IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-421

Filed 21 March 2023

North Carolina Industrial Commission I.C. No. Y18418

MARTIN B. STURDIVANT, Employee, Plaintiff,

v.

NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Employer, SELFINSURED (CCMSI, Third-Party Administrator), Defendant.

Appeal by Plaintiff from Decision and Order entered 28 February 2022 by ViceChair Myra L. Griffin for the North Carolina Industrial Commission. Heard in the 

Court of Appeals 15 November 2022.

Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson, for the PlaintiffAppellant. 

Attorney General Joshua H. Stein, by Assistant Attorney General J.D. Prather, 

for the Defendant-Appellee. 

Lennon Camak & Bertics, PLLC, by Michael W. Bertics, and The Harper Law 

Firm, PLLC, by Richard B. Harper and Joshua O. Harper, for Amicus Curae 

North Carolina Advocates for Justice

Brewer Defense Group, by Joy H. Brewer and Ginny P. Lanier, and Wilson & 

Ratledge by Frances M. Clement and Kristine L. Prati, and Teague Campbell 

by Tracey L. Jones, Logan Shipman & Lindsay Underwood, for Amicus Curae 

North Carolina Association of Defense Attorneys, et al.

DILLON, Judge.

This appeal involves an issue of first impression, namely the proper 
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interpretation of a subsection added to our Workers’ Compensation Act (“Act”) in 

2011, codified in Section 97-29(c), which provides for “extended” benefits beyond the 

500-week cap in benefits for a temporary, total disability provided in Section 97-29(b).

Here, Plaintiff Martin B. Sturdivant (“Plaintiff”) seeks extended disability 

benefits for a back injury he suffered in 2011, after exhausting the maximum 500 

weeks of disability benefits allowable Section 97-29(b). After considering the evidence 

offered at the hearing before a Deputy Commissioner, the Full Commission denied 

Plaintiff’s claim for extended benefits. Plaintiff appeals from that denial. We affirm.

I. Background

In 2006, Plaintiff suffered a compensatory back injury while working for a 

private company.

In 2007, after Plaintiff left the private company, Plaintiff began working as a 

corrections officer for Defendant-Employer Department of Public Safety 

(“Defendant”). On 31 August 2011, Plaintiff experienced back pain while 

transporting an inmate. Plaintiff immediately sought disability benefits under the 

Act for his back issues.

In October 2013, the parties entered a Consent Order, which was approved by 

the Full Commission, whereby Defendant accepted compensability and agreed to 

begin paying temporary, total disability benefits pursuant to Section 97-29(b).

In 2020, after receiving temporary, total disability benefits for over 425 weeks, 
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Plaintiff filed a Form 33, seeking to qualify for “extended benefits” pursuant to 

Section 97-29(c) beyond the maximum 500 weeks of benefits allowed for a temporary, 

total disability under Section 97-29(b). Defendant responded by filing a Form 33R, 

alleging that Plaintiff could not carry his burden to show he was entitled to extended 

benefits.

In May 2021, after a hearing on the matter, a Deputy Commissioner entered 

an order denying Plaintiff’s claim requesting an extension of benefits. Plaintiff 

appealed to the Full Commission. In February 2022, the Full Commission affirmed 

the Deputy Commissioner’s order, making its own findings and concluding Plaintiff 

failed to establish that he had suffered a total loss of wage-earning capacity. Plaintiff 

appeals this 2022 order of the Full Commission to our Court.

II. Analysis

Under the Act, an employee who suffers a compensable injury generally 

qualifies to receive “disability” benefits for the weeks he is not able to earn at least 

the same wage he was earning at the time he suffered his injury. As explained by 

our Supreme Court, in the context of workers’ compensation, the term “disability” 

concerns “not the physical infirmity” suffered by the employee but rather the 

employee’s “diminished capacity to earn wages” resulting from the injury. Saums v. 

Raleigh Community, 346 N.C. 760, 764, 487 S.E.2d 746, 750 (1997); see also Medlin 

v. Weaver, 367 N.C. 414, 420, 760 S.E.2d 732, 736 (2014). Indeed, the term “disability” 
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has long been defined under the Act as the “incapacity because of injury to earn the

wages which the employee was receiving at the time of the injury in the same or any 

other employment.” N.C. Gen. Stat. § 97-2(9) (2011) (emphasis added).

