Suitable employment is an issue frequently litigated in workers’ compensation claims in North Carolina. Typically, a job is offered and the claimant refuses the job on the basis that it is allegedly unsuitable. For decades, this issue has troubled employers because claimants could, with seeming impunity, refuse legitimate work and continue to collect temporary total disability.

Prior to 2011, North Carolina case law dictated that post-maximum medical improvement (MMI) employment must be (1) available in the local labor market, (2) reasonably attainable and offers opportunity to restore the worker as soon as possible and as near as practicable to pre-injury wage, and (3) give due consideration to the worker’s qualifications, impairment, vocational interests, and aptitudes.

In 2011, the Workers’ Compensation Act was amended to, for the first time, establish a statutory definition of suitable employment, rather than simply relying on appellate or judge-made law.

There are two definitions of suitable employment. Today’s post pertains to the definition applicable to claimants who have reached MMI. Pursuant to North Carolina General Statute Section 97-2(22)(ii), post-MMI suitable employment is:

“employment that the employee is capable of performing considering the employee’s preexisting and injury-related physical and mental limitations, vocational skills, education, and experience and is located within a 50-mile radius of the employee’s residence at the time of injury or the employee’s current residence if the employee had a legitimate reason to relocate since the date of injury. No one factor shall be considered exclusively in determining suitable employment.”

When the General Assembly legislates with respect to the subject matter of a common law or case law rule, the legislation nullifies pre-existing case law. Thus, by virtue of the 2011 amendment, much of the old case law concerning post-MMI suitable employment is now of questionable value. Until recently, there were no appellate cases applying any part of the statutory definition above, other than the mileage requirement.

On January 7, 2020 the Court of Appeals decided its first substantive suitable employment case in Griffin v. Absolute Fire Control[i]. In that case, the North Carolina Industrial Commission found that the position offered to the Plaintiff was suitable employment on the grounds that:

  1. It was a permanent position
  2. It was not specifically created for the Plaintiff
  3. It was within the Plaintiff’s restrictions
  4. The Plaintiff was physically able to perform the job duties
  5. The position entailed the same wages and hours as the Plaintiff’s pre-injury position

The Plaintiff appealed the Industrial Commission’s decision to the North Carolina Court of Appeals, arguing the position did not constitute suitable employment. Specifically, the Plaintiff argued the Industrial Commission neglected to properly weigh the concept of make-work. The Defendant’s argument on appeal focused on the proposition that the position offered to the Plaintiff did not constitute make-work and did not make use of the statutory text to argue that the decades-old case law had been abrogated. Ultimately, the Court of Appeals sided with the Plaintiff and remanded the case on the ground that the commission’s findings and conclusion failed to address the central tenet of the make-work analysis: whether similar jobs are available with employers other than the Defendant. In doing so, the Court of Appeals rested its analysis on the proposition that, if the present employer were to close, there would be no work available for the Plaintiff. As a result, the court found the job unsuitable because, in their opinion, the job did not reflect the Plaintiff’s true wage earning capacity, a concept not considered by the text of the statute.

This case is likely to be appealed to the Supreme Court. It will likely be remanded for additional findings of fact, permitting the Defendants to introduce the sort of evidence seen as lacking by the Court of Appeals. In the long run, however, the important takeaway from this case is that the Court of Appeals looks inclined to apply most of the pre-2011 case law, thereby rendering the statutory definition of suitable employment significantly less effective than the General Assembly likely intended.