N.C. Gen. Stat. § 97-2

Section 97-2 covers a truck driver’s trip to obtain a repair part for his truck as within the course and scope of employment with the carrier.

Thompson v. Southwestern Freight Carriers · filed 1995-02-16(2), (6)

At the time of his injury by accident on September 15, 1992, while plaintiff was driving to pick up a repair part for his truck, plaintiff was in the course and scope of his employment with the defendant.

Section 97-2(6) excludes an accident from the course of employment when an employee leaves assigned work to perform another job that the employer expressly forbade.

Hoyle v. Isenhour Brick & Tile Co. · filed 1982-02-16(6)

To be compensable, an accident must arise out of and in the course of employment. G.S. 97-2(6). ... The findings of the Commission, uncontested on appeal, establish that decedent left the job for which he was employed and attempted to perform another job in the face of direct orders not to do so after being warned of the dangers involved.

An employee’s special errand may begin before she leaves her own premises; whether an injury occurs in the course of employment depends on the particular facts rather than a fixed property boundary.

Felton v. Hospital Guild of Thomasville, Inc. · filed 1982-05-04(6)

We cannot agree to the "bright line" rule adopted by the Commission in determining when a special errand commences. Although such rule does have the attribute of certainty, it cannot be attained at the expense of justice. In deciding questions about when a special errand begins or ends, each case must be determined upon its particular fact situation.

An injury arises out of and in the course of employment when the employee performs an authorized duty calculated to further the employer’s business, directly or indirectly.

Keziah v. Monarch Hosiery Mills · filed 1984-12-18(6)

Pursuant to N.C. Gen. Stat. § 97-2(6), a compensable injury under the Workers’ Compensation Act must be one “arising out of and in the course of the employment.” An injury is said to arise out of and in the course of the employment when it occurs while the employee is engaged in a duty which he or she is authorized to undertake and which is calculated to further, directly or indirectly, the employer’s business.

Section 97-2(6) requires proof that a claimed condition is causally related to the claimant’s employment.

Aldrich v. Manpower, Inc. · filed 1995-11-13(6)

Plaintiff has failed to prove by the greater weight of the evidence that the condition for which he complains, carpal tunnel syndrome, is causally related to his employment with defendant-employer at Schweitzer. Further, plaintiff has failed to prove that his last injurious exposure to the conditions of carpal tunnel syndrome were while working in the employment of the defendant. N.C. Gen. Stat. § 97-2 (6); § 97-57 .

Section 97-2(6) does not cover an injury sustained while traveling to work on adjacent property the employer does not own, maintain, or control, even if the employer directs use of that route, when the employee is not performing work duties.

Jennings v. Backyard Burgers of Asheville · filed 1996-07-02(6)

Although defendant Backyard Burgers instructed plaintiff to use the adjacent parking lot for ingress and egress to the workplace, and the lot was accessible only by using the hazardous stairway, defendant did not own, maintain, or control the stairway or parking lot, and at the time of his injury plaintiff was not performing any duties for defendant. Thus, under Royster, plaintiffs injury does not fall within the “premises” exception to the “coming and going” rule and is not compensable.

Section 97-2(6) does not cover an injury sustained during an unreasonable personal trip away from the work site to buy a drink when a much closer store is available.

Benge v. Carolina-Statesville · filed 1996-07-19(6)

Plaintiff was not attending to his personal needs at the time of the crash. Assuming that plaintiff traveled to the other store so that he could purchase a soft drink or other non-intoxicating beverage, he acted unreasonably by traveling a distance of four miles to buy a drink when he could have purchased a drink at a store that was only one-half mile away. ... Plaintiff did not sustain an injury by accident arising out of and in the course of his employment with defendant-employer. N.C. Gen. Stat. § 97-2 (6).

An assault for personal reasons that does not originate in a risk connected with employment is not an injury by accident arising out of employment under § 97-2(6).

Millsaps v. Huntington Hosiery Mills · filed 1996-10-21(6)

The assault on plaintiff did not have its origin in a risk connected with her employment with defendant-employer. Plaintiff did not sustain an injury by accident arising out of her employment with defendant-employer.

An employee’s injury in the employer’s parking lot while pursuing a personal purpose unrelated to work does not arise out of employment under § 97-2(6).

Choate v. Sara Lee Products · filed 1997-02-07(6)

The plaintiff's fall on January 27, 1994 did not arise out of her employment. ... Plaintiff's location in the parking lot at the time of her fall was not calculated to further the employer's business either directly or indirectly. ... The plaintiff's decision to check on her niece did not bear a reasonable relationship to her employment nor was it related to her job duties. ... Plaintiff's claim, therefore, is not compensable under the provisions of the North Carolina Workers' Compensation Act. N.C. Gen. Stat. § 97-2 (6).

An accident must arise out of employment to support a workers' compensation claim under § 97-2(6).

Richardson v. Union Camp Corporation · filed 1997-04-10(6)

The plaintiff's accident on July 19, 1993 did not arise out of his employment with defendant-employer, and therefore his claim must be denied.

Section 97-2(6) covers injury or death when a truck driver responds to an emergency during assigned travel for the employer’s benefit after the employer encouraged assistance to the public.

Roman v. Southland Transportation Company · filed 1997-07-22(6)

Where a truck driver takes his employer's vehicle on a long distance assignment and in the course of his employment encounters an emergency situation to which he responds, for the benefit of his employer who had encouraged him to assist members of the public in need of assistance, resulting in his being injured or killed, the employee's resulting injury/death is compensable under the Workers' Compensation Act. N.C. Gen. Stat. §§ 97-2 , 29, and 38.

An employee who falls while leaving the workplace after being terminated may still sustain an injury arising out of and in the course of employment.

Benge v. Allman, Spry, Leggett Crumpler · filed 1997-07-01(6)

When plaintiff fell, she was still acting within the course and scope of her employment, as she was leaving the reception area following her termination.

An employee’s fall on a stairway the employer does not own, maintain, or control, while performing no job duties, does not arise out of and in the course of employment under § 97-2(6).

Jennings v. Backyard Burgers of Asheville, Inc. · filed 1997-08-15(6)

Defendants did not own, maintain, or control the stairway or parking lot. Plaintiff was therefore not on the employer's premises at the time of injury. At the time of his injury, plaintiff was not performing any duties for defendant. Plaintiff's injury did not arise out of and in the course of his employment with defendant-employer. ... Plaintiff did not sustain an injury by accident on 28 May 1993 arising out of and in the course of his employment with defendant-employer. N.C. Gen. Stat. § 97-2 (6); Royster v. Culp. Inc. , 343 N.C. 279 , 470 S.E.2d 30 (1996).

Section 97-2(6) excludes an injury from employment coverage when disobedience of a direct and specific order from a present superior breaks the causal relation between employment and injury.

Clements v. Omega Drywall, Inc. · filed 1997-08-25(6)

The disobedience of a direct and specific order by a then present superior breaks the causal relation between the employment and the resulting injury. Therefore, plaintiff did not sustain an injury by accident arising out of and in the course of his employment with defendant-employer.

A traveling employee remains in the course of employment throughout a work trip, and an assault associated with the required travel can be an injury by accident.

Gardner v. McGee Trucking Company Incorporated · filed 1997-08-04(6)

On 12 May 1992 plaintiff sustained an injury by accident arising out of and in the course of his employment with defendants. As a traveling employee, he was within the course of his employment continuously while on the trip and the assault was a risk associated with the travel required by his employment.

An injury sustained while performing a special errand for the employer arises in the course and scope of employment under § 97-2(6).

Oxendine v. Lincoln County Board of Education · filed 1997-08-22(6)

Such act constituted a "special errand" and thus plaintiff's accident and injuries sustained therein were incurred in the course and scope of her employment.

An assault does not arise out of employment under § 97-2(6) when the risk is common to the neighborhood and is neither peculiar to nor affected by the employment.

Hensley v. Hillhaven · filed 1998-06-25(6)

Even though plaintiff was in the employer's parking lot at the time of the assault, there is insufficient convincing evidence for the undersigned to be able to conclude that the assault arose out of her employment with the employer. The mere time of day, or the fact that plaintiff is female and may work with females, does not convincingly prove that her risk of assault was any greater than that of the general public. The undersigned therefore reach the conclusion that the credible, convincing evidence shows that the risk of assault on this employee was essentially one common to the neighborhood and was not peculiar to or affected by her employment.

