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January 2012 Archives

Pradaxa: Drug for atrial fibrillation high incident of blood clots or strokes

Pradaxa is an anti-coagulant, or blood thinner, used to prevent blood clots and strokes in people suffering from an irregular heart beat known as atrial fibrillation. With atrial fibrillation, patients have a higher risk of forming blood clots which can travel through the body and cause strokes. Pradaxa is used to lower the chance of blood clots forming.
Pradaxa is manufactured by German drugmaker Boehringer and just received FDA approval last year.  Unfortunately, severe problems with the drug are already being reported as Pradaxa is proving to cause excessive internal bleeding.  The FDA is currently investigating Pradaxa.

Susan O'Malley is recertified as a Social Security Disability Specialist by the North Carolina State Bar

O'Malley Tunstall, PLLC is pleased to recognize Susan M. O'Malley for becoming recertified by the North Carolina State Bar as a Specialist in Social Security Disability Law. Ms. O'Malley has been a State Bar certified specialist in Social Security since 2006. Ms. O'Malley was also on the original Board for the Bar's Social Security certification. In order to be recertified, a lawyer has to prove significant involvement in Social Security Disability Law; sufficient continuing education in Social Security Disability Law and provide references from other lawyers who practice Social Security Disability Law. This information is reviewed by the State Bar and the Bar determines if recertification should be approved. The North Carolina State Bar certifies lawyers as specialists because "...certification ... by an objective entity and according to objective criteria fulfills the mission of the State Bar to protect the public by providing relevant, truthful and reliable information to consumers of legal services." www.nclawspecialists.org/faqs.asp Our firm is very proud of Susan's efforts and accomplishments within Social Security.  She is avaialble for consultation on any

Joe Tunstall selected to the North Carolina Rising Stars list by the research team at Super Lawyers for 2012

O'Malley Tunstall, PLLC is pleased to announce that Joe Tunstall was named to the North Carolina Rising Stars list as one of the top up-and-coming attorneys in North Carolina for 2012 in the category of General Personal Injury-Plaintiff.   Each year, no more than 2.5 percent of the eligible lawyers in the state receive this honor.
Joe leads our personal injury practice and also handles workers' compensation and social security disability cases.
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-­‐phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.
The Rising Stars lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country.  For more information about Super Lawyers, go to http://www.superlawyers.com/north-carolina/ The first Super Lawyers list was published in 1991 and by 2009 the rating service had expanded nationwide.  In February 2010 Super Lawyers was acquired by Thomson Reuters the world's leading source of intelligent information for business and professionals.
O'Malley Tunstall, PLLC would like to congratulate Joe Tunstall on this honor.
Washington Daily News Story. 

Social Security Disability Attorney's Fees: The Law

Social Security must approve any fee agreement between a representative and a claimant.  42 U.S.C.A. §406.  At the administrative level, the fees are usually charged on a contingency fee basis or through a fee petition to the Social Security Administration. In order for a contingency fee contract to be approved, it must state that the attorney's fees are to be no more that 25% of the back due benefits or $6,000.00 whichever is less.  The current cap on attorney's fees is $6,000.00.  Social Security can adjust the cap for inflation. Fee agreements will not be approved if a claimant appoints more than one representative from the same firm and all of the representatives do not sign the same contract; the claimant has more than one representative from different firms; a representative withdraws before Social Security makes a decision or the Federal Court reverses the Social Security denial and awards benefits. (POMS §GN 03940.001). If a contract cannot be approved, then a representative must submit a fee petition.  In addition to filling out the fee petition form, a representative should attach proof of the amount of time spent in the case. Most case management software allows practitioners to keep up with their time.  It would be a good idea to do this in all cases so when a fee petition is necessary, the time report can be easily generated and attached. If Social Security withholds the attorney's fees for payment directly to the representative, then there will be a user fee charge of  6.3% of the attorney fee, whichever is less.  (42 U.S.C.A. §406(a); 69 Fed. Reg. 387, Jan. 5, 2004 and Social Security Protection Act of 2004, P.L. 108-203 §301, 118 Stat. 493 (2004)). If an attorney appeals a case to Federal Court after the final administrative denial of benefits by Social Security and the appeal is successful, then the attorney can apply for appellate attorney fees under the Equal Access to Justice Act (EAJA).  The petition for fees under EAJA must allege that the Plaintiff has a net worth of less than two million dollars ($2,000,000.00), the rate and the amount of the fee requested and itemized statement of time spent in the case and that Social Security's defense of the case was not substantially justified.  Charles Hall, Social Security Disability Practice, §6:81, 2005 ed. p. 260 (citing Duggan, Attorney's Fees Pursuant to the Equal Access to Justice Act, 25 Soc. Sec. Rep. Serv. 635, 648 (1989) (WESTLAW: SSRS database, ci (25+5 634))). The United States Attorney representing Social Security has sixty (60) days from a judgment to file an appeal. Hodges - Williams v. Barnhart, 221 F.R.D. 595 N.D. Ill., (2004) (citing Fed. R. Civ. P. 4(a)(1)(B)).  If Social Security does not appeal, then Plaintiff's counsel has thirty (30) days after Social Security's sixty (60) days has past to submit an EAJA petition. Id.  (citing 28 U.S.C.A. §2412). The Federal Court will review the EAJA petition.  In their review of the petition, the Court will give deference to a contingency fee agreement between the attorney and the client as well as consider the attorney's experience in Social Security, time spent, and the result.  Gisbrecht v. Barnhart, 535 U.S. 789 (2002).

