Shupe v. City of Charlotte, No. COA09-1555 (N.C. Ct. App. 07/06/10, unpublished).
Ruling: In an unpublished decision, the North Carolina Court of Appeals held that a police officer was entitled to total permanent disability benefits. A nonwork-related injury combined with her compensable work-related injury to prevent surgery and precluded her from working.
What it means: When a worker suffers a compensable injury and a nonwork-related injury that prevents surgery and keeps her from working, she may be entitled to total permanent disability benefits.
Summary: A police officer suffered a compensable injury to her right knee while working. She received total disability benefits, had surgery, and returned to work in a light-duty position. The officer sought surgery from a second doctor because her knee was still in pain. Around that time, she was diagnosed with pancreatic and liver cancer. Her oncologist did not recommend surgery on her knee because it would require her to discontinue chemotherapy. The officer withdrew her request for surgery and instead filed for total disability benefits. The North Carolina Court of Appeals held that the officer was entitled to total permanent disability benefits because she was precluded from working.
The employer argued that the officer did not prove that she was totally disabled because her inability to work was caused by her cancer and not her compensable knee injury. Under North Carolina's workers' compensation law, disability is shown by the employee's diminished capacity to earn wages rather than the physical impairment. The court found that the officer showed that her diminished earning capacity was caused by her knee injury. The parties stipulated that the officer was unable to work initially due to her knee injury and later due to her knee injury and cancer. The court also noted that the cancer combined with the knee injury to prevent surgery, and this prevented her from working.
The employer also sought apportionment of the officer's compensation award. The court declined, stating that no evidence was presented attributing what percentage of the officer's incapacity was due to her work-related injury.
The employer argued that the officer's light-duty assignment was suitable employment. The court decided that the light-duty assignment was not suitable employment because it was a temporary assignment and the officer earned significantly more than what she would have earned if she was permanently hired for the position.
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September 16, 2010
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