Workers' Compensation Presumption of Disability

Robin Martinek

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In previous entries, I have discussed how to establish a permanent disability claim in a workers' compensation case before the North Carolina Industrial Commission by showing: (1) medical evidence of inability to work; (2) No employment available given restrictions to work; (3) Futility of seeking employment due to a number of factors; and (4) Ability to find work but at a lower pay rate than previously able of performing.

The presence of permanent disability can also be established by an order of the Industrial Commission or a Form 21 or a Form 26, completed and approved by the Commission. Once disability is established, the employee is entitled to a presumption that the disability continues.

After the presumption attaches, the burden shifts to the employer to show that the plaintiff is employable.

Once the disability is proven, there is a presumption that the disability continues until 'the employee returns to work at wages equal to those he was receiving at the time his injury occurred.'

North Carolina Court of Appeals in Dalton. In addition, an employee's release to return to work by his treating physician is not the equivalent of showing that the employee is capable of earning the same wages. The release does not deprive the employee of the ungoing presumption of disability.

Once an employee's disability is established, the employer must show that there are jobs available that are suitable and that the employee is capable of getting such a job. Where the employer cannot present evidence of the existence of suitable employment available to the injured employee considering his restrictions, skills, age and education, or that the employee has returned to work at equal wages, the employer has failed to rebut the presumption of disability and to carry their burden of proof.

While this presumption of disability has been long established by the Court and the Statutes, Legislation adopted allowing employers to file Form 60 has extinguished the establishment of disability by the Form 21 or 26. A Form 60, while an acceptance of an injury claim by the employer, does not establish the presumption of disability. While the North Carolina legislature and Industrial Commission seemed to adopt the use of the Form 60 for the purpose of insuring more accepted claims without the need for time consuming litigation, the Form 60 has become the default for employers and carriers and has virtually eliminated the use of the Form 21 to establish the acceptance of a claim.

What does this mean for the man on the street or the injured employee? While the Courts have established essentially only a Form 21, appropriately completed, establishes disability for an injured worker without the need for time consuming litigation and hearings. Since employers and carriers will no longer use the Form 21, preferring the Form 60 instead, Employee's no matter how badly injured or how debilitating their injuries will have to constantly fight to prove that their injuries have disabled them.

For more information on this subject matter, please refer to the section on Workers Compensation.