The North Carolina Court of Appeals has recently decided a case where the 2011 amendment of N.C. Gen. Stat. § 97-29 was in dispute.
In Brown v. N.C. Dept. of Public Instruction, the plaintiff suffered three injuries in 2002, 2011, and 2012, respectively all to her right shoulder. Here, the plaintiff alleged that her 2012 injury was related to her 2011 injury, which occurred days before § 97-29 was amended to establish the 500-week cap on compensability benefits. Prior the amendment, there was no cap on benefits, which allowed a plaintiff to potentially collect for life if found to be disabled. The plaintiff tried to argue that her 2012 was just a re-aggravation of the 2011 injury instead of a separate injury, and as a result, she was entitled to benefits beyond the 500-week cap.
In support of her argument, the plaintiff claimed that the Form 60, which stated that disability began in 2013 in relation to her 2011 injury, was evidence that her current disability stemmed from the 2011 injury. The court, relying on Watts v. Hemlock Homes of the Highlands, Inc., disagreed and stated that the execution of a Form 60 merely admits compensability and does not constitute a final award.
Additionally, the court found that, despite the fact that the 2012 injury occurred to the same body part as the 2011 injury, the 2012 injury was a “separate and distinct” injury. The court relied on testimony from her health providers which evidenced that the plaintiff had progressed well in her recovery from her 2011 injury. Furthermore, the court found that the plaintiff’s 2012 injury did not occur as a result of any physical limitations resulting from the 2011 injury.
The plaintiff also argued that her third injury constituted a failed return to work under N.C. Gen. Stat. § 97-32.1. The court dispelled this argument and explained that her return to work was unsuccessful because it was a separate injury and not due to any physical limitations stemming from the 2011 injury. As a result, the plaintiff was not entitled to benefits pursuant to pre-amendment N.C. Gen. Stat. § 97-29 because her disability was related to her 2012 injury. Therefore, the plaintiff was limited to receiving benefits not to exceed the 500-week cap pursuant to N.C. Gen. Stat. § 97-29.