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Posts tagged "work comp"

Injured Driving for Work? Report as workers' compensation?

Injured while driving for work? Should you report your injury as a workers' compensation injury or simply allow the case to be handled as a personal injury? Often its tricky to know whether to report your automobile accident case as a workers' compensation case as many people are concerned about their employer discriminating against them for getting injured while working.  

Report your North Carolina Workers' Compensation Injury

In North Carolina an injured worker is required to report an injury at work to the North Carolina Industrial Commission within thirty days (30) of your injury and no greater than two (2) years of the date of your injury.  N.C. Gen.Stat. § 97-22. Injuries are reported on a North Carolina Industrial Commission Form 18.  The North Carolina Industrial Commission (NCIC) is the state agency that handles all workers' compensation claims, hearings and appeals. To report your claim, report your claim with a Form 18, informing the Industrial Commission and your employer of the nature of your injury, how the injury occurred and when the injury occurred. Why you should file a NCIC form 18 with Susan O'Malley

Workers' Compensation covers Increases in existing injuries

When a worker gets hurt in an injury by accident arising out of and in the course of employment, that injury by accident is compensable. N.C.G.S. § 97-2(6). Put simply, if you get hurt at work you can get payment for your injury. That is the fundamental rule of workers' compensation. An important corollary to that fundamental rule is that the accident does not have to be the sole cause of a workers' pain or limitations in order to be compensable. If a worker has a preexisting condition that is aggravated or exacerbated by an on the job injury by accident, the injury can be compensable. An injury by accident at work is compensable even if it is merely a contributing cause. Roman v. Southland Transp. Co., 350 N.C. 549, 515 S.E. 2d 214 (1999). "All natural consequences that result from a work-related injury are compensable under the Workers' Compensation Act." Roper v. J.P. Stevens & Co., 65 N.C.App. 69, 73-74 308 S.E.2d 485, 488 (1983). "When a preexisting non-disabling non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment ... so that disability results, then the employer must compensate the employee for the entire resulting disability." Cannon v. Goodyear Tire & Rubber Co., 171 N.C.App. 254, 262, 614 S.E.2d 440, 445 (2005)(quoting, Morrison v. Burlington Industries, 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981)). That means that the Plaintiff (injured worker) need not prove that the on the job injury is the only reason that they are having pain or problems. It is sufficient to prove that the injury caused an aggravation or exacerbation of a pre-existing condition. A recent case in our office demonstrates the importance of this rule. Our client suffered from congenital narrowing of the cervical spine, which means that the nerve column in his neck was narrower than the average person since birth. He suffered an injury by accident at work when he hit his head. His orthopaedic doctor testified that he more likely than not aggravated his preexisting neck condition when he hit his head at work. He ended up requiring surgery, and could no longer perform they type of work.  Importantly, he had never suffered any pain or injury to his neck prior to the injury at work.  His preexisting neck condition was asymptomatic or causing him NO PAIN or LIMITATION until the accident. Even though our client in the above example had a preexisting condition, the congenital narrowing of his cervical spinal column, his injury by accident at work aggravated it, causing substantial damages. Because of the rule that "all natural consequences" of a work-related injury are compensable, our client is entitled to damages. If he can prove that the accident is compensable, then the cost of medical care, as well as weekly workers' compensation payments, should be borne by his company (or their insurer) because he can no longer perform the same level of physical work. If you or a loved one suffered from an on the job injury, give us a call 800 - 755 - 1987.

Reducing injured law enforcement officers' rights if injured? why?