A disability is “total” for a particular week where the employee has no wageearning capacity. However, an employee is considered only “partially” disabled if he 

has the ability to earn some wage that week, though less than what he was earning 

when he was injured. In the present case, the 2013 Consent Order, approved by the 

Full Commission, deemed Plaintiff’s injury to be total.

A total disability is considered “temporary” if it is not caused by an injury 

described in Section 97-29(d), which provides that “[a]n injured employee may qualify 

for permanent total disability only if the employee has one of the [physical limitations 

enumerated in that subsection] resulting from the injury[.]” Here, neither party 

contends that Plaintiff’s back injury constituted a “permanent” injury under the Act. 

Accordingly, Plaintiff’s back injury resulted in a temporary, total disability.

In any event, until 1973, an employee suffering a temporary, total disability 

was entitled to receive benefits under Section 97-29 for a maximum of 400 weeks. 

Whitley v. Columbia, 318 N.C. 89, 98, 348 S.E.2d 336, 341 (1986). However, in 1973, 

the General Assembly removed this 400-week cap, such that an employee could 

receive benefits indefinitely while he remained totally disabled. Id.
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But in 2011, our General Assembly reinstated a cap on eligibility for 

temporary, total disability benefits of 500 weeks “unless the employee qualifies for 

extended compensation under subsection (c)[.]” N.C. Gen. Stat. § 97-29(b). An 

employee qualifies for extended temporary, total disability benefits, beyond the 500-

week cap, if “pursuant to the provisions of G.S. 97-84, . . . the employee shall prove 

by a preponderance of the evidence that the employee has sustained a total loss of 

wage-earning capacity.” N.C. Gen. Stat. § 97-29(c) (emphasis added).

Under the 2011 amendment, benefits for a partial disability have also been 

capped at 500 weeks. However, no provision was included to allow for extended 

benefits for a partial disability beyond 500 weeks. N.C. Gen. Stat. § 97-30.

Here, Plaintiff appeals the Full Commission’s denial of his application for 

extended benefits under Section 97-29(c) for his 2011 back injury. He argues that the 

Commission misconstrued the meaning of Section 97-29(c).

A. Meaning of “total loss of wage-earning capacity”

To qualify for total disability benefits for up to 500 weeks under Section 97-

29(b), an employee must prove that he is has suffered a “total disability”. Our 

Supreme Court has described that “total disability” is present where an employee’s 

“capacity to earn [has been] totally obliterated” by a compensable injury. Gupton v. 

Builders Transport, 320 N.C. 38, 42, 357 S.E.2d 674, 678 (1987). But, our Supreme 

Court has explained that an employee who has the capability to perform some type of 
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work may still be deemed “totally disabled” if he shows that he cannot find a job 

compatible with his limited capability after reasonable efforts. Specifically, the Court 

has held that an employee can meet his burden of showing a total disability “through 

any of the four methods articulated in [our Court’s decision in] Russell. Medlin, 367 

N.C. at 422, 760 S.E.2d at 737. Pursuant to Russell, one method is by showing that 

the employee demonstrates an inability to land a job after reasonable efforts to do so, 

though possessing some work capabilities. Russell v. Lowes, 108 N.C. App. 762, 765, 

425 S.E.2d 454, 457 (1993). 

To qualify for extended benefits under Section 97-29(c) for a total disability 

(beyond the 500 weeks allowed under Section 97-29(b)), an employee must prove that 

he has suffered the “total loss of wage-earning capacity”. Here, the Commission 

concluded that an employee who has some work capabilities but cannot find a 

compatible job, though “totally disabled”, has not necessarily suffered a “total loss of 

wage-earning capacity” to qualify for extended benefits under Section 97-29(c). 

Defendant agrees with the Commission’s conclusion that the phrase “total loss of 

wage-earning capacity” applies only to employees who are unable to perform any type 

of work. However, Defendant contends that the phrase does not apply to employees 

who have some work capabilities but cannot land a job after reasonable efforts.

Plaintiff, though, contends the Commission erred by concluding that his 

burden to show a “total loss of wage-earning capacity” under Section 97-29(c) is higher 
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than his burden to show he had suffered a “total disability” to qualify for the initial 

500 weeks of benefits under Section 97-29(b). For the reasoning below, we agree with 

Plaintiff that “total loss of wage-earning capacity” and “total disability” are the same.

