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Oxner Thomas + Permar Blog

Oxner Thomas + Permar Blog

Blog Category: All CategoriesSocial Security DisabilityWorkers' CompensationGeneral

Workers' Compensation

7/23/2008
Todd Oxner
Comments (0)
Why does the North Carolina Industrial Commission make an injured worker look for work even when they are on Social Security Disability?
Why does the North Carolina Industrial Commission make an injured worker look for work even after the Social Security Administration says they are disabled? The Court of Appeals looked at the question in a case pitting a Steelcase furniture worker against her employer and Liberty Mutual.
In the case the injured worker wanted to use her receipt of Social Security Disability as evidence that she couldn't work. Unfortunately it failed because she had listed multiple ailments as the basis of her SSD claim.
The standard for getting SSD is the ability to perform substantially gainful activities. This is different than the standard for workers' comp, which is the capacity to earn wages in a competitive labor market. The comp system also has the variation of suitable employment which holds that a high-earning worker doesn't have to take a low-paying job after their injury.
We think the Court of Appeals has left the door open for the right claim to come along. To succeed I think the award of SSD must be solely on the basis of the same injury as the workers' comp case. Also I think it will be more successful for an injured worker with a high pre-injury average weekly wage. We wouldn't argue necessarily that the injured worker couldn't find any work -- just that work paying so little as to be below the substantially gainful activity threshold would be, by definition, not suitable employment. Finally, it would be ideal if the Administrative Law Judge had used a vocational expert at the Social Security hearing.
No guarantees, but it's a case I'd take to hearing.
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Labels:North Carolina Court of Appealssocial security disabilitysuitable employmentworkers compensation,

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