There is a provision in the NC Senate budget bill changing the salary continuation statute for injured state law enforcement officers that could reduce their benefits upon an injury to less than that of all other injured workers in North Carolina.  Please read the below and contact your State Senator to protect our vulnerable law enforcement officers. Link to Senate Bill 402 Injured Law Enforcement officers currently are eligible to receive up to 2 years of full salary following an injury or occupational disease in lieu of the reduced wage loss benefit payable under the Workers' Compensation Act, GS 97-29 (temporary total disability) or G.S. 97-30 (temporary partial disability).   (See G.S. 143-166.13 et seq.)   The current legal standard is that the officer can get this salary continuance if he is incapacitated from work ("disabled") due to an "injury by accident or an occupational disease arising out of and in the course of the performance by him of his official duties."   If the officer's incapacity to work continues beyond two years, he then gets benefits paid under the Workers' Compensation Act which is paid at the lesser rate of 66% of his average weekly wage.  (G.S. 143-166.14 as it presently exists). Proposed amendments in this Senate budget bill change the current "injury by accident" or "occupational disease" requirement for benefits to only those injuries by accident or occupational illnesses caused by "extreme activity." Under the Workers' Compensation Act, compensation is paid to all injured workers, not just law enforcement, due to disability caused by an "injury by accident" or "occupational disease" that occurs in the course and scope of one's work.   There is no "extreme activity" required for workers who are not law enforcement officers. This new Bill does not appear to provide benefits for those officers who are injured by accident or have contracted an occupational disease, but who haven't been injured by extreme activity.   All other workers in NC would be able to get G.S. 97-29 (Temporary total disability) or G.S. 97-30 (temporary partial disability) benefits during the first 2 years of disability after an on-the-job injury, but this Bill seems to prohibit LAW ENFORCEMENT Officers from those benefits --- reducing our most vulnerable and helpful of public servants basic rights. Put another way, under the Senate Bill, injured LAW ENFORCEMENT Officers are "opted out" of the Workers' Comp Act for the first two years, but not "opted in" if their on-the-job injury is not caused by "extreme activity." What is "extreme activity?"   No one knows.  It is not defined in this change to the law. If you are sitting in your cruiser at a red light and get rear ended by a motorist who is not paying attention, and end up with neck surgery, was that injury caused by "extreme activity?"  If you are chasing a suspect through a yard at night and you trip over a tree root and fall, and end up needing knee surgery, was that an "extreme activity?"  So the definition will have to be litigated over the next decade or so as officers get injured and are denied their salary continuance or workers' comp benefits. So, the question arises---will any wage loss benefits be payable to law enforcement officers who are merely "injured by accident" or by an "occupational disease" not related to "extreme activity" during the first two years of their disability or will our law enforcement officers have less rights than that of ordinary citizens in North Carolina. Here is the relevant portion: "§ 143-166.14. Payment of salary notwithstanding incapacity; Workers' Compensation 27 Act applicable after two years; duration of payment. 28 The salary of any of the above listed persons eligible person shall be paid as long as his the 29 person's employment in that position continues, notwithstanding his the person's total or partial 30 incapacity to perform any duties to which he the person may be lawfully assigned, if that 31 incapacity is the result of an injury by accident or an occupational disease arising out of and in 32 the course of the performance by him of his or injuries due to extreme activity which occurred 33 in the course and scope of the eligible person's official duties, except if that incapacity 34 continues for more than two years from its inception, the person shall, during the further 35 continuance of that incapacity, be subject to the provisions of Chapter 97 of the General 36 Statutes pertaining to workers' compensation. Salary paid to a an eligible person pursuant to 37 this Article shall cease upon the resumption of his the person's regularly assigned duties, 38 retirement, resignation, or death, whichever first occurs, except that temporary return to duty 39 shall not prohibit payment of salary for a subsequent period of incapacity which can be shown 40 to be directly related to the original injury.41 " § 143-166.15. Application of § 97-27; how payments made. 42 Notwithstanding the provisions of G.S. 143-166.14 of this Article, the persons entitled to 43 benefits shall be subject to the provisions of G.S. 97-27 during the two-year period of payment 44 of full salary. All payments of salary shall be made at the same time and in the same manner as 45 other salaries are paid to other persons in the same department. 