid after the patient reaches “MMI” or maximum medical improvement with regard to the injury. Upon reaching MMI, the treating doctor will normally “rate and release” the patient from care.
The injured worker may draw temporary total disability when completely out of work, but the TTD is calculated based only on the gross earnings of the job of injury. The calculation looks back 52 weeks from the date of the injury to determine the gross average weekly wage in that job only to determine the “average weekly wage” (AWW) applicable to the case. The weekly Compensation Rate (CR) that the injured worker gets is 2/3s (.6667) of that AWW amount. Your AWW as calculated by the Defendants is shown on the Form 60 and this amount results in the Compensation Rate shown further down on the Form 60.
For the purposes of temporary partial disability, however, an injured worker’s concurrent pre-injury employment during the 52 week look-back period is relevant. This is why I will ask you to provide me with the pre-injury pay records from your other jobs. Temporary partial is only paid after you have returned to work at your job of injury but are experiencing a loss of earning capacity due to the injury or restrictions after returning to the job of injury. The loss of earnings must be due to an injury-related inability to work the pre-injury concurrent jobs.
For example, if your pre-injury concurrent gross earnings during the 52-week lookback period appear to be:
Joe’s Repair Shop $ 5,544.00
Apex Electric $13,631.82
NorthEast Constr. $ 4,127.10
TOTAL $23,302.92
Assume you returned to work with the job of injury on 12/14/21. You have permanent lifting restrictions of 10 lbs.
What that all means is that as of 12/14/21, you have a potential “loss of earning capacity” due to your injury-related inability to maintain the concurrent employment you had before your injury. To calculate the amount of the weekly benefit for this loss, we first take the total concurrent gross income during the look-back period and divide it by 52 weeks to determine the concurrent AWW.
$23,302.92 ÷ 52 = $448.13
Your “concurrent job AWW” would be $448.13 based on this example. We would add that to your AWW from the job of injury, as set forth on the Form 60. Assume that amount is $1,400.00. When we add them together, the total pre-injury AWW of all your pre-injury jobs appears to be $1,848.13.
To calculate the potential “temporary partial disability” under the “loss of earning capacity” rule we would subtract your earnings each week after you returned to the job of injury with restrictions in late 2021 from the all-jobs AWW of $ 1,848.13. For example, if your earnings in 2022 from the job of injury averaged $1,500.00 per week, then the calculation is:
$1,848.13
Less $1,500.00
Equals $ 348.13
This “$348.13” is your “loss of earning capacity” that you have lost from your pre-injury cumulative, concurrent earnings. Your “partial disability” benefit would be 2/3s of that amount every week, or $348.13 times .6667 = $232.10. You would be entitled to get this amount in a weekly “temporary total compensation” check even though you had returned to work in your job of injury.
Partial disability can be paid for up to 500 weeks. Any monies received as TTD when you were completely out of work count against the 500-week duration.
The catch is that the Defendants are unlikely to concede the point, and we may have to litigate to get this benefit for you. That will take months. I have litigated this theory successfully for at least one of my clients.
Once you reach “Maximum Medical Improvement” or “MMI” your doctor will release you from treatment. Typically, the doctor will also “rate” you by assigning an “impairment rating” to your injured body part. You can accept the “permanent partial disability” money that corresponds to the impairment rating that the doctor gave you when he released you from treatment.
Now, for Permanent Partial Disability, the law allows you to choose or elect which method of compensation you prefer. You may qualify for the “loss of earning capacity” partial benefits, or you may qualify for ongoing total disability benefits, depending on your situation. You have the right to choose the one that pays the most money. It is hard to predict accurately how much you might ultimately obtain with the “loss of earning capacity” avenue, but you must compare it to the money you would get from the impairment rating, and then you can make an informed decision. And that would be paid out over a period of more than eight years. As your earned income increases with cost-of-living raises or job changes, that weekly payment would decrease.
For injuries occurring on or after June 24, 2011, both "temporary total" and "temporary partial" benefits are limited to a duration of 500 weeks. However, if one is still totally disabled after 425 weeks of total disability benefits, you may pursue "extended benefits" beyond the 500 week limit. You will need the help of a workers' compensation specialist lawyer for that petition, so contact Bob Bollinger for advice if you are in that situation!