Ethics opinions in North Carolina Social Security Disability Cases

Important ethics opinions in North Carolina concerning Social Security cases. Ethics 98 Formal Ethics Opinion 1 January 15, 1999 Disclosure of Adverse Evidence in Social Security Disability Hearing Opinion rules that a lawyer representing a client in a Social Security disability hearing is not required to inform the administrative law judge of material adverse facts known to the lawyer. Inquiry: Attorney represents Client, a claimant for social security disability benefits.  Attorney files a request for an administrative hearing before a Social Security administrative law judge (ALJ).  Social Security hearings before an ALJ are considered non-adversarial because no one represent the Social Security Administration at the hearing. However, prior to the hearing, the Social Security Administration develops a written record which is before the ALJ at the time of the hearing.  In addition, the ALJ has the authority to perform an independent investigation of the client's claim. Prior to the hearing, Attorney writes to the claimant's treating physician and asks for a letter stating the physician's opinion about the claimant's disability.  In a responsive letter, the physician indicates that she believes that the claimant is not disabled.  Does Attorney have to submit the adverse letter from the physician to the ALJ at the hearing? Opinion: No.  Although it is a hallmark of good lawyering for an advocate to disclose adverse evidence and explain to the court why it should not be given weight, generally an advocate is not required to present facts adverse to his or her client. The North Carolina State Bar 2005 Lawyer's Handbook, p. 259. RPC 230 July 26, 1996 Editor's Note: Compare Rule 3.3(d).  See also 98 Formal Ethics Opinion 1 for additional guidance. Disclosures of Adverse Medical Reports in a Social Security Disability Case Opinion rules that a lawyer representing a client on a good faith claim for social security disability benefits may withhold evidence of an adverse medical report in a hearing before an administrative law judge if not required by law or court order to produce such evidence. Inquiry #1: Attorney represents Client L, a claimant for social security disability benefits.  Attorney files a request for an administrative hearing before a Social Security Administration administrative law judge ("ALJ").  In administrative hearings before an ALJ, no one advocates or presents evidence in opposition to the claimant's case. Attorney previously represented Client L on his claim for workers' compensation benefits.  During the workers' compensation case, the workers' compensation carrier required Client L to submit to an independent medical examination.  The report of the physician performing the examination states that there is little wrong with Client L and he is a malingerer.  Attorney considers this report biased and unfair.  At the administrative hearing, Attorney submits other medical records for Client L, and withholds the adverse report from the workers' compensation case.  Is this ethical? Opinion #1: Yes, provided there is no law or court order mandating disclosure and further provided Attorney is advancing Client L's claim in good faith. The Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, Sect. 206, 108 Stat. 1546, 1509-16 (1994) provides, in pertinent part: (a)(1) Any person...who makes, or causes to be made, a statement or representation of a material fact for use in determining any initial or continuing right to or the amount of (A) monthly insurance benefits under title II, or (B) benefits or payments under title XVI, that the person knows or should know is false or misleading or knows or should know omits a material fact or makes such a statement with knowing disregard for the truth shall be subject to, in addition to any other penalties that may be prescribed by law, a civil money penalty of not more than $5,000 for each such statement or presentation.... The statute defines "a material fact" as follows: (2) For purposes of this section, a material fact is one which the secretary may consider in evaluating whether an application is entitled to benefits under title II or eligible for benefits or payments under title XVI. Whether the law requires disclosure of adverse medical opinions or medical reports generated in an unrelated adversarial proceeding is the subject of controversy. See Robert E. Raines, "The Advocate's Conflicting Obligations Vis-à-vis Adverse Medical Evidence in Social Security Proceedings." 1995 B.Y.U.I.L. Rev. 99, 133-134.  However, if a lawyer reasonably believes that this law or a court order requires the production of such evidence, the lawyer should comply with the law or court order.  In so doing, the lawyer is not violating the duty of confidentiality.  See Rule 4(c)(3) of the Rules to Professional Conduct. If the lawyer reasonably believes that there is no law or court order requiring production of the evidence, Rules 4 of the of Professional Conduct requires the lawyer to protect the confidential information of a client.  Canon VII also requires the lawyer to represent the client zealously within the bounds of the law.  In litigation, a conflict may arise between these duties and a lawyer's duty of candor to the court. See, comment to Rule 7.2.  