Note: The following constitutes the proposed
changes in this Rule. Added language appears in bold italic script, and
proposed deletions are indicated by strikeout. The changes will not go
into effect until further notice by the Industrial Commission.
Rule 404A
Trial Return to Work
(1) Except as provided in subparagraph (7), when compensation for total disability being paid pursuant to N.C. Gen. Stat. § 97-29 is terminated because the employee has returned to work for the same or a different employer, such termination is subject to the trial return to work provisions of N.C. Gen. Stat. § 97-32.1. When compensation is terminated under these circumstances, the employer or carrier/administrator shall, within fourteen days of the termination of compensation, file a Form 28T with the Industrial Commission and provide a copy of it to the employee and the employee’s attorney of record, if any.
(2) If during the trial return to work period, the employee must stop working due to the injury for which compensation had been paid, the employee shall complete and file with the Industrial Commission a Form 28U, without regard to whether the employer or carrier/administrator has filed a Form 28T as required by paragraph (1) above, and provide a copy of the completed form to the employer and carrier/administrator. A Form 28U shall contain a section which must be completed by one of the employee’s authorized treating physicians certifying that the employee’s injury for which compensation had been paid prevents the employee from continuing the trial return to work. If the employee returned to work with an employer other than the employer at the time of injury, the employee must complete the "Employee’s Release and Request For Employment Information" section of a Form 28U.
(3) Upon receipt of a properly completed Form 28U, the employer or
carrier/administrator shall forthwith immediately resume
payment of compensation for total disability. If the employee fails to provide the
required certification of the an authorized treating
physician or if the employee fails to execute the "Employee’s Release and
Request" section of a Form 28U, if required pursuant to paragraph (2) above, the
employer or carrier/administrator shall not be required to resume payment of compensation.
Instead, in such circumstances, the employer or carrier/administrator shall forthwith
immediately return a Form 28U to the employee and the employee’s
attorney of record, if any, along with a statement explaining the reason the Form 28U is
being returned and the reason compensation is not being reinstated.
(4) The reinstated compensation shall be due and payable and subject to the provisions of N.C. Gen. Stat. § 97-18(g) and N.C. Gen. Stat. § 97-88.1 on the date and for the period commencing on the date the employer or carrier/administrator receives a properly completed Form 28U certifying an unsuccessful return to work. Such resumption of compensation shall not preclude the employee’s right to seek, nor the employer’s or carrier/administrator’s right to contest, the payment of compensation for the period prior or subsequent to such reinstatement. If it is thereafter determined that any temporary total or temporary partial compensation, including the reinstated compensation, was not due and payable, a credit shall be given against any other compensation determined to be owed.
(5) When the employer or carrier/administrator has received a properly completed Form 28U and contests the employee’s right to reinstatement of total disability compensation, it may suspend or terminate compensation only as provided in N.C. Gen. Stat. § 97-18.1 and/or pursuant to the provisions of N.C. Gen. Stat. § 97-83 and N.C. Gen. Stat. § 97-84.
(6) Upon resumption of payment of compensation for total disability, the employer or carrier/administrator shall complete and file a Form 62 and/or such other forms as may be required by the Workers’ Compensation Act or by Industrial Commission rule. A copy of the Form 62 shall be sent to the employee and the employee’s attorney of record, if any.
(7) The trial return to work provisions do not apply to the following:
(a) "Medical only" cases, defined as cases in which the employee is not absent from work more than one
(1)day and in which medical expenses are less than the amount periodically established by the Industrial Commission in its Minutes;(b) Cases in which the employee has missed fewer than eight
(8)days from work;(c) Cases wherein the employee has been released to return to work by the authorized treating physician without restriction or limitation except that if the authorized treating physician, within
forty-five45 days of the employee’s return to work date, determines that the employee is not able to perform the job duties assigned, then the employer or carrier/administrator must resume benefits. If within the same time period, the treating physician determines that the employee may work only with restrictions, then the employee is entitled to a resumption of benefits commencing as of the date of the report, unless the employer is able to offer employment consistent with the restrictions, in which case a trial return to work period shall be deemed to have commenced at the time of the employee’s initial return to work;(d) Cases wherein the employee has accepted or agreed to accept compensation for permanent partial disability pursuant to N.C. Gen. Stat. § 97-31, unless the trial return to work follows reinstatement of compensation for total disability under N.C. Gen. Stat. § 97-29; and
(e) Claims pending on or filed after January 1, 1995, when the employer or carrier/administrator contests a claim pursuant to N.C. Gen. Stat. § 97-18(d) within the time allowed thereunder.
(8) This Rule is effective February 15, 1995, and
applies to any employee who leaves work on or after that date due to a compensable injury.
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