North Carolina § 97-29 - Rates and duration of compensation for total incapacity.

§ 97-29. Rates and duration of compensation for total incapacity.

When an employee qualifies for total disability, the employer shall pay or cause to be paid, as hereinafter provided by subsections (b) through (d) of this section, to the injured employee a weekly compensation equal to sixty-six and two-thirds percent (662/3%) of his average weekly wages, but not more than the amount established annually to be effective January 1 as provided herein, nor less than thirty dollars ($30.00) per week. When a claim is compensable pursuant to G.S. 97-18(b), paid without prejudice pursuant to G.S. 97-18(d), agreed by the parties pursuant to G.S. 97-82, or when a claim has been deemed compensable following a hearing pursuant to G.S. 97-84, the employee qualifies for temporary total disability subject to the limitations noted herein. The employee shall not be entitled to compensation pursuant to this subsection greater than 500 weeks from the date of first disability unless the employee qualifies for extended compensation under subsection (c) of this section. An employee may qualify for extended compensation in excess of the 500-week limitation on temporary total disability as described in subsection (b) of this section only if (i) at the time the employee makes application to the Commission to exceed the 500-week limitation on temporary total disability as described in subsection (b) of this section, 425 weeks have passed since the date of first disability and (ii) pursuant to the provisions of G.S. 97-84, unless agreed to by the parties, the employee shall prove by a preponderance of the evidence that the employee has sustained a total loss of wage-earning capacity. If an employee makes application for extended compensation pursuant to this subsection and is awarded extended compensation by the Commission, the award shall not be stayed pursuant to G.S. 97-85 or G.S. 97-86 until the full Commission or an appellate court determines otherwise. Upon its own motion or upon the application of any party in interest, the Industrial Commission may review an award for extended compensation in excess of the 500-week limitation on temporary total disability described in subsection (b) of this section, and, on such review, may make an award ending or continuing extended compensation. When reviewing a prior award to determine if the employee remains entitled to extended compensation, the Commission shall determine if the employer has proven by a preponderance of the evidence that the employee no longer has a total loss of wage-earning capacity. When an employee is receiving full retirement benefits under section 202(a) of the Social Security Act, after attainment of retirement age, as defined in section 216(l) of the Social Security Act, the employer may reduce the extended compensation by one hundred percent (100%) of the employee's retirement benefit. The reduction shall consist of the employee's primary benefit paid pursuant to section 202(a) of the Social Security Act but shall not include any dependent or auxiliary benefits paid pursuant to any other section of the Social Security Act, if any, or any cost-of-living increases in benefits made pursuant to section 215(i) of the Social Security Act. An injured employee may qualify for permanent total disability only if the employee has one or more of the following physical or mental limitations resulting from the injury: The loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof, as provided by G.S. 97-31(17). Spinal injury involving severe paralysis of both arms, both legs, or the trunk. Severe brain or closed head injury as evidenced by severe and permanent: Sensory or motor disturbances; Communication disturbances; Complex integrated disturbances of cerebral function; or Neurological disorders. Second-degree or third-degree burns to thirty-three percent (33%) or more of the total body surface. An employee shall not be entitled to benefits under this section or G.S. 97-30 and G.S. 97-31 at the same time. Where an employee can show entitlement to compensation pursuant to this section or G.S. 97-30 and a specific physical impairment pursuant to G.S. 97-31, the employee shall not collect benefits concurrently pursuant to both this section or G.S. 97-30 and G.S. 97-31, but rather is entitled to select the statutory compensation which provides the more favorable remedy. The weekly compensation payment for members of the North Carolina National Guard and the North Carolina State Defense Militia shall be the maximum amount established annually in accordance with subsection (i) of this section per week as fixed herein. The weekly compensation payment for deputy sheriffs, or those acting in the capacity of deputy sheriffs, who serve upon a fee basis, shall be thirty dollars ($30.00) a week as fixed herein. An officer or member of the State Highway Patrol shall not be awarded any weekly compensation under the provisions of this section for the first two years of any incapacity resulting from an injury by accident arising out of and in the course of the performance by him