“Disability” is defined in North Carolina workers’ compensation law as follows:
The term, ‘disability’ means incapacity, because of injury, to earn the wages which the employee was receiving at the time of the injury at the same or any other employment.
Disability is related to wage loss and not to physical infirmity. Disability is the event of being incapacitated for the performance of normal labor. Disability is more than a mere physical injury.
A finding of disability is a requirement for an award of compensation unless the injured worker chooses to accept benefits under the schedule of benefits provided in North Carolina General Statutes 97-31. Until there is loss of wage earning capacity, there is no disability within the meaning of the North Carolina workers’ compensation law.
In the workers’ compensation setting, there are four kinds of disability:
- Temporary total disability
- Permanent and total disability
- Temporary partial disability
- Permanent partial disability
For temporary total disability, the worker will receive 2/3 of their average weekly wage during the time they are unable to earn any income as a result of the injury or occupational disease arising out of their employment. If the disability is “permanent and total,” the worker will receive 2/3 of their average weekly wage for the rest of their life.
A worker is entitled to benefits for “temporary partial” disability on the basis of the difference between the average weekly wage they earned prior to becoming disabled and the average weekly wages earned after the injury.
The extent of this loss is considered “partial” impairment because the worker can earn some amount of wages, but not as much as he or she earned before the injury or occupational disease. That is, his earning capacity is only partially reduced.
The “temporary” aspect of this type of disability arises from the fact that they will recover when the condition improves, and as a result, their earning capacity will be restored in full. They would then no longer be entitled to workers’ compensation benefits for this “temporary partial” disability.
The worker who suffers “permanent partial” disability must elect between two benefits:
- He or she may receive 2/3 of the difference between the average weekly wage earned just before the disability and the wages earned after their return to work.
This benefit for permanent partial disability, however, continues only for 300 weeks from the day of injury. After the 300 weeks, the benefits stop. That is one reason employers try to get employees back to any kind of work, regardless of the wages earned because they know that after 300 weeks from the date of the injury, their liability to this worker for compensation benefits other than medical benefits, will end.
The worker, on the other hand, should resist returning to “any employment” if such employment is not “suitable” based upon their education, training and experience. The Industrial Commission will not necessarily force a previously high wage worker into a minimum wage type job if it finds that such minimum wage type work is not “suitable.”
As is discussed elsewhere on this web site , the issue of whether a worker can return to work and what is a “suitable employment,” is a major battleground fought between employees and employers. It is most important for the injured worker to have the benefit of an experienced workers’ compensation lawyer at this stage of the proceedings.
- The worker who suffers a permanent partial disability may elect to receive benefits under the schedule of injuries listed in N. C. G. S. 97-31.
The worker does not need to prove a loss of wage earning ability in order to receive benefits under the “schedule of injuries” provision.
The worker cannot recover both benefits. The election as to which benefit to choose should not be made without the guidance of an attorney. The decision should be made on a case by case basis, taking a multitude of factors into account. An experienced North Carolina workers' compensation lawyer is best suited to help the worker make those decisions.