An injury during a paid break off the job site can occur in the course of employment when the employer permits trips for refreshments and provides no facilities on site.

Shaw v. Smith & Jennings, Inc. · filed 1998-08-04(6)

Likewise, in this case the decedent was on a paid morning break and had travelled a short distance from the job site when the accident occurred; there were no facilities for food and drink on the premises, and the employer acquiesced in allowing its employees to go off the job site for the purpose of obtaining refreshments. Therefore, we conclude the Commission properly determined the decedent’s fatal accident occurred in the course of his employment with the defendant.

Section 97-2(6) treats an injury while traveling to work on a road maintained and controlled by the employer as arising out of and in the course of employment.

Atwell v. Shaver Wood Products · filed 1999-09-24(6)

On September 25, 1995, plaintiff was injured while traveling to his place of employment on a road maintained and controlled by the defendant. ... Therefore, plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer. N.C. Gen. Stat. § 97-2 (6).

Under § 97-2(6), travel to and from patients' homes arises out of and occurs in the course of employment when travel is an inherent and necessary part of in-home care work.

Hunt v. Tender Loving Care Home Care Agency, Inc. · filed 2001-09-10(6)

Due to plaintiff's employment as an in-home health care provider, she was required to travel in her own vehicle back and forth to the homes of the patients and in providing services to the patients. Travel was an inherent and necessary part of the employment as an in-home health care provider. Such travel was for the benefit of her employer since its livelihood was based upon the in-home care of patients provided by its CNAs. Plaintiff was therefore acting within the course and scope of her employment at the time her injury was sustained.

Under § 97-2(6), an injury during travel arises out of and in the course of employment when the travel is contemplated as part of the employee’s job.

Sprinkle v. Lilly Industries, Inc. · filed 2002-04-25(6)

Because plaintiff's travel to and around Galax, Virginia was contemplated as a part of his job with defendant-employer, plaintiff's automobile accident of March 24, 1998 arose out of and was in the course of his employment.

An injury during travel to or from work is compensable when the employer provides compensation to cover transportation costs.

Huskey v. Jlb-Jerry Bynum Constr. · filed 2004-02-19(6)

Where an employer provides compensation to cover the cost of transportation, injuries that occur while commuting to and from work are compensable.

Section 97-2(6) covers an injury sustained while an employee is doing what she is reasonably expected to do at a time and place where she is reasonably expected to be for work.

Kerbs v. U.S. Airways Group, Inc. · filed 2005-09-20(6)

An injury is compensable if it occurs while the employee is doing what she is reasonably expected to do within a time she is employed and at a place she is reasonably expected to be during that time.

Section 97-2(6) covers an injury from a motor vehicle accident while an employee travels to visit students as part of her employment.

Carlton v. Gardner Webb University · filed 2007-03-29(6)

Plaintiff was traveling on Interstate 40 near Winston-Salem while en route to High Point Regional Hospital to visit several nursing students at as part of her employment. ... On November 10, 2003, plaintiff sustained a compensable injury by accident arising out of and in the course of her employment with the defendant-employer. N.C. Gen. Stat. § 97-2 (6).

Section 97-2(6) covers an injury during work directed by a company owner when the employee’s duties for the company and the owner have become indistinguishable.

Fields v. Gurkin Construction Co. · filed 2007-12-04(6)

Although Defendants have attempted to characterize the injury as not occurring while in the course and scope of his employment with Gurkin Construction because plaintiff was performing personal work for the Gurkins; however, based on the totality of the evidence of record, the Full Commission concludes that during the course of plaintiff's employment, his duties and responsibilities to Gurkin Construction and the Gurkins, respectively, blurred to the point that his employment duties for each were indistinguishable. ... For these reasons, the Full Commission concludes that on October 19, 2004, plaintiff sustained an injury by accident while in the course and scope of his employment for Defendant-Employer Gurkin Construction.

Section 97-2(6) includes an injury on premises owned or controlled by the employer during a lunch break within the course of employment, even when the break is unpaid.

Mintz v. Verizon Wireless · filed 2012-11-20(6)

If an employee is injured on premises owned or controlled by the employer on a lunch break, whether or not that break is paid, we hold that the circumstances are within “the course of’ employment.

An employee whose work requires travel remains in the course of employment during the trip unless the employee distinctly departs on a personal errand.

Bartlett v. Duke University · filed 1973-03-28(6)

We hold that Bartlett was in the course of his employment at the time of his accidental choking. An employee whose work entails travel away from the employer’s premises is within the course of his employment, continuously during the trip, except when a distinct departure on a personal errand is shown.

An accident after an employee’s shift, off the employer’s premises and outside its control, is not in the course of employment.

Taylor v. ALBAIN SHIRT CO., INC. · filed 1975-12-17(6)

Here, the accident occurred at a time after plaintiff had completed her regular work shift, had “clocked out” on the time clock provided by her employer for that purpose, and had left her employer’s premises for the day. It occurred at a place which was not on her employer’s premises and over which it had no control. Thus, the accident did not arise “in the course of” her employment.

Section 97-2(6)’s “in the course of” requirement concerns the time, place, and circumstances of an accident.

Martin v. Bonclarken Assembly · filed 1979-02-05(6)

The words “in the course of,” as used in G.S. 97-2(6), refer to the time, place and circumstances under which the accident occurred.

Section 97-2(6) permits compensation only for an accidental injury arising out of and in the course of employment.

Diaz v. United States Textile Corp. · filed 1983-02-15(6)

An injury is compensable under the Workers’ Compensation Act only if it is by accident arising out of and in the course of employment. G.S. 97-2(6). ... The aforesaid evidence does not satisfy the requirements of injury by “accident.” ... The facts also show that the injury did not occur in the course of plaintiffs employment.

An employee’s accidental injury is in the course of employment when the employee performs a task that furthers the employer’s business and a present superior has not specifically ordered the employee not to do it, even if the task is outside the employee’s job.

Parker v. Burlington Industries, Inc. · filed 1985-12-17(6)

The rule as applied to this case is that if an employee does something which he is not specifically ordered not to do by a then present superior and the thing he does furthers the business of the employer although it is not a part of the *520employee’s job, an injury sustained by accident while he is so performing is in the course of employment.

Section 97-2(6) does not treat an injury sustained while traveling to a workers' compensation mediation as arising in the course and scope of employment.

Allen v. Martin General Hospital · filed 2002-07-11(6)

The Commission has not found a case in any jurisdiction, which holds that an injury during travel to a legal proceeding is compensable and finds that such an injury is not contemplated by the Act to be in the course and scope of employment.

Section 97-2(9) does not treat an injury as disabling when it causes no reduction in the worker’s ability to be gainfully employed and the worker can perform the regular job without restrictions.

Lawson v. Tri-City · filed 1995-08-24(9)

Based on the lack of credibility, the undersigned find that the bruises to plaintiff's neck and shoulder caused by the incident of 25 May 1993 did not cause any reduction in plaintiff's ability to be gainfully employed and that continuously since the incident plaintiff has been capable of performing his regular job with defendant with no restrictions. ... As a result of the accident of 25 May 1993, plaintiff has not been disabled.

Section 97-2(9) defines disability as impaired earning capacity rather than physical impairment alone.

Russell v. Lowes Product Distribution · filed 1993-02-02(9)

An employee injured in the course of his employment is disabled under the Act if the injury results in an “incapacity ... to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C.G.S. § 97-2(9) (1991). Accordingly, disability as defined in the Act is the impairment of the injured employee’s earning capacity rather than physical disablement.

Disability is an injury-caused inability to earn preinjury wages in the same or any other employment.

Dalton v. Anvil Knitwear · filed 1995-06-20(9)

G.S. 97-2(9) defines disability as an “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.”

Section 97-2(9) treats a worker as disabled when the injury prevents the worker from earning wages; a return to work can end that disability.

Bellamy v. B P Motor Lines, Incorporated · filed 1995-02-03(9)

After her return to work in December 1990, plaintiff was not disabled and is not entitled to additional compensation benefits for temporary total disability as a result of the injury giving rise to this claim.

