Suitable Employment: 10 Tips
If open long enough, a “Suitable Employment” issue will arise in almost all workers’ compensation claims. Here are 10 tips that may make your life easier:
- Watch your dates from the inception of the claim. Different statutes apply and different case law may apply, so check to see whether your date of injury is before or after 06/24/2011. The law gives you at least 90 days to manage a claim on a pay-without-prejudice basis, so give yourself that option, by using a Form 63. And, the trial return-to-work provision applies to most cases, so track that 9-month period, and be skeptical of a Form 28U filed after the trial return-to-work period expires.
- Make a written NCIC Rule .0607 request when you receive a letter of representation. Plaintiff attorneys frequently communicate with medical care providers, privately. These communications fall within the scope of NCIC Rule .0607, and you are entitled to see them. But, NCIC Rule .0607 only requires production of these kinds of written communications “upon written request.” So… make a written request.
- Determine the plaintiff’s immigration status. The suitable employment standard is different for undocumented workers.
- Measure the distance from the Employer’s location to the plaintiff’s residence. With respect to post-MMI offers of work, the definition of “suitable employment” has been interpreted as being within a 50-mile radius of the plaintiff’s residence.
- Secure full-duty and light-duty Job Descriptions (JD) from the Employer, as soon as you can. And, make sure that any written Job Description accurately describes the work as it is actually performed.
- Consider the value of retaining a Nurse Case Manager (NCM). NCMs can be great resources for all parties involved. The NCIC rules prohibit the parties from using NCMs for investigation or advocacy, but the Rehabilitation Rules specifically contemplate their involvement in the return- to-work process. NCMs can help facilitate a plaintiff’s return to work, and they can have a positive impact on any return-to-work program.
- Offer light-duty work directly to plaintiffs (and, if they are represented, then simultaneously notify their attorneys). The definition of suitable employment contemplates that the work is actually offered to the plaintiff. An offer of work does not have to be in writing, but in the vast majority of cases, it is a best practice to extend the offer in writing, as it reduces confusion … and the offer letter may be used as an exhibit.
- Consider the value of retaining a vocational expert (VCM). If the Employer is not likely to be able to offer full-duty work to the plaintiff, it is better to understand your options, sooner rather than later.
- Appreciate that a MMI opinion may/may not help you manage your risks. There are different legal standards for pre- MMI work versus post-MMI work, so consider how this medical opinion impacts your ability to manage your exposure for compensation.
- Understand that some of the statutory requirements are mandatory and inflexible. For pre-MMI work, make sure that any proffered work is “approved” by an authorized provider, and that it is with “the employer of injury.”
If you have questions about this or any other workers’ compensation law question, contact Scott Fuller.