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Hooker v. Stokes-Reynolds Hospital11/4/2003
did not prove her entitlement to on-going benefits. Defendants base their assignment of error on an assertion that temporary total disability (TTD) compensation must end once an injured worker reaches maximum medical improvement (MMI). This assertion is an inaccurate reflection of the law.
Our Supreme Court has recently affirmed this Court's holding in Knight v. Wal-Mart, 149 N.C. App. 1, 562 S.E.2d 434 (2002), affirmed, 357 N.C. 44, 577 S.E.2d 620 (2003), that reaching MMI does not effect an employee's right to continue to receive temporary disability benefits. In Knight, we explained that
The primary significance of the concept of MMI . . . is to delineate when "the healing period" ends and the statutory period begins in cases involving an employee who may be entitled to benefits for a physical impairment listed in N.C. Gen. Stat. § 97-31. In other words, MMI represents the first point in time at which the employee may elect, if the employee so chooses, to receive scheduled benefits for a specific physical impairment under N.C. Gen. Stat. § 97-31 (without regard to any loss of wage-earning capacity). MMI does not represent the point in time at which a loss of wage-earning capacity under N.C. Gen. Stat. § 97-29 or § 97-30 automatically converts from "temporary" to "permanent."
Id. at 16, 562 S.E.2d at 445. Although Knight had not been affirmed by the Supreme Court when defendants' brief was written, the issue has now been resolved. Thus, defendants' argument, that plaintiff is no longer eligible for TTD benefits simply because she has reached MMI, is without merit.
Defendants also argue that plaintiff is not entitled to any wage loss benefits because she did not make a reasonable effort to obtain other employment. To prove her entitlement to disability benefits, an injured worker must show: an incapacity following her injury to earn the same wages she had earned before the injury in the same employment; an incapacity after the injury to earn the same wages she had earned before her injury in other employment; and a causal connection between her injury and her incapacity to earn. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).
The plaintiff bears the burden of proving her incapacity to earn the same wages as she received before the injury . This burden can be met in one of four ways:
(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 pre-existing conditions, i.e., age, inexperience, lack of education, to seek other employment; or (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, 765, 425 S.E.2d 454, 457 (1993) (internal citations omitted). In the instant case, plaintiff relies on the second of these factors to support her claim for disability benefits. Defendants contend that plaintiff failed to prove that she had made reasonable efforts to obtain employment, and that the Commission failed to make a finding about plaintiff's effort to find work.
Stipulated fact 6 states:
6. Plaintiff has been out of work under medical care during the dates of December 4, 1998-February 19, 1999 and April 28, 1999 through the present. Between February 20, 1999 and April 29, 1999, she work
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