Section 97-2(9) does not treat lost earnings as disability when they are unrelated to the workplace injury.

Watts v. United Uniform Service, Incorporated · filed 1994-12-30(9)

Any loss of earnings plaintiff sustained following his termination from employment with defendant-employer on February 13, 1991 is not attributable to the injury by accident occurring on July 31, 1990 as the back condition for which plaintiff first sought medical treatment in November 1991 did not arise from the injury by accident on July 31, 1990.

Under § 97-2(9), disability is based on decreased earnings, so an employee who receives wages for a week has no wage loss for that week.

Evans v. AT & T TECHNOLOGIES · filed 1991-05-21(9)

But though the wage payments were hers, offsetting them against compensation awarded her for the same weeks is authorized for two reasons: First, no compensation is due plaintiff for the weeks that her wages were paid because disability under the Workers’ Compensation Act is based upon decreased earnings, G.S. 97-2(9); ... and she had sustained no wage loss; and second, plaintiff cannot collect workers’ compensation for the weeks that her wages were paid because of the policy against employees receiving duplicating payments at the employer’s expense.

Section 97-2(9) defines disability by an employee’s capacity to earn pre-injury wages in the same or other employment.

Tyndall v. Walter Kidde & Co. · filed 1991-05-07(9)

Thus, Claimant’s post-injury earning capacity is the determinative factor in assessing disability.

Section 97-2(9) defines disability by an employee’s inability, because of injury, to earn pre-injury wages in the same or any other employment.

Matthews v. Petroleum Tank Service, Inc. · filed 1992-12-15(9)

Disability is the “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C.G.S. § 97-2(9) (1991). ... The evidence in this case supports the Commission’s finding that Matthews is temporarily totally disabled because he is unable to earn wages in any job.

Section 97-2(9) requires an impairment to cause incapacity for work before it is compensable; physical impairment alone is insufficient.

Wilkins v. J.P. Stevens & Co. · filed 1993-03-12(9)

Physical impairment alone is not compensable under the Act. For any physical impairment, including that caused by an occupational disease, to be compensable under the Act, it must be shown that the impairment has caused the claimant to have an incapacity for work. N.C.G.S. §§ 97-2(9), 97-29 and 97-30 (1991).

An employee who can earn pre-injury wages with the employer or in other employment is not entitled to disability compensation under § 97-2(9).

Williams v. Burlington Industries · filed 1995-01-27(9)

The plaintiff is not entitled to compensation after September 21, 1990 since she has had the capacity since September 21, 1990 to earn the wages she was receiving at the time of the injury in the defendant employer's employment or in any other employment.

Section 97-2(9) defines disability by an employee’s inability, because of injury, to earn the same wages in the same or other employment.

Gregory v. Sadie Cotton Mills, Inc. · filed 1988-06-07(9)

“The term ‘disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” G.S. 97-2(9). ... Thus, plaintiff is entitled to compensation for total disability from her occupational disease if her disablement resulted in the incapacity to earn the wages she was earning before her disablement in the same or other employment.

Section 97-2(9) defines disability as an injury-caused incapacity to earn the wages the employee received at the time of injury in the same or other employment.

Freeman v. Freeman · filed 1992-10-20(9)

As used in the Act, the term “disability” means “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C.G.S. § 97-2(9) (1991).

A worker is disabled when an occupational injury or disease prevents them from obtaining employment and earning wages, even if jobs are generally available.

Bridges v. Linn-Corriher Corp. · filed 1988-05-31(9)

Under our workers’ compensation law one unable to obtain employment and earn wages, not because of general economic conditions, but because of an occupational injury or disease, is disabled.

Total disability requires a finding about the employee’s wage earning capacity.

Cockman v. PPG Industries · filed 1987-01-20(9)

We, however, point out that these findings do not refer to the wage earning capacity of the claimant, an essential element of total disability.

Section 97-2(9) treats a worker who cannot earn any wages as totally disabled.

Weaver v. Swedish Imports Maintenance, Inc. · filed 1987-04-07(9)

If she is unable to work and earn any wages, she is totally disabled. G.S. 97-2(9).

Section 97-2(9) defines disability as an injury-caused inability to earn preinjury wages in the same or other employment; an employee unable to earn any wages is totally disabled.

Fleming v. K-Mart Corp. · filed 1985-01-08(9)

The term “disability” as used in the Workers’ Compensation Act is defined by N.C.G.S. 97-2(9). This statute provides that the term means “incapacity because of the injury to earn wages which the employee was receiving at the time of injury in the same or any other employment.” ... Here, plaintiff is incapable of earning any wages and is therefore totally disabled as the result of his back injury and the resulting arachnoiditis.

Section 97-2(9) defines disability as injury-caused incapacity to earn preinjury wages in the same or any other employment.

Taylor v. Margaret R. Pardee Memorial Hospital · filed 1986-11-25(9)

G.S. 97-2(9) defines “disability” as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.”

Section 97-2(9) defines disability as an injury-caused inability to earn wages, rather than physical impairment alone.

Strickland v. Burlington Industries, Inc. · filed 1987-08-18(9)

Disability is defined by the Workers’ Compensation Act as the incapacity to earn wages because of injury, rather than physical disablement or impairment. N.C.G.S. § 97-2(9) (1985).

An employer’s offer to pay an injured worker full wages for a proposed job does not, by itself, negate disability.

Peoples v. Cone Mills Corp. · filed 1984-07-03(9)

The fact that defendant has offered to pay plaintiff his full salary to work at a “job” that is allegedly consistent with his medical limitations does not negate either plaintiffs disability or the defendant employer’s obligation to compensate him for it.

Section 97-2(9) measures disability by impaired earning capacity rather than physical impairment alone.

Robinson v. JP Stevens and Co., Inc. · filed 1982-06-15(9)

The test for disability is whether and to what extent earning capacity is impaired, not the fact or extent of physical impairment.

Section 97-2(9) defines disability as an injury-caused inability to earn the wages the employee received before the injury.

Ballenger v. Burris Industries, Inc. · filed 1984-02-21(9)

G.S. 97-2(9) defines the term “disability” to mean “incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment.” ... In conclusion, we hold that the Commission’s factual findings on the lack of a causal relation between claimant’s injury by accident and his total disability are not supported by any sufficient competent evidence and therefore must be set aside.

Section 97-2(9) requires an injury-caused inability to earn prior wages in the same or any other employment to establish disability.

Hendrix v. Linn-Corriher Corp. · filed 1986-07-02(9)

To support a conclusion of disability, the Commission must find: (1) that the plaintiff was incapable after his injury of earning the same wages he earned before his injury in the same employment, (2) that the plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment and (3) that the plaintiffs incapacity to earn was caused by his injury.

Section 97-2(9) defines disability as an injury-caused inability to earn the employee’s preinjury wages in the same or any other employment.

McKenzie v. McCarter Electrical Co. · filed 1987-08-18(9)

“Disability” is defined by N.C.G.S. § 97-2(9) as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.”

Section 97-2(9) defines disability as an injury-related loss of earning capacity, rather than physical infirmity alone.

Dowdy v. Fieldcrest Mills, Inc. · filed 1982-12-07(9)

G.S. 97-2(9) then defines disability as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” In this context, disability refers “not to physical infirmity but to a diminished capacity to earn money.” ... We find that plaintiff was disabled within the meaning of Taylor and the Workers’ Compensation Act when he was forced to retire in 1976.

Section 97-2(9) defines disability as an injury-caused inability to earn the employee’s prior wages in the same or other employment.

Cook v. Bladenboro Cotton Mills, Inc. · filed 1983-04-05(9)

Disability, as defined by G.S. 97-2(9), means “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” ... We hold that plaintiff presented evidence of impairment of her wage earning capacity due to her occupational disease.

Section 97-2(9) defines disability by incapacity to earn wages.

Fleming v. K-Mart Corp. · filed 1984-04-17(9)

As used in the Workers’ Compensation Act, “disability” specifically relates to incapacity to earn wages.

Section 97-2(9) defines disability as an injury-caused inability to earn the wages the employee earned at the time of injury.

Joyner v. J. P. Stevens & Co. · filed 1984-12-04(9)

G.S. 97-54 provides that “disablement” is equivalent to “disability” as defined in G.S. 97-2(9), which is “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” Thus an “accident” within the meaning of G.S. 97-38 occurred when the deceased employee’s disability due to chronic obstructive lung disease began.

