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Termination and suspension of benefits

Once the right to workers’ compensation payments has been established, the employer may not terminate these benefits without the specific approval by order of the North Carolina Industrial Commission. An exception to this rule is when the employee returns to work. Returning to work involves a different set of rules.

Absent a return to work by the employee, the employer who wishes to stop payment of workers’ compensation benefits must petition the Industrial Commission for approval. This petition must be on a form prescribed by the Industrial Commission and a copy must be given to the employee and the employee’s attorney. This form shall contain the reasons for the proposed termination or suspension of compensation. It must be supported by available documentation and it must inform the employee of the employee’s rights to contest the termination or suspension by filing an objection in writing with the Industrial Commission within 14 days of the date the employer’s notice is filed with the Industrial Commission. If the employee fails to object to the petition to terminate benefits within the time provided the Industrial Commission may, and most probably will, terminate or suspend the compensation to the employee.

If the employee files a timely objection to the petition to terminate benefits, the Industrial Commission shall conduct an informal hearing by telephone with the parties or their lawyers. If either party objects to conducting the hearing by telephone, the Industrial Commission may, but does not have to, conduct the hearing in person in Raleigh or at another location selected by the Industrial Commission.

At this informal hearing the parties are given an opportunity to state their position and to submit documentary evidence.

The hearing must be conducted within 25 days of the receipt by the Industrial Commission of the employer’s petition to terminate benefits.

The Industrial Commission is required to issue a decision on the employer’s application for termination of compensation within five days after the informal hearing. The commission may approve or disapprove of the application or if it is unable to reach a decision, may schedule a formal hearing before a deputy hearing officer of the Industrial Commission.

Only in the event that the employer’s application to terminate or suspend payments is approved, may compensation be stopped. If the commission was unable to reach a decision, the employee’s compensation shall continue until a decision is reached by the Industrial Commission after the formal hearing.

If the employer’s application to terminate or suspend benefits is allowed after the informal telephone hearing, the employer may, at that point, stop paying workers’ compensation payments. Even if there is an appeal from the ruling, the employer does not have to continue making payments pending the appeal.

If the Industrial Commission denies the employer’s decision to terminate benefits after the informal telephone hearing, the employer must continue paying workers’ compensation payments to the employee. This is true even if there is an appeal and request for a formal hearing.

The Industrial Commission’s decision in the informal hearing is not binding on either party and either party may appeal and ask for a formal hearing before a deputy commissioner.

At this hearing after the appeal a new hearing is conducted from scratch. The parties get a fresh start and none of the findings or rulings from the first hearing will be held against either party. All evidence is presented anew at the formal hearing.

If after a formal hearing, the employer’s request to terminate benefits is allowed, the employer may terminate benefits effective from the date the employer first filed the petition to terminate. At this point the employer will be entitled to a credit for the overpayment which will have accrued during the hearing and appeal process.

Among the most common basis for the employer’s petition to terminate or suspend benefits are the following:

1. That the employee is no longer disabled. The employer will argue that the injured worker’s condition has improved to the point at which he is able to return to work full-time at his previous job or at some other job.

The employer will argue that the worker could find another job if they really tried. This is when the injured worker’s job search log is very valuable. If a legitimate job search has been unsuccessful, chances are good that the workers’ compensation benefits will not be terminated.

2. The injured worker has refused suitable employment. The issue here becomes whether the worker can actually do the job that the employer has offered. The treating doctor’s testimony and the testimony of a vocational expert on this issue is very important.

As soon as an allegation of refusing suitable employment is made, the injured worker should hire a vocational expert to test and examine the worker and examine his medical, education, work history, vocational and other records to form an opinion as to whether the employment offered to the worker is in fact “suitable.”

While medical testimony is always important, the issue involving suitable employment and whether a worker is in fact employable is more within the expertise of a vocational expert. The vocational expert will, of course, rely heavily upon medical records, but this expert will also conduct vocational testing and study the employee’s education, vocational skills, government employment statistics, work history and other materials upon which to form an opinion.

3. The worker refused to co-operate with vocational rehabilitation efforts or refused to be examined by a doctor chosen by the employer. You should never let it be said that you refused to co-operate with vocational rehabilitation efforts or that you ever refused to be examined by a doctor. Resistance to vocational rehabilitation and to examinations by doctors should never be in the form of a flat out refusal. Such resistance, if conducted at all, should only be after close consultation with an experienced workers’ compensation attorney.

Please refer to the book offered for free on this web site concerning how to deal with vocational rehabilitation counselors and with doctors.

If you follow the advice in the book, you should not have to defend against an effort to terminate or suspend your workers’ compensation benefits.

For failure to co-operate with vocational rehabilitation efforts, for failure to be examined by a doctor and for failure to accept suitable employment, the Industrial Commission may only suspend benefits, it may not terminate the benefits. Once an injured worker proves that he no longer refuses to co-operate with vocational rehabilitation efforts, to be examined by a doctor or to accept suitable employment, the benefits will be reinstated.

If a petition to terminate your benefits is filed, you should call your lawyer immediately. If you do not have a lawyer at this point, you should retain an experienced workers’ compensation lawyer immediately. The issues involved will be too complex for you to handle yourself. The amount of money at issue is large enough to justify the expense of a lawyer.

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