Do I really have to look for a job while on workers’ comp in NC?
I am frequently asked by my clients “Why do I have to look for a job while on workers’ comp in NC?” The answer is because if you do not you may lose your workers’ compensation benefits.
In general, it is the injured employee’s responsibility in a NC workers’ comp case to prove that he or she is disabled. The only time the employee does not have the burden of proving disability is when the Industrial Commission has specifically found that the worker is disabled, usually in an Opinion and Award after a hearing. Otherwise, the burden is on the employee to bring forward actual evidence of disability. This is true even if the employee has not worked for months or years, has restrictions from the doctor, or firmly believes, perhaps justifiably, that nobody will hire them.
Disability in a NC workers’ comp case means “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” NCGS 97-2(9). The courts have identified four ways a workers’ compensation claimant can prove disability: (1) medical evidence that the employee is physically or mentally incapable of work in any employment as a result of the work related injury (like an out of work note from a doctor); (2) evidence that the employee is able to do some work but after a reasonable effort has not been able to find any; (3) evidence that, although the eddmployee is capable of doing some work, a job search would be futile because of preexisting conditions like age, inexperience, or lack of education; or (4) evidence that the employee has obtained replacement employment at a lower wage. Russell v. Lowe’s Prod. Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993).
So to break down the ways an injured worker can prove disability: Number 1 means the authorized treating doctor has written the employee out of ALL work; Number 3 means the employee has returned to work making less money (and so is entitled to Temporary Partial Disability); Number 4 is a trap; do not rely on the futility prong. So that leaves number 3, which is an unsuccessful job search.
At some point, most workers’ comp claimants in North Carolina are released to return to some kind of work, typically when they reach Maximum Medical Improvement. The employee at that time should begin looking for suitable employment. It is critically important to keep documentation of all efforts.
It is not a bad idea to consult a NC workers’ comp lawyer before you start a post MMI job search. Whether and how look for a job while on workers’ comp in NC is one of the trickiest areas of workers’ comp law.