Section 97-2(9) defines disability as an injury-caused inability to earn the employee’s preinjury wages; the period of disability ends when the employee returns to earning those wages.

Little v. Penn Ventilator Co. · filed 1985-06-04(9)

“Disability” is defined under the applicable law as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” G.S. 97-2(9). ... Thus, plaintiffs “period of disability” ended when he returned to work and began earning his old wage.

Section 97-2(9) defines disability as an injury-related inability to earn the employee’s prior wages in the same or any other employment.

Underwood v. Cone Mills Corp. · filed 1985-12-03(9)

G.S. 97-2(9) provides, “The term ‘disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment" (emphasis added). ... He did not become disabled within the meaning of the Workers’ Compensation Act until 3 June 1982, when he was forced to stop work of any kind because of his occupational disease.

Section 97-2(9) defines disability by diminished earning capacity and requires findings on that capacity when the evidence conflicts.

Priddy v. Cone Mills Corp. · filed 1982-09-07(9)

Where the record contains conflicting evidence concerning the claimant’s capacity to work because of his disability, the Commission is required to make findings of fact which support its conclusion as to the presence or absence of disability as defined by G.S. 97-2(9).

Section 97-2(9) treats a worker as disabled when an occupational disease reduces the worker’s earning capacity.

Donnell v. Cone Mills Corp. · filed 1983-01-18(9)

The substantive issue on this appeal is whether plaintiff’s earning capacity was reduced as a result of byssinosis contracted while working for the defendant. If so, then he is disabled under G.S. 97-2(9) and our case law.

Section 97-2(9) defines disability as incapacity to earn the wages received at the time of injury in the same or any other employment; disability must be found before compensation is awarded.

West v. Bladenboro Cotton Mills, Inc. · filed 1983-05-17(9)

But before compensation can be awarded under any of these statutes, disability must exist. G.S. 97-2(9) defines “disability” as “incapacity to earn the wages which the employee was receiving at the time of injury in the same or any other employment.”

Disability under § 97-2(9) means an injury-related loss of wage-earning capacity, not merely physical impairment.

Hendrix v. Linn-Corriher Corp. · filed 1985-12-17(9)

“Disability” under Chapter 97 means an impairment in the employee’s wage-earning capacity because of injury, not merely a physical impairment.

Section 97-2(9) defines disability by incapacity to earn wages; a worker who continued earning wages became disabled when he stopped working.

McKee v. Crescent Spinning Co. · filed 1981-11-17(9)

We find the Commission was correct in its conclusion of law that plaintiff was disabled from the time he stopped working.

Section 97-2(9) defines disability as incapacity to earn preinjury wages; that definition determines when disablement begins for an occupational disease under § 97-54.

Booker v. Duke Medical Center · filed 1979-07-12(9)

In cases of occupational disease other than asbestosis and silicosis G.S. 97-54 provides that “disablement” is equivalent to “disability” as defined in G.S. 97-2(9), that is, “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” The parties stipulated that “Booker was paid his full salary at least through October 1, 1973 and lost no salary prior to that time by reason of an accident or alleged occupational disease.” Booker’s death on 3 January 1974 was well within two years of the earliest possible date of disablement (1 October 1973).

Section 97-2(9) defines disability as an injury-caused inability to earn the wages the employee received at the time of injury, in the same or any other employment.

Porter v. Shelby Knit, Inc. · filed 1980-04-01(9)

As used in the Workers’ Compensation Act, the term “disability” means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of injury.

Section 97-2(9) defines disability as lost earning capacity caused by an injury; in an occupational disease claim, only incapacity attributable to the occupational disease is compensable.

Morrison v. Burlington Industries · filed 1981-10-06(9)

G.S. 97-2(9) defines the term “disability” to mean “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” ... The foregoing legal principles demonstrate that the inquiry here is to determine whether, and to what extent, plaintiff is incapacitated by that part of her chronic obstructive lung disease caused by her occupation to earn, in the same or any other employment, the wages she was receiving at the time she became disabled.

Section 97-2(9) defines disability as an incapacity to earn wages because of injury; for an occupational disease, the incapacity must result from that disease.

Sebastian v. Mona Watkins Hair Styling · filed 1979-02-20(9)

From the above it is clear that in order to be compensable, plaintiff’s “disability” must result from an occupational disease. In the present case, there is no evidence whatsoever that subsequent to 31 January 1977 plaintiff’s incapacity to earn wages was the result of an occupational disease; rather, it was the result of her personal sensitivity to chemicals used in her work.

Section 97-2(9) defines total disability as the inability to work and earn any wages.

Little v. Anson County Schools Food Service · filed 1978-08-29(9)

If she is unable to work and earn any wages, she is totally disabled. G.S. 97-2(9).

Section 97-2(9) measures disability by impaired wage-earning capacity rather than the extent of physical impairment.

Little v. Anson County Schools Food Service · filed 1977-08-03(9)

Thus, the injured employee’s disability is determined by the impairment of his wage-earning capacity and not by the extent of his physical impairment.

Section 97-2(9) defines disability as impaired wage-earning capacity, but that definition does not make lost earning capacity the measure of compensation.

Perry v. Hibriten Furniture Co. · filed 1978-03-07(9)

Though “disability” signifies an impairment of wage-earning capacity rather than a physical impairment [G.S. 97-2(9)], this signification does not establish impairment of wage-earning capacity as the measure of compensation.

Section 97-2(9) defines disability as an injury-caused inability to earn the employee’s pre-injury wages in the same or another job.

Perry v. Hibriten Furniture Co. · filed 1978-11-28(9)

The term “disability,” when used in the Workmen’s Compensation Act, “means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” G.S. 97-2(9).

Section 97-2(9) defines disability as an injury-related loss of earning capacity, rather than physical infirmity.

Wood v. J. P. Stevens & Co. · filed 1979-07-30(9)

G.S. 97-2(9) defines “disability” to ... mean “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” The term refers not to physical infirmity but to a diminished capacity to earn money.

Section 97-2(9) defines disability as injury-caused incapacity to earn the employee’s prior wages; the date of actual incapacity determines which version of the Workers’ Compensation Act applies.

Taylor v. J. P. Stevens & Co. · filed 1980-05-06(9)

As mentioned earlier in this opinion, G.S. 97-2(9) further provides, “The term ‘disability’ means incapacity because of injury to earn the wages which the employee was earning at the time ... in the same or other employment.” It is therefore incumbent upon the Industrial Commission to determine when plaintiff became disabled or actually incapacitated due to byssinosis before it decides which law applies to her claim.

When a claimant has a pre-existing disability in the same body part, disability must be measured by capacity to earn wages.

Ridenhour v. Fisher Transport Corp. · filed 1980-12-16(9)

While in the ordinary case “disability” can be measured in terms of percentage, where, as here, the claimant has a pre-existing “disability” to the same part of the body *133which is affected by a subsequent compensable injury, “disability” must be measured in terms of capacity to earn wages.

Section 97-2(9) defines disability by the loss of earning capacity caused by injury; reduced wages alone do not establish disability, and the definition also applies to occupational diseases.

Hilliard v. Apex Cabinet Co. · filed 1981-10-06(9)

Disability is defined as the “incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment.” G.S. 97-2(9). This definition applies equally to occupational diseases. G.S. 97-52. ... The claimant must show that the diminution in earning capacity is due to the disease or illness; it is not enough merely to show a diminution in wages earned subsequent to the affliction or injury.

Section 97-2(9) requires findings that the injury prevented the employee from earning preinjury wages in the same employment or any other employment.

Hilliard v. Apex Cabinet Co. · filed 1982-05-04(9)

We are of the opinion that in order to support a conclusion of disability, the Commission must find: (1) that plaintiff wás incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual’s incapacity to earn was caused by plaintiffs injury.

Section 97-2(9) defines disability as an impairment of the employee’s wage-earning capacity caused by injury, rather than physical impairment alone.

Lucas v. Burlington Industries · filed 1982-05-18(9)

“Disability” under Chapter 97 does not mean physical impairment. Rather, the term signifies an impairment in the employee’s wage-earning capacity because of injury. G.S. 97-2(9).

