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It Is Important To Conduct Regular And Frequent Job Searches

IT IS IMPORTANT TO REGULARLY CONDUCT A JOB SEARCH

 

The employee has the burden of proving that he or she is disabled as a result of a work related injury or occupational disease.  Disability is defined as the: “incapacity because of injury to earn wages which the employee was receiving at the time of the injury in the same or any other employment.” 

 

This ongoing burden of proof which has been placed upon the employee continues even if the employer is continuing to pay temporary total disability benefits to the employee.  At any time the employer could file a form with the N.C. Industrial Commission which alleges that the employee is able to return to work.  At that point, the employee, not the employer, has the burden in proving that he or she is disabled.  That is, they must prove that they do not have the capacity, because of the injury, to earn wages which they were receiving at the time of the injury in the same or any other employment. 

 

Testimony of the employee’s doctor to the effect that the employee cannot work at any job is one way to prove disability.  However, in those instances in which the doctor says that the employee can do some work, but that the employee is subject to restrictions on the type of physical work he or she can do, an additional method of proving disability must be used.

 

This additional method is to show that because of the injury, the employee is unable to find a job which does not impose physical requirements upon the employee in excess of those restrictions set by the doctor.  In other words, the employee must show that  he was unable to find a job within the restrictions imposed by the doctor. 

 

An example of such restriction would be in the case of a brick layer who has worked all his life doing jobs which require hard physical labor and has work restrictions from his doctor forbidding him to lift more than 10 pounds.  Obviously, this worker cannot continue working as a bricklayer since bricklayers are required to lift heavy weights constantly.  The question then becomes, is there any job which this bricklayer can do even though he can not lift more than ten (10) pounds.  It will probably be difficult for this bricklayer to find a job which would not require him to lift more than 10 pounds.  This is especially true if the worker has a very limited education and is advanced in years. 

 

A secretary on the other hand who has a 10-pound weight restriction would probably be able to find a job since a secretary’s job usually does not require lifting as much as 10 pounds.  Even if the secretary was injured at a job which required lifting more than 10 pounds, chances are it would be easy for him or her to find a job as a secretary that did not require more than 10 pounds of lifting.  It is relatively easy to predict how the Industrial Commission would rule on the issue of whether the bricklayer and the secretary are disabled with a 10-pound weight restriction.  The bricklayer most likely would be considered disabled, while the secretary most likely would not be considered disabled.  However, with occupations which have physical demands between those of a bricklayer and a secretary, it may be hard to predict whether the Industrial Commission would consider a weight restriction or other physical restrictions to be disabling.

 

A favorite trick the insurance companies use to defeat an injured worker’s claim is to pay temporary total disability for a while without assigning a vocational rehabilitation counselor.  The worker is lulled into a false sense of security because the employee continues to pay workers’ compensation benefits.  Because of this false sense of security, the worker does not look for other work and is therefore not fully prepared to prove disability.  The insurance company then files a form with the Industrial Commission asking for a hearing on the issue of whether the employee is disabled.  Again, the burden of proof in disability remains with the injured employee.

 

To protect against this ploy on the part of the insurance company, it is extremely important that the worker conduct a regular and thorough job search.  This job search involves checking the want ads in the newspaper, jobs posted with the Employment Security Commission, and even cold calling potential employers to see if work is available within the worker’s physical restrictions.  This job search is tedious and time-consuming.  However, while the job search is going on, the employee continues to receive temporary total disability benefits because he or she is out of work.  The injured employee should consider this job search as part of their “regular job.”  It is not nearly as demanding as full-time work, and it is almost as lucrative.  The worker continues to get weekly benefits at the rate of two-thirds of their former average weekly wage.  Since these benefits are tax free and are not subject to deductions for social security withholding taxes, etc., the net money realized is nearly the same as the employee realized before the injury in most cases.

 

The employee will be in a much better position to prove disability if he or she can testify about an extensive job search, and show that they made an honest effort to find the work, but that no such work was available.

 

Fortunately for the worker, the law requires the Industrial Commission to make a determination as to whether a particular worker can find a job.  It is not enough for the employer simply to show that jobs are available in the market place.  In order for a worker’s benefits to be terminated, there must be a finding that this individual worker in question was not able to find employment.  With an extensive job search, the worker is in a much better position to keep his benefits from being terminated. 

 

Conducting a job search is not as difficult as it may sound.  The appendix to this book contains a sample form for use in this job search.  The form should be used for each job application made by the employee.  If an application was made in response to a want ad, a copy of the want ad should be taped to the sheet.  The sheet should be filled out showing the date the application was made, the person contacted by the employee, whether an in-person interview was conducted.  If an in person interview was conducted, the name of the person conducting the interview and the substance of what was discussed during the interview.  If an in-person interview was not conducted, there should be a statement that the proposed employer did not allow for in-person job interview.  The form should contain some description of the job for which application was made and a general description of the employer.  Mention should be made of the physical and educational requirements of the job. 

 

If a worker brings to a termination hearing 20 or 30 of these job search forms and testifies about their efforts to find work, the chances of winning are much greater than if the employee simply testifies that he tried to find a job, but could not fine one.  If a written record of the job search is not made at the time of each application, it will be difficult for the injured worker to remember the specific facts of the job search.  It is much more impressive to bring in written documentation of the job search.  One possible outcome of an extensive job search is that the injured worker may find a good job and return to work at a greater salary than he earned before the injury.

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