What is Suitable Employment After a Workplace Injury?
After an injury at work, the employee may be authorized to return to the workplace subject to certain medical conditions and restrictions.
The employer ordinarily must provide reasonable accommodations for the employee’s continued health and safety during period of recovery.
That may involve finding a new type of work or job to perform, rather than limiting the scope and/or duties that were in place at the time of the injury.
A frequently litigated issue under the North Carolina workers’ compensation laws involves something known as “Suitable Employment.”
A dispute may occur when the amended job responsibilities and/or new job is unsuitable for the injured employee.
The employee may reject the new job or position if it is “unsuitable.”
Changes to the NC Work Comp Laws
"We work hard to get you back to where you before the workplace accident. That can be easier said than done, as the recovery process can take time and employers don’t always proceed in good faith."
- Kevin Jones, Work Comp Lawyer NC
Case law up to 2011 indicated that after the maximum level of medical improvement, employment must be reasonably attainable, available in the local job market, and further give proper consideration to things like the employee’s qualifications, individual aptitudes, and vocational interests.
In 2011, the North Carolina workmen’s compensation laws were amended, providing a statutory definition of “Suitable Employment.”What is Maximum Medical Improvement or “MMI?”
MMI – Maximum Medical Improvement Means the employee’s options for treatment have been exhausted.
When an employee injured on the job reaches a level of improvement such that her or his condition will not get better even with continued medical care, physical therapy, or treatment, Comp Lawyers in North Carolina may refer to that as “MMI.”
It is a designation made by doctors relating to whether continued treatment will help in returning the employee to the same or similar physical condition (or mental condition) they were in prior to the workplace injury.
It’s also possible treatment for the injury to reach a plateau, where the healing process likely will not improve despite continued efforts.
"MMI in work comp claims can get complicated. There are times when doctors tell the employee, ‘I just can’t do anything more to help."
- Kevin Jones, Worker’s Compensation Lawyer in Greenville NC
N.C.G.S. 97-2(22)(ii) defines “post-MMI” employment that is “suitable.”
Suitable employment is that which the employee may perform, or is capable to perform, taking into consideration the injury-related mental and physical limitations, as well as pre-existing physical limitations, the employees education, experience, and vocational skills.
Suitable employment must be available within a 50-mile radius of the injured employee’s residence where they lived at the time of the injury.
The 50-mile radius may also apply to the employee’s current address if the employee had a good reason to relocate since the date of loss or date of the injury at work.
Of those factors listed, no one factor is to be considered exclusively or outside a totality of circumstances in determining what is not and what is suitable employment.
The North Carolina Court of Appeals in January 2020 ruled on an important suitable employment case in Griffin v. Absolute Fire Control.
The fact pattern in that case was such that the Industrial Commission ruled the position offered by the employer to the employee was suitable employment.
The industrial Commission took in consideration that:
- The new job offer was permanent, or a permanent position; and,
- The position was not created specifically just for the employee; and,
- The new job fell within the employee’s restrictions after the injury; and,
- The employee was physically able to perform the duties necessary for the job; and,
- The new position had the same hours and wages as the employee’s pre-injury job.
“Make Work” is a term used by Work Comp Lawyers in NC referring to “busywork” or duties and responsibilities that are of little to no value or importance in the workplace.
In Griffin v. Absolute Fire Control the Court of Appeals reverses the IC and returned it to the Industrial Commission to make additional findings, subject to a “Make Work” analysis.
The Make Work Tenet seeks to answer the question:
Are there similar jobs in the industry or is the Employer of the injured employee simply making up a job or job duties that are not part of employment at any other place of employment?Eastern North Carolina Worker’s Compensation Lawyer – Kevin Jones
Just because the employer offers you a job, does not mean that is full and fair compensation for an injury or loss due to a workplace accident.
While having a job is important to take care of your family, it should be meaningful and consistent with your education, background, training, and definitely must consider your long term earning capacity.
If you've been injured on the job in Greenville NC, Beaufort, New Bern, Jacksonville NC, or anywhere in eastern North Carolina, we are here to help.
Your case matters.
Call Kevin Jones at: 252-499-9859