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Substitute Employment Must be Within 50 Miles of Employee's Residence

The North Carolina Court of Appeals handed down an opinion in early February indicating that the provision in N.C. Gen. Stat. § 97-2(22) requiring substitute employment to be located within 50 miles of the employee's residence is indeed a requirement, and not merely a factor to be considered for suitability.

The case first came about in December 2012 when plaintiff, Franklin Falin, suffered a compensable injury to his left leg. Falin had moved to Aurora, NC from Kingsport, TN two months earlier after accepting a construction job with The Roberts Company Field Services, Inc. (Roberts, Co.). After several months of medical visits, procedures, and physical therapy, Falin's treating orthopedist placed him at maximum medical improvement ("MMI") indicating that Falin could perform medium-level work.

On 20 August 2013, Roberts, Co. offered Falin a Tool Clerk position in Charleston, South Carolina. The position paid an amount to bring Falin back to his pre-injury average weekly wages and was within Falin's work restrictions. Falin's doctor determined that he was "qualified to return to that job from an orthopedic standpoint." The project in Charleston was 338 miles from plaintiff's residence in Tennessee. One week later, Falin rejected to Tool Clerk position.

Roberts, Co. subsequently filed an Application to Terminate or Suspend Payment of Compensation claiming that Falin's refusal to accept suitable employment justified termination of disability benefits based on N.C. Gen. Stat. §§ 97-2(22) and 97-32. In response, Falin contended that he had not wrongfully rejected suitable employment, as the job offered to him was not within 50 miles of his residence and was therefore not "suitable" within the statute.

The 2011 law at issue defines "suitable employment" as work "the employee is capable of performing considering the employee's... limitations, vocational skills, education, and experience and is located within a 50-mile radius of the employee's residence. The law as passed continues stating, "no one factor shall be considered exclusively in determining suitable employment."

Appealing to the NC Court of Appeals, Roberts, Co. contended that the 50-mile radius provision was a factor to be considered in a totality of circumstances and not a separate clause. They reasoned that the Tool Clerk position was suitable because it was actually closer to Falin's residence than his job in Aurora, NC.

The Court of Appeals, interpreting the statute for the first time, unanimously disagreed. The court held that the 50-mile requirement is a had-and-fast rule rather than one factor to be balanced among others. The court reasoned that The Legislature detailed the 50-mile radius provision as a separate and distinct clause from the list of factors. Judge Bryant, author of the opinion, pointed out that The Legislature could have chosen to include "distance from a worker's home" as another factor, but chose not to. By reading the statute to include the specifically delineated 50 miles, Bryant said the court would be ignoring "the ordinary rules of grammar and disregard the legislature's intent."

The court added that even if the distance were just a single factor to be considered, the sheer distance between Falin's home and the job offered to him would overwhelm all of the factors in this case.

If you have been involved in a work-related accident and have questions about your claim contact Miller Law Firm, PLLC, for a free consulation.

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