Diamond Post

 Workers' Compensation Newsletter

North Carolina Workers' Compensation Law Update
New act affects suitable employment

The North Carolina Legislature recently enacted the "Protecting and Putting North Carolina Back to Work Act."  The new act affects many aspects of North Carolina Workers' Compensation law. This newsletter is intended to provide a helpful summary of one of the most significant areas of change: suitable employment.

Prior to June 24, 2011, there was no statutory definition of "suitable employment" -- only factors from case law to be examined. The term suitable employment has been more clearly defined in NCGS Section 97-2(22), which provides a statutory definition of "suitable employment." The statute distinguishes between claimants who have reached maximum medical improvement (MMI) and those who have not. Prior to reaching MMI, suitable employment is any available employment that is within the claimant's work restrictions. After reaching MMI, suitable employment would include "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." NCGS Section 97-2(22). One should note that pre-injury wages are not included in the list of factors to be considered. However, location is a consideration; the employment should be within a 50-mile radius of the employee's residence. No one factor should be considered exclusively when determining if employment is suitable. NCGS Section 97-2(22).

Not only was a statutory definition added, but the code section governing an injured employee's refusal to accept suitable employment -- NCGS Section 97-32 -- was amended. The updated version of NCGS Section 97-32 leaves no confusion that an employer may directly contact the employee about returning to suitable employment, as defined above, so long as contemporaneous notice is provided to employee's counsel. This code section also explains that if the Commission suspends compensation due to an unjustified refusal of suitable employment, the order must specify the actions the employee must take to end the suspension.

It is well established that a statute trumps case law; however, in this particular instance, the statute limits itself to claims arising on or after the effective date of the act. Therefore, the recent Wynn case heard by the Court of Appeals, applies to all claims made prior to June 24, 2011. In Wynn, the Court of Appeals held that all offers of employment must be open and advertised to the general public. Wynn v. United Health Services/Two Rivers Health, No. COA10-991 (August 2, 2011). Before Wynn, a pre-MMI claimant could be offered "make-work." Since August 2011, this is no longer the case unless the doctor suggests that work would be therapeutic to a pre-MMI claimant. Except for the one small therapeutic exception, the burden on the defendant is significant and difficult to establish.

Not only must the defendant demonstrate that suitable employment has been offered, but the defendant may be responsible for paying benefits for longer if no suitable employment is found. Under the new law, there is a rebuttable presumption that one's disability continues until the employee returns to suitable employment or for 500 weeks. In the previous version of NCGS Section 97-29 and NCGS Section 97-30, the cap was 300 weeks. The new law adds that the "employee shall not be entitled to compensation pursuant to this subsection greater than 500 weeks from the date of first disability unless the employee qualifies for extended compensation under subsection (c)." NCGS Section 97-29. Similarly, "where the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid . . . his average weekly wages, [but] in no case shall the employee receive more than 500 weeks of payment under this section. Any weeks of payments made pursuant to G.S. 97-29 shall be deducted from the 500 weeks of payments available under this section." NCGS Section 97-30. In other words, the previous 300 week cap placed on Temporary Total Disability Benefits and Temporary Partial Disability Benefits was extended to a 500 week cap under the new law. NCGS Section 97-29 and NCGS Section 97-30.

All claims made on or after June 24, 2011, should follow the revised statutes as discussed above.

Gallivan, White & Boyd, P.A. has dedicated much effort to becoming well-versed in the recent changes in the law. This winter, our firm will be leading several trainings around the state educating others on the new North Carolina Workers' Compensation law. Please contact our Charlotte office for additional information regarding the training sessions.