Over the past number of months our professional staff has been involved in several depositions to defend the labor market surveys we developed. In each deposition, a line of questioning invariably broached is the reasonableness of an injured worker’s independent job search. Our counselors are asked to review job search logs prepared by the injured worker, and then opine as to the appropriateness of the injured worker’s activity. Typically, the job logs reviewed are handwritten notes on sheets of notebook paper that have no rationale as to how the logs were constructed. More specifically, the job search is sporadic and, seldom is listed how the contact was identified, date the contact was made, how the contact was made, position inquired about, or individual contacted. Additionally, the injured worker has not registered with the NCWorks Career Center (formerly the Employment Security Commission that was combined with the Department of Commerce JobLink Center), a local Goodwill Career Connection Center or, enrolled into an employment enhancement class offered through the Continuing Education Department of a local community college. In other words, instead of job search being a full-time endeavor, the injured worker puts forth minimal effort at best. With that said, what does constitute reasonable and appropriate independent job search?
Commissioner Tammy R. Nance, in an Opinion and Award for the Full Commission filed May 24, 2017, I.C. No. 14-039123, Nathan J. Hanna, Employee, Plaintiff v. R.E.A.L. Elevator Solutions, Inc., Employer, Starnet Insurance Company Carrier (Key Risk Management Services, Inc.) opined, based upon the research and opinion included in a Labor Market Survey conducted by Gregory B. Henderson, a vocational expert, “the research Mr. Henderson did reflect jobs available as of March 2016, the Full Commission finds that there have been suitable job opportunities available to Plaintiff in the local labor market since August 6, 2015 and it is reasonable likely Plaintiff would have found suitable jobs if he had diligently sought work.” In short, as the vocational expert involved in this decision and the writer of this essay, Mr. Hanna “sought work with various potential employers and prepared a hand-written job log documenting his efforts.” Most of the entries on the job log do not reflect the date the he contacted the specific employer. For those without a date, Plaintiff testified that they took place during the second half of 2015. The job logs reflect Plaintiff contacted 14 employers in a six-month period of time, and an additional 6 employers in February and March 2016. With the exception of Food Lion, the inquiries Plaintiff made were with employers he knew through friends or family or prior employment. Even though he is experienced in the use of computers, Plaintiff did not utilize any online job databases, nor did he contact any temporary or personnel agencies or make any cold calls on potential employers. Additionally, many of the employer contacts Plaintiff made were for positions that would require overhead activity and/or lifting over 40 pounds.” Commissioner also opined, “even though Plaintiff is computer literate, he failed to make use of the multiple online resources available to job seekers. Someone who truly wanted to find work would do substantially more that Plaintiff did to locate gainful employment. Furthermore, taking into account his work restrictions, age, education, and experience in computers, sales, and management, Plaintiff has failed to show that it would be futile for him to search for employment.”
As a finding of fact Commissioner Nance stated, “Gregory Henderson, vocational expert, conducted a Labor Market Survey in this matter. In the Labor Market Survey, Mr. Henderson researched employment prospects in the greater Raleigh metropolitan area and assumed restrictions of no lifting over forty pounds bilaterally as well as no overhead activity with the upper left extremity. As noted above, these restrictions were more limiting than the restriction assigned by Dr. Sanitate, as Dr. Sanitate’s 40-pound lifting restriction pertained only to the left extremity.” Commissioner Nance continued, “based upon these assumed restrictions, as well as Plaintiff’s work experience, education, and transferable skills, Mr. Henderson identified various occupations via the Dictionary of Occupational Titles. He then located 47 publicly-available positions within a 50-mile radius of Plaintiff’s home. Mr. Henderson testified that in his professional opinion, each of the 47 positions were within Plaintiff’s physical capabilities, intellectual skillset, and educational background. Mr. Henderson contacted 40 of the employers listed in the Labor Market Survey and inquired if they could provide work to an individual who could lift only 40 pounds bi-laterally and was unable to engage in overhead activity. Of the 40 inquires, 18 were unanswered and 15 employers stated that they could accommodate such restrictions.”
Commissioner Nance’s opinion was based upon the Supreme Court upholding Medlin v. Weaver Cooke Construction, LLC (Mr. Henderson was also the vocational expert involved in this affirmative decision for the defense), where “an employee may prove two elements of Hilliard v. Apex Cabinet Co. by utilizing the Russell factors: (1) medical evidence that he is physically or mentally, as result of the work-related injury, incapable of work in any employment; (2) evidence that he is capable of some work, but that he has , after a reasonable effort, been unsuccessful in his effort to obtain employment; (3) evidence that he is capable of some work, but that it would be futile because of preexisting conditions, such as age, inexperience, or lack of education, to seek employment; or, (4) evidence that he has obtained other employment at wages less than his pre-injury wage.”
Using the case stated above, where did Mr. Hanna go wrong? First, his effort was half-hearted with no desire to actually locate, much less secure, employment. If he did want to secure employment, he would have done the following: (1) register with the local NCWorks Career Center; (2) register with the local Goodwill Career Connections Center; (3) contact the Continuing Education Department of the area community college and enroll into employment enhancement classes offered through their Human Resource Development program (free for those unemployed); and, (4) maintain an accurate self-directed job search log of a minimum of 15 contacts per week to include name of employer, date of contact; position referenced; person contacted, how contacted; how located; and, results of contact.
In closing, the Court of Appeals decision in Patillo v. Goodyear Tire and Rubber stated, the “Court acknowledged there is no set rule for determining the reasonableness of a job search and that the whether a job search is reasonable is in the Commission’s discretion; however, the Commission must make findings of fact to explain its determination of reasonableness.” Additionally, as noted in Wilkes v. City of Greenville, “because Plaintiff demonstrated the futility of engaging in job search and Defendant made no attempt to show that suitable jobs were available to the Plaintiff the Commission erred in ruling that Plaintiff was not temporarily totally disabled.” In short, the best means to defend a Plaintiff’s contention he/she is conducting appropriate and reasonable job search, present a Labor Market Survey.