We are persuaded in our interpretation by the fact that our Supreme Court has 

used the phrase “loss of wage-earning capacity” synonymously with “disability” both 

prior to and after the 2011 amendment. See, e.g., Wilkes v. City of Greenville, 369 

N.C. 730, 745, 799 S.E.2d 838, 849 (2017); Harrell v. Harriet, 314 N.C. 566, 575, 336 

S.E.2d 47, 53 (1985). Based on these cases, it reasonably follows that “total disability” 

(under Section 97-29(b)) and “total loss of wage-earning capacity” (under Section 97-

29(c)) are synonymous.

More importantly, our General Assembly expressly defines “disability” in the 

Act as the “incapacity . . . to earn wages[.]” N.C. Gen. Stat. § 97-2(9). Applying the 

plain language of this statutory definition of “disability”, it reasonably follows that 

“total disability” means “total incapacity to earn wages.” The phrase “total incapacity 

to earn wages” conveys the same idea as the phrase “total loss of wage-earning 

capacity”.

B. Plaintiff’s burden of proof for extended benefits under Section 97-29(c)

An employee seeking temporary, total disability benefits has the burden to 

show his disability for each week he seeks benefits. Clark v. Wal-Mart, 360 N.C. 41, 

43, 619 S.E.2d 491, 493 (2005) (holding that the burden is on the employee to prove 
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“the existence of [his] disability and its extent”). However, in 1971, our Supreme 

Court held that an initial award by the Commission of weekly disability benefits 

(whether partial or total) creates a presumption in favor of the employee. This 

presumption, known as the Watkins presumption, states that the disability continues 

each week until “the employee returns to work at wages equal to those he was 

receiving at the time his injury occurred.” Watkins v. Central Motor Lines, 279 N.C. 

132, 137, 181 S.E.2d 588, 592 (1971). That is, until an employee who has been 

awarded total disability benefits under Section 97-29(b) returns to work, it is 

presumed that (1) he has no wage-earning capacity and (2) his compensable injury 

continues to be the cause of his incapacity to earn a wage.

Of course, the Watkins presumption is just that, a rebuttable presumption. 

Stone v. G&G Builders , 346 N.C. 154, 157, 484 S.E.2d 365, 367 (1997). Therefore, 

an employee who has been awarded benefits for a total disability continues to qualify 

for benefits in subsequent weeks without needing to offer evidence of his continued 

disability “unless and until the employer . . . comes forward with evidence to show 

not only suitable jobs are available, but also that the plaintiff is capable of getting 

one, taking into account both physical and vocational limitations.” Saums, 346 N.C. 

at 763, 487 S.E.2d at 749.

Our Supreme Court has never determined whether this Watkins presumption, 

available for continued benefits under Section 97-29(b), applies beyond the 500-week 
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cap. Based on the language of Section 97-29, we conclude an employee who seeks 

extended benefits under Section 97-29(c) is not entitled to a presumption that he has 

suffered a total loss of wage-earning capacity merely because it was previously 

determined that he had suffered a disability under Section 97-29(b). Section 97-29(c) 

plainly states that to qualify for extended benefits, the employee “shall prove” that 

he “has sustained a total loss of wage-earning capacity.” There is no indication that 

our General Assembly intended an injured employee to rely on a prior determination 

of total disability beyond the 500-week cap.1

C. Plaintiff has failed to meet his burden

Even if the Commission’s order contains erroneous conclusions of law, as 

Plaintiff argues, the Commission’s findings of fact support its ultimate decision to 

deny Plaintiff extended benefits when applying our interpretation of Section 97-29. 

We need not remand to correct erroneous conclusions of law, as the “Commission’s 

conclusions of law are reviewed de novo.” McRae v. Toastmaster, 358 N.C. 488, 496, 

597 S.E.2d 695, 701 (2004).

The Commission weighed conflicting evidence in the record created during the 

proceedings before the Deputy Commissioner and found that (1) “Plaintiff has some 

1 This is not to say that an employee is not entitled to a presumption for continued extended 

benefits once he shows that he qualifies for extended benefits. Indeed, Section 97-29(c) suggests that 

once an employee meets his initial burden of showing he is entitled to extended benefits, the burden 

then shifts to the employer to prove “by a preponderance of the evidence that the employee no longer 

has a total loss of wage-earning capacity” for the extended benefits to cease.
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transferable skills from his several decades of prior employment in various fields”; (2) 

there were jobs in Plaintiff’s home county that were compatible with his skill; and (3) 

“[c]onsidering Plaintiff’s work history [and] his educational level,” he “would be able 

to obtain some employment, at a minimum, part-time work in a sedentary position.”

