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Return to Work North Carolina

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  • Return to Work North Carolina

    Well, I've gotten an FCE and will be rated and released on 6/15. I've discovered that my job will no longer be available - my boss says it's partly just a business slowdown that occurred while I was out, and partly that the restrictions on the FCE will prevent me from doing every job (it's a 2 person company, just me and him with the occasional extra person when we're really busy). He says he'll call me when he needs me for small jobs that I am able to do. That's not gonna work for me - I need a full time job. Do I go looking for one now, before I've been released by the Dr.? These restrictions are gonna make it hard to find a job like the one I have, I guess. Do I need a lawyer?

  • #2
    Since there are only 2 of you, your job is not protected for any period of time and it would be legal to find someone who is able to perform the all the tasks needed. If you are going to be out for several more weeks then not able to do what is needed, WC (nor any other law) is going to protect you. Personally, I would be looking for work you can do, or anticipate being able to do, now.

    I don't see that there is any need to hire a lawyer at this point but it is always your right to consult with one.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    • #3
      If the company cannot accommodate your light duty restrictions, then you are still "disabled" under NC work comp law. The case on point is Moore v. Davis Auto Service from the NC Court of Appeals.

      But, to show continued disability, you need to do a diligent and reasonable job search. The case on point here is Russell v. Lowes Dist. Co., also out of the Court of Appeals.

      This means you need to make at least 3 job inquiries a week, hopefully more, and you need to keep a detailed diary or journal of all your job search activities so you can prove you did it. There are 4 ways to prove disability in NC, and a diligent but unsuccessful job search is involved in three of them---anytime the doctor releases you to return to work. So do your job search, document the heck out of it, and go talk to the best work comp lawyer in your community. For a list of Board Certified Specialists, go to the NC State Bar web site.

      You need to see a lawyer because the chances of the insurance company continuing to pay you voluntarily are very slim. They frequently do not do what they are supposed to do even when the law and facts are clear.

      Good luck.

      Bob Bollinger, Board Certified Specialist in NC Workers' Compensation Law, Charlotte, NC
      Bob Bollinger, Attorney
      Board Certified Specialist in NC Workers' Compensation Law
      Charlotte, NC

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      • #4
        Bob, knock it off with re-opening dead threads, OK?
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Sorry, PattyMD, just trying to prevent erroneous or inadequate info posted by someone else in the thread from being relied upon by a new reader.
          Bob Bollinger, Attorney
          Board Certified Specialist in NC Workers' Compensation Law
          Charlotte, NC

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          • #6
            I'm not seeing where Elle stated something that was incorrect. She told him to look for work he can do.

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            • #7
              http://www.swartzcampbell.com/detail...tions.php?ID=7
              Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

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              • #8
                The article references cases in PA, while the OP is in NC. Further, the case references a termination that is because a WC claim was filed, as PA does not have a specific statute that forbids this. An employee working for an employer with only 2 employees is too small to have ADA apply.
                I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                Comment


                • #9
                  That is a good point about the jurisdiction.

                  But NC is ahead of PA for once---NC does not need this type of case, because NC already has a legislatively-created law, a statute that says it is unlawful to fire or demote or take other negative action against an employee because they filed a work comp claim, an OSHA complaint, etc. It is called the Retaliatory Employment Discrimination Act, or "REDA" and can be found at NCGS 95-240 et seq. It gives an employee an administrative right to file a complaint with the NC Dept of Labor, and after they investigate, they hand out a right to sue letter, similar to the way the EEOC handles Federal employment discrimination cases. Then the employee can sue in state court, if needed, to be compensated. The damages must be proven and include lost wages and benefits.

                  However, these REDA cases can be hard to prove because employers typically do not document their reasons for firing people when they know the reason is illegal. So the employee usually has to prove it by circumstantial evidence. Most of these cases settle before trial.

                  The posted article tells us that Pennsylvania has simply adopted a similar rule as a court-created public policy exception to the "employment at will" rule. Employment at will means that the employer can terminate the employee, and the employee can quit, for any reason at any time, so long as it is not an illegal reason.

                  NC is also an employment at will state and our court-created public policy exceptions prohibit firing because the employee would not commit perjury as requested by the employer, firing due to the employee honoring a subpoena, and a few other similar things. These causes of action are in addition to the REDA law.
                  Bob Bollinger, Attorney
                  Board Certified Specialist in NC Workers' Compensation Law
                  Charlotte, NC

                  Comment

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