Suitable Employment and Make Work

Getting Back to Work After an Injury: A Cautionary Tale

Analysis of recent case from North Carolina Court of Appeals regarding “Make-Work.”

Copyright, 2010 Joseph A. Miller, Esq. and Accidental Injury Advocates, Ltd. (Now Joe Miller Law)

NOTE: MANY OF THE PRINCIPLES IN THE NOBLES CASE HAVE NOW BEEN MADE OBSOLETE BY THE CHANGES TO THE LAW WHICH WENT INTO EFFECT IN JUNE OF 2011.

EMPLOYERS ARE NOW MUCH FREER TO FORCE EMPLOYEES WHO HAVE NOT YET REACHED MAXIMUM MEDICAL IMPROVEMENT TO ENGAGE IN ‘MAKE WORK,’ AS LONG AS IT IS APPROVED BY THE TREATING DOCTOR.

Please call us to see how your situation is affected at 888-694-1671 or contact us online.

On November 2, 2010, North Carolina Court of Appeals published its decision in the case of Nobles v. Coastal Power and Electric, Inc. ,et al., No. COA10-321.

The case primarily dealt with the issue of a situation where the injured employee had reached maximum medical improvement, had been released by his doctors, and had been offered a job by his employer, which was different from the power line installer job he held before he was injured.

The injured worker refused the job, and the Industrial Commission decided that his refusal of the job was unjustified. They therefore cut the employee off of ongoing temporary total disability as of the date his doctor opined that he had reached maximum medical improvement.

Unfortunately, the Court of Appeals affirmed, or agreed with the decision of the Full Commission that the employee was no longer entitled to benefits.

Elsewhere on this website, we have discussed the issue of “make work.”

Basically, the prohibition against “make work” is the principle, first established by the case of Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E. 2d 798 (1986), that an employer cannot avoid paying ongoing benefits by merely creating for the injured employee “makeshift positions not ordinarily available in the market.” In other words, the employer cannot just invite the injured worker back to work at some position that they “made up” or created, which had never existed before, just so they won’t have to pay workers compensation benefits to the employee.

In the Nobles case, the employer offered the injured worker the position of Assistant Fleet Manager, which was basically an office job, where injured worker would be assisting in handling the voluminous paperwork involved in managing more than 400 work vehicles and machines. His treating physician approved the job, and gave the opinion that it was within his physical capabilities and limitations.

What appeared to be important to the Court of Appeals and the Full Commission was the fact that there was testimony from the employer’s personnel, that the position of Assistant Fleet Manager had been offered to the general public before, and in fact, the current Fleet Manager testified that he had attained his position after replying to an ad from Nobles’ employer for the assistant Fleet Manager Position. Therefore, the Commission and the Court found that the position was neither created nor modified for Mr. Nobles. They also noted that the pay rate offered to Mr. Nobles was similar to what one could find in the open market.

It also probably did not help Mr. Nobles, that the Court noted he presented no evidence whatsoever that he had made any effort to seek employment of any kind since his injury on the job.

In addition, Mr. Nobles argued that the requirement that he travel from his home over 60 miles to the worksite was an unreasonable request; however, the court noted, amongst other things, that the treating doctor had no problem with Mr. Nobles driving that distance to and from work, and that Mr. Nobles admitted that as a lineman, he had often been required to drive much further than 60 miles on a daily basis. It was clearly therefore not an issue for Mr. Nobles.

Finally, Mr. Nobles had a vocational rehabilitation expert who testified that she conducted two labor market surveys and concluded that Mr. Nobles was “not employable in the common labor market;” however, in light of the other evidence, the Commission gave her testimony very little, if any credibility.

It is also important to note that Court of Appeals pointed out that Mr. Nobles and his attorneys had to admit that other than the evidence of the job offered to Mr. Nobles, which he refused, and vocational rehabilitation expert, whom the court did not believe, there was no other evidence that they had to present relating to Mr. Nobles earning capacity. Therefore, the Court and Commission found that Mr. Nobles had “failed to establish that he is unable to earn his preinjury average weekly wage in any employment as a result of his compensable injury.”

What can we learn from this decision? I think this case provides at least two very “teachable moments” about how you should govern your activities once your doctor has released you to some type of work after your injuries.

1. If you are going to come before the Commission and claim that you can no longer work, and your treating physician has released you to some type of work, you had better have made some kind of effort to find employment within your doctors restrictions. Simply hiring a vocational rehabilitation expert who has performed market surveys is not going to cut it with the Commission.

As we have discussed elsewhere on this website, one of the most valuable things you can do, once you have been released by your doctors, is to conduct your own “market survey” by making an effort to get back to work. What that means is that you must show an ongoing effort attempt to find a job within your physical restrictions. This demonstrates that despite these efforts, you are unable to find work.

That means you must get on the phone, beat the pavement, call numerous potential employers, and keep a precise record as to whom you spoke with, where you went, whom you called, etc. and the date and time of all your contacts. The purpose of this list is to present this list to the Commission, should the need arise, as evidence of your inability to earn wages.

Would that have changed the outcome in this case? It is hard to say. But one thing is certain. The Commission and the Court of Appeals did not like the fact that Mr. Nobles’ only evidence of his inability to work was his hired expert’s opinion, especially when they clearly noted that Mr. Nobles himself had made no effort whatsoever to find a job since he had been hurt. Perhaps if he had come before the Commission with a list of over 200 places he had contacted over several months, with no success, they would have seen his case with different eyes.

Remember, case law is clear that you can prove disability in one of four ways:

A. Medical evidence that you cannot work;

B. You can work and some capacity, but after a reasonable effort, you have been unsuccessful in finding a job;

C. That you can do some work, but it will be futile because of other things, such as your inexperience, lack of education, age, etc. to seek other employment; or

D. That you have obtained a job at lower pay.

If Mr. Nobles had come before the Commission with that list of 200 potential employers who had all turned him down, that would have been a very good evidence of his disability under B, above. Just bringing a vocational rehabilitation expert before the Commission was not evidence of any effort at all.

2. Before you refuse a job offered to you by your employer you had better be darn sure that it is an unsuitable job, meaning either it is beyond your physical capabilities, and/or your treating doctor disapproves of the job, or that the job is really “make- work.”

In order to qualify as “make work” it has to be a job that: 1. Did not exist in the ordinary marketplace; 2. Was never advertised to the public; 3. Had never been offered previously by the employer; 4. Was never filled after being refused by the injured worker.

In Nobles, it was clear to the Commission and the Court that the job offered to Mr. Nobles had, in fact, been offered to the public before, and was not something that was just created by the employer for Mr. Nobles. They therefore found that Mr. Nobles had unjustifiably refused the job, and that therefore, he was not disabled, or entitled to ongoing benefits.

ONCE AGAIN, PLEASE CONTACT OR CALL US AT 888-694-1671, AS MANY OF THE IDEAS IN THIS ARTICLE HAVE BEEN MADE OBSOLETE BY THE CHANGES TO THE LAW IN JUNE OF 2011. EMPLOYERS ARE NOW MUCH FREER TO FORCE EMPLOYEES TO ENGAGE IN ‘MAKE WORK,’ AS LONG AS THE JOB IS APPROVED BY THE TREATING DOCTOR.