If you have suffered an injury at work or on the job, you may be entitled to receive additional benefits through workers compensation. In North Carolina, this may include time lost from work, disability (full or partial), and medical bills.
When an employer or an insurance company tries to return an injured employee to work, one of the biggest issues is whether the job constitutes “suitable employment.” In many (but not all) situations, injured workers must accept suitable employment, and if they don’t, they run the risk of having their workers’ comp benefits suspended or terminated.
Effective June 24, 2011, the General Assembly made some substantial legislative changes to North Carolina’s Workers’ Compensation Act, and many of these changes were directed towards “suitable employment.” In addressing suitable employment, one of the preliminary considerations is whether the job is being offered before or after an employee reaches maximum medical improvement (“MMI”). MMI occurs when an employee completes all injury-related medical treatment and is released by his or her doctor. Under the new law, there are two types of suitable employment – pre-MMI and post-MMI suitable employment.
Under the new law, if you are offered a job before reaching maximum medical improvement (i.e., pre-MMI), you will generally have to accept it so long as the job serves a legitimate business interest and is within your doctor’s work restrictions. For example, if your doctor restricts you from lifting 30 or more pounds, you will most likely have to accept any job that requires lifting less than 25 pounds, regardless of whether you’re trained or qualified for that job. The job can even be a position that is not available in the general labor market, which is what we refer to as “make work.” If you refuse the work, the insurance company can move to suspend or terminate your workers’ compensation benefits.
After you’ve reached maximum medical improvement (i.e., post-MMI), “make work” is no longer suitable, and any job offer must take into consideration your pre-existing and post-injury physical and mental limitations, your vocational skills, education, work experience, and more. Under the old law, the job also had to be at a wage rate that was as close as possible to what you were earning at the time of the on-the-job injury . However, under the new law, the wage component of suitable employment has been removed for all claims arising on or after June 24, 2011. Therefore, the job’s pay no long has to be as close as possible to the worker’s previous pay rate. However, the General Assembly did increase the number of weeks an injured worker is eligible for wage-difference benefits from 300 to 500 weeks. An injured worker , who returns to work and earns less than he or she was making before being hurt on the job, may elect to receive wage difference benefits in lieu of disability benefits.
In addition, if the new job pays you less than 75% of what you were making before you were injured, you are now entitled to have the insurance company pay for vocational rehabilitation. This can involve having the insurance company pay for additional education or retraining which will help you secure a higher paying job.
The changes to suitable employment are important. Trying to make sense of the law and your rights alone, without consulting a lawyer, could greatly impact—in an unfavorable manner—the outcome of your case.
Many employees wonder if their employer can fire them if they are hurt on the job and then file a workers’ compensation claim. The short answer is “no.” An employer cannot fire an injured worker in retaliation for the employee filing a workers’ comp case. The North Carolina Retaliatory Employment Discrimination Act (REDA) specifically forbids an employer for not only firing a worker for filing a case, but also for taking adverse employment action against him. Refusing to allow vacation, a demotion, reducing one’s pay, an unwarranted shift change or withholding benefits are all examples of adverse actions that REDA forbids.
The long answer, however, is that as with most legal claims, whether a legitimate REDA claim exists will be decided on a case-by-case basis. If an employee is fired after filing a workers compensation claim, the key is determining whether or not it was done in direct response the employee filing the claim. It’s a gray area and employers will try to put on all sorts of evidence to prove that there was no retaliation. And it’s difficult for the employee, or any layperson, to gather the evidence that establishes a direct correlation between the retaliation and the filing of the claim. Very seldom will there be a smoking gun – such as an internal memo or email showing that the employer was fired because the employee for filed the claim. In the vast majority of cases, the lawyer will have to build the case by relying on circumstantial evidence, such as how soon after the filing of the claim did the employer take adverse action against the employee. The testimony of co-workers can also be helpful, assuming, of course, that the co-workers are willing to get involved.
The bottom line is that it is illegal for an employer to fire you in retaliation for filing a workers’ comp claim and there are laws out there to protect you. But cases like these are rarely black and white. Having legal representation will not only ensure that you have a much more thorough understanding of your rights and the law, but that your case has a favorable outcome.
Contact us if you have questions about your injury claim.
If your on-the-job accident involves a body part which was previously injured or which has a pre-existing condition (such as arthritis in your knee or shoulder or a degenerative disc in your back or neck), can you still receive workers’ compensation? The short answer is “yes.” Under our workers’ comp law, so long as the on-the-job accident aggravates or accelerates the pre-existing condition, it will be found compensable. In other words, if the on-the-job injury makes a previous condition worse, it will be compensable, even if the previous condition was already somewhat symptomatic.
For example, assume an employee has arthritis in her knee, and that she has previously undergone knee surgery for torn cartilage years ago. Following the surgery, she was able to return to work and go about her daily job duties. One day at work, she trips over a box, falls on the knee with the pre-existing condition and the doctor determines that she now needs a knee replacement. In this example, you have a condition (arthritis in the knee) that existed prior to the on-the-job incident. Even though the arthritis was not caused directly by the fall, the employee will be entitled to workers’ comp benefits so long as the accident (tripping over the box and falling on the knee) aggravated or worsened the arthritis. In other words, if the fall made the arthritis more problematic or caused it to become more symptomatic than it was previously, the employee has a compensable workers’ compensation case. The on-the-job incident does not have to be the direct cause of the condition. In this example, so long as the on-the-job accident makes the arthritis worse, the employee has a good workers’ comp case.
The outcomes of workers’ compensation cases involving pre-existing conditions are determined largely by the medical testimony. If a doctor testifies that the on-the-job incident aggravated or accelerated the pre-existing condition, then it will most likely be found compensable by the Industrial Commission. In investigating claims, the insurance company will look closely through an injured worker’s prior medical records and history to see if he has pre-existing conditions in hopes that it might deny the claim. Thus, it’s imperative that an injured employee be very specific and give an accurate history to the doctor. Tell your medical examiner what the condition was like prior to the accident (especially if there was a period with no or little problems) and describe how the condition has changed since the incident. Describe any changes in the nature of the pain, including its intensity or duration. Describe how it affects activities that you were able to do before the accident. Be straight. Be accurate. And be honest. Keep in mind the insurance company will try to obtain your prior medical records, and trying to “hide” information from the insurance company could have significant legal consequences for you.
As with all workers’ compensation cases, after the individual has reported the injury to the employer, been examined by a doctor and filed a form with the North Carolina Industrial Commission, he or she will be contacted by an insurance company representative to take a recorded statement. Talking with a lawyer prior to speaking with the insurance company rep ensures you’ll have the legal guidance needed so that you don’t unknowingly make a statement that could negatively impact your workers’ comp case.
13.03.2011. 16:55
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"Thank you John, and all the staff at The Law Offices of John M. McCabe, P.A., for all your help over the years since my accident and for your friendship! I am truly grateful!"
At The Law Offices of John M. McCabe, P.A., we have extensive experience in representing injured workers. We will work hard to protect you from the insurance company's tricks and traps.
