New Framework for Proving Disability
The second issue in Wilkes is whether Mr. Wilkes was entitled to disability payments made after January 18, 2011. Here, the North Carolina Supreme Court potentially significantly altered the landscape for proving disability. Specifically, the Court concluded that the Commission failed to address the effects of Mr. Wilkes' tinnitus on his ability to work.
The Court held that an employee can prove a disability outside of the four methods outlined in Russell v. Lowes Product Distribution. The Court also stated that lay testimony is competent regarding a disability issue, specifically addressing how the employee's injury and related symptoms have affected his activities. In addition, the Court held that if an employee demonstrates an inability to work after taking into account his work-related conditions and pre-existing limitations, expert testimony is not required to prove a job search is futile.
Wilkes calls into question the framework parties have used to evaluate disability in workers' compensation claims for more than two decades and leaves employers and carriers wondering how to defend disability claims in the future. After Wilkes, disability can be proven by methods other than those outlined in Russell, but the Court does not specify all of the ways an employee may prove disability.
Also, the Court's statement in Wilkes that an employee may use competent lay testimony to support a disability claim may result in a greater number of disability determinations. In cases of contested disability, employers and carriers should consult with defense counsel and consider obtaining expert review of medical and vocational issues to refute disability.
As part of the negotiations amend G.S. § 97-82(b), representatives for both employees and industry have agreed to continue to discuss issues raised by Wilkes concerning how employees prove a disability during the remainder of the 2017-2018 legislative session. In addition, both sides have agreed to discuss the potential implications of Wilkes in medical only cases, including cases where medical benefits are paid without prejudice under Section 2 of a Form 63, and whether an expedited hearing process should be available to claimants seeking to prove that an additional condition or body part not listed on the Form 60 or 63 is related to the compensable injury.