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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