Returning to Work after an Injury: Your Right to the Right Job
“Suitable Employment” Under N.C. Workers Compensation
Copyright 2010 Joseph A. Miller, Esq.
Joe Miller Law
NOTE: MANY OF THE IDEAS DISCUSSED IN THIS ARTICLE NO LONGER APPLY AFTER THE CHANGES TO THE LAW INSTITUTED IN JUNE OF 2011. Please call us at 888-694-1671 to discuss your particular situation.
One of the biggest issues for our clients is the issue of returning to work after an injury. This can either entail a return to work at the same job as before the injury, or return to work in a different job.
The biggest and most difficult issues often arise when, because of the injury and restrictions set out by the treating doctor, the client is unable to return to the same job as before. Then the question becomes: “What kind of job should the employee accept?”
At the stage where an employee has been released to return to some type of work, we often see aggressive insurance carriers hire vocational rehabilitation professionals or even outside contracting companies to supposedly return the injured worker to a good job. Unfortunately, these scenarios are very often, in reality, thinly veiled attempts by the insurance carrier to try to save the insurance company money and justify a suspension of all compensation benefits to the employee.
What we often find is that they supposed “jobs” that are offered to the injured worker are not really jobs at all, and if employee refuses to participate in the phony job, (what the Industrial Commission calls “make-work”) the insurance company and employer will attempt to argue that the injured worker has failed to comply rehabilitation efforts, and attempt to cut off benefits.
However, armed with the proper knowledge of the system and the actual protections provided to employees in North Carolina, a suspension of benefits can be avoided in almost all cases. In order to do this, it is important to know three main things:
First, it is important to know what the definition of “suitable employment” is under the North Carolina rules. It is defined as “employment in the local labor market or self- employment which is reasonably attainable and which offers an opportunity to restore the worker as soon as possible and as nearly as practicable to pre-injury wage, while giving due consideration to the workers qualifications (age, education, work experience, physical and mental capacities), impairment, vocational interests, and aptitudes. No one factor shall be considered solely in determining suitable employment.”
A couple of very important items stand out in this definition. A)that any job offered by an employer or insurance carrier has to be a real job, meaning one that someone could actually go out and obtain in the local job market. B) it is not only physical restrictions which can prevent a job from being suitable, but it also has to fit the workers experience, education, etc.
Second, it is important to know that under the rules, the Industrial Commission has the power to determine whether or not a particular job was, in fact, “suitable employment”. In other words, if the employer or the insurance carrier is going to offer the injured worker a job, it must fit the definition of “suitable employment” as set forth above. If it is not suitable employment, and the employee refuses to perform that job, then that refusal cannot be used against the employee to keep him or her from getting benefits.
One Commissioner once put it this way. Without the Commission having discretion to determine whether the injured worker justifiably refused a job offer from the insurance carrier, then the law:
“would allow employers to contrive to reduce just compensation by insisting claimants go to tryouts for pro ball teams or strip joints, or otherwise apply for jobs that are particularly unsuitable or demeaning for the individual involved.” see Sanderson v. Hardee’s, I.C. No. 951047 (1993).
That same Commissioner further said that it is the Industrial Commission’s job to guard against rehabilitative services being used as “setup tactics in a rehabilitative guise to harass claimants with the intention of ending claims.”
Third, it is important to know that just because an employee refuses to do something that the vocational rehabilitation person wants the employee to do, that does not necessarily mean the benefits are going to be cut off. In order for benefits to be suspended, there must first be an Order entered by the Industrial Commission requiring the injured worker to cooperate with medical or rehabilitative treatment; however, one must be very cautious in refusing a job offer from one’s employer. If the Commission subsequently finds that your refusal of the offer was unjustified, then you may be at risk of losing your benefits. It is absolutely essential that you consult with an experienced workers compensation attorney in this scenario, in order to determine if your circumstance really justifies a proper refusal of the job offer from your employer, or from the workers compensation insurance carrier.
The bottom line on this issue is that under North Carolina Workers Compensation law, once a doctor has placed the injured worker under physical restrictions to the extent that he cannot return to his previous job, the burden then shifts to the employer to prove that other employment is available. The vocational consultant is required to prescreen jobs for their suitability, and is further required to keep the worker and the attorney immediately apprised of all job offers and provide written job descriptions before the employee has to report to the job interview.
In other words, as long as the worker is under a doctor’s restrictions, and they prevent the injured worker from returning to their old job, then the employer is required to continue to pay disability benefits, unless and until they can prove that alternative employment is available.
I’ll close by giving an example of how this sort of thing plays out in the real world. A few years ago there was a case by the name of Griffin v. Wachovia. It should be noted that this case was not handled by our firm. It was handled by a firm down in Charlotte. It is merely set forth here as a glaring example of what can happen in these situations.
Ms. Griffin had been a lockbox clerk for a number of years with the bank, which involved a lot of data processing through typing; however, she eventually developed carpal tunnel syndrome, and because of this, her doctor placed her under permanent work restrictions which prevented her from returning to her previous job.
Of course, the employer/insurance carrier was required to continue to pay Ms. Griffin her temporary disability. While they did this, they also hired a vocational rehabilitation company. Ultimately, this rehabilitation company hired an outside company called Expediter.
This is what Expediter did. Their intention was to get Ms. Griffin into a temporary “telework” position with a “bridge” company or employer. This would be a telecommunications job she could do from her home at a computer; however, the position was done through something called “subsidized employment.” The way this works would have been that Wachovia would have “subsidized” or paid Ms. Griffin’s wages for her employment with a third-party “bridge” employer for a set period of time, and then the third-party employer would decide whether or not to switch Ms. Griffin to their payroll.
In other words, the employer would pay another company to allow her to work for that company for a set period of time, and then it was that company’s call as to whether to keep her on as an employee.
Ms. Griffin refused to take this job, because she was concerned about whether it was a real job and also whether there was any job security at all.
Guess what? Her and her attorney “smelled a rat,” and they were right.
Both the Deputy Commissioner and The Full Commission found that this job was not “suitable employment,” and that Ms. Griffin’s refusal to take the job was justified. They determined that she continued to be completely disabled from work. Her employer was ordered to continue to pay her compensation.
Essentially, the Commission found that the entire Expediter program was geared solely towards injured workers, and was, in effect “make-work on a large, organized scale.” They went on to say that, if her current employer had to actually pay someone else to hire her, how is that evidence that she could actually work?
Again, we would emphasize to you that just because you think that your job offer from your employer sounds like something that happened to Ms. Griffin, you really need to consult with a well-qualified North Carolina workers compensation attorney to determine whether or not your refusal of the job offer would really be justified under the law.
There could be any number of factors that clearly distinguish your situation from Ms. Griffin’s case.
WARNING: ONCE AGAIN, THE LAWS HAVE CHANGED SINCE THIS ARTICLE WAS WRITTEN. EMPLOYERS ARE NOW MUCH FREER TO FORCE EMPLOYEES TO ENGAGE IN ‘MAKE WORK,’ AS LONG AS THE JOB IS APPROVED BY THE TREATING PHYSICIAN.
Please call us to see how your situation fits in at 888-664-1671.