Appeals
Court Says 'Total Disability' Means Just That
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The N.C. Court of
Appeals, in a decision that will be welcomed by
large employers trying to contain their workers'
comp premiums, has ruled that “total
disability” means exactly what it says: For
an injured worker to collect total disability
payments he or she must be unable to return to
work at any job -- his old job or some other
lower-paying job.
The decision comes in the case of a worker at the
Converse shoe factory in Lumberton, Michael
Demery, who strained his back lifting a 50-pound
basket of shoe molds in 1994. Demery was
diagnosed with lumbar strain, received medical
attention and told to return to work on light
duty. He continued to feel back pain at work and
on Jan. 2, 1995, he told his foreman that he
could no longer stand his back pain. He then left
work never to return.
Demery had surgery twice for a herniated disk,
and his doctors said he was left with a 20
percent permanent partial disability. His doctor
placed Demery on permanent work restrictions of
frequent change of position, limited bending and
stooping, and lifting of weights no greater than
25 pounds.
The N.C. Industrial Commission ruled that Demery
was permanently totally disabled because he was
unable to return to his old job or a similar
paying job. The commission also awarded Demery
lifetime medical expenses. Converse appealed, and
the Court of Appeals, in a decision handed down
on June 12, reversed the Industrial Commission in
part and remanded the case.
“In the present case, the (Industrial
Commission) found that plaintiff had met the
burden of showing total disability because he was
incapable of earning the same wages as before the
injury in the same or other employment, and his
incapacity to earn wages was caused by a
compensable injury,” Judge Howard Hunter
wrote for the court. “We disagree with the
commission's interpretation of total disability.
“For the Industrial Commission to find that
an employee is permanently and totally disabled,
the employee must meet the burden of showing that
he is totally incapable of earning wages.”
Judges James A. Wynn Jr. and John C. Martin
concurred in the opinion in case No.
COA99-592.
“Our review of the record does not indicate
that competent evidence supports the conclusion
that plaintiff is totally disabled . . . .
Plaintiff has not met the burden of showing, with
competent evidence, that he is totally disabled
and therefore unable to earn any of the wages he
was receiving at the time of his injury in the
same or any other employment. Plaintiff has the
burden of showing he is disabled,either partially
or totally, before the Industrial Commission may
award him permanent disability.”
Lawyers familiar with the case said the Appeals
Court is raising an important distinction between
medical disability and vocational disability.
Some injured employees are unable to return to
their old job or any other form of work. They are
medically disabled and are entitled to total
permanent disability.
Other employees injured on the job become
vocationally disabled -- meaning they are unable
to return to their old job or one very similar.
But because it's entirely possible they could
take some other kind of job, they are not
automatically entitled to total disability, the
Court of Appeals indicated.
Other Opinions
It's a
violation of the state constitution's requirement
for just compensation for the state Department of
Transportation to condemn part of a tract of land
for a road project and not pay for it, the state
Court of Appeals ruled. The 2-1 decision written
by Judge James Wynn, in which Judge Robert C.
(Bob) Hunter concurred and Judge Clarence Horton
dissented, involved 11.4 acres of land in Hickory
taken by the DOT. The land was part of an 18-acre
parcel owned by two couples. The DOT refused to
pay for the 11.4 acres it condemned because it
said the new road make the remaining part of the
tract much more valuable than before. A jury
upheld the department's decision. State law
requires DOT to pay fair market value for
property when it condemns an entire tract. But in
cases where a portion is taken, it allows
officials to weigh the benefits to the remaining
property against the actual loss. "In
effect, the property owner is subjected to an
involuntary taking of his property while also
being subjected to the injustice of receiving an
amount less than what he has actually lost,"
Judge Wynn wrote in the majority opinion. Judge
Horton said issues of just compensation weren't
properly before the court and the equal
protection arguments had no merit. The case is No.
COA 97-1470.
The N.C. Supreme Court issued the decisions below
on June 16
* Allen
R. Tew v. Brown, (06/16/2000 583PA99)
* Deese
v. Champion Int'l Corp., (06/16/2000
500PA98-2)
* Dobson
v. Harris, (06/16/2000 435PA99)
* Gray
v. N.C. Ins. Underwriting Ass'n, (06/16/2000
84PA99)
* Halford
v. Wright, (06/16/2000 557A99)
* Lanning
v. Fieldcrest-Cannon, Inc., (06/16/2000
360PA99)
* Osburn
v. Danek Med., Inc., (06/16/2000 549A99)
* Bailey
v. State, (06/16/2000 56PA00)
* Saunders
v. Edenton OB/GYN Ctr., (06/16/2000 469A99)
* State
v. Lemons, (06/16/2000 377A95-2)
* State
v. Lawrence, (06/16/2000 585A97)
* State
v. Hyde, (06/16/2000 529A98)
* State
v. Rogers, (06/16/2000 176A98)
* Tucker
v. Westlake, (06/16/2000 5A00)
The N.C. Court of Appeals issued several
decisions on June 20. They are available by clicking
here.
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