Sturdivant v. N.C. Dept. of Public Safety

Joshua Harper

The Harper Law Firm, PLLC

Josh Harper joined the family firm after beginning his legal career as a litigation associate at one of North Carolina’s largest law firms. Josh now focuses his practice on representing claimants in workers’ compensation matters, as well as assisting plaintiffs in personal injury lawsuits.

Josh earned his law degree, magna cum laude and Order of the Coif, from the Wake Forest University School of Law. During law school, he served as a Notes & Comments Editor of the Wake Forest Law Review. He received his undergraduate degree, with distinction, from UNC-Chapel Hill, where he was named to the Dean’s List every semester.

Prior to law school, Josh served in the U.S. Army as a military intelligence officer. He participated in more than twenty airborne operations (“parachute jumps”) while stationed at Fort Bragg. In 2012, he deployed to Kandahar, Afghanistan as the intelligence officer for a military police battalion. While there, he was promoted to the rank of Captain. For his service in Afghanistan, he was awarded the Bronze Star Medal (Meritorious).

Josh enjoys spending time with his wife and young children, lifting weights and attending church.

Michael Bertics

Lennon, Camak, & Bertics PLLC

Mr. Bertics is a Board Certified Workers’ Compensation specialist. He has practiced exclusively in the areas of Workers’ Compensation and Social Security Disability Law for his entire career. He is passionate about leveling the playing field between victims and insurance companies, and works tirelessly to ensure his clients receive fair treatment from employers.

Mr. Bertics is a recognized expert in workers’ compensation law. He is the past Chair of the N.C. Bar Workers’ Compensation Specialization Committee which is responsible for certifying attorneys in North Carolina as specialists in workers’ compensation law. He also chaired the Workers’ Compensation committee for three years and served on the committee for six. He is a frequent lecturer at workers compensation and Social Security legal education conferences and has given over 40 presentations on a wide range of subjects in workers’ compensation and Social Security law. He has substantial workers’ compensation litigation experience, trying workers’ compensation cases at all levels, from the initial hearing all the way through the North Carolina Supreme Court.  He is frequently associated as lead counsel in complex workers compensation claims by attorneys around the state.

Mr. Bertics is also a fierce advocate for the rights of the disabled with the Social Security Administration and in Federal Court. He helps disabled individuals through the frustrating process of seeking disability benefits from Social Security. He also frequently takes over cases that have been lost by other attorneys and helps disabled individuals appeal their wrongful denials to the Appeals Council and to Federal District Court.

Mr. Bertics is a native of Wake County. He lives in Raleigh, NC with his wife, Carrie, and four children. Mr. Bertics is a past-Chair of North Carolina Bar Association Lawyer Referral Service Committee tasked with helping members of the general public find attorneys who can help with all types of legal matters.

Richard Harper

The Harper Law Firm, PLLC

Richard Harper has been practicing law since 1981 and has owned his own law practice in Sylva since 1993. His practice focuses on representing injured workers in the workers’ compensation system and others with personal injuries.

Richard was honored by Best Lawyers as the Asheville area 2019 and 2016 “Lawyer of the Year” in the category of “Workers’ Compensation-Claimants.”

He has regularly been selected by his peers for inclusion in the prestigious Best Lawyers list (2007-2019) and Super Lawyers (2008 – 2012, 2016 – 2017, 2019).

He has been board certified as a Workers’ Compensation Specialist by the North Carolina State Bar Board of Legal Specialization since 2000. He was one of the first ten lawyers in North Carolina inducted into the national College of Workers’ Compensation Lawyers. He is currently serving on the board of the national organization Workplace Injury Litigation Group (WILG).

A frequent contributor at continuing legal education seminars sponsored by the North Carolina Advocates for Justice (NCAJ), he has authored a chapter on medical compensation in one of the leading books on North Carolina workers’ compensation law. Richard is an active member of the North Carolina Advocates for Justice and served two terms as the chair of the Workers’ Compensation section. He has been formally honored by the section for his representation of injured workers and has also served on the NCAJ’s Executive Committee and on the Legislative Committee. In addition to the formal positions he has held with the NCAJ, Richard has represented the interests of injured workers in legislation drafting sessions at the General Assembly in Raleigh.

Richard served as a Deputy Commissioner with the North Carolina Industrial Commission for two years before he began practicing in Sylva. He has also worked in general civil litigation practices where he successfully represented land owners in condemnation cases.

Richard graduated from the University of North Carolina with a B.A. in History. He received his law degree from the Campbell University School of Law, where he was a published member of the Campbell Law Review, was a member of the Holderness Moot Court team, and received the Howard Christian Citizenship Award.

Richard has been married to his wife and law partner, Patti, for more than forty years. Now that his four children are grown, he has retired from serving as a youth sports coach and spends his spare time cheering on the UNC Tar Heels, hiking with his boxer “Pepper,” playing with his grandchildren, and being active in his church.

Opinion Filed April 18, 2023
Attorney for the Case Stewart Poisson
Amicus Brief Writers Joshua Harper Michael Bertics Richard Harper
Court NC Court of Appeals
Docket No. COA22-421

This was the first case to reach the appellate courts on the extended benefits provision added to the Workers’ Compensation Act in 2011. Having received temporary total disability benefits for the maximum of 500 weeks, Plaintiff sought extended benefits under the statute. The Industrial Commission denied the benefits, and Plaintiff appealed to the Court of Appeals.

The primary issue was the proper standard for extended benefits. In order to receive temporary total disability, Plaintiff had already proven “total disability.” The extended benefits statute required proof of a “total loss of wage-earning capacity.” The State contended that the extended benefits standard was a higher burden of proof, requiring a showing of complete obliteration of the ability to earn wages, whether or not any actual jobs existed in the competitive job market that a particular plaintiff could actually obtain.  

NCAJ filed an amicus brief which clarified that the language “total loss of wage-earning capacity” was a common law term of art with the same meaning as “total disability.” By using this term in the statute, the legislature codified this common law term. The brief argues that the standard urged by the State would bar benefits if a plaintiff “could even hypothetically work in a sporadic, part-time position, with no regard for whether such positions actually exist or whether the plaintiff could reasonably obtain such a job.”

The Court of Appeals agreed with plaintiff and NCAJ, holding that the standard for extended benefits is the same as the prior standard. However, the Court affirmed the Industrial Commission’s ruling that Plaintiff did not meet this burden. There was a dissent (Hampson, J.), which agreed as to the standard, but contended that the proper result was remand as to Industrial Commission to reconsider the case under the proper standard. Although the Plaintiff has not appealed, the State is seeking PDR despite having succeeded in preventing Plaintiff from receiving benefits.