Workers in North Carolina and Virginia who are employees and who suffer a compensable workplace injury or occupational illness are entitled to payment of their reasonably necessary medical bills for as long as the injured worker requires treatment for those injuries. They are also entitled to temporary disability benefits which are generally 2/3rds of their average weekly wage until they are released to pre-injury work, but in most cases, to a maximum of 500 weeks.
Some workers simply cannot return to the same type of job that they had before their workplace injuries happened until they have completed their course of medical treatment. Some workers can never return to the jobs they held before the work accident.
There are cases though where an injured North Carolina or Virginia worker could return to work if they could perform less strenuous tasks. Workers who perform less strenuous jobs (called light-duty work) while they are on temporary disability or even on permanent disability benefits can earn an income and have the satisfaction of helping their employer and their community. Employers benefit by having a skilled worker instead of having to hire a new worker. Sometimes, the more strenuous parts of the job can be assigned to other workers.
That all sounds very wonderful and in a perfect world, that is how things should happen. The problem, though, is that once an injured worker has a permanent injury, and is no longer able to do his or her full duties on a permanent basis, and also has one or more body parts that have been permanently damaged, that employee presents a risk of exposure to additional cost to both the employer and the insurance company.
So what ends up happening in many (but certainly not all) cases, is that an injured worker who returns to work on permanent light duty will frequently find him or herself terminated by the employer at some point. The excuse the employer will give for the firing is that the employer can “no longer accommodate” the injured worker’s work limitations. Or they may just say they are downsizing.
So even though generally, the employer many times will tend to push the employee to return to work at a light-duty job if he or she is held out of work, if that light duty work at the employer becomes permanent, the employer and workers compensation insurance carrier are incentivized to FIRE that employee. That injured employee presents a risk of re-injury that those entities would prefer to avoid.
The solution will often be a settlement of the claim BEFORE that happens, which settlement will include a RESIGNATION. That way, the employee leaves employment on his or her own terms, and hopefully gets compensated for it.
Now the determination as to whether an injured worker can perform light-duty work is made by the treating physician.
What type of work is considered light-duty work in North Carolina and Virginia?
Light-duty jobs include:
- Shorter work shifts
- Jobs that involve less physical labor – such as jobs where you stand on your feet for less time, never lift more than a certain weight amount, and work with other health restrictions
- Jobs where you can work at a more relaxed pace
Light-duty jobs can include the same work but with less intensity. Light-duty jobs may also include different jobs such as:
- Supervising other workers
- Doing office work
- Desk jobs (often referred to as sedentary work)
- Computer work
- Maintaining and repairing equipment
- Other types of management work
Some of the concerns about accepting light-duty work
Your wage benefits. If you accept light-duty work, albeit at a lower rate of pay than you had before your accident, an adjustment is made that will reduce your 2/3rds disability amount. You are then only entitled to 2/3rds of the DIFFERENCE between your pre-injury, Average Weekly Wage and your post-injury, light duty wage. This is referred to as temporary partial disability. Here is an example:
If before your injury, you were earning $900 a week, your TOTAL temporary disability (TTD) pay would be 2/3rds of $900 or $600. If you take a new job that pays $750 a week, you would add to your $750.00 pay 2/3rds of the difference between your current pay and your pre-injury pay of $900.00.
The difference between your pre-injury pay of $900 and $750.00 is $150.00. 2/3rds of $150.00 is $100.00. So, you add that to your pay in the new job and your new pay is $850.00.
In other words, you receive $750 from your employer for the light duty work you do and another $100 (2/3rds of the difference in pay) in what is called Temporary PARTIAL Disability (TPD) workers compensation benefits from the workers compensation insurance company. That means you earn a total of $850 per week.
If your new light duty job pays more than $900, then you only receive that salary – and no temporary partial disability pay.
The same logic generally applies to accepting light-duty work if you are on permanent disability.
What happens if you refuse light-duty work?
Just because your doctor says that you are capable of returning to work at a light-duty job, that doesn’t necessarily mean that your employer can terminate your benefits. If you are under an Award, your employer actually has to offer you a light-duty job, or have a vocational counselor find one for you via vocational rehabilitation if they want to cut off or reduce your weekly benefits.
If the employer doesn’t offer you a light-duty job or find one for you with vocational rehabilitation, then if you are under an Award in Virginia, or an Accepted Claim in North Carolina, then you should be able to continue receiving your full temporary total disability benefits on an ongoing basis, for potentially up to 500 weeks total.
In Virginia, once you are under that Award and remain on light duty, you are under no obligation to look for work on your own. The burden for that shifts completely to the Workers’ Compensation Insurance Company.
In North Carolina, an accepted claim does not give you quite the same protection as an Award does in Virginia, so we always recommend that you continue to seek employment that you could do, with a minimum search of 5 jobs per week, just in case something goes south and you need to prove you are entitled to ongoing benefits.
Again, this is all only if you are already under an Award. If you are not under an Award, or an accepted claim, the employer is really not incentivized to bring you back to work because the insurance company can simply cut off your weekly comp payments the second you are released to light duty. Why? Because the Commission has not ordered the insurance company to pay you your weekly benefits. That is what an Award is.
BUT Beware! An Award Does Not Offer Absolute Protection!