In general, there is no ethical duty to volunteer adverse evidence to a tribunal absent a law or court order requiring disclosure.  The lawyer must present the evidence that best advances the client's case and should not reveal confidential information if to do so would be detrimental to the client's interest.  Rule 4(c)(2).  Nevertheless, a lawyer may not knowingly advance a claim, make a false statement of fact, use false evidence, or assist the client in illegal or fraudulent conduct.  Rule 7.2(a)(2), (4), (5), and (8). In light of these conflicting obligations, the following position taken by the Committee on Professional Ethics of the New York Country Lawyers Associations in its decision of September 9, 1993, is sound: If a lawyer is able to advance a good faith claim for benefits despite knowledge of contrary medical reports, and if none of the evidence or statements made in support of that claim is known to be false in light of such knowledge, then nothing in the Code [of Professional Conduct] precludes assertion of the claim.  If, however, the lawyer's knowledge of the adverse medical information constitutes knowledge that the claim itself is false, then the lawyer is not free to advance the claim and must withdraw from the representation. Id. at 115 (quoting Comm. On Prof. Ethics of the N.Y. Country Lawyers' Ass'n, New York Country Lawyers Ethics Opinion, N.Y.I.J., September 9, 1993, at 2). Thus, if Attorney is not knowingly advancing a false claim on behalf of Client L and Attorney reasonably believes that disclosure is not required by law or court order, he my represent Client L in the social security disability hearing without disclosing the adverse medical evidence. Inquiry #2: Attorney A represents a claimant for social security disability benefits.  Attorney requests an administrative hearing.  In the course of the representation, Attorney writes the claimant's treating physician and asks for a letter stating the physician's opinion about whether the claimant is disabled.  In the responsive letter from the physician, the physician indicates that she believes the claimant is not disabled and should not be granted social security disability benefits.  Attorney does not submit the adverse letter from the physician to the ALJ at the hearing.  Is this unethical? Opinion #2: See Opinion #1. Inquiry #3: In the same situation as inquiry #2, Attorney requests from the treating physician a letter plus the treating physician's office notes.  The treating physician sends the office notes which merely describe the course of the claimant's medical treatment.  However, the physician also sends a letter stating her opinion that the claimant is not disabled.  Attorney submits only the office notes to the ALJ and withholds the adverse letter.  Is this conduct ethical? Opinion #3: See Opinion #1. Inquiry #4 Attorney has concluded that it would be a good litigation strategy to produce all relevant medical evidence at the administrative hearing on the claim for disability benefits of Client X.  Attorney believes that if the adverse medical evidence is introduced, it can be explained and will not defeat Client X's claim.  If Attorney introduces and explains the evidence, it will avoid any perception that Attorney is hiding relevant evidence and will, thereby, increase the ALJ's confidence in Attorney.  It will also avoid the potential harm that might result if the ALJ learns of the evidence from another source.  Is Attorney prohibited from introducing the adverse medical evidence? Opinion #4: No.  The Rules of Professional Conduct do not prohibit a lawyer from presenting to the client the strategic advantage of disclosing adverse evidence and obtaining the client's consent to disclose.  Rule 4(c)(1). The North Carolina State Bar 2005 Lawyer's Handbook, pp. 243-244 RULE 5.3  RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm or organization shall make reasonable efforts to ensure that the firm or organization has in effect measures giving reasonable efforts to ensure that the firm or organization has in effect measures giving reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer; and (c)  a lawyer shall be responsible for conduct of such a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm or organization in which the person is employed, or has direct supervisory authority over the nonlawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action to avoid the consequences. [Adopted July 24, 1997.  Amended February 27, 2003.] Comment [1]  Lawyers general employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals.  Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services.  A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product.  The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. [2] Paragraph (a) requires lawyers with managerial authority within a law firm or organization to make reasonable efforts to establish internal policies and procedure designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional Conduct.  See Comment [1] to Rule 5.1.  Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer.  Paragraph (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer. [3] A lawyer who discovers that a nonlawyer has wrongfully misappropriated money from the lawyer's trust account must inform the North Carolina State Bar pursuant to Rule 1.15-2(o). Rules of Professional Conduct, Ch. 2, Rule 5.4 (2006).

