Emerging Issues in the Form 24 Administrative Forum - Refusal of Suitable Employment

By: Tim Riordan & Melissa P. Woodard

            It is not novel to recognize that the Form 24 process is not the most favorable for the defendants.  There are specific requirements employers and carriers must meet before having a hope of prevailing in terminating or suspending ongoing indemnity benefits for an injured worker who should be able to return to light-duty work.  Even if defendants are able to check all the boxes, meaning ongoing damages is far from certain.  Under N.C. Gen. Stat. §97-2(22), suitable employment prior to reaching maximum medical improvement (MMI) is required to be with the employer of injury.  If an injured worker refuses a light-duty job with the employer of injury that had been approved by the authorized treating provider(s), defendants are permitted to apply to suspend the worker’s ongoing temporary total disability (TTD) benefits during the period of refusal.  We are noticing a trend in injured workers who are circumventing the pre-MMI suitable employment job refusal in a way that can hopefully be avoided.

            Once the employer offers the light-duty job that has been approved, and the injured worker declines the job, the employer’s standard practice may be to terminate the employee after refusing the job.  As practice has taught us, the Form 24 process to suspend benefits for unjustified refusal of pre-MMI suitable employment can take between 40 and 60 days.  We have seen cases where we prevail in having benefits suspended, but the employer then terminates the employee for their unjustified refusal to return to work pursuant to their employment policies.  The injured worker contacts the employer stating they are ready to return to work, but they are advised they have been terminated.  Then, by and through counsel, the employee files a Motion for Reconsideration of the Form 24 arguing there is no longer a job to which to return.  The Commission then determines that there is no suitable employment because there is no light-duty work with the employer of injury to which the plaintiff can return, and the administrative forum overturns the original Order granting the Form 24 and requires defendants to reinstate ongoing TTD dating back to the Order.

            PRACTICE TIP: To avoid the above from occurring is to keep injured workers formally employed even after the Form 24 is approved because of plaintiff’s unjustified refusal to accept the light-duty job.  That way, after the Motion is approved, defendants can either avoid ongoing indemnity based on the Form 24 approval, or they can ensure the plaintiff actually returns to work at that light-duty job which ends their weekly compensation benefits based on that return to work.  In addition, it is important to consider that the Commission reconsidering their approval of the Form 24 and reversing their original Order deprives defendants of the TTD credit for the time period between filing the Form 24 and it’s approval.  Keeping the plaintiff employed preserves defendant’s right to the credit for the 40 to 60 days that the plaintiff refused the light-duty job from the date they filed the Form 24.  This approach of keeping the injured worker employed should not cause any undue hardship to the employer as they will not be paying them during this time.  As always, if you have any questions about this process, please contact Lewis & Roberts and we will be glad to advise you accordingly.