If your employer does offer you light-duty work, and you are under an Award, and you refuse to do that job, your employer will seek to terminate your workers’ compensation benefits. The job offered must be a bona fide offer of suitable employment that you are capable of performing within your restrictions. If you refuse to do that job, you will likely lose your benefits. The same would apply if the job was found for you at another company by a vocational rehab counselor.
The same is true in North Carolina. The only difference is that in North Carolina, you get a Hearing on the issue, whereas in Virginia, on just the flimsiest of evidence of a job offer and a refusal of that offer, your benefits will cease IMMEDIATELY. I do not think this is fair, but it is the law in Virginia.
What about if you are on light duty and not under an Award? If you are not under an Award or Accepted claim, and if your employer is not accommodating your light duty, then if you want benefits, you will have to MARKET your residual capacity to work with at least 5-7 employers per week, and document that search very well. You are also likely to have to go to a hearing to PROVE that you are entitled to ongoing benefits.
Of course, if your health improves to the point that your authorized treating physician says you can perform all of your prior job duties, then even if your employer does not make prior job available to you, you would still be cut off of all benefits. at your previous salary or for more compensation.
Can you contest your ability to perform light-duty work?
Generally, in Virginia, the doctor who treats your injuries is a doctor that you choose from a panel of doctors that the employer selects. In North Carolina, that doctor is chosen for you. This is your authorized treating physician who is treating your injuries. He or she gets to opine as to your work abilities and unless that doctor transfers your care to another doctor, he or she is the final arbiter as to your work capabilities.
In many cases, your Nurse Case Manager will apply a good deal of pressure to your doctor to return you to light duty as soon as possible. This could be for many reasons, depending on what stage your case is in.
For instance, if you are not yet under an Award, it is because the second you are returned to light duty, any weekly workers compensation benefits you are receiving will be CUT OFF.
So, can you rely on your doctor to be honest? The short answer is it depends on the doctor. Some doctors like to kowtow to the Nurse Case Manager or simply do not realize the power that he or she has as your authorized treating physician. Your doctor gets to decide your restrictions—not the Nurse Case Manager. Other doctors will stand their ground against the Nurse Case Manager’s protestations and continue to hold you out of work.
Be Cautious When Returning to Work on Light Duty
Even if you ARE under an Award, a return to light duty work with your employer, especially if it is as the same pay rate as before the accident, means the insurance company is again off the hook from paying you weekly benefits. What’s worse, you are now at the tender mercies of your employer. And upon return to light duty work, you are likely to find your work environment most inhospitable.
Why would the employer want to treat you poorly, if you are coming back to light duty work and they are accommodating you? In short, they are trying to goad you into being insubordinate so you can be fired for cause. Being fired for cause while on light duty is essentially the END of your workers’ compensation case in Virginia.
Are you Entitled to a Second Medical Opinion?
In Virginia, injured workers can see any physician he or she wants to for a second opinion, BUT, unfortunately, there is no way to force insurance company to pay for any second opinion in Virgina. This is because Virginia does not provide a legal mechanism for a claimant to obtain an independent medical exam or second opinion in a workers’ compensation case. Only the insurance company has that option. In other words, the cost for any second opinion examination will have to come out of your own pocket, or if you are lucky enough to have really great health insurance, your health insurance may may agree to cover it.
Moreover, even if you were to get a second opinion in Virginia, and in that doctor’s opinion you are currently unable to work, and your authorized treating physician says you CAN work, the Commission is very likely going to side with the opinion of your authorized treating physician. This is because the authorized treating physician is the only doctor infused with the power to determine your work restrictions. It would have to be an extremely obvious case of bias or incompetence for the Commission to side against your treating doctor.
Unlike Virginia, in North Carolina, there IS a mechanism to obtain an Independent Medical Examination or second opinion. This is often done via agreement with the insurance company after you have sought out an appropriate physician of the appropriate specialty who you want to see in North Carolina. The cost of the exam must be borne by the DEFENSE. If there is resistance, you or your attorney can file a Motion with the Industrial Commission to force the workers’ comp insurance company to agree to the exam.
But once again, even if the IME doctor that you chose in North Carolina disagrees with the authorized treating doctor, the Industrial Commission is under no obligation to follow your Independent Medical Doctor’s opinion.
Regardless of any decision about your ability to perform light-duty work, assuming you are under an Award, you should continue to be able to obtain medical care for your injuries or illness.
At Joe Miller Law Ltd., our North Carolina and Virginia workers’ compensation attorneys are ready for every effort your employer will make to try to deny or limit your claim. Many employers, after a certain amount of time has passed, will try to say that you can return to work – with or without restrictions. We’re skilled at showing that you still can’t do light-duty work even with these restrictions. We’ll explain your rights and options when your employer claims light-duty work is available. Call lawyer Joe Miller, Esq., at 888-667-8295 or fill out my online contact form to schedule a free consultation.
Our law firm does have a way for you to provide your details of your accident and injuries if you simply want to do that electronically from the comfort and safety of your home at any time of day or night. To utilize this service, simply click here: New Electronic Case Review.
We’ll get back to you, typically within 24 hours to provide our response as to whether your situation is one where we can provide you with legal representation. If we require more information, we’ll contact you and ask for that information in order to make that determination as to whether we are the best folks to assist you. If we ultimately determine that we cannot represent or assist you, we will not leave you high and dry. We’ll do our best to provide you with other resources to assist you.
