One of the most effective cost containment strategies for the middle of a workers’ compensation claim is offering the claimant a suitable return to work with the employer of injury or a prospective new employer through vocational rehabilitation. This leads us to one of the biggest advantages for employers, administrators and insurance carriers in the June 24, 2011, North Carolina Legislative Reform- Protecting and Putting North Carolina Back to Work by Reforming the Workers’ Compensation Act.
Per the North Carolina Legislative Reform, “suitable employment” is now defined by N.C.G.S. § 97-2(22), whereas it was previously defined by the North Carolina Rehabilitation Rules.
Specifically, N.C.G.S. § 97-2(22) provides, “Suitable employment. – The term “suitable employment” means employment offered to the employee or, if prohibited by the Immigration and Nationality Act, 8 U.S.C. § 1324a, employment available to the employee that (i) prior to reaching maximum medical improvement is within the employee’s work restrictions, including rehabilitative or other noncompetitive employment with the employer of injury approved by the employee’s authorized health care provider or (ii) after reaching maximum medical improvement 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.”
N.C.G.S. § 97-2(22), which governs workers’ compensation claims arising on or after June 24, 2011, offers two distinct definitions of suitable employment- one for pre- maximum medical improvement (“MMI”) claims and one for post-MMI workers’ compensation claims.
For pre-MMI employment to be suitable for claims arising on or after June 24, 2011, the employment must be:
- Employment with the employer of injury;
- Employment within the light-duty work restrictions- which means it can be modified and it can be “make work” or non-competitive employment; and
- It must be approved by the authorized treating physician.
Practice Tip –
You will want to send the job description to the authorized treating physician for review and approval in order for the Industrial Commission to determine that the requisite “approved” element of suitable employment has been met.
For post-MMI suitable employment, there is a multifactorial analysis, and no one factor is exclusively controlling. The factors the Industrial Commission considers are:
- The claimant’s pre-existing condition;
- The claimant’s work restrictions;
- The claimant’s vocational skills, education and experience.
In addition, there is also a geographical component that the Industrial Commission must consider. N.C.G.S. § 97-2(22) provides that the job must be located within a 50 mile radius of the claimant’s residence at the time of the injury or the claimant’s current residence if he/she had a legitimate reason to move. Per recent case law, the North Carolina Court of Appeals has interpreted the “50 mile radius” portion of the statute to be a requirement and not merely a factor. (Falin v. The Roberts Company Field Services, Inc., __ N.C. App. __, 782 S.E.2d 75 (2016))
Of importance, wage is no longer a statutory factor for defining post-MMI suitable employment. As an additional part of the Legislative Reform, a claimant can collect temporary partial disability (“TPD”) for up to 500 weeks from the date of disability, less any temporary total disability (“TTD”) benefits paid, instead of 300 weeks from the date of injury. N.C.G.S. § 97-30
Another potential cost containment strategy for the middle of the claim is vocational rehabilitation – which may be appropriate if the claimant has restrictions the employer cannot accommodate. In addition to vocational assessment and job placement, additional forms of vocational rehabilitation may include job analysis; job development, labor market survey, vocational testing; on the job training and education.
Pursuant to the 2011 North Carolina Legislative Reform, vocational rehabilitation may commence before the claimant reaches maximum medical improvement (“MMI”), and vocational rehabilitation may include requests including education and re-training in North Carolina community colleges or university systems if the claimant has not returned to work or has returned to work earning less than 75% of his/her pre-injury wage. Another requirement is that the education or re-training must be reasonably likely to substantially increase the post-education/training wage.
It is important to note the 75% threshold is a trigger for vocational rehabilitation but not necessarily an indication of whether the employment is suitable. Further, when it comes to vocational rehabilitation, defendants have the right to make the initial selection, but at any time, either party may request a change for good cause.
If defendants initiate vocational rehabilitation, it is important to carefully monitor vocational rehabilitation updates and reports for compliance. If the claimant fails to comply, defendants may file a Motion to Compel the claimant’s compliance with vocational rehabilitation. If the Industrial Commission orders the claimant’s compliance, and the claimant violates the Industrial Commission Order, defendants may file a Form 24 Application to suspend the claimant’s TTD benefits. Read more on Form 24 Strategy in Jennifer’s Four Part Blog Series on the CSH Workers’ Comp Microsite found here.
Questions? Please contact Jennifer directly at (919) 863-8846 or firstname.lastname@example.org.