Spoliation: when Defendants Destroy Relevant Evidence

A defendant or at fault party cannot destroy evidence.  It is the duty of a party not to take action that will cause the destruction or loss of relevant evidence that will hinder the other side from making its own examination and investigation of all potentially relevant evidence.  McLain v. Taco Bell Corp., 137 N.C. App. 179, 527 S.E.2d 712, disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000). Spoliation of evidence is not a new concept and a party's duty to protect material evidence has been considered valid for 100 years in North Carolina jurisprudence.  See, Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905). Spoliation of evidence is where a party is on notice of a claim or potential claim, destroys or negligently loses the evidence that is relevant to the non-spoliator's allegations.  McLain, 137 N.C. App at 186-187, 527 S.E.2d at 717-718. "Where a party fails to introduce in evidence documents that are relevant to the matter in question and within his control . . . there is a presumption, or at least an inference that the evidence withheld, if forthcoming, would injure his case."  Jones v. GMRI, Inc., 144 N.C. App. 558, 565 (2001) (cert. granted 354 N.C. 218, 554 S.E.2d 339 (2001); cert. improvidently allowed 355 N.C. 275, 559 S.E.2d 787 (2002)), citing Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905). A jury instruction on spoliation of evidence is required and failure to so instruct is reversible error when a party demonstrates that: (1) the spoliator was on notice of the claim or potential claim at the time the evidence was lost or destroyed; and (2) the missing evidence was relevant to the non-spoliator's allegations.  McLain, 137 N.C. App. at 186-87, 527 S.E.2d at 717-18. The law requires the trial court to instruct the jury on the law arising from the evidence presented.  N.C. Gen. Stat. § 1A-1, Rule 51; McLain, 137 N.C. App. at 182, 527 S.E.2d at 715; Lusk v. Case, 94 N.C. App. 215, 216, 379 S.E.2d 651, 652 (1989).  When a party requests a specific instruction, correct in itself and supported by evidence, the trial court must give that instruction.  Calhoun v. Highway Comm., 208 N.C. 424, 426, 181 S.E. 271, 272; McLain, 137 N.C. App. at 182, 527 S.E.2d at 715.  Thus, if there is evidence that the spoliator was on notice of the claim or potential claim at the time the evidence was lost or destroyed, and the missing evidence was relevant to the non-spoliator's allegations, the failure to give the spoliation instruction is reversible error.  See, McLain, 137 N.C. App. at 186-87, 527 S.E.2d at 717-18. In the unpublished case of Elliott v. Food Lion the North Carolina Court of Appeals held that the admission of certain depositions was relevant to the issue of spoliation where Food Lion had failed to follow their own policies and procedures to secure relevant videotape and pictures. UNPUBLISHED Elliott v. Food Lion, L.L.C., 605 S.E.2d 742 (N.C.App. Dec 21, 2004) (WESTLAW, NO. COA03-1705). Thus, a party that attempts to destroy or hide evidence in a case to protect itself merely creates a later problem.  The punishment for withholding or destroying evidence is a presumption that the withheld or destroyed evidence WOULD have helped the other party.

