North Carolina Administrative Code › Title 11 - INSURANCE › Chapter 23 - INDUSTRIAL COMMISSION › Subchapter A - WORKERS' COMPENSATION RULES › Section .0400 - DISABILITY, COMPENSATION, FEES › Section 23A .0404A - TRIAL RETURN TO WORK

Current through Register Vol. 39, No. 2, July 15, 2024
(a) Except as
				  provided in Paragraph (g) of this Rule, when compensation for total disability
				  being paid pursuant to
				  G.S.
				  97-29is terminated because the employee has
				  returned to work for the same or a different employer, the termination is
				  subject to the provisions of
				  G.S.
				  97-32.1 (trial return to work). When
				  compensation is terminated under these circumstances, the employer, carrier, or
				  administrator shall, within 16 days of the termination of compensation, file a
				  Form 28T
Notice of Termination of Compensation by Reason of Trial
				  Return to Work
with the Commission and provide a copy of it to the
				  employee's attorney of record or the employee, if unrepresented.
(b) 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 may complete and file with the Commission a Form
				  28U
Employee's Request that Compensation be Reinstated after
				  Unsuccessful Trial Return to Work
, without regard to whether the
				  employer, carrier or administrator has filed a Form 28T
Notice of
				  Termination of Compensation by Reason of Trial Return to Work
as
				  required by Paragraph (a) of this Rule, and provide a copy of the completed
				  form to the employer and carrier or administrator. A Form 28U
Employee's Request that Compensation be Reinstated after Unsuccessful
				  Trial Return to Work
contains a section that shall be completed by the
				  physician who imposed the restrictions or 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 may complete the "Employee's
				  Release of Employment Information" section of a Form 28U
Employee's
				  Request that Compensation be Reinstated after Unsuccessful Trial Return to
				  Work
. An employee's failure to provide a Form 28U
Employee's
				  Request that Compensation be Reinstated after Unsuccessful Trial Return to
				  Work
does not preclude a subsequent finding by the Commission that the
				  trial return to work was unsuccessful.
(c) Upon receipt of a completed Form28U
Employee's Request that Compensation be Reinstated after Unsuccessful
				  Trial Return to Work
, the employer, carrier, or administrator shall
				  resume payment of compensation for total disability. If the employee fails to
				  provide the required certification of an authorized treating physician as
				  specified in Paragraph (b) of this Rule, or if the employee fails to execute
				  the "Employees Release and Request" section of a Form 28U
Employee's
				  Request that Compensation be Reinstated after Unsuccessful Trial Return to
				  Work
, if required pursuant to Paragraph (b) of this Rule, the
				  employer, carrier, or administrator is not required to resume payment of
				  compensation. Instead, the employer, carrier, or administrator shall return a
				  Form 28U
Employee's Request that Compensation be Reinstated after
				  Unsuccessful Trial Return to Work
to the employees attorney of or the
				  employee, if unrepresented, along with a statement explaining the reason the
				  Form 28U
Employee's Request that Compensation be Reinstated after
				  Unsuccessful Trial Return to Work
is being returned and the reason
				  compensation is not being reinstated.
(d) The reinstated compensation shall be due
				  and payable and subject to the provisions of
				  G.S.
				  97-18(g) on the date and for
				  the period commencing on the date the employer, carrier, or administrator
				  receives a completed Form 28U
Employee's Request that Compensation be
				  Reinstated after Unsuccessful Trial Return to Work
certifying an
				  unsuccessful return to work. Such resumption of compensation does not preclude
				  the employee's right to seek, nor the employer's, carrier's, or administrator's
				  right to contest, the payment of compensation for the period prior or
				  subsequent to the reinstatement. If it is thereafter determined by the
				  Commission 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.
(e) When the employer, carrier, or
				  administrator has received a completed Form 28U
Employee's Request that
				  Compensation be Reinstated after Unsuccessful Trial Return to Work
and
				  contests the employee's right to reinstatement of total disability
				  compensation, the employer, carrier, or administrator may suspend or terminate
				  compensation only as provided in
				  G.S.
				  97-18.1,
				  G.S.
				  97-83 or
				  G.S.
				  97-84.
(f) Upon resumption of payment of
				  compensation for total disability, the employer, carrier, or administrator
				  shall complete and file a Form 62
Notice of Reinstatement or
				  Modification of Compensation
or such other forms as may be required by
				  the Workers' Compensation Act or by Commission rule. A copy of the Form 62
Notice of
Reinstatement or Modification of
				  Compensation
shall be sent to the employee's attorney of record or the
				  employee, if unrepresented.
(g) The
				  trial return to work provisions do not apply to the following:
(1) cases in which the employee is not absent
				  from work for more than one day or in which medical expenses are less than two
				  thousand dollars ($2,000);
(2)
				  cases in which the employee has missed fewer than eight days from
				  work;
(3) cases in which the
				  employee has been released to return to work by an authorized treating
				  physician as specified in Paragraph (b) of this Rule without restriction or
				  limitation except that if the physician, within 45 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, carrier, or administrator shall resume
				  benefits. If within the same time period, the 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;
(4) cases in which the employee has accepted
				  or agreed to accept compensation for permanent partial disability pursuant to
				  G.S.
				  97-31, unless the trial return to work
				  follows reinstatement of compensation for total disability under
				  G.S.
				  97-29; and
(5) claims pending on or filed after 1
				  January 1995, when the employer, carrier, or administrator contests a claim
				  pursuant to
				  G.S.
				  97-18(d) within the time
				  allowed thereunder.