Franklin Falin v. The Roberts Company Field Services, Inc.

N.C. Court of Appeals opinion filed 2/2/2016

This decision involved an appeal from Opinion and Award of the Full Commission concluding that employment offered to Plaintiff was not suitable pursuant to N.C. Gen. Stat. § 97-2(22).

Plaintiff was employed as an iron worker for Defendant-Employer. Plaintiff lived in Kingsport, TN but was assigned to a project in Aurora, NC, over 415 miles away. Approximately two months into the project, Plaintiff sustained a compensable injury to his left leg.  The claim was accepted and benefits were paid. Once Plaintiff reached maximum medical improvement, Defendants offered Plaintiff a job as a Tool Clerk. The job would have returned Plaintiff to hispre-injury wages, but was on a project in Charleston, SC (338 miles from his home). Plaintiff’s treating physician reviewed a job description and determined he could perform the job from an orthopedic standpoint. Instead of accepting the job with Defendant-Employer, Plaintiff returned to work for a different employer near his home, earning minimum wage.

Defendants filed a Form 24 to terminate Plaintiff’s benefits on the basis that Plaintiff had unjustifiably refused suitable employment. Plaintiff contended the Tool Clerk job was not suitable because it was not within 50 miles of his home.

A Deputy Commissioner ruled in favor of Plaintiff. Defendant appealed to the Full Commission who affirmed in a 2-1 decision. Defendant appealed to the N.C. Court of Appeals.

The main issue was whether the definition of “suitable employment” as set forth in N.C.G.S. 97-2(22) requires a job to be within a 50-mile radius of Plaintiff’s home to be considered suitable or whether the distance was merely one factor to be considered.

The Court agreed with the Full Commission’s analysis of the statute and concluded the 50-mile radius language was a requirement not a factor.  The Court went on to say that even if the 50-mile radius was only a factor, it outweighed all the other factors and the Tool Clerk job was unsuitable, despite the fact the distance was less than the job in Aurora.

Practice Point:  Even when Claimant has expressed a willingness to travel, and even when Claimant was injured in a job located more than 50 miles from his home, when making a post-injury job offer, the position offered must be within a 50-mile radius from Claimant’s residence.  If it is not, the Claimant would be justified in rejecting the offer, if he/she chooses to do so.