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Farwell: 'I Don't Need No Stinkin' Expert!' (Yes, You Do)

By S. Scott Farwell

Wednesday, November 1, 2017 | 242 | 0 | min read

Following North Carolina’s July 2017 legislative change to the state Workers’ Compensation Act, one might have put aside concerns over Wilkes v City of Greenville, N.C. 799 S.E. 2d 838, 849-850 (2017), resting assured that the slippery slope within workers’ compensation claims as to compensability of late-reported and or "new" injury conditions remained merely that, a slippery slope, rather than the cliff face suggested by the Wilkes’ ruling.

S. Scott Farwell

S. Scott Farwell

Unfortunately, the specter of Wilkes is not so easily vanquished. Indeed, it remains alive and well as it relates to issues of disability.

Recall, first, the North Carolina Court of Appeals in Wilkes found plaintiff’s self-serving testimony regarding the "futility" of any return-to-work effort was sufficient to support a finding of disability. It did so despite the commission’s detailed ruling, which highlighted plaintiff’s failure to conduct any form of reasonable job search. 

Translation: The claimant in Wilkes took the stand and testified that his age, limited work experience and low level of education would render even a hypothetical job search pointless. By testifying in this manner, plaintiff was found to have satisfied one of four acting litmus tests for disability in workers’ compensation claims, otherwise known as the Russell prongs (Russell v Lowes Prod. Distribution, 108 N.C. App 762, 425 S.E.2d 454 (1993)).

While disturbing enough that a claimant’s own testimony can satisfy such a burden of proof within a field of law already designed to interpret every fact in a light most favorable to the claimant, the North Carolina Supreme Court not only failed to find fault with this result, but instead seemed to reduce the burden on claimants even further by stating:

“Here we emphasize that this court has not adopted Russell, and that the approaches taken therein are not the only means of proving disability. See id. at 422, 760 S.E.2d at 737 (stating that 'Hilliard was grounded explicitly in the statutory definition of disability in section 97-2; Russell expanded upon, and perhaps diverged from, that grounding' and that the Russell methods 'are neither statutory nor exhaustive' … Because we have held that Russell does not apply here, [Defendants’] argument is misplaced; however, we have never held, and decline to do so now, that an employee is required to produce expert testimony in order to demonstrate his inability to earn wages. A plaintiff’s own testimony, as well as that of his lay witnesses, can be quite competent to explain how a plaintiff’s injury and any related symptoms have affected his activities. See Kennedy v. Duke Univ. Med. Ctr., 101 N.C.App. 24, 31, 398 S.E.2d 677, 681 (1990).”

The factual scenarios within which this type of testimony and outcome prove problematic are truly legion. Take, for example, the case wherein a claimant is terminated (from a job for reasons unrelated to a presumably active and compensable claim) and, without conducting a reasonable job search, without following up with the employer-defendant, without putting forth any effort to identify, search for or otherwise attempt to return to work, testifies it was futile to find work elsewhere and, in doing so, satisfies the burden to establish disability. 

Again: If the Supreme Court’s application of this issue were applied, it would not even be necessary for the plaintiff’s self-serving testimony to address whether that futility arose out of the claimed injuries/conditions, only that he was out of work and personally felt it was pointless to even attempt to return to work given claim and/or non-claim-related factors.

Highlighting that such unsubstantiated testimony at the earliest stages of a claim could result in a finding of disability is the subject to which this post is dedicated. That, and providing a potential solution.

It should not be surprising to the reader that this issue is not a new problem within the workers’ compensation arena. While the general rule is that expert testimony is required where complex questions of medical causation, disability or otherwise are in dispute, lay testimony is sufficient where common sense would suffice (McCrary v King Bio Inc., N.C. App. 737 S.E. 2d 761 (February 2013)).