Car wreck while on the job: Do I have to repay workers' compensation?

If you were involved in an automobile wreck, not your fault, while  workering for your employer in North Carolina, you may not have to pay the workers' compensation back the full amount of their lien.  Often the question comes down to fairness and the amount of the recovery, the relative fairness of the recovery and the the future medical expenses are just some of what must be considered. If you are in such an accident, please see an attorney who handles both workers' compensation and personal injury law as per N.C.G.S. 97-10.2 often a hearing can be held with your local judge to determine what, if any, that judge would require you to repay workers' compensation. N.C.G.S. §97-10.2(j) gives the trial court discretion to determine how settlement proceeds are to be distributed.  The trial court may reduce or even completely eliminate a workers' compensation lien if the facts warrant, and appellate courts may not interfere with such an exercise of discretion -- except in extreme circumstances in which discretion has been abused.  Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990); Sherman v. Home Depot, 160 N.C.App. 404, 588 S.E.2d 478, Rev. Den.; 358 N.C. 156, 592 S.E.2d 696 (2004). LEGGETT v. AAA COOPER TRANSPORTATION INC was one of the most recent cases on this issue and handled by O'Malley Tunstall, PLLC.  In this case the workers' compensation carreir had their lien reduced to zero and appealed.  The North Carolina Court of Appeals upheld the judges' ruling. In deciding whether to reduce or eliminate a workers' compensation lien, the trial court "is to make a reasoned choice, a judicial value judgment which is factually supported...[by] findings of fact and conclusions of law sufficient to provide for meaningful appellate review."  Id. Our Supreme Court has often stated the test to be used when determining whether discretion has been abused: Generally, '[t]he test for abuse of discretion is whether a decision' is manifestly unsupported by reason.' White v. White, 312 N.C.770, 777, 324 S.E.2d 829, 833 (1985), or, 'so arbitrary that it could not have been the result of a reasoned decision[,] State v. Wilson, 313 N.C. 516, 538,330 S.E.2d 450, 465 (1985).'  Little v. Penn Ventilator Company, 317 N.C. 206,218,345 S.E.2d 204, 212 (1986). Most recently the Court found no abuse in discretion in Sherman v. Home Depot, 160 N.C.App. 404, 588 S.E.2d 478, Rev. Den.; 358 N.C. 156, 592 S.E.2d 696 (2004).  In Sherman, the lien was $168,000.00 and the plaintiff had expended $169,806.00 in recovering $1,300,000.00 - the trial court reduced the lien to $55,667 (a third) and required the workers' compensation carrier pay their fair share of the costs in the amount of $56,602.  Id. In Allen v. Rupard, 100 N.C. App 490, 397 S.E.2d 330 (1990), rev. allowed, 328 N.C. 270, 400 S.E.2nd 449 (1991), the lien amount was $40,000.00; and the settlement was $25,000.00.  The court divided the settlement in half, with $12,500.00 going to the workers' compensation carrier and $12,500.00 going to the employee.  The Allen court considered the nature and the circumstances of the incident in which Plaintiff was injured, the nature and extent of Plaintiff's injury (a crushed vertebra which necessitated three surgical procedures on his back), and other circumstances in rendering its decision.  The Supreme Court found no abuse of discretion. In Wiggins v. Busranger Fence Co., 126 N.C. App. 74, 483 S.E.2d 450 (1997), Travis Wiggins was killed when a gate fell on him at the Raleigh-Durham International Airport.  It was anticipated that Mr. Wiggins' family would receive approximately $200,000.00 from his employer in workers' compensation benefits.  Mr. Wiggins' estate sued two fence companies claiming that their negligence proximately caused Mr. Wiggins' death.  The case settled for $900,000.00 prior to trial.  The trial court held that Mr. Wiggins' employer could not recover anything from the settlement and had no lien on the third party settlement funds.  The Court of Appeals found no abuse of discretion. In United States Fidelity and Guar. Co. v. Johnson, 128 N.C. App 520, 495 S.E.2d 388 (1998), Melvin Johnson, an employee of the Department of Transportation, died in an automobile accident during the course and scope of his employment.  The Department of Transportation provided workers' compensation benefits to Mr. Johnson's family totaling $148,955.00.  Mr. Johnson's estate filed suit against the third-party tort-feasor to recover damages for his wrongful death.  Mr. Johnson's estate received a total of $372,825.00 in settlement.  At the time of the settlement, the Department had paid $47,045.51 in workers' compensation benefits to Mr. Johnson's family.  The trial court completely extinguished the Department of Transportation's lien, finding that it would be inequitable under the facts and circumstances of the case to allow the Department of Transportation to recover the workers' compensation lien from the settlement proceeds.  The Court of Appeals found no abuse of discretion. In the case of In re Biddix, 138 N.C. App. 500, 530 S.E.2d 70 (2000), Kimberly Biddix was injured in an automobile collision caused by the negligence of a third party.  Ms. Biddix received workers' compensation benefits in the amount of $16,844.03 and temporary total disability benefits in the amount of $1,874.40.  Ms. Biddix subsequently entered into a settlement with the third party tort-feasor for $25,000.00, which were the limits of the tort-feasor's automobile liability insurance.  The trial court entered an order finding that the settlement did not adequately compensate Ms. Biddix for her injuries and eliminated her employer's lien.  On appeal, the Court of Appeals found no abuse of discretion.      

