It was, in a sense, a single comma that was the deciding factor in the workers’ compensation case of Falin v. The Roberts Co. Field Services, Inc., recently before the North Carolina Court of Appeals.
Central to this case is North Carolina General Statute 97-2(22) of the Workers’ Compensation Act, which defines “suitable employment” as far as temporary partial disability payments are concerned. When a worker is able to return to work – but not necessarily to the exact same type of work – the company must try to offer suitable employment. If the company does not have suitable alternative employment, it has to continue paying disability benefits. The statute defines suitable employment as one that the employee is capable of doing considering preexisting and injury-related physical and mental limitations, vocational skills and education, and is one that’s located in a 50-mile radius of the worker’s residents at the time of injury or the employee’s current residence if employee had a legitimate reason to relocate. The law further states no one factor will be considered exclusively in determining suitability.
Defendant company in this case offered the partially injured worker a job that was more than 350 miles from his home, but argued that because the statute says, “no one factor will be considered exclusively,” this alone wasn’t grounds to consider the employment not suitable. The appeals court disagreed, noting, “Defendant ignores the grammatical construction of the statute, which separates the 50-mile radius requirement as an entirely separate clause, not jointed to the other “factors” by a comma, and thus not part of that serial list of factors.” Had the statute been written in reverse order, the court ruled, the 50-mile radius rule would have been considered an element in the series. But it isn’t. Thus, the worker won his case.
According to court records, the worker lived in Kingsport, TN and sought and accepted a construction job with defendant in October 2012 as an iron worker. He agreed to work in Aurora, NC, which is more than 415 miles from his home. He indicated on his application that he was available for out-of-town jobs.
Just a few months later, he suffered a compensable injury to his leg when a large beam fell on him, fracturing the leg under the knee. He had to undergo surgery that same day and later endured ongoing pain that persisted even through long-term physical therapy. He returned to his home in Kingsport for further medical treatment.
Defendant accepted liability for the injury and paid his workers’ compensation benefits.
He was placed at maximum medical improvement in July 2013, and was assigned a 9 percent disability rating.
When the company reviewed his restrictions, it offered him a position as a tool clerk, which would pay him the same amount he was making before and was less physically strenuous. However, the job was in Charleston, SC – nearly 340 miles from his home.
Plaintiff soon thereafter took two minimum wage jobs near his home, and rejected the offer in Charleston, saying it was not within a 50-mile radius of his home.
Defendant sough then to end plaintiff’s Temporary Partial Disability (TPD) benefits, on the basis it had rejected its offer of suitable employment.
However, the reviewing commissioner and later the full commission decided in favor of the plaintiff in this matter, indicating the new job wasn’t suitable employment. Defense appealed to the North Carolina Court of Appeals, and the award was again affirmed – all because of that comma.
If you have been injured at work in Charlotte, contact the Lee Law Offices at 800-887-1965.
Falin v. The Roberts Co. Field Services, Inc., Feb. 2, 2016, North Carolina Court of Appeals
More Blog Entries:
Report: North Carolina Workplace Deaths Down in 2015, Jan. 31, 2016, Charlotte Workers’ Compensation Lawyer Blog