What is disability and how is disability determined?

The term disability means the incapacity to earn the wages which an employee was receiving at the time of injury in the same or any other employment. The definition of disability is not just a medical term; it primarily refers to the diminished power to earn wages. It includes an assessment of other vocational factors, including age, education and training.

In order to be disabled, an employee must show that he is incapable after his injury of earning the same wages he had earned before the injury in the same employment, that he is incapable after his injury of earning the same wages he had earned before at any other employment, and that this incapacity to earn was caused by the workplace injury. To meet his burden of proof to establish disability, the employee may offer evidence in four ways:

1. By producing medical evidence that the employee is physically or mentally, as a consequence of the work related injury, incapable of work in any employment;
2. By producing evidence that the employee is capable of some work, but after reasonable effort on the part of the employee, has been unsuccessful in efforts to obtain employment;
3. By producing evidence that the employee is capable of some work but that it would be futile because of preexisting conditions, i.e. age, inexperience, lack of education, to seek other employment; or
4. By producing evidence that the employee has obtained other employment at a wage less than that earned prior to the injury.

There are basically four types of disability recognized under workers’ compensation: (1) temporary total disability, (2) temporary partial disability, (3) permanent partial disability, and (4) permanent and total disability.

1. Temporary Total Disability

Temporary total disability is when an employee is disabled from employment for a temporary period of time. During this period of disability, the injured employee is entitled to two-thirds (2/3) of his average weekly wage up to statutory maximum. The duration of temporary total disability payments may be limited depending upon the date of an employee’s injury.

If an employee suffered an injury by accident before June 24, 2011, he may be entitled to a lifetime of temporary total disability benefits. If this is the case, the employee is considered to be permanently and totally disabled pursuant to N.C. Gen. Stat. § 97-29.

If an employee is injured after June 24, 2011, when the workers compensation reform act was instituted, then the employee shall not be entitled to temporary total disability benefits for a period greater than 500 weeks from the date of first disability, unless the employee qualifies for extended compensation under N.C. Gen. Stat. § 97-29(c). N.C. Gen. Stat. § 97-29(c) provides that 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 (1) 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 (2) pursuant to the provisions of N.C. Gen. Stat. § 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 qualifies for extended compensation benefits, these benefits may be reduced if the employee is receiving full retirement benefits under the disability portion of the Social Security Act, after attainment of retirement age.

In practical terms, an employee who is claiming temporary total disability benefits must either be written out of work completely by an approved treating physician or show substantial evidence that the employee has made good faith efforts to look for work but been able to find work or has gone back to work at a lesser wage. The employee may also show that because of the preexisting conditions such as age, education, limited work experience, or other legitimate factors that would render him incapable of working, that it would be futile or a waste of time for him to look for it.

It is strongly recommended that, unless an employee has been written out of work completely on a permanent basis, then he must able to demonstrate that he has made good faith efforts to look for suitable work within the competitive labor market. If there is a question regarding the sufficiency of a showing of disability, it is important to have experienced workers compensation attorneys like Riddle & Brantley, LLP on your side.

2. Permanent Total Disability

An injured employee may qualify for permanent total disability only if the employee has one or more of the following physical or mental limitations resulting from the injury:

1. The loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof, as provided by N.C. Gen. Stat. §97-31(17).
2. Spinal injury involving severe paralysis of both arms, both legs, or the trunk.
3. Severe brain or closed head injury as evidenced by severe and permanent:
   1.  Sensory or motor disturbances;
   2. Communication disturbances;
   3. Complex integrated disturbances of cerebral function; or
   4. Neurological disorders.
4. Second-degree or third-degree burns to thirty-three percent (33%) or more of the total body surface.

An employee who qualifies for permanent total disability pursuant to this subsection shall be entitled to compensation, including medical compensation, during the lifetime of the injured employee, unless the employer shows by a preponderance of the evidence that the employee is capable of returning to suitable employment as defined in N.C. Gen. Stat. §97-2(22).

3. Temporary Partial Disability

When a worker can return to employment or returns to employment at a reduced wage from his pre-injury average weekly wage, he is entitled to two-thirds (2/3) the difference in wage earning capacity between his pre injury wages and his post injury wages, as long as the temporary partial disability continues, subject to a 500 week maximum N.C. Gen. Stat. §97-30.  Any weeks of payments made pursuant to N.C. Gen. Stat. §97-29 temporary total disability benefits, shall be deducted from the 500 weeks of payments available under this section.

4. Permanent Partial Disability

In certain cases an employee may be entitled to permanent partial disability which means a permanent partial percentage of impairment that a physician has assigned to one or more body parts listed under N.C. Gen. Stat. §97-31. The employee may be entitled to these benefits in addition to temporary total or temporary partial disability benefits the employee may have received prior to reaching the end of the healing period or maximum medical improvement. The schedule of injuries under N.C. Gen. Stat. §97-31 sets forth the rate and period of compensation for numerous and varied body parts as listed under 24 subsections. For example, if a person suffers a total loss of use of his spine/back, then he is entitled to 300 weeks of compensation. If a person has suffered a ten percent (10%) permanent injury to their spine/back, then they are entitled to ten percent (10%) of the three hundred (300) weeks of compensation or an equivalent of thirty weeks (30) weeks of temporary total disability compensation. N.C. Gen. Stat. §97-31(23).