Builders and Contractors Exchange
Weekly Bulletin: 17 Feb 2004
Selective Employment and the Injured Employee
By: Adam Rafal
A frequently litigated issue before the Virginia Worker's Compensation is whether or not an employee refused selective employment. Selective employment is employment offered by an employer within a claimant's medical restrictions. Understandably, not all employers are able to offer selective employment. When an employee refuses selective work, however, an employer may file an application to terminate benefits.
In order to prove the claimant refused selective employment, the employer must prove several facts. First, the employer must establish that it made a bona fide job offer to the claimant that was within the claimant's residual medical capacity. In order to do this, the employer must show that the job offer complies with the medical restrictions assigned by the claimant's treating physician. Second, the employer must show that it procured the job for its employee. Finally, the employer must establish that the claimant unjustifiably refused to accept the job.
The Commission places the burden on the employer to prove that the work it offered to the claimant was within that employee's physical capacity. Once the employer satisfies the requirements listed above, the burden shifts to the claimant to justify his or her reasons for not accepting or attempting the work offered. If the Commission determines that the employee did refuse selective employment, without justification, benefits will be suspended.
A claimant can cure his refusal of selective employment by locating other employment, but he must do so within the timeframe established by the Act. Offering an employee modified work within her restrictions is one of the most effective ways to reduce continuing worker's compensation exposure.
It is important that the employer stay in contact with its insurance carrier concerning the claimant's rate of pay in the modified job. Additionally, the employer should be sure that it understands the claimant's medical restrictions and that the work offered remains within those limitations.
Documentation is essential if an employer contends a claimant refused selective employment. It is therefore advisable to maintain a detailed log of the work offered to the injured employee.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.