Two Return to Work Decisions Shed Light on Determining Factors Considered by NC Court of Appeals on Disability
Two return to work decisions were recently handed down from the North Carolina Court of Appeals, both of which are helpful in determining how the Court is currently examining disability issues. The first case, Geraldine Cromartie v. Goodyear Tire & Rubber Co., Inc., involved a machine operator who sustained a laceration to the right hand. Though she returned to work initially, she reported ongoing pain and returned to the authorized treating physician, Dr. James Post for further evaluation. Dr. Post eventually assessed Claimant at MMI and assigned restrictions of no lifting over 20 pounds and no repetitive forceful gripping or grasping. Defendants ended up getting an IME with Dr. Ramos. Soon after, Defendants identified a job they argued was within Claimant’s work restrictions. Specifically, the job required driving a truck to and from building stations over a 12-hour shift, rarely lifting up to 25 pounds, and 30 pounds of force, which could be split between each hand thereby requiring 15 pounds lifting and 15 pounds pushing. Defendants requested the IME provider, Dr. Ramos, review and approve the position. He approved the position, and Defendants formally offered same to Claimant. Claimant refused to return. Through the Form 24 process, opposing counsel sent Claimant back to a plastic surgeon she had seen years prior, who assigned 10-pound lifting restrictions. As is often the case, the Form 24 Application was denied in the administrative setting. This denial led Defendants to send Claimant to another physician for additional examination, and that physician approved the job. Claimant still refused to return to work. The Full Commission found Claimant was disabled, assigning greater weight to the testimony of Dr. Post, the original authorized treating physician. The Court of Appeals agreed, holding that the Full Commission correctly found that the job offered to Claimant was not suitable.
The Court of Appeals focused on the definition of suitable employment, concluding that the job, unless modified in several aspects, was not within Claimant’s physical limitations and was therefore not suitable post-MMI employment. The Commission gave greater weight to Dr. Post’s testimony. As a result, the Full Commission determined the offered position exceeded the restrictions prescribed by Dr. Post because it required lifting over 20 pounds.
The second case, Richards v. Harris Teeter, involved a truck driver who sustained a compensable low back injury. After the incident, Harris Teeter terminated Claimant’s employment after it was determined he violated a safety procedure during the incident. In light of the termination, Claimant was not eligible for rehire pursuant to policy. A defense witness testified that Harris Teeter had a mandatory return to work program for workers’ compensation claimants and numerous temporary light-duty positions were otherwise available. However, since Claimant was not eligible for rehire, Harris Teeter would not offer him a position. Defendants declined to provide vocational rehabilitation to aid in Claimant’s job search.
Claimant’s authorized treating physician testified he would have approved a position with Harris Teeter had he not been terminated. Defendants argued that Claimant constructively refused suitable employment because he was terminated for cause and, but for that termination, he would have remained employed at pre-injury wages.
The Court of Appeals disagreed and indicated Defendants were essentially asking the Court to impose a for-cause bar to recovery of benefits when the employee is terminated for causing the accident resulting in injury and is thereafter unable to find work elsewhere. The Court indicated this was fundamentally incompatible with the workers’ compensation system which deliberately eliminated negligence from its calculus. The Court noted that gross negligence was not a defense to a workers’ compensation claim except in limited exceptions, like intentionally inflicted injuries and intoxication. Even a violation of a safety rule does not bar recovery. Defendants argued fault should have a place in the workers’ compensation system when it comes to determining whether an employer may terminate benefits. However, the Supreme Court considered similar concerns in McRae and noted the risk for abuse if an employer was allowed to evade payments simply because Claimant was terminated.
Though Defendants have numerous options for return to work, the above two cases illustrate the possible barriers and difficulties when it comes to job approval and strict adherence to company policy. The first case is another reminder that the Full Commission, and subsequently the Court of Appeals, which cannot reweigh evidence, will generally give greater weight to the authorized treating physician. Even though Defendants had two physicians stating the position was suitable, the testimony from the original authorized treating physician, Dr. Post, was found more probative.
In the last case, Defendants abided by their company policy and terminated Claimant for violating a safety rule during the incident itself. Unlike other safety violations that lead to a for-cause termination, the Court distinguished this case noting that Claimant committed the violation during the work injury, and Defendants were essentially trying to argue that Claimant’s negligence led to his termination. Though you can terminate a claimant for cause due to violations, the Court made it clear that it cannot have occurred at the same time as the work injury. The Court equated Defendants’ argument to trying to read a contributory negligence theory into the Workers’ Compensation Act. Though strict adherence to a company policy is often encouraged; in this case, it resulted in a significant amount of past-owed TTD benefits for Defendants, and a failed constructive refusal argument. This case seems to suggest that employers are better off agreeing to re-hire an employee that violates a safety rule during the injury by accident for which he or she was injured. Depending on the severity of the violation, employers may have no choice but to terminate the employee but must recognize that exposure for TTD is a possibility.