Many employers are constantly faced with questions surrounding an injured worker's entitlement to disability benefits. North Carolina, like many other states, has a workers' compensation system in place to provide benefits to employees who are injured on the job. These benefits typically include medical treatment, wage replacement, and vocational rehabilitation. However, one question that frequently arises in North Carolina workers' compensation claims is whether an employer can deduct wages earned from a concurrent employer.
In North Carolina, the general rule is that an injured worker is entitled to receive two-thirds of their average weekly wage up to a maximum amount set by law. This wage replacement benefit is meant to compensate the worker for lost income due to their injury. However, if the injured worker is also earning wages from another employer at the time of their injury, the workers' compensation carrier may seek to deduct those wages from the wage replacement benefit.
The North Carolina Workers' Compensation Act allows for the deduction of wages earned from concurrent employment, but only if certain conditions are met. Specifically, the employer seeking the deduction must provide evidence that concurrent employment has been enlarged or is being used for the substitute for the loss of earnings from the injury producing the employment.1
For example, if an injured worker worked part-time with a concurrent employer at the time of his injury, an employer may try to deduct their earned wages due to their concurrent employer. However, unless the employer can show that the injured workers' concurrent employment was enlarged or being used as substitute for the loss of earnings from the injury producing the employment, they are unable to deduct the injured worker's wages. The employer may be able to show this if the injured worker's concurrent employment was a part-time position at the time of the injury, and after the injury they accept a full-time position with the concurrent employer. Thus, the employer is able to show that because Plaintiff is no longer working part-time, but has accepted a full-time position, the concurrent employment had been enlarged. In this scenario, the employer may also be able to show that by the injured worker accepting a full-time position, the concurrent employment is being used for the substitute for the loss of earnings in the injury.
If these conditions are met, the workers' compensation carrier may deduct wages earned from concurrent employment from the injured worker's wage replacement benefit. However, if the employer cannot meet these requirements, the injured worker is entitled to receive their full wage replacement benefit without any deductions.
Consequently, the injured worker could potentially argue that the injury they sustained adversely affected their ability to earn wages which has led them to enlarge their concurrent employment.2 Referencing our above scenario, the injured worker could argue that his injury has adversely affected his ability to earn wages which has led them to accept a full-time position. Thus, the employer may be unable to deduct wages earned if the injured worker is able to establish the above.
It's important to note that the burden of proof is on the employer seeking the deduction to show that the concurrent employment meets the necessary criteria. If they cannot provide sufficient evidence, the injured worker may be entitled to receive their full wage replacement benefit.
In conclusion, employers in North Carolina may be able to deduct wages earned from a concurrent employer in workers' compensation claims, but only if certain conditions are met. The burden of proof is on the employer seeking the deduction to provide evidence that the concurrent employment has been enlarged or is being used for the substitute for the loss of earnings in the injury producing the employment.
If you are presented with the issues discussed above, it's important to consult with an experienced workers' compensation attorney who can help you understand your options.
Footnote
1. Tunnel v. Resource MFG/Prologistix, 222 N.C.App. 271, 731 S.E.2d 271 (2012).
2. Culbreth v. Ironmen of Fayetteville, Inc., 229 N.C.App 491, 750 S.E.2d 918 (2013).
Originally published 25 April 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.