On June 24, 2011, significant changes were made to the North Carolina Workers’ Compensation Act. For a summary of the new law, please click here.
There have been many questions regarding the scope and impact of this reform. In the past weeks, we provided you with Trap 1, Trap 2, Trap 3 and Trap 4 in North Carolina Workers' Compensation Reform as part of our continuing effort to keep you informed. This is the last installment in this series, and we hope that this will have a positive impact on your ability to effectively manage claims.
Trap 5: Vocational Rehabilitation Services
North Carolina General Statute §97-32.2 codifies the use of vocational rehabilitation services in a workers’ compensation claim. There are several provisions of this statute that may affect your decision to initiate vocational rehabilitation efforts on claims arising on or after June 24, 2011.
First, this provision does not allow defendants to unilaterally terminate vocational rehabilitation services. For claims arising on or after June 24, 2011, vocational rehabilitation services may be terminated by agreement of the parties or by order of the Commission.
Second, an employee can request that vocational rehabilitation services be provided if he has not returned to work or has returned to work earning less than 75% of his average weekly wage and is receiving temporary partial disability benefits. This request for vocational rehabilitation services includes education and retraining that is reasonably likely to substantially increase the employee’s wage-earning capacity following the completion of the program.
Finally, if vocational rehabilitation services are provided, they may be terminated if the vocational rehabilitation professional determines that the employee will not benefit from vocational rehabilitation services. If a vocational rehabilitation professional opines that an employee will no longer benefit from their services, it may further support an injured worker’s claim for disability.
In addition to the description of the use of vocational rehabilitation set forth in N.C.G.S. § 97-32.2, N.C.G.S. § 97-2 (22) defines “suitable employment.” That section holds, in part, that suitable employment is “employment that the employee is capable of performing considering the employee's preexisting injury-related physical and mental limitations, vocational skills, and experience and is located within a 50-mile radius of the employee's residence…”
The 50 mile limitation has raised some concern among employers, as it could potentially be read to exclude an employee's return to his current employer if that employer is located more than 50 miles away from the employee's residence. However, N.C.G.S. § 97-2 (22) also holds “[n]o one factor shall be considered exclusively in determining suitable employment.” It seems reasonable to infer that the Industrial Commission will not use this particular factor to exclude an employee's return to work with his current employer, and that the intent of the legislature is to apply this provision only to new employers.
Tip: Vocational rehabilitation can be a useful tool in helping an injured worker return to gainful employment. However, this new section of the statute introduces provisions that must be considered before initiating vocational rehabilitation. Remember that defendants cannot unilaterally terminate vocational rehabilitation. Vocational rehabilitation can only be terminated either by consent of both parties or an Order of the Industrial Commission. Under these circumstances, the decision to terminate vocational rehabilitation may essentially be viewed as an acknowledgement that the claimant is totally disabled. As such, it is important that we be thoughtful in considering the likelihood of successful vocational rehabilitation before initiating this process.
If you have any questions, please feel free to contact any of our attorneys.
This legal update is published as a service to our clients and friends. It is intended to provide general information and does not constitute legal advice regarding any specific situation.