Section 97-2(9) treats an employee as disabled when disease-related health problems make the employee incapable of earning wages.

May v. Shuford Mills, Inc. · filed 1983-10-04(9)

The Commission properly found that plaintiff was disabled on 1 January 1970, which was the date he became incapable of earning wages and had to stop working due to his health. N.C. Gen. Stat. § 97-2(9); N.C. Gen. Stat. § 97-55; N.C. Gen. Stat. § 97-54; Taylor v. J. P. Stevens.

Section 97-2(9) measures disability by the worker’s inability to earn wages, and an offered job does not defeat disability when the worker’s fear of performing it makes the job unsafe.

Bowden v. The Boling Co. · filed 1993-05-18(9)

However, we conclude that if a person’s fear of returning to work renders the job unsafe for his performance then it is illogical to say that a suitable position has been offered.

Section 97-2(9) defines disability as injury-caused inability to earn preinjury wages in the same or any other employment.

Gilliam v. Perdue Farms · filed 1993-11-02(9)

N.C. Gen. Stat. § 97-2(9) (1991) defines “disability” as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” ... In reviewing the record, we find competent evidence to support the challenged findings of fact which in turn support the Commission’s legal conclusion, and therefore affirm the Commission’s award.

Section 97-2(9) requires a claimant to show that an injury prevents her from earning her pre-injury wages in the same or any other employment; inability to work around respiratory irritants alone does not establish disability if she can earn those wages in other work.

Grantham v. R. G. Barry Corp. · filed 1994-06-21(9)

Based on the Commission’s findings and on the lack of evidence produced by plaintiff, we conclude that the Commission’s finding that plaintiff “failed to show that she is unable because of her disease to earn the same or any wages in any other employment which would not involve exposure to respiratory irritants” was supported by competent evidence in the record. Accordingly, we affirm the Commission’s conclusion that plaintiff failed to prove disability as a result of her occupational disease after 13 June 1989.

Disability means lost capacity to earn wages, assessed in light of the worker’s age, education, experience, and health; a percentage of physical impairment does not automatically establish the same percentage of disability.

Armstrong v. Cone Mills Corp. · filed 1984-12-18(9)

It is not clear from the Commission’s conclusion as to the extent of plaintiffs disability whether the Commission weighed and considered plaintiffs age, education, experience and health, as those factors affected plaintiffs ability to earn the wages he was earning with defendant Cone Mills in the same or any other employment, or whether the Commission simply concluded that a ten percent physical impairment automatically translated into ten percent disability.

Section 97-2(9) defines disability by an injury-caused loss of wage-earning capacity in the same or other employment, which medical, vocational, and claimant testimony can establish.

Kennedy v. Duke University Medical Center · filed 1990-12-18(9)

“Disability” is defined by N.C. Gen. Stat. § 97-2(9) (1985) as the “incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment.” ... In sum, we find the testimony of these individuals to be amply competent to support the Commission’s finding that the plaintiff had no capacity to earn wages in either the same or any other employment up to the date of the hearing before the Deputy Commissioner.

Section 97-2(9) defines disability by impaired earning capacity rather than physical disablement.

Silver v. Roberts Welding Contractors · filed 1995-02-07(9)

Disability is defined by the Act as an impairment of the injured employee’s earning capacity rather than physical disablement.

Section 97-2(9) defines disability as an injury-related loss of capacity to earn the employee’s preinjury wages in the same or another job.

Moore v. Davis Auto Service · filed 1995-05-02(9)

N.C. Gen. Stat. § 97-2(9) defines, “disability” as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” Thus, the claimant’s burden is to show that because of injury his earning capacity is impaired.

Section 97-2(9) requires an employee’s inability to earn wages to be caused by the injury; incarceration instead causes that inability during imprisonment, so disability benefits are unavailable for that period.

Parker v. Union Camp Corp. · filed 1992-11-17(9)

N.C.G.S. § 97-2(9) defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury...." N.C.G.S. § 97-2(9) (1991). Prior to his imprisonment, Mr. Parker's incapacity to earn wages was a result of his injury. However, while he was in prison Mr. Parker did not have the right to earn wages; his incapacity to earn was caused by his imprisonment, not by his injury. He therefore does not meet the requirements for entitlement to worker's compensation benefits during that period.

Section 97-2(9) defines disability by lost earning capacity; an injured worker who can perform limited work may still qualify when reasonable efforts to find available work fail.

Fletcher v. Hartford Accident & Indemnity Co. · filed 1995-07-18(9)

Disability as defined in the Act is thus the impairment of the injured employee’s earning capacity rather than physical disablement. ... We therefore hold that an employee who suffers a work-related injury is not precluded from workers’ compensation benefits when that employee, while employable within limitations in certain kinds of work, cannot after reasonable efforts obtain employment due to unavailability of jobs.

Section 97-2(9) does not treat inability to earn wages with one employer as disability when the worker remains capable of earning wages in other employment.

Waters v. Trw Steering Components Group · filed 1995-09-05(9)

As a result of her exposure to the unidentified substance in her workplace, plaintiff was rendered incapable of earning wages with defendant-employer, but she was not rendered incapable of earning wages in any other employment. ... Plaintiff was not disabled. N.C. Gen. Stat. § 97-2 (9); Hilliard v. Apex Cabinet Co. , 305 N.C. 593 , 595 , 290 S.E.2d 682 , 683 (1982).

Section 97-2(9) defines disability to include a compensable injury that prevents a worker from earning the same or similar wages when the worker cannot return to the previous job and no suitable work within the worker’s restrictions has been offered.

Cordell v. McCarter Electrical Company · filed 1995-10-10(9)

At the time the Industrial Commission approved the Stop Payment Application on 21 April 1993, plaintiff was still disabled as a result of his compensable injury to earn the same or similar wages as he had earned prior to his injury. Plaintiff was unable at said time to return to his previous job and defendant had not offered plaintiff suitable employment within his restrictions. N.C. Gen. Stat. § 97-2 (9).

Section 97-2(9) covers disability caused by a compensable injury arising from employment.

Locklear v. Liberty Life Insurance Company · filed 1996-01-19(9)

2. Since 25 November 1992 Plaintiff has been disabled because of his compensable injury by accident growing out of his employment with Defendant employer. N.C. Gen. Stat. § 97-2 (9); N.C. Gen. Stat. § 97-32 ; N.C. Gen. Stat. § 97-29 .

Section 97-2(9) treats disability as continuing until an employee returns to work earning the same or greater wages in the same or any other employment.

Hutchinson v. P. H. glatfelter/ecusta · filed 1996-02-05(9)

Disability continues until an employee returns to work earning the same or greater wages in the same or any other employment.

A worker who can return to her former job with appropriate respiratory protection and has no other limit on gainful employment is not disabled under § 97-2(9).

Branch v. Swift Textiles, Inc. · filed 1996-02-06(9)

Plaintiff is capable of returning to her former job in the winding department with defendant-employer as long as she uses the type of respiratory protection she had used for many years prior to the last day she worked in December 1992. ... Plaintiff is not disabled from gainful employment. N.C. Gen. Stat. § 97-52 ; N.C. Gen. Stat. § 97-2 (9).

Section 97-2(9) defines disability as injury-caused incapacity to earn preinjury wages in the same or other employment; inability to return to former employment alone does not establish disability.

Taylor v. Golden State Food Corporation · filed 1996-06-19(9)

Disability is defined in the Act as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment." N.C. Gen. Stat. § 97-2 (9). ... In this case, while Plaintiff presented evidence that he was unable to return to his former employment, he failed to prove the second prong of the Hilliard test — incapacity to earn wages in other employment.

Section 97-2(9) treats diminished earning capacity caused by an occupational disease as disability.

Ratliff v. Hosiery · filed 1996-02-15(9)

Plaintiff's diminished earning capacity constituted a disability as defined in N.C. Gen. Stat. § 97-2 (9).

Section 97-2(9) treats an injury-related inability to obtain employment despite reasonable efforts as disability supporting temporary total compensation.