46 " § 143-166.16. Effect on workers' compensation and other benefits; application of § 47 97-24. 48 The provisions of G.S. 143-166.14 shall be in lieu of all compensation provided for the first 49 two years of incapacity by G.S. 97-29 and 97-30, but shall be in addition to any other benefits 50 or compensation to which such person shall be entitled under the provisions of the Workers' 51 General Assembly Of North Carolina Session 2013 S402 [Edition 2] Page 395 Compensation Act. The provisions of G.S. 97-24 will commence at the end of the two-year 1 period for which salary is paid pursuant to G.S. 143-166.14. 2 " § 143-166.17. Period of incapacity not charged against sick leave or other leave. 3 The period for which the salary of any person is paid pursuant to G.S. 143-166.14 while he 4 the person is incapacitated as a result of an injury by accident or an occupational disease arising 5 out of and in the course of the performance by him of his or injuries due to extreme activity 6 which occurred in the course and scope of the eligible person's official duties, shall not be 7 charged against any sick or other leave to which he the person shall be entitled under any other 8 provision of law. 9 " § 143-166.18. Report of incapacity. 10 Any person designated in G.S. 143-166.13, who, as a result of an injury by accident arising 11 out of and in the course of the performance by him of his or injuries due to extreme activity 12 which occurred in the course and scope of the eligible person's official duties, is totally or 13 partially incapacitated to perform any duties to which he the person may be lawfully assigned, 14 shall report the incapacity as soon as practicable in the manner required by the secretary or 15 other head of the department to which the agency is assigned by statute. 16 " § 143-166.19. Determination of cause and extent of incapacity; hearing before Industrial 17 Commission; appeal; effect of refusal to perform duties. 18 Upon the filing of the report, the secretary or other head of the department or, in the case of 19 the General Assembly, the Legislative Services Officer, shall determine the cause of the 20 incapacity and to what extent the claimant may be assigned to other than his the claimant's 21 normal duties. The finding of the secretary or other head of the department shall determine the 22 right of the claimant to benefits under this Article. Notice of the finding shall be filed with the 23 North Carolina Industrial Commission. Unless the claimant, within 30 days after he receives 24 notice, files with the North Carolina Industrial Commission, upon the form it shall require, a 25 request for a hearing, the finding of the secretary or other department head shall be final. The 26 finding of the secretary or other department head shall be final unless the claimant, within 30 27 days of receipt of the notice, files a request for a hearing with the North Carolina Industrial 28 Commission using a form required by the Commission. Upon the filing of a request, the North 29 Carolina Industrial Commission shall proceed to hear the matter in accordance with its 30 regularly established procedure for hearing claims filed under the Worker's Compensation Act, 31 and shall report its findings to the secretary or other head of the department. From the decision 32 of the North Carolina Industrial Commission, an appeal shall lie as in other matters heard and 33 determined by the Commission. Any person who refuses to perform any duties to which he the 34 person may be properly assigned as a result of the finding of the secretary, other head of the 35 department or of the North Carolina Industrial Commission shall be entitled to no benefits 36 pursuant to this Article as long as the refusal continues. 37 " § 143-166.20. Subrogation. 38 The same rights and remedies set forth in G.S. 97-10.2 shall apply in all third party liability 39 cases occurring under this Article, including cases involving the right of the affected State 40 agency to recover the salary paid to an injured officer during his the officer's period of 41 disability." 42 SECTION 35.16.(b) This section becomes effective October 1, 2013, and applies 43 to incapacity commencing on or after that date. 44 45 SEPARATE INSURANCE BENEFITS PLAN ASSETS/PAYMENT OF HEALTH 46 INSURANCE PREMIUMS FOR LAW ENFORCEMENT OFFICERS 47 SECTION 35.17.(a) G.S. 143-166.60 is amended by adding a new subsection to 48 read: 49 "(d1) In addition to the benefits provided under subsection (d) of this section, the assets of 50 the Plan

