One of the most dangerous stages of a workers’ compensation claim is when the employer tries to get the injured worker back to work.
The law provides that if an injured employee refuses employment found suitable to their capacity they shall not be entitled to any compensation at any time during the continuance of such refusal unless the Industrial Commission finds that the refusal is justified. (Here's what you need to know when working with a vocational rehabilitation counselor.)
The dilemma for the employee arises from another law which provides that workers’ compensation benefits will stop when the employee returns to work. The risk to the injured employee is that after working several weeks they may find that they are in fact still unable to do the work. If they are unable to do the work, the employer could terminate employment. At this point the worker is left without a job and without workers’ compensation benefits. Once workers’ compensation benefits are stopped for any reason, it is extremely hard to get these benefits reinstated. Even when they are reinstated, it may take months or years before a final determination.
This risk is the primary factor behind the reluctance of the injured worker to return to work.
Of course, it is in the best interest of the injured worker to go back to work provided they can do so successfully. It is also in the best interest of the employer and the workers’ compensation insurance carrier that the worker returns to work.
To assist the worker in dealing with this dilemma, the North Carolina General Assembly enacted legislation dealing with trial return to work. Under this special statute, a worker may return to work for a trial period not to exceed nine months. During this trial return to work, the worker and his doctor may determine whether he can, in fact, continue to work successfully. If the trial return to work is unsuccessful, the law requires the employer to immediately resume paying full workers’ compensation benefits without having a trial or other proceeding.
To facilitate this law, the North Carolina Industrial Commission established a set of regulations and forms dealing with trial return to work. Under these regulations, when the employee returns to work the employer must file a form known as Form 28T with the Industrial Commission and provide a copy to the employee. If during the trial return to work period the employee must stop working due to an injury for which compensation had been paid, the employee should file with the Industrial Commission a Form 28U. This Form 28U must contain a statement completed by the worker’s doctor certifying that the injury for which compensation had been paid prevents the employee from continuing the trial return to work. The regulation provides that upon receipt of this Form 28U from the employee, the employer “shall promptly resume payment of compensation for temporary disability.”
This is a good law. It serves the purpose of both the employer and the employee. If the law is obeyed, it relieves the employee from the concern that he may not be able to successfully return to work and, therefore, suffer a long period of time during which he is both out of work and not receiving workers’ compensation benefits. It serves the purpose of the employer because it encourages workers to go back to work. The intended effect of this law is that, upon the worker’s properly filing the Form 28U which includes his doctor’s signature attesting to the fact that his return to work was unsuccessful, the worker will immediately receive full workers’ compensation benefits without the hassle and worry and delay caused by a subsequent hearing.
Although this is a very good law, in practice, the results have been mixed. The problem arises from the fact that employers can simply thumb their nose at the law and dream up ever excuse imaginable to support their failure to resume full workers’ compensation benefits upon an unsuccessful return to work effort. The law does not give the Industrial Commission sufficient teeth to provide a real deterrent to the employers from this kind of misconduct.
In practice, the worker is still at risk when they returns to work. It is important to be absolutely certain that you can successfully do the job on a long-term basis. Otherwise, you run the risk of a long delay while the issue of payment of further workers’ compensation benefits is being decided.
The risk of returning to work, however, should be measured against the real risk of failing to return to work when your employer and doctor say that you can return. If the Industrial Commission finds that the worker refused suitable employment offered, the worker will not be entitled to any further compensation during the continuance of such refusal.
If you refuse to return to work, it is important to have a strong doctor’s opinion supporting this refusal.
Because the decision to return to work is so full of risks, it is also essential to have an experienced North Carolina workers’ compensation lawyer at your side and involved in all aspects of this decision.