Settlemyre v. Stc Distributing, Inc. · filed 1996-06-24(9)

As a result of the injury by accident of 19 June 1993 plaintiff was unable to obtain employment despite reasonable efforts, until 29 May 1994, and plaintiff is entitled to continued temporary total disability compensation in the amount of $282.65 per week from the time of his discharge from defendant's employment on 2 May 1993 through 28 May 1994 when he obtained a part-time job as a security guard. N.C. Gen. Stat. § 97-2 (9); § 97-29 .

Section 97-2(9) treats a job as evidence of post-injury earning capacity when the claimant does not establish through competent evidence that it is made work unavailable in the ordinary labor market.

Arrington v. Texfi Industries · filed 1996-08-06(9)

It is well settled, however, that not every position offered to a claimant is considered “any other employment” under section 97-2(9). ... Because Arrington proffered no competent evidence the custodial position is “made work,” it represents “strong, if not conclusive, evidence of the employee’s earning capacity.”

Section 97-2(9) defines disability as an impairment of earning capacity caused by a workplace injury, rather than physical disablement alone.

Adams v. Kelly Springfield Tire Co. · filed 1996-09-03(9)

Disability is defined by the Act as “the impairment of the injured employee’s earning capacity [as a result of a workplace injury] rather than physical disablement.”

Section 97-2(9) treats an injury-caused inability to earn the same wages in the same or any other employment as disability.

Chapman v. Drexel Heritage Furnishings, Inc. · filed 1996-09-05(9)

As a result of plaintiff's injury, she was incapable after her injury of earning the same wages she had earned before her injury in the same or any other employment. N.C. Gen. Stat. § 97-2 (9); Hilliard v. Apex Cabinet Co. , 305 N.C. 593 , 290 S.E.2d 682 (1982).

Section 97-2(9) treats a worker as disabled when a compensable injury prevents the worker from earning the same or greater wages in the same or other employment.

Corn v. Buckeye Cons. Co. · filed 1996-12-13(9)

Plaintiff returned to light duty work with defendant-employer on 12 August 1991 earning the same or greater wages and was subsequently laid-off on 24 October 1991 while still under medical restrictions. Plaintiff has been totally incapable of earning the same or greater wages in the same or any other employment since that date. N.C. Gen. Stat. § 97-2 (9).

Section 97-2(9) requires disability determinations to apply the law to facts found by the Industrial Commission.

Kisiah v. W.R. Kisiah Plumbing, Inc. · filed 1996-10-15(9)

Determinations of disability under N.C. Gen. Stat. § 97-2(9) require application of law to fact, or otherwise put, the making of findings and conclusions of law.

Under § 97-2(9), disability ends when the compensable injury no longer prevents the employee from earning wages equal to or greater than preinjury wages.

Moore v. Martin Mills, Incorporated · filed 1997-04-15(9)

On 30 August 1995 and thereafter, plaintiff's 20 September 1994 injury did not render her incapable of earning wages equal to or greater than the wages she earned prior to her injury. ... After 30 August 1995, plaintiff was no longer disabled as a result of her injury on 20 September 1994. N.C. Gen. Stat. § 97-2 (9).

Section 97-2(9) recognizes partial disability when a compensable injury reduces a worker’s capacity to earn wages, even though the worker can perform some paid work.

Lewis v. B.E. K. Construction Company · filed 1997-01-14(9)

Plaintiff was temporarily partially disabled from late August, 1993 through the date of the hearing before the Deputy Commissioner, 13 January 1994, with the residual capacity to earn $450.00 per week, rendering a compensation rate of $66.66 per week. N.C. Gen. Stat. §§ 97-2 (9); 97-29 ; and 97-30 .

Section 97-2(9) limits disability benefits to wage loss caused by a compensable injury and excludes wage loss caused by the employee’s voluntary wrongful conduct unrelated to the injury.

Jolly v. Sara lee/pya Monarch · filed 1997-01-16(9)

The employer is obligated to pay benefits for the inability to earn wages due to the compensable injury, but not that due to the employee's voluntary, wrongful act, unrelated to the injury, that limits the opportunity for employment.

An injury by accident under § 97-2(6) does not establish disability without proof that the injury caused it.

Bryson v. Mastercraft Construction Company, Inc. · filed 1997-04-14(6)

Plaintiff has failed to prove that he sustained any disability as a result of said injury. N.C. Gen. Stat. § 97-2 (6).

Section 97-2(9) defines disability by injury-caused inability to earn the employee’s prior wages, a definition that also governs occupational disease disablement through § 97-54.

Eskridge v. Century Chair · filed 1997-04-18(9)

Except in cases of asbestosis and silicosis, "disablement" by occupational disease is given the same definition as "disability" in N.C. Gen. Stat. § 97-2 (9), i.e., the "incapacity because of the injury to earn the wages which the employee was receiving at the time of the injury . . . ." N.C. Gen. Stat. § 97-54 . Thus, plaintiff's uncontradicted testimony that her physician took her out of work on August 15, 1994 supports a second and new claim for occupational disease with the date of the "accident" being that day. The plaintiff may show an earlier "accident" date if the condition caused her to reduce her work hours, or miss work to attend necessary treatment, before that date, causing a loss of wages.

Disability under § 97-2(9) depends on the employee’s capacity to earn preinjury wages in the same or other employment; postinjury earning capacity, rather than actual wages, controls.

Harris v. Empuricon, Inc. · filed 1997-06-02(9)

If the disagreement relates to the continued disability of the employee, the Commission must resolve that issue based on the evidence presented and determine if the employee is capable of earning the same wages he had earned before his injury in the same or other employment. See Hilliard v. Apex Cabinet Co ., 305 N.C. 593 , 595 , 290 S.E.2d 682 , 683 (1982); N.C.G.S. § 97-2 (9) (1991) (defining disability). It is an employee's "post-injury earning capacity" rather than an employee's actual wages which are relevant in assessing the disability.

Section 97-2(9) supports temporary total disability benefits for periods when an occupational disease leaves an employee unable to work, including after termination.

Adams v. Triad Medical · filed 1997-09-18(9)

As a result of plaintiff's carpal tunnel syndrome, plaintiff is entitled to compensation for temporary total disability benefits for ten weeks, representing the time she was laid off by defendant-employer on or about April 15, 1993, until the time she returned to work, on or about July 1, 1993, and temporary total disability which has accrued from the date she was terminated on August 17, 1994, until plaintiff returns to work, or until it is otherwise ordered by the Commission. N.C. Gen. Stat. § 97-2 (9); N.C. Gen. Stat. § 97-29 .

Section 97-2(9) covers an injured worker who cannot earn wages in the same employment and for whom seeking other work would be futile given injury-related limitations, age, education, and work experience.

Sasser v. Wiscassett Mills Company · filed 1997-11-06(9)

Plaintiff has proven by the greater weight of the evidence that as a result of his injury and resulting physical limitations and considering other pre-existing factors such as plaintiff's age, lack of education and prior work experience which involved manual labor, plaintiff has been incapable of earning wages in his same employment and that it would be futile to seek other employment.

Section 97-2(9) treats an injured worker as disabled when the injury prevents the worker from earning wages comparable to preinjury wages.

Bryson v. Phil Cline Trucking, Inc. · filed 1998-01-15(9)

Plaintiff has proved by the greater weight of the competent, credible, and convincing evidence that he has been unable to earn wages comparable to the wages he was earning at the time of his injury on March 12, 1994 up to the present and continuing.

Section 97-2(9) covers the period when a compensable injury prevents a worker from earning wages in any employment; later inability to work caused by unrelated medical conditions does not extend that disability.

Lovette v. Centex Corporation · filed 1998-07-10(9)

As a result of the injury by accident of August 10, 1994, plaintiff sustained lumbar strain and radiculopathy which rendered him totally disabled from August 13, 1994 through September 27, 1994, for which he has been paid workers' compensation benefits. Any continuing disability after September 27, 1994, was not caused by the compensable injury but was due to his numerous other medical problems.

Section 97-2(9) defines disability by whether an injury prevents the employee from earning preinjury wages; an employer asserting constructive refusal must first show that the employee actually engaged in misconduct.

