Tools for Rebutting Futility in NC Disability Claims

In Griffin v. Absolute Fire Control, Inc., the employer worked closely with the employee on a return-to-work plan following a work injury. The employee injured his back and received light duty pre-MMI restrictions. The restrictions were outside of his pre-injury job requirements, so he accepted and returned to a job in the fabrication shop.

After two years of therapy, the employee received permanent work restrictions of no lifting more than 20 pounds, alternating sitting/standing, and no bending. Later, in August 2016, the employee underwent a non-work related heart surgery and did not return to work until November 2016. Upon his return, the employee asked the employer if he could leave the fabrication shop and get back out into the field where his previous job occurred, as he felt it would help his heart and back condition. The employer placed him into a field helper position, which involved various job duties. The employee’s attorney filed a hearing request on the suitability of both the fabrication job and the field helper position.

The employer presented testimony that the fabrication shop position was a permanent position and that it had a regular and constant need to have the position staffed. Further, employer advertised said positions via word-of-mouth advertising rather than placing an ad online or in the paper. The Commission denied the employee’s petition for benefits, so he appealed. The Court of Appeals held that the post-MMI fabrication shop position did not constitute as suitable employment. The Court found a lack of evidence that indicated that the job was available with other employers. The fact that employer would have hired the employee out on the open market for such a position was irrelevant; the employer had to show that other employers would have hired the employee for the same or similar position.

This aspect, alone, is troubling for employers and carriers – especially in situations where the job is unique to that particular employer and there is no competitive job to compare – but the Court was not done in its analysis. It went on to discuss how the employee may have met his burden of proving an ongoing disability through futility. The employee failed to prove that he had conducted a reasonable job search, as none of the jobs he had on his job log were outside of the employer. However, he may have proven that it was futile for him to look for work, as he testified that he was 52 years old, had a 9th grade education, had worked primarily in the construction business his whole life, and been employed by the employer for 10 years.

The Full Commission had found no evidence of futility, which the Court deemed as inaccurate. The Court remanded the case to the Commission for a determination if the employee had made a sufficient showing of disability based on futility.

On remand, the Commission is left with what the Court has already deemed as evidence of futility, one of the methods in which a claimant can prove disability under Russell v. Lowes. The Commission would have to see if the defendants had produced any evidence to rebut the futility argument, which is likely not the case in Griffin. In Griffin, the Court directed the Commission on remand that testimony regarding claimant’s age, education and work history was evidence of futility and left the question up to the Commission on whether it all constituted as sufficient. Recall that Wilkes held that a claimant does not need a vocational or medical expert to testify to futility in order to meet his or her burden of proving disability through futility. Thus, unless employers and carriers have evidence to combat what is otherwise standard background testimony in every case, they run the risk of having a successful futility argument raised without any rebuttal evidence.

What evidence can carriers produce to rebut the futility argument? A Vocational Assessment and a Labor Market Survey are useful tools. A Vocational Assessment will produce evidence of a claimant’s work capabilities given a variety of vocational factors required in a suitable employment analysis. Once those capabilities are identified, the Labor Market Survey will show what suitable jobs are available based on his or her capabilities. This is a good option at rebutting a potential futility argument and does not come at the expense of prolonged vocational rehabilitation.

Recall that a claimant is required to prove an ongoing disability. If the Labor Market Survey identifies suitable jobs, not only is it no longer futile for the claimant to look for work, he or she must actually do so to avoid a lack of disability argument in the defense of the claim.

To have a more in-depth discussion on this case and other cases from the North Carolina Court of Appeals, along with news from the North Carolina Industrial Commission, compensability scenarios and doctor comparisons, join our monthly webinar, Legal Lunch Live, by emailing Raleigh office attorney Brian Groesser, bgroesser@midkifflaw.com.