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Employer tried to terminate the injured worker’s weekly disability benefits by claiming the injured worker refused to go back to work.
Legal Strategy
Attorney Valerie Johnson, counsel from Johnson & Groninger, refused to allow her client to return to a job that could worsen his condition. She took the case to trial, arguing that the injured worker had tried to go back to work, but doing so violated the work restriction assigned by his doctor and resulted in increased pain. Johnson cited the employer’s lack of proof that the injured worker’s disability had ended, and that returning to work increased pain.
Result
After a full trial and expert depositions, a deputy commissioner at the North Carolina Industrial Commission ruled in favor of the injured worker. The deputy commissioner agreed with Attorney Johnson that the injured worker was unable to perform the job the employer offered and, therefore, was still “disabled.” Therefore, the injured worker was awarded continued weekly benefits.
The Story
Employee is a 32-year-old married male with three children. He suffered an injury while working as a mechanic assembler. He was a strong performer and had been employed by the defendants for two years. Defendants admitted that the injury was work-related, compensable under the Workers’ Compensation Act and consequently, they began paying weekly employee disability benefits. Defendants also paid for medical treatment, including physical therapy and injections, but nothing helped the employee’s pain. On a scale of 1 – 10, the employee continued to experience a level 8 degree of pain. The treating doctor assigned the employee restrictions to not lift more than ten pounds.
In North Carolina, the employer is allowed to send employees to a second opinion evaluation. In this case, the second doctor, whom the employer selected, evaluated the employee and declared that he was not disabled and had zero work restrictions. Based on that opinion, the employer offered the employee a job. Even though the employee hoped to heal and eventually return to work, he refused to accept the job that the defendants offered, because he was concerned about increased pain and aggravation of his condition. The defendants filed a Form 24 Application to Terminate Benefits, on the basis that the employee had no physical restrictions and had refused a suitable job offer. Johnson argued at an informal hearing that employee was justified in refusing to work in that role. The special deputy commissioner agreed and issued a ruling in favor of employee.
Defendants appealed that ruling, however, and a full trial (“hearing”) was held at the North Carolina Industrial Commission. Attorney Johnson presented extensive evidence to show that returning to work in the proposed role would cause increased pain and/or injury to the employee. She argued that the Industrial Commission should give greater weight to the opinion of the primary treating physician than the expert hired by the defendants. Johnson took the treating doctor’s deposition, who testified that lifting at work would aggravate the employee’s condition. The defendants argued that the employee was not disabled, was exaggerating his symptoms and was not truthful about his inability to work.
After a full hearing, Deputy Commissioner Leigha Sink reviewed the testimony of witnesses, the other facts of the case, medical treatment and the attorneys’ legal briefs, and decided that the law was in employee’s favor. Deputy Commissioner Sink held that the employee was justified in not working, his complaints of pain were legitimate, and he was disabled. The employer was ordered to continue paying employee weekly benefits.