Williams v. Pee Dee Electric Membership Corp. · filed 1998-07-21(9)

An employer who argues that a plaintiff has constructively refused employment is arguing that the employee no longer suffers from a disability. Our Workers’ Compensation Act defines disability as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C. Gen. Stat. § 97-2(9) (Cum. Supp. 1997) (emphasis added). The constructive refusal defense is an argument that the employee’s inability to earn wages at pre-injury levels is no longer caused by his injury; rather, the employer argues, the employee’s misconduct is responsible for his inability to earn wages at pre-injury levels. Because it is the employer who seeks to discontinue disability payments on this basis, the employer has the initial burden of showing that the employee actually engaged in the misconduct.

Section 97-2(9)’s definition of disability governs whether and how much compensable incapacity exists when an injured worker has concurrent employment.

Haire v. Norwest Corporation · filed 1998-07-22(9)

Consequently, the Courts look instead to the definition of disability in N.C. Gen. Stat. § 97-2 (9) — the "incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment ". The harmonizing principle seems to be that the definition of "disability" predominates when determining whether or how much compensable incapacity exists, and the definition of "average weekly wage" related in N.C. Gen. Stat. § 97-2 (5) is invoked to effectuate the limited liability purpose in the circumstances in which employers and carriers would otherwise routinely be paying benefits at a rate higher than could be contemplated from the payroll on which premiums are calculated.

Section 97-2(9) defines disability as an incapacity to earn wages; a compensable injury alone does not establish disability.

Sims v. charmes/arby's Roast Beef · filed 1998-10-07(9)

As stated above, "disability" is defined by the Act as an incapacity to earn wages. Therefore, a compensable injury is not the equivalent of a disabling injury.

Section 97-2(9) measures disability by post-injury earning capacity rather than actual wages earned.

Deese v. Champion International Corp. · filed 1998-11-03(9)

The plaintiffs post-injury earning capacity rather than his actual wages earned is the relevant factor in assessing the disability.

Section 97-2(6) requires a claimant to establish that the claimed disability resulted from an injury by accident arising out of and in the course of employment.

Ford v. Fairlyland Day Care Center · filed 1998-11-12(6)

Plaintiff sustained an injury by accident arising out of and in the course of her employment with the defendant-employer on April 3, 1991; however, the evidence fails to establish that plaintiff's current disability is the result of the incident which occurred on April 3, 1991. N.C. Gen. Stat. § 97-2 (6).

Section 97-2(9) treats an injured worker as disabled when the injury prevents the worker from earning the same or greater wages in the prior job or other employment.

Chesson v. Beasley Enterprises, Incorporated · filed 1999-01-21(9)

As a result of disability caused by his April 15, 1994 injury by accident, plaintiff is incapable of returning to his prior job with defendant-employer and plaintiff has been incapable of earning the same or greater wages in any other employment. Plaintiff remains disabled as defined by N.C. Gen. Stat. § 97-2 (9) and Hilliard v. Apex Cabinet Co. , 305 N.C. 593 , 595 , 290 S.E.2d 682 , 683 (1982).

Section 97-2(9) treats a worker as totally disabled when a compensable injury prevents the worker from earning wages in any employment, apart from periods when the worker does work.

Lowery v. C J Transportation Co. · filed 1999-02-18(9)

As a result of his compensable injury and the natural, direct, and proximate residuals thereof, including increased pain in his back and legs following a period of employment activity within his functional limitations, plaintiff has been unable to earn any wages in any employment since September 15, 1989 and continuing through the November 5, 1996 hearing, except for the period from September 7, 1994 through December 8, 1994.

Section 97-2(9) treats a worker as disabled when a compensable injury prevents the worker from earning pre-injury wages in the same or other employment.

Olivares-Juarez v. Showell Farms · filed 1999-02-23(9)

As a result of his compensable injury, from 1 August 1995 through 28 January 1996, plaintiff was incapable of earning his pre-injury wage at the same or other employment. Plaintiff is entitled to temporary total disability compensation payments from 1 August 1995 through 28 January 1996. N.C. Gen. Stat. §§ 97-2 (9), 97-29 .

An injury by accident arising out of and in the course of employment does not establish disability when the injury causes no disability.

Welch v. Highland Supply Corporation · filed 1999-02-08(b)

Plaintiff sustained an injury by accident arising out of and in the course of his employment on April 13, 1994. However, plaintiff did not suffer any disability from this injury. N.C. Gen. Stat. § 97-2 (b).

Section 97-2(9) covers an inability to earn wages caused by fibromyalgia that a compensable workplace injury caused or significantly aggravated.

Mosteller v. Alex Lee, Inc. · filed 1999-03-04(9)

The Full Commission finds that plaintiff's admittedly compensable injury by accident of August 18, 1995 caused or significantly aggravated his fibromyalgia to an extent that plaintiff has been rendered unable to earn any wages in any employment since May 30, 1996.

Section 97-2(9) measures disability by the injured worker’s capacity to earn wages after injury, rather than actual post-injury wages earned.

Deese v. Champion International Corp. · filed 1999-05-18(9)

Disability is defined as the “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C. Gen. Stat. § 97-2(9) (Cum. Supp. 1998). The plaintiff’s post-injury earning capacity rather than his actual wages earned is the relevant factor in assessing the disability.

Section 97-2(9) defines disability as injury-caused incapacity to earn preinjury wages in the same or another job.

Wilson v. Buddy Gregory's Body Shop · filed 1999-04-07(9)

"Disability" is defined as the "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C. Gen. Stat. § 97-2 (9).

Section 97-2(9) defines disability as an injury-caused inability to earn the wages the employee received before the injury in the same or another job.

Southerland v. Circuit City Stores, Inc. · filed 2000-01-19(9)

An employee injured in the course of employment is disabled under the Workers' Compensation Act if the injury results in an "incapacity to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C. Gen. Stat. § 97-2 (9).

Section 97-2(9) defines disability as injury-caused incapacity to earn pre-injury wages in the same or other employment; the employee initially must prove the extent and degree of that incapacity.

Olivares-Juarez v. Showell Farms · filed 2000-07-05(9)

“Disability” under the Workers’ Compensation Act refers to “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C. Gen. Stat. § 97-2(9) (1999). An injured employee has the initial burden of proving the extent and degree of his disability. ... To do so, he must demonstrate that he is unable to earn pre-injury wages in the same employment or in any other employment and that the inability to earn such wages is due to his work-related injury.

Section 97-2(9) defines disability as incapacity to earn preinjury wages in the same or any other employment.

Webb v. Power Circuit, Inc. · filed 2000-12-29(9)

“Disability” is defined as an “incapacity ... to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C. Gen. Stat. § 97-2(9) (1999).

Section 97-2(9) defines disability by the inability to earn the same wages; an employee who continues earning the same wages on light duty is not disabled.

Kanipe v. Lane Upholstery · filed 2000-12-29(9)

In particular, plaintiff had not yet missed any days of work and, although she was assigned to light duty work, she was still earning the same wages as she was before. Therefore, plaintiff was not yet “disabled” under our Workers’ Compensation Act. See generally N.C. Gen. Stat. § 97-2(9) (defining disability as the incapacity to earn the same wages).

An employee who becomes unable to earn wages after an unsuccessful trial return to work is disabled under § 97-2(9).

Monroe v. Target Stores · filed 2001-09-05(9)

Upon plaintiff's unsuccessful trial return to work she was again totally disabled and entitled to total disability compensation beginning on 15 January when Dr. Waller took her out of work. N.C. Gen. Stat. §§ 97-2 (9) and 97-29 .

An employee who returns to work earning more than the preinjury average weekly wage is no longer totally disabled.

Smith v. Alliance Management, Inc. · filed 2001-11-02(9)

Plaintiff was no longer totally disabled within the meaning of the Act upon his return to work on 1 December 1998 at wages greater than his preinjury average weekly wage. N.C. Gen. Stat. §§ 97-2 (9) and 97-18.1 (b).

Section 97-2(9) treats an inability to earn wages caused by a compensable occupational disease as disability.

Rucker v. John Deere Consumer Products, Inc. · filed 2001-11-13(9)

Plaintiff has not reached maximum medical improvement and is unable to earn wages by reason of her compensable occupational disease.

Disability under § 97-2(9) includes vocational factors, so maximum medical improvement alone does not establish restored wage earning capacity.

Russos v. Wheaton Industries · filed 2001-07-17(9)

Maximum medical improvement, which does not include these other aspects of disability as defined by the Workers’ Compensation Act, therefore cannot by itself establish a resumption of wage earning capacity.