This principle has been applied specifically in the context of disability within workers’ compensation claims. In Church v Bemis Manufacturing, N.C. App. 743 S.E. 2d 680 (June 2013), the plaintiff returned to work following a compensable injury by accident to her shoulder. She worked for some time, and her work restrictions were limited to a set period (through Aug. 9).

On Aug. 18 she experienced a stroke and was taken out of work as a result. Plaintiff testified that her shoulder continued to make it difficult for her to return to work or find other work. The court found that, regardless of a prior medical release to return to work followed by an actual and continuously successful return to work, plaintiff’s own recitation of facts as to difficulty performing the job supported a finding that the job offered and filled was not suitable and that her disability continued beyond the unrelated stroke.

Thus Wilkes, while perhaps adding some additional confusion as to whether causation is a necessary element to establish disability, did not introduce any new concepts on the topic of disability. It did, however, serve to remind defendants of a crucial strategic choice to be made early in any workers’ compensation claim wherein disability is at issue — whether, how and at what time will an expert be retained such that his testimony will be available to rebut the only other voice in the room talking about disability, that of the plaintiff.

Imagine the impact in McCrary if an expert had been available to testify that the medical condition plaintiff faced was complicated, therefore requiring plaintiff to offer testimony beyond his own lay opinion. Imagine, too, the impact in Church if a labor and/or vocational expert had been retained to conduct an ergonomic evaluation of plaintiff’s post-injury job and/or return-to-work prospects beyond her separation from employment.

In those instances, plaintiff’s testimony — later found to have met the burdens of proof as to disability — would have been weighed/measured against the testimony of experts, and likely found lacking.

Now imagine, in Wilkes, if a vocational expert had been retained to conduct a labor market survey in/around plaintiff’s residence, locating even some potential work. By their own accounting, the defendants would have been better positioned to overcome the Court of Appeals and Supreme Court rulings on the disability issue. The scope of this issue was played out within Medlin v Weaver Cooke Constr. LLC, N.C. App. 748, S.E.2d 343 (September 2013), a case most known for its conclusions regarding "economic downturn."

In Medlin, plaintiff worked for defendant as a project engineer, project manager and estimator. In May 2008, plaintiff injured his right shoulder in a compensable accident. Plaintiff continued working with defendant-employer until he was laid off in November 2008.

The parties stipulated plaintiff was laid off because of “reduction of staff due to lack of work.” In January 2009, plaintiff began receiving unemployment benefits. In February 2009, plaintiff began receiving temporary total disability benefits.

For a little more than two years, plaintiff received overlapping unemployment and TTD benefits. Plaintiff eventually was placed at maximum medical improvement and assigned permanent work restrictions, which included no lifting greater than 10 pounds, no climbing ladders and no repetitive overhead activities.

Defendants filed to terminate benefits on the theory that the only reason plaintiff could not obtain employment was because of the economic downturn and not based on any physical restrictions related to the claim injuries.

The full commission found plaintiff had not met his burden to prove disability. The Court of Appeals agreed, stating that the purpose of Russell was to provide channels through which an injured employee may demonstrate the required causal link between wage loss and the work-related injury.

Notably, the court highlighted that a labor market study was performed in which two commercial construction companies of similar size as defendants determined that someone with plaintiff’s work restrictions was capable of performing job duties required by the estimator position. The vocational rehabilitation expert in the case also opined that plaintiff would have been able to return to work but for the current economic downturn in the region.

Conclusion: Wilkes brings back to the fore the longstanding danger of proceeding to hearing on issues of disability without having retained an expert. It is all but certain in such matters that the plaintiff will testify in favor of disability.  

Wilkes has now re-established that plaintiff’s own testimony is sufficient to meet burdens of proof as to disability/futility. As such, defendants do themselves a disservice in failing to proactively take steps to rebut that foreseeable, if not forgone, testimony through the retention of a vocational and/or labor expert.

S. Scott Farwell is a partner with Teague Campbell Dennis & Gorham LLP of Raleigh, North Carolina. This post appears here with permission.

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