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Distant job is not "suitable employment" under North Carolina Workers' Compensation law according to Industrial Commission

Posted by Sean Cecil | Mar 27, 2015 | 0 Comments

An ironworker whose on the job injury left him unable to perform his job does not have to accept a different job 338 miles away, according to a recent order of the full Industrial Commission. The worker was injured in a forklift accident that left him with a open fractures in his left leg, and eventually pins and a permanent partial impairment rating after "maximum medical improvement". The employer offered him another job, as a tool clerk, but it was 338 miles from his residence. The injured worker refused to accept it, instead continuing with a different job for less money, that left the employer on the hook for part of the difference in pay.

A worker who has reached maximum medical improvement and cannot return to their old job may have his benefits cancelled if he refuses the employer's offer of another job that constitutes "suitable employment". According to the North Carolina Workers' Compensation law, "suitable employment" is: 

. .employment that the employee is capable of performing considering the employee's preexisting and injury-related physical and mental limitations, vocational skills, education, and experience and is located within a 50-mile radius of the employee's residence at the time of injury or the employee's current residence if the employee had a legitimate reason to relocate since the date of injury. No one factor shall be considered exclusively in determining suitable employment.

In this case, the Industrial Commission ruled that the offered job was not suitable employment because the distance from his home outweighed the other factors for consideration. Also, the worker had accepted a job as a flagger for a road crew. Although the job was for significantly less money requiring the employer's insurance company to make up the difference between what he was making and 2/3 of what he would have earned in the old job, the opportunities for advancement and eventually earning a similar amount to what he made as an ironworker justified the job and was consistent with the policy behind the Workers' Compensation Act policy of getting workers back to work:

"The Commission concludes that one of the 2011 amendments that was designed to encourage claimants to return to work, that is, the enhancement of the TPD compensation provision of N.C. Gen. Stat. § 97-30, fits neatly into the circumstances of this claim. As an iron worker, plaintiff made very good wages for someone with a limited formal education, but the compensable injury he sustained while working for defendant consigned plaintiff with work limitations that now prevent him the opportunity to make those wages as an iron worker anywhere for any employer. Ongoing TPD compensation to plaintiff recognizes and compensates for that reality. N.C. Gen. Stat. § 97-30."

This is a good win for injured workers- the Industrial Commission could have found the distance to not be such an important factor, because the job he was working before the injury was a similar distance away from his home, and the record showed that when he took the job he had no expectation of working close to home.

The full Industrial Commission ruling in Franklin Falin v. The Roberts Company Field Services can be found  here

Update 2.9.16: The North Carolina Court of Appeals recently upheld the ruling of the full Industrial Commission, rejecting the Company's assertion that the 50 mile radius in the statute is only one of many factors in deciding whether offered employment is "suitable." The Court's full opinion can be found here. 

About the Author

Sean Cecil

Sean is an experienced advocate dedicated to justice for all people. He believes that individual human rights outweigh the freedom to make an easy dollar.

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