Section 97-2(9) treats an inability to earn the same or greater wages in any employment, caused by a new injury in combination with an earlier injury, as disability.

Locklear v. C C Builders · filed 2002-01-18(9)

Furthermore, plaintiff sustained an injury by accident to his back on 22 June 1999 which in combination with plaintiff's original injury by accident resulted in plaintiff's inability to earn the same or greater wages in any employment from 22 June 1999 until 26 August 1999. N.C. Gen. Stat. § 97-2 (9).

Section 97-2(9) defines disability by lost wage-earning capacity, which may be shown by medical evidence of genuine injury-related pain and credible testimony that the pain prevents work.

Knight v. Wal-Mart Stores, Inc. · filed 2002-03-05(9)

Moreover, medical evidence that a plaintiff suffers from genuine pain as a result of a physical injury, combined with the plaintiff’s own credible testimony that his pain is so severe that he is unable to work, may be sufficient to support a conclusion of total disability by the Commission.

Disability under § 97-2(9) depends on the employee’s ability to earn wages in the competitive job market; an employer’s offered position does not show earning capacity without evidence that other employers would hire the employee for comparable work at comparable wages.

Effingham v. THE KROGER CO. · filed 2002-03-05(9)

The Workers’ Compensation Act (“the Act”) defines “disability” as the “incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment.” N.C. Gen. Stat. § 97-2(9) (1999). ... Defendants did not establish that the greeter position offered to plaintiff is an accurate measure of plaintiff’s ability to earn wages in the competitive job market. There is no evidence that other employers would hire plaintiff to do a similar job at a comparable wage. We hold that there is sufficient evidence to support the Commission’s findings that plaintiff is temporarily totally disabled as defined by the Act, as of the date of hearing.

Under § 97-2(9), earnings from a specially accommodated job may fail to show an injured employee’s wage earning capacity.

Bridwell v. Golden Corral Steak House · filed 2002-03-19(9)

Since there is evidence that plaintiff was specially accommodated while working for Community Funding and plaintiff had difficulty sitting for long periods of time in this position, the Commission did not err in finding that the wages earned by plaintiff while working for Community Funding do not constitute evidence of wage earning capacity.

Disability means injury-caused loss of earning capacity; when changed conditions affect overtime, compare overtime available in the employee’s former and current positions to determine that loss.

Derosier v. WNA, Inc./Imperial Fire Hose Co. · filed 2002-04-02(9)

The term "disability" means "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C. Gen.Stat. § 97-2(9). ... As said above, we hold that based on the facts of this case the proper comparison to arrive at Ms. Derosier's earning capacity is between the hours of overtime available to the present floater and the overtime available to plaintiff in her present job as lab technician.

An accommodated job that is not ordinarily available in the competitive job market does not reflect an injured worker’s true ability to earn wages for purposes of disability.

Hixson v. Sears Roebuck Co. · filed 2002-06-12(9)

The modified office and modified sales clerks jobs held by plaintiff since her return to work in September 1998 were so modified by defendants to accommodate plaintiff's limitations that these jobs are not ordinarily available in the competitive job market. As such, neither the modified office work nor the modified sales clerk job that plaintiff currently holds is indicative of plaintiff's true ability to earn wages. Accordingly, plaintiff also has been totally disabled within the meaning of the Workers' Compensation Act since 9 September 1998, and continuing until such time as she returns to work in suitable employment at her pre-injury average weekly wage.

Under § 97-2(9), assessing disability for a self-employed injured worker requires findings on whether the worker’s skills are marketable and whether post-injury wage-earning capacity equals or exceeds pre-injury capacity; business revenue and some earning capacity alone are insufficient.

Devlin v. Apple Gold, Inc. · filed 2002-10-15(9)

However, the Commission made no finding that plaintiffs management skills are competitively marketable in light of his physical limitations, age, education and experience. Further, the Commission made no determination of whether plaintiffs wage-earning capacity was equal to or greater than his pre-injury wage-earning capacity. The Commission simply found that plaintiff’s business had generated substantial revenues due in large part to his efforts and skills, that plaintiff was likely being compensated, and that he “had some wage-earning capacity.” The Commission’s findings are insufficient to determine plaintiff’s actual wage-earning capacity.

Section 97-2(9) requires proof by the greater weight of the evidence that a worker was disabled as a result of the workplace incident.

Grier v. Sprint Risk Management · filed 2002-07-17(9)

Plaintiff has failed to prove by the greater weight of the evidence that she was disabled within the meaning of the Act as a result of the incident on January 15, 2000. N.C. Gen. Stat. § 97-2 (9).

Under § 97-2(9), wages paid during a medical leave do not establish an injured employee’s capacity to earn comparable wages in the labor market.

Gilberto v. Wake Forest University · filed 2002-08-06(9)

Thus, even though plaintiff was paid during her leave of absence, such leave cannot be considered evidence of her capacity to earn similar wages in the marketplace.

Disability under § 97-2(9) is the inability to earn preinjury wages because of a compensable injury by accident.

Carringer v. Coca-Cola Bottling · filed 2002-09-25(9)

"Disability" is defined in the Act as a claimant's inability to earn his/her preinjury wages due to a compensable injury by accident. N.C. Gen. Stat. § 97-2 (9). Plaintiff has not met his burden of proving by the greater weight that any reduced capacity or incapacity to earn wages after 3 March 1999 was related to his compensable injury or injuries by accident.

Section 97-2(9) treats an employee as temporarily totally disabled for the period a compensable occupational disease prevents her from working.

Morgan v. Perdue Farms, Inc. · filed 2002-10-14(9)

As a result of the compensable occupational disease to her left arm, plaintiff was temporarily totally disabled from May 4, 2000, through September 16, 2000. N.C. Gen. Stat. §§ 97-2 (9) and 97-29 .

Section 97-2(9) treats disability as loss of wage-earning capacity, which the employee must show to obtain disability benefits.

Trivette v. Mid-South Management, Inc. · filed 2002-11-19(9)

The employee bears the burden of showing that he has suffered a “disability” (loss of wage-earning capacity) pursuant to N.C. Gen. Stat. § 97-29 (2001) or N.C. Gen. Stat. § 97-30 (2001). See N.C. Gen. Stat. § 97-2(9) (2001).

Section 97-2(9) requires a claimant to show that the work injury caused an inability to earn pre-injury wages in the same or other employment.

Hammond v. Atlantic Group · filed 2003-02-19(9)

In order to meet the burden of proving disability, plaintiff must prove that he was incapable of earning pre-injury wages in either the same or in any other employment and that the incapacity to earn pre-injury wages was caused by plaintiff's injury.

Section 97-2(9) defines disability as an injury-caused inability to earn pre-injury wages in the same or any other employment.

Cialino v. Wal-Mart Stores · filed 2003-03-18(9)

Under the Act, disability is an “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.”

Disability under § 97-2(9) requires a loss of earning capacity; periodic absences for treatment alone do not establish it.

Sanders v. Corning Inc. · filed 2003-04-17(9)

Because plaintiff's work-related anxiety disorder of July 1983 was not disabling and although plaintiff missed some time from work periodically for treatment or otherwise, plaintiff sustained no loss in earning capacity until he became totally disabled on 20 February 1998.

Section 97-2(9) requires proof that an injury has left the worker unable to earn wages in any employment to establish disability.

Berry v. Robertson Airtech Intl. · filed 2003-05-05(9)

Plaintiff has failed to prove by the greater weight of the evidence that he is incapable of earning wages in any employment. Plaintiff has not returned to work or sought other employment since he went out of work in mid-January 2001. Furthermore, the greater weight of the evidence fails to establish that plaintiff was taken out of work during that time. N.C. Gen. Stat. § 97-2 (9); Heffner v. Cone Mills Corp., 83 N.C. App. 44 , 349 S.E.2d 70 (1986).

Section 97-2(9) requires a worker claiming disability to prove that an injury caused an inability to earn pre-injury wages in the same or any other employment.

Jackson v. N.C. D.O.C. · filed 2003-08-01(9)

In order to meet the burden of proving disability, plaintiff must prove that she was incapable of earning pre-injury wages in either the same or in any other employment and that the incapacity to earn pre-injury wages was caused by plaintiff's injury.