POTENTIAL FOR INCOME GROWTH IS A FACTOR IN DETERMINING WHETHER A "RETURN TO WORK" POSITION PROFFERED BY AN EMPLOYER IS SUITABLE TO AN EMPLOYEE'S CAPACITY

Dixon v. City of Durham, 495 S.E.2d 380 (N.C.App. 1998).

Often, as a result of on-the-job injuries, employees are required to be out of work for some period of time. At the end of the healing period, the employee typically offers the injured employee a "return to work" position. In the recent Court of Appeals case of Dixon v. City of Durham the Court addressed the issue of when an injured employee must accept such an offer.

N.C.G.S. § 97-32 provides that:

"If an injured employee refuses employment procured for him suitable to his capacity he shall not be entitled to any compensation at any time during the continuance or such refusal, unless in the opinion of the Industrial Commission such refusal was justified."

The issue addressed by the Dixon court concerns the meaning of the term "suitable to his capacity."

Deborah Dixon ("Dixon") began work as a police officer for the City of Durham (the "City") in 1989. In April 1993, while responding to an emergency call, Dixon suffered a serious cut to her right wrist. After an extended course of treatment, including surgery, Dixon's treating physician determined that she had suffered a 20 percent permanent partial disability of her right hand. Because Dixon is right-handed, her injuries rendered her unable to safely perform her duties as a police officer. In July of 1994, the City notified Dixon that it was unable to place her in a position consistent with her physical limitations. Dixon was given the options of resignation, medical disability retirement, or termination due to inability to perform her job. She chose medical disability retirement. At the time of her retirement, Dixon earned an average weekly wage of $539.63. After she retired, Dixon worked for another employer at an average weekly wage of $146.25. In the fall of 1994, she left this job to attend North Carolina State University. In December 1994 the City offered Dixon a position as a water meter-reader trainee at the same salary she had earned as a police officer, but without a similar opportunity for income advancement. Dixon rejected this offer and sought compensation for her permanent partial disability.

In its defense of this action, the City argued that Dixon's refusal to accept the offered position was unjustified and that therefore Dixon was barred by N.C.G.S. § 97-32 from continuing to receive benefits. Both the Deputy Commissioner who heard the case and the Full Commission agreed, and ruled in the City's favor. Before the Court of Appeals, Dixon argued that the position offered by the City was not "suitable to her capacity," and that therefore she was justified in refusing it. The Court found that the offered position was suitable to Dixon's physical condition and refused to disturb the commission's conclusion on that ground. However, the Court then went on to further examine the meaning of "suitability."

Suitability under N.C.G.S. § 97-32 is not confined to physical suitability. In determining suitability, the Industrial Commission must also consider any psychological disability suffered by the injured employee. In addition it must consider the similarity of the wages or salary of the pre-injury employment and the post-injury job offer. In considering this point, the Court found that "common sense and fairness dictate examination not only of the actual dollar amount paid at a given time, but also the potential for advancement or, in other words, capacity for income growth." Since Dixon's previous employment as a police officer had significant potential for income growth, and the offered position as a meter-reader had little if any, the offered position was not sufficiently similar to be "suitable to her capacity." Dixon was therefore justified in refusing the position and is not barred by N.C.G.S. 97-32 from receiving further benefits.

This is a significant case. Prior to this decision, the suitability determination was based primarily on whether the injured employee was physically capable of performing the offered position, and on whether the salary of the offered position was sufficiently similar to the prior employment. In evaluating a position you will now also have to take into account whether the potential for income growth is sufficiently similar.

This article is for general instructional purposes only and does not constitute a "legal decision" as that term is used at 1 NCAC 8G.0402(II). As always, officers are urged to consult agency legal counsel of the Attorney General's Office in Raleigh for "legal decisions of exceptional consequence."