Injury while on lunch break; is it workers' compensation in North Carolina?

The Court of Appeals recently dealt with the issue of an injury to an employee while on an employer mandated lunch break in the case of Mintz v. Verizon Wireless, COA12-306, 2012 WL 5846239 (N.C. Ct. App. Nov. 20, 2012). The Court agreed with the Industrial Commission and found that there is a causal relationship between plaintiff's employment and her injury because she incurred her injury based on a condition in her workplace. "Plaintiff was injured in a common area of the building, and the record indicates that employees were not only authorized but also encouraged to go to the first floor since Eurst, the cafeteria for employees, was located there, and employees had authorization to walk through the hallways on the first floor. Thus, we affirm the Full Commission's conclusion that plaintiff's injury "arose out of" her employment." Mintz v. Verizon Wireless, COA12-306, 2012 WL 5846239 (N.C. Ct. App. Nov. 20, 2012). Defendants argued: (1) plaintiff's injury did not occur at a time reasonably related to her employment since she was on an unpaid lunch break; (2) defendant-employer did not control or own the building where defendant was injured; and (3) plaintiff was not engaged in activities related to her employment. The Court of Appeals disagreed for the reasons below. "With regard to determining whether an injury occurs "in the course of" employment, this Court has concluded that The words [i]n the course of have reference to the time, place and circumstances under which the accident occurred. Clearly, a conclusion that the injury occurred in the course of employment is required where there is evidence that it occurred during the hours of employment and at the place of employment while the claimant was actually in the performance of the duties of the employment. Harless, 1 N.C.App. at 455-56, 162 S.E.2d at 52. With regard to the time element, "the course of employment begins a reasonable time before actual work begins and continues for a reasonable time after work ends and includes intervals during the work day for rest and refreshment." Id. at 456, 162 S.E.2d at 53 (emphasis added). Defendants allege that this element is not met because plaintiff was on an unpaid lunch break. The Full Commission determined that plaintiff's injury occurred during a time in her work day "built in for the employees' rest and refreshment." Moreover, the Full Commission noted that defendant-employer requires its employees to take an hour-long lunch break. While defendants focus on the fact that plaintiff was injured during an unpaid break to support their argument that the injury did not occur at a time reasonably related to her employment, we have no support in our caselaw for the proposition that the element of time is not established if an employee is on an unpaid break. Here, plaintiff's injury occurred during the hours of employment, even though it happened during an unpaid break. Thus, the Full Commission's conclusion accurately reflects that "in the course of" includes times during the workday for rest and refreshment. See Harless, 1 N.C.App. at 456, 162 S.E.2d at 53. Therefore, we affirm the Full Commission's conclusion of law with regard to the element of time. With regard to the element of place, defendants contend that the Full Commission's conclusion of law no. 5 was erroneous. Moreover, defendants allege that findings of fact nos. 4-8, to the extent they infer defendant-employer maintained or controlled the building, were not supported by competent evidence. Place is considered the "premises of the employer." Harless, 1 N.C.App. at 456, 162 S.E.2d at 52. While the Full Commission noted in its findings that defendant-employer no longer owned the building where plaintiff worked, it indicated that "[d]efendant[e] mployer continued to be the main tenant in the building and maintained and controlled all activities occurring in the building." These findings were supported by competent evidence in the record that established all other contractors in the building, including the cleaning contractors, mail room, security, and Eurst, provided services to defendant-employer. Moreover, the only other business, Strayer University, offered services exclusively to employees of defendant-employer. Based on these findings, the Full Commission concluded that because "an accident may be compensable if it occurs on the premises of the employer or adjacent premises that are owned or controlled by the employer[,]" the element of place was met because defendant-employer "still essentially controlled the building, including the common area in which [p]laintiff fell." In support of its conclusion, the Full Commission cited Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977), and Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962). In Bass, our Supreme Court noted that "injuries sustained by an employee while going to or from his place of work upon premises owned or controlled by his employer are generally deemed to have arisen out of and in the course of the employment ... provided the employee's act involves no unreasonable delay." 258 N.C. at 232, 128 S.E.2d at 574. Here, there was competent evidence that plaintiff was injured on premises essentially controlled by defendant-employer while she was returning to her cubicle from the first floor of the building during her lunch break. Thus, the conclusion that the element of place was met is justified, and defendants' argument is without merit. See, Mintz v. Verizon Wireless, COA12-306, 2012 WL 5846239 (N.C. Ct. App. Nov. 20, 2012). Thus the Court of Appeals confirmed that Plaintiff was within the Course AND Scope of her employment at the time of her injury. Visit our website for more information on North Carolina workers' compensation.

