Measuring Futility to Work: Sufficiency of Evidence to Prove Disability Under Wilkes
In Neckles v. Harris Teeter, 812 S.E.2d 178 (2018) the Court of Appeals reconsidered a determination that the Employee proved, based on the evidence, that he continued to be totally disabled. The case was reconsidered after Defendants’ successful petition for discretionary review for the limited purpose of remanding to the Court of Appeals in light of Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838 (2017).
Employee was a meat cutter who sustained injuries of his right hip, lower back, and right extremities. Defendants attempted vocational rehabilitation and ultimately filed a Form 33 Request for Hearing on the issue of ongoing disability. The deputy commissioner found that the evidence showed that a job search would be futile for Employee considering his age, education, work experience, and work restrictions from the compensable back injury. The Full Commission reversed the decision on the grounds that Employee did not meet his burden of proving that it was futile to perform a job search. In part, this determination was the result of Employee not presenting expert testimony regarding the futility of employment and provided no evidence of a job search.
The Court of Appeals originally reversed the Full Commission’s Opinion and Award finding there was sufficient evidence through his age, education level, communication skills and chronic health conditions along with the compensable injury. However, on review and considering Wilkes, the Court of Appeals pointed out that the Supreme Court had not adopted Russell v. Lowe’s Prod. Distrib’n, 108 N.C.App. 762, 425 S.E.2d 454 (1993) as a test for disability. The Supreme Court determined in Wilkes that “in determining loss of wage-earning capacity, the Commission must take into account age, education, and prior work experience as well as other preexisting and coexisting conditions.” 369 N.C. at 745, 799 S.E.2d at 849. In considering this evidence the Commission must make specific findings regarding wage-earning capacity in the context of all the pre-existing and co-existing conditions.
In the case of Neckles, the Court of Appeals determined that there was only limited testimony in the record from a vocational specialist that it would be “difficult” rather than “futile” for Employee to find employment. The Court of Appeals noted there was other evidence regarding the pre-existing and co-existing conditions left out of the Opinion and Award that spoke to disability. As in Wilkes, the Court of Appeals “Yet, having found credible evidence of plaintiff’s injury, the Commission made no related findings on how plaintiff’s compensable injury and any related symptoms may have affected his ability to engage in wage-earning activities.” Wilkes at 747-48, 799 S.E.2d at 850. The Court of Appeals therefore remanded for additional findings and evidence.
The public focus on Wilkes and subsequent legislation was primarily its effect on establishing compensable body parts. However, Wilkes also specifically indicated that the ways to prove disability under Russell were to considered examples and not an exhaustive list. That testimonial evidence, medical evidence, actions of the Employee to find work, pre-existing conditions, vocational considerations, and other evidence may be submitted to make a determination on disability. The Commission must make sufficient findings of fact and conclusions of law that rely upon this evidence in determining the employees wage earning capacity. The critical point for employers and carriers is that even after an employee proves ongoing disability there is an opportunity to provide 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.” Wilkes. at 745, 799 S.E.2d at 849. If the employer and carrier provided sufficient evidence, through vocational expert evidence and labor studies, then the Commission may deny disability.