News & Updates

Expert Testimony Not Needed to Prove Futility, Says North Carolina Court of Appeals January 10, 2017

As the clock wound down on 2016, the North Carolina Court of Appeals was addressing the evidence threshold necessary to prove futility. In an unpublished December 30, 2016 opinion, the court re-affirmed that expert testimony is not necessary for a plaintiff to prove that looking for a job would be a futile endeavor. 

The claimant in Neckles v. Harris Teeter & Travelers injured his back in 2009 while working as a meat cutter for the grocery chain. He was ultimately assigned permanent light-duty work restrictions, which included the ability to lift up to 30 pounds. After reaching maximum medical improvement, the plaintiff met with a vocational counselor in September 2011 to assess his return-to-work options. The vocational counselor closed her file after determining that it would be “difficult” to place the plaintiff in the open job market. 

In June 2014, the defendants filed a Form 33, arguing that the plaintiff was no longer disabled. By that time, the plaintiff was 68 years old. He had not worked in five years. The Deputy Commissioner found that it would have been futile for the plaintiff to conduct a job search, based on his age, education, work experience, work restrictions, unrelated health conditions, and difficulty communicating. The Full Commission reversed, noting that the 30-pound lifting restriction would open up “numerous” jobs. 

The Court of Appeals reversed and remanded, re-affirming a previous case which held that a plaintiff need not present expert testimony to show futility. The court then concluded that the Commission improperly limited its inquiry to the testimony of the vocational counselor and failed to consider other evidence supporting the futility argument.  Specifically, the court noted that the plaintiff was 68 years old, that he had two years of college but no degree, that he had only ever worked as a meat cutter since 1989, that he had difficulty reading, that he lacked computer skills, and that he suffered from chronic health problems unrelated to the work accident. Notably, the court departed from its usual practice of refusing to disturb a Commission decision that was supported by the evidence, but which other evidence contradicted.

While this decision does not set legally binding precedent, it makes clear that the best practice for defendants is to present evidence, usually in the form of a Labor Market Survey, to affirmatively prove that a claimant is capable of obtaining a job, despite a claimant’s pre-existing vocational difficulties. Goldberg Segalla’s workers’ compensation attorneys can provide guidance on this ruling and how it might affect ongoing or future claims.

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