IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA 22

- 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, SELF

INSURED (CCMSI, Third

- Party Administrator), Defendant. Appeal by Plaintiff from Decision and Order entered 28 February 2022 by Vice

Chair 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 Plaintiff

Appellant. Attorney General Joshua H. Stein, by Assistant Attorney General J.D. Prather, for the Defendant

- Appellee. Lennon Camak & B ertics, 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 Fra nces 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 properS TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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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 bene fits 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, Pla intiff 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 Aug ust 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, wh ereby 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,S TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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- Plaintiff filed a Form 33, seeking to qu alify 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 bur den 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 202 2, 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 o ur 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 expla ined 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. Rale igh 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”S TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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- has long been defined under the Act as the “ incapacity because of injury to earn the wag es 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 wage

earning 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 Plaintif f’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, tota l 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 197 3, the General Assembly removed this 400

- week cap, such that an employee could receive benefits indefinitely while he remained totally disabled. Id.S TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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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 o f 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 quali fy 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 ofS TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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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 a rticulated 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, Defe ndant 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 higherS TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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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

- earn ing 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 l oss 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 t his 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. Plain tiff’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 proveS TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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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 b enefits (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 receiv ing 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 36 5, 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 forwa rd 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

- weekS TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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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 t o 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 b eyond 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 ben efits 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 C ommission 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 meet s 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 cea se.S TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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- transferable skills from his several decades of prior employment in various fields”; (2) there were jo bs 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 findi ngs 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 vocati onal 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. Thomasvill e , 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,S TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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- comes too late.”) And “where testimony sufficient t o 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 t he 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 ‘tota l 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 f inding 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 effo rts to find a job suitable to the capabilities the Commission found him to have.S TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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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 c apacity.” 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 concl usions 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 D efendant. Further, Plaintiff did notS TURDIVANT V . NC D EPT . OF P UBLIC S AFETY Opinion of the Court

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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 o f 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 S ection 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.