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Tuesday, the North Carolina Court of Appeals released an unpublished opinion addressing temporary partial disability (“TPD”) benefits and the application of the Russell v. Lowes Prod. Distribution factors, which assist plaintiffs in establishing disability. The court clarified that when there is evidence suggesting the plaintiff is capable of some work and has experienced a decrease in wage-earning capacity, the Industrial Commission may find that the plaintiff is entitled to TPD compensation, even if the plaintiff has not conducted a job search.
In this case, the Deputy Commissioner found the that the plaintiff was entitled to TPD benefits based on the testimony of both the plaintiff and vocational experts, as well as evidence that the plaintiff received unemployment benefits. The plaintiff’s vocational expert testified that the plaintiff's earning capacity was approximately one-fourth of what he earned while employed by the defendant, whereas the defendant's expert estimated the earning capacity to be approximately one-half.
The Full Commission, however, concluded that the plaintiff had not met the burden of proving disability because he did not demonstrate an inability to work in any employment. Additionally, the Commission noted the lack of evidence showing that the plaintiff conducted a job search. By failing to satisfy one of the Russell factors, the Commission determined that the plaintiff was not entitled to any disability benefits.
The Court of Appeals found that the evidence was insufficient for the Full Commission to determine that the plaintiff was not entitled to disability benefits. The court observed that the Commission had made no findings regarding the plaintiff’s current wage-earning capacity and should have resolved the factual discrepancy involving this issue. Due to the absence of necessary findings, the court could not determine whether the plaintiff was entitled to indemnity benefits. However, the court acknowledged there was sufficient evidence for the Commission to conclude that the plaintiff was capable of working in some capacity.
The court further explained that the plaintiff had not failed to meet the burden of proving temporary partial disability merely because he did not satisfy one of the Russell factors. The court did not reject the plaintiff’s argument that the Russell factors were not appropriate or logical when seeking temporary partial disability benefits. Instead, the court emphasized the Supreme Court’s holding in Medlin that the Russell factors "are neither statutory nor exhaustive."
The plaintiff argued that evidence of a failed job search indicates that a plaintiff is not employable and thus entitled to temporary total disability; however, a failed job search does not necessarily mean a plaintiff is not partially employable. Plaintiff argued that other evidence, such as testimony about decreased wage-earning capacity, can be used to establish partial disability without the need for a job search. By remanding the case to the Commission to make findings on how much wage-earning capacity the plaintiff has lost, the court endorsed the argument that the Russell factors are not necessarily appropriate for analyzing temporary partial disability benefits.
Lastly, the Court of Appeals reaffirmed the holding in Lewis v. Craven Regional Medical Center that it is appropriate to consider what a plaintiff is "able to earn" when calculating TPD, rather than solely focusing on "actual post-injury wages." The court clarified that it is not a prerequisite for a plaintiff to have returned to work in a reduced capacity in order to claim entitlement to TPD benefits.
In practice, this decision illustrates that the Russell factors should not be viewed as "statutory or exhaustive" (as clarified in Medlin). Even if an employee does not meet any of the Russell factors, alternative methods can be used to establish entitlement to temporary total or partial disability benefits. While the Russell factors are useful when a plaintiffis trying to demonstrate temporary total disability, they are less applicable when seeking temporary partial disability benefits. This opinion suggests that a reasonable job search is not necessary for TPD benefits if expert testimony establishes that the plaintiff’s wage-earning capacity has decreased.
The case has been remanded to the Commission to make findings of fact regarding the plaintiff’s current wage-earning capacity. Unless the parties settle beforehand, the method the Commission will use to determine the plaintiff’s wage-earning capacity will be revealed in future proceedings. Ideally, the Commission would adopt the defendant's expert's opinion. However, the Commission might split the difference between the experts’ assessments.
As we prepare for hearings on disability issues, it is crucial to equip vocational experts with evidence that allows them to testify to the smallest possible reduction in wage-earning capacity. During discovery, obtaining detailed information about a plaintiff’s education, work experience, and transferable skills is essential. Testimony from a vocational expert regarding the highest potential (though reduced) wage-earning capacity could significantly reduce future indemnity liability if the Commission decides to split the difference between the experts.
