How might returning to work impact your workers’ compensation benefits?
The North Carolina Workers’ Compensation Act clearly states that employees who suffer a work-related injury or occupational illness are entitled to compensation for medical care and lost wages if their employer has 3 or more employees on the payroll. These workers’ compensation benefits must be provided until the injured worker is able to return to work or settles their claim.
However, according to the Industrial Commission, there is no legal requirement for the employer to accommodate work restrictions or limitations placed on an injured employee by their doctor. Employers in North Carolina also aren’t obligated to keep the injured worker’s job open until they can safely return to work.
Following a work-related injury, both the employer and employee should seek to return the injured worker to “suitable employment.” Unfortunately, things don’t always work out this way. Returning to work can be a particularly difficult transition for both employers and employees if the injured worker is not fully recovered.
Such scenarios raise many difficult questions about returning to work while receiving workers’ compensation benefits, including:
- When can I return to work?
- Am I required to return to work?
- Will my benefits stop when I return to work?
- Who determines when I can return to work?
- What happens if I refuse to return to work?
In this article, we’ll seek to answer some of the most common questions surrounding returning to work after filing for workers’ compensation. If you live in North Carolina and want more information about your individual case, we encourage you to schedule a free consultation with an experienced workers’ compensation attorney at Wilder Law Group.
What is “suitable employment”?
Under N.C. Gen. Stat. § 97-32, an injured worker is not entitled to workers’ compensation benefits if they refuse suitable employment, unless the refusal is justified by the Industrial Commission.
The North Carolina Rehabilitation Guidelines define suitable employment as follows:
“Suitable employment” means employment in the local labor market or self-employment which is reasonably attainable and which offers an opportunity to restore the worker as soon as possible and as nearly as practicable to pre-injury wage, while giving due consideration to the worker’s qualifications (age, education, work experience, physical and mental capacities), impairment, vocational interests, and aptitudes.
No one factor shall be considered solely in determining suitable employment, but rather a range of factors must be considered—such as:
- Physical ability to perform the job,
- Psychological disability and the similarity of wages of the pre-injury employment and the post-injury jobs, and
- Geographic factors are also considered when determining suitable employment. (Generally, the position must be located within a 50-mile radius of the worker’s home at the time of their injury, or their current residence if the employee had a “legitimate reason to move.”)
Who determines when you can return to work?
Only an authorized treating physician, NOT an employer or insurance company, can determine when an injured worker has reached maximum medical improvement (MMI) and is able to return to work full duty or with restrictions (light duty).
We often hear from clients that their employer or their employer’s insurance company is pressuring them to return to work. However, in North Carolina, only an authorized treating physician can assess whether or not it’s safe for their patient to return to work.
Are you required to return to work?
You (the injured employee) have an obligation to attempt to return to work if your employer offers a suitable job. Typically, your nurse case manager will ask your employer to provide a job description, which is then reviewed by you and sent to the treating physician for approval. If the physician approves the job from a physical standpoint, and if the job is otherwise suitable, then you should attempt to return to work.
Injured workers are allowed a 9-month trial return to work period according to N.C.G.S. § 97-32.1.
You are entitled to temporary partial disability (TPD) benefits if you are earning less than your pre-injury average weekly wage during this trial return to work period. If you are physically unable to continue with the trial return to work, then your treating physician can sign a Form 28U—at which time the carrier must reinstate temporary total disability (TTD) benefits.
Will my benefits stop when I return to work?
If you are cleared to return to work full duty (without restrictions), then you will stop receiving lost wage benefits. But your employer (or their workers’ compensation insurance company) should continue paying for medical bills and follow-up appointments related to your occupational injury or illnesses.
If you are cleared to return to work light duty (with restrictions) but earn less than your pre-injury wage, then you may still continue receiving temporary partial disability (TPD) or permanent partial disability (PPD) benefits to help offset that reduction of income.
What if I refuse to return to work?
If you refuse to return to work despite suitable employment being offered, then your employer can move to terminate benefits under N.C.G.S. § 97-32. This is accomplished by the Form 24 process.
What will happen is the defendant (your employer or their workers’ compensation insurance provider) fills out Form 24 and submits it to the Executive Secretary’s office. You then have 14 days to respond.
Next, an informal telephone hearing is scheduled and presided over by a Special Deputy Commissioner appointed by the Executive Secretary’s office. An order is issued within 5 business days of the telephone hearing.
If Form 24 is granted, the defendant is permitted to terminate the employee’s workers’ compensation benefits as of the date that Form 24 was filed. If Form 24 is denied, then you will continue to receive weekly benefits as usual.
Either party may ask the Special Deputy Commissioner to reconsider—or either party can appeal the Form 24 decision to a full evidentiary hearing.
When should I talk to a workers’ comp attorney about returning to work?
What we’ve covered in this article are merely the basic concepts of an otherwise very complex area of the law.
The North Carolina workers’ compensation system consists not only of the statutes, rules and case law, but also of the numerous unwritten procedures practiced by members of the workers’ compensation bar.
For more information about your specific case, we strongly recommend you consult with a Board-Certified Workers’ Compensation Specialist in North Carolina.
At Wilder Law Group, we’ve represented injured workers and their families for over 35 years. From reporting your injury to your employer to returning to work, we will be with you every step of the way to ensure your rights are protected and you obtain the maximum workers’ compensation benefits possible under North Carolina law.