NC Court of Appeals Victory for Wonderful Workers' Compensation Client

Recently the NC Court of Appeals affirmed the Full Commission of the North Carolina Industrial Commission which granted benefits to one of our deserving clients. Joe Tunstall of O'Malley Tunstall, PLLC represented the Plaintiff in this long fought Worker's Compensation claim. In Thompson v. Carolina Cabinet, our client's workers' compensation claim was denied in September of 2008. Joe Tunstall won the claim for the client at the trial level and it has been on appeal in front of the Full Commission of the Industrial Commission twice and the NC Court of Appeals twice. The issue for the Courts was the extent of our client's disability and the futility of a job search considering his age, education and work restrictions. As quoted in NC Lawyers' Weekly: "Even though the Industrial Commission did not expressly state which prong of Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993), it applied, it is apparent from the Commission's findings that it applied the third prong: that plaintiff "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...." The opinion addressed what the Industrial Commission must determine when deciding futility under Russell. The opinion goes on to state: We hold that the Commission's findings are sufficient to support its conclusion that plaintiff met his burden of showing futility. With respect to vocational considerations, the Commission pointed out that plaintiff was, at the time of its decision, 45 years old, had only completed high school, and his work experience was limited to heavy labor jobs. Turning to plaintiff's physical limitations, he was restricted to lifting no more than 15 pounds and working no longer than nine hours a day. He was required to avoid repetitious bending, lifting, and twisting. Defendant employer was unable to supply work that met those limitations. Further, plaintiff was experiencing steady pain, although that pain varied greatly in intensity. These findings, which are supported by competent evidence, including testimony from plaintiff's physician, are sufficient to support the Commission's conclusion that it would be futile for plaintiff to search for a job consistent with his physical restrictions and pain given his age, education, and past work experience. Although the Commission was not required to reach this conclusion given the evidence, its decision is sufficiently supported under our standard of review. See Weatherford, 168 N.C. App. at 383, 607 S.E.2d at 352-53 (upholding Commission's conclusion that plaintiff was disabled under prong three based on plaintiff's evidence that he was 61, had only a GED, had worked all of his life in maintenance positions, was suffering from severe pain in his knee, and, as his doctor testified, was restricted from repetitive bending, stooping, squatting, or walking for more than a few minutes at a time); Johnson v. City of Winston-Salem, 188 N.C. App. 383, 392, 656 S.E.2d 608, 615 (holding that evidence tended to show that effort to obtain sedentary light-duty employment, consistent with doctor's restrictions, would have been futile given plaintiff's limited education, limited experience, limited training, and poor health), aff'd per curiam, 362 N.C. 676, 669 S.E.2d 319 (2008).1 Once an employee meets his initial burden of production under Russell, the burden of production shifts to the employer to show that suitable jobs are available and that the employee is capable of obtaining a suitable job taking into account both physical and vocational limitations. Demery, 143 N.C. App. at 265, 545 S.E.2d at 490. Defendants have, however, made no argument that the trial court erred in concluding that defendants failed to meet their burden... We, therefore, uphold the Commission's determination that plaintiff is disabled under the third prong of Russell. Because defendants make no further arguments, the Commission's opinion and award is affirmed. To read more about workers' compensation please visit our web page: O'Malley Tunstall, PLLC.

How do I know if my back injury at work is a North Carolina workers' compensation claim?

