When a worker suffers an on-the-job injury, he or she may be unable to work for a period of time. Once a worker has obtained maximum medical improvement, he or she may still suffer ongoing disabilities and permanent impairment. At that point, the employer may offer an alternative form of employment. It won’t be exactly the same position. It won’t necessarily pay the same. Even if a worker is unhappy with the offer, he or she should consult with a workers’ compensation lawyer before turning it down because doing so could in some cases jeopardize one’s benefits.
In the recent case of McKnight v. Lowe’s, the question was whether plaintiff unjustifiably turned down suitable employment offered by defendant. The North Carolina Industrial Commission ruled that she did. However, the North Carolina Court of Appeals held that the Commission failed to make sufficient findings of fact on this issue, and thus vacated the opinion and remanded for further review.
According to court records, plaintiff was 31-years-old and had been working at a Lowe’s in Raleigh for eight years when she suffered a work-related injury in November 2009. She had a high school diploma and worked first as a cashier for about 2.5 years, then as a specialist in the home decor department, and later as a manager-in-training in hardware and tools before being promoted to manager of paint and home decor in 2005. It was in this capacity that she suffered a work-related injury to her neck and shoulder.
She continued to work as a manager in that department until July 2010, at which point she stopped working because she could not continue to do her job and still abide by her doctor’s orders not to lift anything over 10 pounds.
That same month, employer filed a notice indicating it was making temporary total disability payments to worker.
In October 2011, plaintiff underwent a functional capacity evaluation in which it was determined she could occasionally lift up to 18 pounds from floor to waist, lift up to 15 pounds from waist to shoulder and could carry up to 15 pounds. She could also push and pull with about 50 pounds of force. At that point, her doctor opined she’d reached maximum medical improvement and released her to work with permanent restrictions for light work.
The company then initiated vocational rehabilitation services, and over the next 1.5 years, plaintiff participated in a number of meetings with the vocational specialist, obtained several community college certifications on office applications and basic computer use, and applied – unsuccessfully – for a number of jobs with different employers. Plaintiff then applied for a customer service job with defendant, which responded with a request to fill out an Americans with Disabilities Accommodation request form, which would include her doctor’s functional capacity assessment form. Plaintiff received the request but didn’t return the documents, based on her belief there was no possible job they could accommodate her with.
As a result of this failure to return the form, defendant formally requested that the Commission require her to submit the forms. This request was denied and defendant requested a hearing.
The vocational specialist carried out a job analysis of a full-time, modified cashier position that he opined would be appropriate for defendant. This form, complete with job description, was forwarded to plaintiff’s doctor, for a determination of whether patient could complete the duties.
A hearing was held. Worker testified she was aware of the job analysis on the cashier position, and her understanding was it was pending. When asked by the commissioner if she would take the cashier job if approved by her doctor, she answered, “I really don’t know.” She said she was afraid of getting hurt again and had really hoped to land some type of secretarial work. As a former cashier, she knew the job required loading merchandise into carts, bringing in empty carts from the parking lot and sometimes lifting heavy items while customers were checking out. The loaders that sometimes help with heavy lifting, she said, aren’t always available, and customers don’t like to wait longer for cashiers to receive assistance. Customers also don’t always put merchandise neatly on the belt to be scanned. It would be harder especially in the summer – the busy season – for her accommodations to be met. She also explained that despite the company’s promises to accommodate her previous work restriction, she regularly found herself exceeding her doctor’s recommended lifting restrictions.
Despite this hesitance, her doctor approved the modified cashier position at a rate of $453 a week – about $150 less than what she made weekly as a manager. She received the letter of the job offer, but declined to return.
Based on this failure, defendant filed a term to terminate or suspend her workers’ compensation. This request was granted by the deputy commissioner and later the commissioner, but the appellate court vacated. Although the court didn’t go so far as to say the commission was wrong, it did say there was not sufficient fact-finding.
A suitable position under the law would be any position claimant is capable of performing considering his or her age, education, physical limitations, vocational skills and experience. Here, commission did not make any findings of fact as to whether defendant showed the position offered actually existed in the labor market and did not constitute “make work.” That is, it’s not a made-up position, but one that actually exists in the real market. There was no evidence presented that other employers would hire plaintiff to do a similar job at a comparable wage and there was no evidence that the modified cashier job offered to plaintiff actually exists in the competitive market.
Therefore, the case was remanded back to the lower court for further findings.
Contact the Carolina workers’ compensation lawyers at the Lee Law Offices by calling 800-887-1965.
McKnight v. Lowe’s, Dec. 6, 2016, North Carolina Court of Appeals
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