These findings are supported by evidence in the record of the hearing before 

the Deputy Commissioner, including the testimonies of Defendant’s medical and 

vocational experts.

Plaintiff argues that the Commission erred in relying on the testimony of 

Defendant’s vocational expert by failing to determine whether the testimony was 

admissibility under Rule 702 of our Rules of Evidence. However, as found by the 

Commission in its order, Plaintiff did not object to the testimony at that hearing 

before the Deputy Commissioner. Accordingly, even if the testimony of Defendant’s 

vocational expert was incompetent under our Rules of Evidence, we conclude it would 

not have been reversible error for the Full Commissioner, as the fact-finder, to 

consider said testimony and to assign whatever weight to it the Commission deemed 

appropriate. Indeed, our Supreme Court has held that any objections to evidence in 

a worker’s compensation case must be made when first offered in the hearing before 

the Deputy Commissioner. Maley v. Thomasville, 214 N.C. 589, 593, 200 S.E.2d 438, 

441 (1939) (wherein our Supreme Court stated that “a subsequent formal objection to 

the evidence filed before the Full Commission, accompanied by a motion to strike, 
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comes too late.”) And “where testimony sufficient to establish a fact at issue has been 

received in evidence without objection, a nonsuit cannot be sustained even if the only 

evidence tending to establish the disputed fact is incompetent.” Reeves v. Hill, 272 

N.C. 352, 362, 158 S.E.2d 529, 537 (1968). Of course, the Commission was not 

required to consider the testimony of Defendant’s experts, even if competent; 

however, it was not error for the Commission to do so, as Plaintiff failed to object to 

it when initially offered.

Plaintiff further argues that the Commission erred in “relying on evidence that 

Plaintiff is not medically restricted from all work,” contending that the Commission’s 

order “implies that Plaintiff would need to be medically restricted from all work in 

order to meet the standard of ‘total loss of wage-earning capacity’.” As stated above, 

Plaintiff could still qualify for extended benefits, even if he was not medically 

restricted from all work, if there were no available jobs for him. However, the 

Commission did not rely solely on this finding in making its decision. The 

Commission also found that there were suitable jobs in the market based on the 

testimony of Defendant’s vocational expert. And Plaintiff otherwise failed to meet 

his burden to offer evidence that he made reasonable efforts to find a job suitable to 

the capabilities the Commission found him to have.
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In sum, based on the findings of the Commission supported by the evidence in 

the record, we conclude that Plaintiff failed to meet his burden of showing that he 

qualifies for extended benefits under Section 97-29(c).

III. Conclusion

Section 97-29(c) states that an employee receiving total disability benefits 

under Section 97-29(b) may qualify for “extended benefits” if he proves he “has 

sustained a total loss of wage-earning capacity.” N.C. Gen. Stat. § 97-29(c). We agree 

with Plaintiff that his burden of showing a “total loss of wage-earning capacity” under 

Section 97-29(c) is the same as his burden of showing a “total disability” to receive 

benefits under Section 97-29(b). For instance, one who can perform some work may 

still qualify for extended benefits if no one would hire him.

However, we agree with Defendant that Plaintiff, when seeking extended 

benefits under Section 97-29(c), is not entitled to a presumption that he continues to 

suffer from a total loss of wage-earning capacity based on a prior determination that 

he was totally disabled under Section 97-29(b).

Accordingly, we conclude the Commission’s findings support its denial of 

extended benefits based on our conclusions regarding the proper interpretation of 

Section 97-29(c). Although Plaintiff offered evidence that he cannot work, the 

Commissioner did not err in finding that Plaintiff has the ability to perform some 

work based on conflicting evidence offered by Defendant. Further, Plaintiff did not 
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meet his burden of presenting evidence that he had searched for jobs suitable to his 

work abilities, and the Commission did not otherwise err in finding that suitable jobs 

were indeed available based on the testimony of Defendant’s vocational expert.

Ultimately, Plaintiff had the burden of showing “total loss of wage-earning 

capacity”, and the Commission did not err in finding that Plaintiff failed to meet his 

burden of showing he qualifies for extended benefits under Section 97-29(c). 

Therefore, we affirm the Commission’s order denying Plaintiff extended benefits.

AFFIRMED.

Judge Gore concurs.

Chief Judge STROUD concurs in result only.