Two issues that often arise for an injured worker who is unable to return to his or her old job include temporary "make work" and, for a worker who is expected to never be able to perform the pre-injury job, "suitable employment". This article discusses what these terms mean under the modern North Carolina Workers' Compensation Act, and how they apply.
While recovering from work-related injury, many employers will put an injuredworker in a light duty “make work” position. That is probably acceptable under the workers' comp law, and if you refuse to do the “make work” job, you may be fired and also be denied your weekly comp benefits.
Once you have completed the healing period and your doctor says that you are at
maximum medical improvement (MMI), then your employer cannot force you to work in a “make work” position. Instead, any job offered after you reach MMI must be a regular job that is available in the job market. If no such job is available from your employer, then you should be placed out of work and the employer and insurance carrier should pay you your weekly workers' comp benefit.
An issue arises from time-to-time where your employer offers you a job that is
different than the one your were doing when you were injured, and that pays you less than what you were making. Alternatively, through vocational rehabilitation (see below), you may be offered a job with a different employer that pays less than you were making at the time you were injured. The courts have ruled that an injured worker receiving workers' comp weekly benefits can only be required to take a job that constitutes “suitable employment”. Suitable employment used to mean a job that meets your permanent physical restrictions, and that offers the injured worker the ability to have a wage earning capacity comparable to their wage earning capacity before the injury, and that offers them comparable opportunity for wage advancement. Unfortunately, the 2011 amendments to the Comp Act have now defined “suitable employment” in a way that is favorable to the employers. "Suitable employment" for the purpose of the North Carolina Workers' Compensation Act is now any job that an injured worker is physically capable of performing, that is within 50 miles of the worker's home, without regard to the wages that the job pays. However, workers who were injured before June 24, 2011, and have on-going cases are still under the “old” definition of “suitable employment”.
If a job is offered that does not meet the requirements for “suitable employment”, an injured worker can turn it down and their weekly comp benefits should continue. But if the job does constitute “suitable employment” and the worker turns it down, their weekly comp benefits can be terminated. If it becomes clear that, because of the injured worker's lack of education and training, they are not likely to find suitable employment after they have reached MMI and still have significant permanent restrictions, it is possible that the employer or insurance carrier will have to pay for the injured worker to go to school such that they can start a new career. The 2011 amendments added a provision making clear that if an injured worker has returned to work and is earning less than 75% of what they made before their injury, the worker may request training and education at a community college or at a campus of the University of North Carolina system. In such cases, the employer/carrier would have to pay for tuition and books, as well as reimburse the injured worker for travel expenses to and from the school if it is more than 10 miles one way. An issue that will need to be addressed under this new provision is whether the worker can demand to go to school full time, and as a result stop working in the low paying job and receive TTD benefits while they are going to school, or can the employer force them to continue working in the low paying job and only take courses in the evenings or other times when they are not at work?
If it becomes clear that an injured worker will not be able to resume their old
job, then the employer/carrier often initiates “vocational rehabilitation”. This involves having the worker meet with a “rehabilitation specialist”, often on a weekly basis, who assists them in job search activities. The workers' comp law requires an injured worker who is receiving weekly benefits to participate in “reasonable” vocational rehabilitation activities. If they do not, their weekly checks can be stopped.
Most often the rehabilitation efforts are not really about finding an injured
worker meaningful work or a new career, but about annoying and frustrating the injured worker to the point that they do something, such as refusing to apply for jobs, that gives the employer/carrier a basis for terminating the weekly benefits.
In general an injured worker should “cooperate” with vocational rehabilitation by attending all meetings with the vocational specialist, and applying for all jobs to which they are referred, even if those jobs are not suitable. If an employer wants to interview the injured worker, they should attend the interview and not “sabotage” it. But an injured worker should not accept any job that does not meet the requirements for “suitable employment”.
Returning to work after an injury can be challenging, especially if the worker is unable to perform the same job or the same pay-rate as before the injury. Ensuring that you obtain the maximum benefits under the law is our job; this includes exploring every option for those who are able to return to work. If you have been injured on the job give us a call to schedule a meeting with one of Edelstein & Payne's experienced North Carolina Workers' Compensation attorneys early in your case to help us assist you in getting every benefit you have earned.