Is it Suitable? Considerations for Returning Claimants to Work
By: Mallory E. Lidaka
The main goal in defending any workers’ compensation claim is to limit defendant’s exposure as a result of the on-the-job injury. One way to keep the costs of a claim to a minimum is to return an employee to work as soon as possible. Let’s explore the options carriers have for returning claimants to work both before and after their medical treatment has concluded.
Pre-Maximum Medical Improvement Return to Work
Indemnity benefits begin accruing once a claimant is taken out of work due to a compensable injury. A treating physician may thereafter allow the claimant to return to work in a modified capacity. The easiest way to terminate ongoing indemnity benefits when this occurs is to return the claimant to work for the employer in a job position which accommodates the work restrictions which have been assigned. Such a job position must meet the Workers’ Compensation Act’s definition of “suitable employment”
N.C. Gen. Stat. § 97-2(22) sets forth the definition of “suitable employment” both prior to and after plaintiff has been released to maximum medical improvement (MMI). In a case where the claimant has not reached MMI and treatment is continuing, “suitable employment” is defined as “employment offered to the employee . . . within the employee’s work restrictions . . . with the employer of injury approved by the employee’s authorized health care provider.” Pursuant to this definition, the insured can offer the claimant any job position, real or created solely to meet the claimant’s restrictions, as long the claimant’s treating physician approves the claimant to perform the modified duty job. Our attorneys can assist carriers with obtaining such doctor approval as the Workers’ Compensation Act allows defendants to communicate directly with treating physicians when seeking approval of an available modified duty job position. Accordingly, once your claimant is released in any capacity to return to work, we recommend immediately working with your employer to see if they can bring the claimant back to work performing any task that does not exceed their restrictions. Once the doctor approves the claimant to perform an available job position, the claimant must accept same and return to work or else they risk losing entitlement to ongoing indemnity benefits.
Post-Maximum Medical Improvement Return to Work
The analysis of whether a job position offered to a claimant who has been assigned permanent restrictions once they have reached MMI is different than before the claimant reaches MMI. N.C. Gen. Stat. § 97-2(22) sets forth that post-MMI “suitable employment” 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.” At first glance, this definition appears easier to meet than the pre-MMI definition, primarily because no physician approval is required in order to meet this definition. However, this definition of “suitable employment” may require a higher burden to be met than its pre-MMI counterpart. First, the post-MMI job offer must be for a job position that actually exists with the insured and would be available to other potential employees, not just the claimant. This differs from pre-MMI, where the insured can offer plaintiff any job position, even one created specifically to meet the claimant’s restrictions and even if the insured would never offer such position to the general public. Second, there is a 50-mile radius requirement in the post-MMI definition that would not allow insureds to offer the claimant a job that requires the claimant to travel more than 50 miles to perform. Further, in reviewing a job position post-MMI, the Industrial Commission will look much closer at whether the claimant cannot only physically perform the job, but also if it corresponds with the claimant’s prior work history and education. In short, a post-MMI job position must have many more facets to be deemed “suitable employment” than a pre-MMI job position.
If a suitable job position is offered to a claimant either pre-MMI or post-MMI yet the claimant unjustifiably refuses to accept or perform such position, N.C. Gen. Stat. § 97-32 allows defendants recourse to attempt to suspend ongoing indemnity benefits during the period of such unjustified refusal. Again, our team of attorneys at Lewis & Roberts would be happy to help you and your insureds not only seek to return claimants to employment, but also ensure our carriers are not overpaying benefits to which a claimant is not entitled.