Pursuant to the NC Court of Appeals decision in Russell v. Lowes Products Distribution, an employee may meet his/her initial burden of proving futility of job search in one of the following ways:
1. Presenting medical evidence that he/she is physically or mentally, as a result of the work-related injury, incapable of work in any employment;
2. Evidence that he/she is capable of some work, but that he/she has, after a reasonable effort, been unsuccessful in their efforts to obtain employment;
3. Evidence that he/she is capable of some work, but that it would be futile because of pre-existing conditions, such as age, inexperience, or lack of education, to seek employment; or
4. Evidence that he/she has obtained other employment at wages less than his pre-injury wages.
Under prong #3, a vocational assessment is extremely helpful in establishing the futility of job search. Firstly, the vocational consultant will review the medical records and restrictions to determine the residual functional capacity of the client. The restrictions are used to determine what level of work the client is capable of performing and the availability of those types of jobs in the labor market. The need for job accommodations is also considered, such as a recommendation for the client to elevate his or her feet to waist level or to have an extra break in the morning and afternoon. Depending on the individual and their unique profile, some accommodations may eliminate all work.
The next step is to gather information from the client regarding their work history, education, skills, and interests. Their skills are then analyzed to determine if they have any experience that would transfer to occupations within their permanent restrictions. The client's unique set of circumstances is evaluated. For example, a 58-year-old pipe fitter with a 10th grade education does not likely have skills that would transfer to sedentary work.
Finally, the labor market is analyzed to determine if there are suitable jobs available that the client could reasonably obtain. By reviewing labor market statistics, understanding the large employers and types of jobs most often available in the area, an assessment can be made regarding the client's ability to obtain employment. A labor market survey is occasionally added, depending on the client's restrictions and qualifications, to establish the availability or lack of jobs in their area.
Each client is considered individually. For example, a noticeable limp or an inability to communicate in English may affect employability and should be considered when evaluating futility of job search. It is important for a vocational assessment to cover your client's unique profile and should not be a one-size fits all report, as sometimes seen in labor market surveys.
I am happy to provide a free telephone consultation regarding your case and offer my initial opinions regarding employability and the futility of job search based on your client's situation. Let me know if I can help!
Ashley Johnson, MS, CRC, CLCP
704-508-1985
ashley@johnsonconsultingnc.com
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