Terminating Benefits - An Insider’s View of the Form 24 Process - Part 1 of 3

By: John H. Ruocchio

This and the next two posts are going to identify some of the more common bases for terminating benefits. The information herein comes from discussions with a former Special Deputy Commissioner.

Terminating or stopping temporary total disability is done in one of two ways. First, an employee returns to work for the same employer or for a different employer at similar or lower wages. As such, a Form 28 or 28T is simply filed and benefits are stopped. For all other cases, an order of the Industrial Commission must be obtained. Typically, an order is obtained through the Industrial Commission via the Form 24 application to either suspend or terminate plaintiff’s benefits. These decisions are decided on a case by case basis as the circumstances and documentation for each case is different. The Form 24 is heard by Special Deputy Commissioners and is handled through the Administrative Office of the Industrial Commission under the Executive Secretary. Special Deputy Commissioners are not permitted by the Executive Secretary to make any findings, weigh evidence or determine credibility of physicians. As such, their review is very limited to the documentary evidence that is placed before them by the moving and non-moving party.

The first and most common way to terminate benefits is a release to return to work by the treating physician without restrictions. Typically a medical report or note that clearly releases the plaintiff to return to work without restrictions is required. Harrington v. Adams-Robinson Enterprises, 128 N.C. App. 496, 495 S.E.2d 377; rev’d by 349 N.C. 218, 504 S.E.2d 786 (per curim) (1998). This case represents the easiest, fastest and simplest way to terminate benefits. Once a full duty note is obtained, the Form 24 application should be submitted to terminate benefits.

There are a couple caveats when a full duty note will not work. If the doctor simply states “a release to return to the job of injury” it is not sufficient. It must state full duty. A return to work “as tolerated” may also not be sufficient. The Executive Secretary has ordered that even such minor restrictions as sun screen, orthotics, glasses, compression stockings, etc. are deemed to be restrictions and the Special Deputy Commissioners will not approve the Form 24 Application in such situations. Therefore, a full duty release to return to work standing alone is the best evidence.

Other aspects of return to work that may or may not be sufficient is a work note that does not mention any restrictions. Therefore, if the work note is silent on restrictions, the Form 24 Application will likely be denied. An anticipatory release to full duty in a certain number of weeks may not be sufficient. However, filing a Form 24 with an anticipatory full duty note is an acceptable practice provided the number of weeks until the full duty release have passed at the time the Form 24 is filed.

Caveat: We have seen in recent years, the use of hired guns by plaintiff’s attorneys. There are many “go to” doctors to whom plaintiffs attorneys will send their clients for some type of a restriction. As stated above, Special Deputy Commissioners do not weigh or make credibility determinations about doctors. They only review documentation. Any conflicting documentation is sufficient to rebut a Form 24 in the administrative setting thus requiring an appeal for a full evidentiary hearing.

The second method of terminating benefits is a refusal of suitable employment. The definition of suitable employment is broken down into pre-MMI and post-MMI. Therefore, when plaintiff reaches maximum medical improvement, there is an important distinction to be made concerning suitable employment. If, prior to reaching maximum medical improvement, a doctor places restrictions upon plaintiff, pursuant to NCGS § 97-2(22), any job that is within those restrictions, including rehabilitative or other non-competitive employment with the employer of injury is acceptable, as long as it is approved by the employee’s authorized health care provider. Therefore, a pre-MMI job needs to be sent to the treating doctor and approved. Thereafter, it must be offered to the employee. Once those three steps are completed, i.e., (1) obtaining a job description, (2) getting it approved by the treating physician, and (3) offering same to the plaintiff, with plaintiff refusing the job offer, sufficient grounds exist for filing a Form 24.

Once an injured worker reaches maximum medical improvement, there are different steps to return plaintiff back to work. A physician does not need to approve the job; however, having it approved, while not required, can be beneficial. Nonetheless, the job cannot be “make work” or rehabilitative, but typically must be open and available to the general public and, most importantly, within a 50 mile radius from the plaintiff’s residence at the time of the injury. Other factors to consider are the plaintiff’s age, wage, education, skills, physical limitations and experience. However, not any one factor is dispositive.

As a practice tip concerning suitable employment, the documentation, as stated above, must show that it has been offered. However, since the Form 24 setting is based on documents, if the plaintiff receives an additional set of restrictions from another physician that states he cannot perform the duties of the offered job description, then the Executive Secretary may not find the job suitable. At that point, an appeal is required for a full evidentiary hearing on the credibility of the physician and the basis of the restrictions imposed.

Finally, there is the issue of constructive refusal of suitable employment. This occurs typically in the setting of termination for misconduct or for reasons not related to the work injury. A test for this is, “but for the misconduct, defendants would have had a suitable job available for plaintiff.” As such, there must be documentation that a non-disabled employee would have been terminated for the same misconducts. This documentation can either be an affidavit of an employer or a copy of the employer policy settling the grounds for termination. In addition, to show that plaintiff constructively refused suitable employment, there needs to be documentation of the job and an offer or statement of availability. The same definitions contained in NCGS § 97-2(22) are applicable. Constructive refusal can occur either pre- or post-maximum medical improvement.

The next two blogs will cover the balance of ways to terminate benefits under the Form 24 process and finally other issues that are addressed and seen in the Form 24 process and their rate of success and/or failure.