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Knight v. Wal-Mart Stores3/5/2002
iff reached maximum medical improvement on 4 January 1993. Thus, it was improper to award the plaintiff temporary total disability after this date. Id. at 204-05, 206, 472 S.E.2d at 385, 386 (citations omitted) (emphasis added).
In other words, the Court appears to have applied the framework established by N.C. Gen. Stat. § 97-31 (wherein MMI marks the end of "the healing period") to benefits received under N.C. Gen. Stat. § 97-29 and § 97-30. Based upon this construction of the law, the Court in Franklin held that the only options available to the plaintiff after reaching MMI were benefits for (1) permanent total disability under N.C. Gen. Stat. § 97-29, (2) permanent partial disability under N.C. Gen. Stat. § 97-30, or (3) scheduled benefits under N.C. Gen. Stat. § 97-31. Id. at 206-07, 472 S.E.2d at 387.
Franklin appears to hold that MMI serves to delineate the point in time when "temporary disability" ends and "permanent disability" begins, even within the context of a loss of wage-earning capacity established pursuant to N.C. Gen. Stat. § 97-29 or § 97-30. In fact, it has become increasingly common for parties to argue precisely such a proposition to this Court, expressly relying upon Franklin. However, to the extent that Franklin states that an employee may not receive temporary total disability benefits under N.C. Gen. Stat. § 97-29 after the employee reaches MMI, such holding is inconsistent with Carpenter and the Workers' Compensation Act, and also conflicts with prior case law. See, e.g., Watson v. Winston-Salem Transit Authority, 92 N.C. App. 473, 475, 374 S.E.2d 483, 485 (1988) (" e hold that the Industrial Commission erred in finding that because plaintiff reached maximum medical improvement she was not entitled to additional temporary total disability payments").
Perhaps more significantly, Franklin seems to imply (and, in fact, defendants here argue) that, in general, once an employer establishes that an employee has reached MMI, (1) any presumption of ongoing temporary disability established pursuant to N.C. Gen. Stat. § 97-29 or § 97-30 is thereby rebutted, (2) the burden of proof shifts back to the employee, and (3) the employee may only receive disability benefits if the employee establishes the existence of a "permanent" disability. See, e.g., Anderson, 144 N.C. App. at 670, 550 S.E.2d at 243-44 (where this Court, in a case involving a total loss of wage-earning capacity, interpreted Franklin in precisely this way).
In fact, as established by case law both prior to Franklin and since Franklin, the concept of MMI does not have any direct bearing upon an employee's right to continue to receive temporary disability benefits (or upon an employee's presumption of ongoing disability) once the employee has established a loss of wage-earning capacity pursuant to N.C. Gen. Stat. § 97-29 or § 97-30. See Watson, 92 N.C. App. at 476, 374 S.E.2d at 485 (" he maximum medical improvement finding is solely the prerequisite to determination of the amount of any permanent disability for purposes of G.S. 97-31" (emphasis added)); Russos, 145 N.C. App. at 167-68, 551 S.E.2d at 459 (holding that finding of MMI does not rebut presumption of ongoing disability, and that cases holding to the contrary, such as Franklin, are not supported by case law). An employee who establishes a total or partial loss of wage-earning capacity pursuant to N.C. Gen. Stat. § 97-29 or § 97-30 is entitled to continue to receive benefits for as long as the loss of wage-earning capacity continues (up to a maximum of 300 weeks for partial disability), regardless of whether the employee's physical injury has reached a point of maximum medical improvement or not. The primary significance of the concept
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