Often our office receives calls from workers who are trying to determine if their hurt back is a workers' compensation claim.  Some are obvious, such as being in a car accident and having immediate back pain.  Many however are far less obvious.  An injury is compensable when the injury is by accident arising out of and in the course of the employment N.C.G.S. 97-2(6) (1991). However, in order to establish a compensable (related and payable under North Carolina Workers' Compensation) injury to the back, plaintiff must prove that the disabling back injury arose out of and in the course of the employment and was the direct result of either an accident or a specific traumatic incident of the work assigned. N.C. Gen. Stat. §97-2(6); Richards v. Town of Valdese, 92 N.C. App. 222, 224, 374 S.E.2d 116, 118 (1988). disc. review denied, 324 N.C. 337, 378 S.E.2d 799 (1989). Under the specific traumatic incident theory, plaintiff is not required to prove that the injury arose from an unusual occurrence or departure from ordinary duties. Fish v. Steelcase, inc., 116 N.C. App. 703, 707,449 S.E.2d 233, 237 (1994), cert. denied, 339 N.C. 737,454 S.E.2d 650 (1995).  Furthem10re, our courts have held that an injury is compensable if it is caused by an accident that arises out of employment. materially accelerates or aggravates a pre-existing condition. and proximately contributes to disability. N.C. Gen. Stat. ~97-2(6). Often clients call us after picking up something heavy or awkward at work and having immediate pain afterwards.  Clients also have compensable back injuries from turning landing gear on large trucks or twisting to put down something heavy.  In workers' compensation in North Carolina the compensable nature of an injury often turns on the smallest and least obvious facts such as how the doctor records your injury at the first visit or whom at work you report your injury. If you have any questions about the compensable nature of an injury give our office a call to discuss.

Unauthorized practice of law: Can a Corporation represent itself for Workers' Compensation in North Carolina?

Once a business has become incorporated, what can it legally do for itself in North Carolina in the Industrial Commission?  The Industrial Commission is the governing body for workers' compensation. Black's Law Dictionary defines a motion as "an application made to a court or judge for purpose of obtaining a rule or order directing some act to be done in favor of the applicant..."  Black's Law Dictionary, Abridged Sixth Edition (1991). The practice of law is defined by the North Carolina General Statutes as: The phrase "practice law" as used in this Chapter is defined to be performing any legal service for any other person, firm or corporation, with or without compensation, specifically including the preparation or aiding in the preparation of deeds, mortgages, wills, trust instruments, inventories, accounts or reports of guardians, trustees, administrators or executors, or preparing or aiding in the preparation of any petitions or orders in any probate or court proceeding;  abstracting or passing upon titles, the preparation and filing of petitions for use in any court, including administrative tribunals and other judicial or quasi-judicial bodies, or assisting by advice, counsel, or otherwise in any legal work;  and to advise or give opinion upon the legal rights of any person, firm or corporation: .......... N.C.G.S. §84-2.1 Except as otherwise permitted by law, it shall be unlawful for any person or association of persons, except active members of the Bar of the State of North Carolina admitted and licensed to practice as attorneys-at-law, to appear as attorney or counselor at law in any action or proceeding before any judicial body, including the North Carolina Industrial Commission, or the Utilities Commission;  to maintain, conduct, or defend the same, except in his own behalf as a party thereto;  or, by word, sign, letter, or advertisement, to hold out himself, or themselves, as competent or qualified to give legal advice or counsel, or to prepare legal documents, or as being engaged in advising or counseling in law or acting as attorney or counselor-at-law, or in furnishing the services of a lawyer or lawyers;  and it shall be unlawful for any person or association of persons except active members of the Bar, for or without a fee or consideration, to give legal advice or counsel, perform for or furnish to another legal services, or to prepare directly or through another for another person, firm or corporation, any will or testamentary disposition, or instrument of trust, or to organize corporations or prepare for another person, firm or corporation, any other legal document........ N.C.G.S. §84-4. Further, and specifically with regard to corporations: (a) It shall be unlawful for any corporation to practice law or appear as an attorney for any person in any court in this State, or before any judicial body or the North Carolina Industrial Commission, Utilities Commission, or the Employment Security Commission, or hold itself out to the public or advertise as being entitled to practice law;  and no corporation shall organize corporations, or draw agreements, or other legal documents, or draw wills, or practice law, or give legal advice, or hold itself out in any manner as being entitled to do any of the foregoing acts, by or through any person orally or by advertisement, letter or circular. .... N.C.G.S. §84-5 (a). The Court further clarified specifically that formal court proceedings are not to be handled by a salaried employee of a corporation, such as a workers' compensation insurance company, but instead by a duly licensed attorney. N.C.G.S. §84-5(a)(2)(c). Therefore, a business must hire outside counsel to defend itself with regard to a workers' compensation claim.

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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