How is a Vocational Determination of the Director Challenged? It is well-settled that the decision to provide or not provide…
When an employer makes a return-to-work job offer to an injured worker, the job that is offered must be within a reasonable commuting distance in order for the job offer to be deemed valid. A reasonable commuting distance is determined by looking at the considerations set forth at WAC 296-19A-010(4), as well as within relevant case law.
WAC 296-19A-010(4) provides that in order for a job offer to be valid, it must be within the injured worker’s labor market. The “relevant” labor market is “generally” the “geographic area where the worker was last gainfully employed.” It must also be “within a reasonable commuting distance and be consistent with the industrially injured or ill worker’s physical and mental capacities.”
The labor market where the injured or ill worker was last gainfully employed is usually the same place where they were injured or made ill in the course of their employment. However, there are exceptions that apply, such as:
- If the worker relocated to a new town or city after the industrial injury, and did so in order to obtain assistance from their family members in order to recover from their industrial injury or occupational disease, the new town or city to which they located should be considered their current labor market.
- If the worker relocated to a new location after the industrial injury, and did so in order to seek medical treatment or a climate in which it is easier to mitigate the disabling impacts of the industrial injury or disease (a dry climate for an occupational asthmatic, for example), then the new location to which they have moved should be considered their current labor market.
- If the worker relocated after the industrial injury, and they returned to work in that new location but then suffered an aggravation of their injury or occupational condition and had to quit working again, the labor market in which they returned to work is generally the labor market that should be considered their current labor market.
- If the worker relocated to a place where there are greater occupational opportunities, the new location is the current labor market that should be considered.
In addition, certain basic rules of reasonability apply. For example, if an employer offers an injured worker a minimum wage job that is located two hours from the injured worker’s home, that distance is clearly unreasonable because not only would the injured worker have to spend four hours of each day commuting in order to work eight hours, but the financial costs of the commute would also be so prohibitive as to make the requirement to accept that employment “unreasonable” as a matter of law. It is often said by our courts that the “overarching objective” of the Industrial Insurance Act is to reduce to a minimum “the suffering and economic loss arising from injuries and/or death occurring in the course of employment.” See, e.g., Cockle v. Dep’t of Labor & Indus, 142 Wn.2d 801, 822, 16 P.3d 583 (2001) (quoting RCW 51.12.010). This objective cannot be achieved by forcing injured and ill workers to accept job offers that are invalid due to the work being located an unreasonable distance away from where the injured or ill worker lives or seeks their medical support.
Keep in mind that the easiest way for an injured worker to invalidate a job offer is for the injured worker to obtain restrictions from their attending physician that preclude performance of the work being offered.
For example, if the job is located 50 minutes from the injured worker’s home and the physician believes that a 20 minute commute is the maximum commute that is reasonable (in cases of lumbar degenerative disc disease and/or herniation, for example), the attending physician should simply disapprove of the job on that basis. Again, a reasonable commuting distance considers the physical and mental restrictions of the injured or ill worker.
For an example of a case in which Washington Law Center has successfully litigated the question of a job offer being made at an unreasonable distance from the injured worker’s home, see In re James R. Bertholf, Docket 19 23121 (2020).
If you or your attending physician have questions about what constitutes an unreasonable commuting distance with respect to a Department of Labor & Industries or self-insured employer’s finding that you can return to work, please contact the experienced workers’ compensation attorneys of Washington Law Center.
ABOUT THE AUTHOR:
Spencer Parr is a litigation and trial attorney at Washington Law Center focused primarily in the areas of Labor & Industries claims and injury pension benefits. Before co-founding Washington Law Center, Spencer served in the U.S. Army. He has litigated major issues in the law, represented clients from coast to coast, and dedicated his professional life to assisting the injured and disabled. Click here to learn more about Spencer. View More Labor & Industries and Work Injury Resources.