Feb 2011 , Vol. VI, No.1

Refusal of Selective Employment As a Defense to Liability For Workers’ Compensation Wage Loss Benefits

When a workers' compensation claimant is released to light duty following a work injury, the employer is entitled (but not required) to offer the employee light duty work within his/her physical capabilities.  By offering such work, the employer's workers' compensation carrier can avoid liability for payment of ongoing wage loss benefits.  If the light duty job pays as much as the employee's full duty, pre-injury job, then the carrier has no liability for payment of wage loss benefits.  If the light duty job pays less than the pre-injury job, then the carrier may be liable for payment of wage loss benefits amounting to two-thirds of the difference between the wages of the pre-injury job and the wages of the light duty job.

If the employee is offered valid light duty employment, and he/she refuses to accept the job, then the employer and workers' compensation carrier have a defense that the employee is entitled to no additional wage loss benefits, even if the light duty job would have paid less than pre-injury wages, as long as the employee remains physically capable of performing the job (he/she is not totally disabled).  If the employee is under an open indemnity Award with the Commission, it is necessary to file an application to terminate the open Award based upon the employee's refusal of selective employment within fourteen days after terminating wage loss benefits.
The employee can attempt to cure his refusal of selective employment by accepting the job (after previously refusing it).  However, if the employer can no longer accommodate the employee (for example, if someone else was hired to perform the job offered to the employee), then the employee must cure his refusal of selective employment within six months after the date he/she refused the work.   In order to cure his/her refusal, the employee may be obligated to obtain employment on his/her own.  There are recent cases that indicate that it is not sufficient to simply market one's residual wage earning capacity (look for a job without obtaining employment) after refusing a valid job offer.  This is also true when the employer cannot accommodate a partially disabled employee; and a vocational rehabilitation counselor assigned by the workers' compensation carrier obtains a light duty job for the employee (which he/she declines to accept).

If the employee fails to cure his/her refusal of selective employment within six months following the refusal, the employee may be precluded from obtaining wage loss benefits at any time.  This does not impact an employer's liability for payment of medical treatment related to a compensable work injury.

If you have questions concerning the issues discussed in this article, please feel free to contact Brian Sykes, a partner in our Workers' Compensation / Labor & Employment Group on his direct dial at 757-446-8678.

Authored by attorneys, these articles are meant to bring awareness to these topics and are not intended to be used as legal advice.

For more information, contact Mike Sterling at 757-446-8626 or Bill Franczek at 757-446-8600.
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