Proving disability in a North Carolina Workers' Compensation Claim: Do I get paid if I cannot work?

Disability or the ability to prove disability is the difference in a workers' compensation case between being injured with or without compensation.  You can be paid either for either temporary total disability or temporary partial disability. "Disability" is defined under the Workers' Compensation Act as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C.G.S. § 97-2(9) (2001).  Plaintiff bears the initial burden of proving that he can no longer earn his pre-injury wages in the same or similar employment, and that the diminished earning capacity is a result of the compensable injury.  Gilberto v. Wake Forest University, 152 N.C. App. 112, 566 S.E.2d 788 (2002). To demonstrate disability a Plaintiff must prove he is unable to earn the same or similar wages he had earned before the injury, either in the same employment or in other employment. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). Per Russell (the Gold Standard case for proving or demonstrating wage loss in North Carolina Workers' Compensation)  a Plaintiff may prove disability by proving either: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he 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; (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.   Russell v. Lowes Product Distribution, 108 N.C.App. 762, 425 S.E.2d 454 (1993). The Court held in Peoples that disability pursuant to the Workers' Compensation Act is defined as impairment of one's earning capacity rather than mere physical disablement, in other words, the diminished capacity to earn wages is the major factor.  Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986).   In Peoples, the company was still paying the Plaintiff his FULL WAGE and the Court still found that was insufficient to show "real" work, as the capacity to earn was the true issue.  Id. at 436.  In Peoples, they found the Plaintiff had been given a made up job just to reduce or stop his workers' compensation payment. When the Commission determines a claimant's wage-earning capacity it must consider both the claimant's physical limitations and claimant's testimony as to the pain claimant experiences. Knight v. Wal-Mart Stores, 149 N.C. App. 1, 562 S.E.2d 434 (2002), aff'd per curiam, 357 N.C. 44, 577 S.E.2d 620 (2003). Once an employee has met their initial burden of proving disability, the burden then shifts to the employer to produce evidence that suitable jobs are available for the employee and that the employee is capable of obtaining a job at pre-injury wages. Coppley v. PPG Industries, Inc., 133 N.C. App. 631, 516 S.E.2d 184 (1999).   Defendants have the burden of proving that Plaintiff is able to return to suitable employment, once disability is proven, at a job capable of returning him to pre-injury wages.  Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986). "If an employee presents substantial evidence he or she is incapable of earning wages, the employer must then come forward with evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations." Barber v. Going West Transp., 134 N.C. App. 428, 435, 517 S.E.2d 914, 920 (1999). Thus, it is quite obvious how important one's "disability" is both defined and determined in any workers' compensation claim.  Feel free to contact our office at [email protected] if you have questions.    

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