of his official duties if, during such incapacity, he continues to be an officer or member of the State Highway Patrol, but he shall be awarded any other benefits to which he may be entitled under the provisions of this Article. Notwithstanding any other provision of this Article, on July 1 of each year, a maximum weekly benefit amount shall be computed. The amount of this maximum weekly benefit shall be derived by obtaining the average weekly insured wage, as defined in G.S. 96-1, by multiplying such average weekly insured wage by 1.10, and by rounding such figure to its nearest multiple of two dollars ($2.00), and this said maximum weekly benefit shall be applicable to all injuries and claims arising on and after January 1 following such computation. Such maximum weekly benefit shall apply to all provisions of this Chapter and shall be adjusted July 1 and effective January 1 of each year as herein provided. If death results from the injury or occupational disease, then the employer shall pay compensation in accordance with the provisions of G.S. 97-38. An employee who qualifies for permanent total disability pursuant to this subsection shall be entitled to compensation, including medical compensation, during the lifetime of the injured employee, unless the employer shows by a preponderance of the evidence that the employee is capable of returning to suitable employment as defined in G.S. 97-2(22). Provided, however, the termination or suspension of compensation because the employee is capable of returning to suitable employment as defined in G.S. 97-2(22) does not affect the employee's entitlement to medical compensation. An employee who qualifies for permanent total disability under subdivision (1) of this subsection is entitled to lifetime compensation, including medical compensation, regardless of whether or not the employee has returned to work in any capacity. In no other case shall an employee be eligible for lifetime compensation for permanent total disability. History (1929, c. 120, s. 29; 1939, c. 277, s. 1; 1943, c. 502, s. 3; c. 543; c. 672, s. 2; 1945, c. 766; 1947, c. 823; 1949, c. 1017; 1951, c. 70, s. 1; 1953, c. 1135, s. 1; c. 1195, s. 2; 1955, c. 1026, s. 5; 1957, c. 1217; 1963, c. 604, s. 1; 1967, c. 84, s. 1; 1969, c. 143, s. 1; 1971, c. 281, s. 1; c. 321, s. 1; 1973, c. 515, s. 1; c. 759, s. 1; c. 1103, s. 1; c. 1308, ss. 1, 2; 1975, c. 284, s. 4; 1979, c. 244; 1981, c. 276, s. 2; c. 378, s. 1; c. 421, s. 3; c. 521, s. 2; c. 920, s. 1; 1987, c. 729, s. 6; 1991, c. 703, s. 4; 1999-456, s. 33(d); 2009-281, s. 1; 2011-287, s. 10; 2012-135, s. 6; 2013-2, s. 9(e); 2013-224, s. 19; 2013-410, s. 19.) Cross References. - As to certain State law-enforcement officers, see G.S. 143-166.16. Effect of Amendments. - Session Laws 2009-281, s. 1, effective July 10, 2009, substituted "National Guard" for "national guard" in the first sentence of the third paragraph. Session Laws 2011-287, s. 10, effective June 24, 2011, and applicable to claims arising on or after that date, substituted "Rates and duration of compensation" for "Compensation rates" in the section catchline; and rewrote the section. Session Laws 2012-135, s. 6, substituted "when a claim has been deemed compensable following a hearing pursuant to G.S. 97-84" for "when an employee proves by a preponderance of the evidence that the employee is unable to earn the same wages the employee had earned before the injury, either in the same or other employment" in the first sentence of subsection (b). For effective date and applicability, see editor's note. Session Laws 2013-2, s. 9(e), substituted "wage, as defined in G.S. 96-1" for "wage in accordance with G.S. 96-8(22)" in the second sentence of subsection (i). For effective date and applicability, see editor's note. Session Laws 2013-410, s. 19, effective August 23, 2013, substituted "subsection (i)" for "the last paragraph" in the first sentence of subsection (g). Legal Periodicals. - For a discussion of this section, see 8 N.C.L. Rev. 427 (1930). For comment on the 1943 amendments, see 21 N.C.L. Rev. 384 (1943). As to the 1949 amendment, see 27 N.C.L. Rev. 495 (1949). For a discussion of the increase in allowable recovery by the 1951 amendment, see 29 N.C.L. Rev. 428 (1951). For note on average weekly wage and combination of wages, see 44 N.C.L. Rev. 1177 (1966). For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979). For note discussing the use of age, education, and work experience in determining disability in workers' compensation cases, see 15 Wake Forest L. Rev. 570 (1979). For survey of 1980 tort law, see 59 N.C.L. Rev. 1239 (1981). For comment on Morrison v. Burlington Indus., 304 N.C. 1 , 282 S.E.2d 458 (1981), see 4 Campbell L. Rev. 107 (1981). For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982). For survey, "Vernon v. Stephen L. Mabe Builders: The Requirements of Fairness in Settlement Agreements Under the North Carolina Workers' Compensation Act," see 73 N.C.L. Rev. 2529 (1995). For article, "Why Aren't You Working?: Medlin with Proof of Disability Under the North Carolina Workers' Compensation Act," see 38 Campbell L. Rev. 211 (2016).