THE BASICS OF WORKERS’ COMPENSATION LAW AND PROCEDURES North Carolina Guide (Originally posted by M. Travis Payne July 9, 2014)

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THE BASICS OF WORKERS’ COMPENSATION LAW AND PROCEDURES

Originally posted by M. Travis Payne July 9, 2014


I.  TYPES OF CLAIMS: There are two kinds of claims, occupational injuries and occupational
            diseases.  There are special requirements for each.
A.                Occupational injuries
                        1.  The injury must arise out of work.
2.  For all parts of the body except for the spine (back or neck) or hernias, the injury must be the result of an ACCIDENT.  If the injury occurs as a result of just doing your normal routine work activity, then it is not covered.
a)  Just about anything “out of the ordinary” or unusual can meet the requirement for an “accident”.  This includes not only twisting, landing, or lifting in a awkward position, but also doing something that you have never (or rarely) had to do in your job.
b) If you “don’t know why” your knee (or other body part) gave out, then it is not going to be considered an “injury by accident”, and will instead be considered as arising from an “idiopathic” (pre-existing) condition.
3.  For spine (back and neck) injuries and hernias, you do not need an “accident”, but you do need a “specific traumatic incident”.  That means that you can point to a specific activity or occasion when you did something and “felt something in your back (or neck)”, and after that it began hurting.  If you are just working hard over the course of several hours (or even several days), and your back just slowly starts hurting more and more, you are out of luck as there is no specific traumatic incident.
4.  The fact that you have some pre-existing condition or previous injury that made you more “susceptible” to being injured is no problem. The employer takes the worker “as they find them”.  The aggravation of a pre-existing condition or injury as a result of an accident or, for backs, a specific traumatic incident, is covered by comp.
5.  If you had an on-the-job injury before that was covered under comp, and you have a new accident (slip, trip, fall, etc.) or specific traumatic incident  at work that re-aggravates that problem, it should be treated as a new workers’ comp injury and claim.  You should get higher weekly comp benefits by filing it as a new claim.
B.                 Occupational diseases — MUCH harder claims
1.  If you have a disability or medical condition that develops over time, such as carpal tunnel syndrome or lung /breathing problems, it may be covered under comp.  There are several things that you must prove to establish most occupational diseases.
a) The disease or condition must have arisen from the job, or your job must have at least been a significant contributing factor in the development of the disease.  Even if your job is just a contributing factor, you must establish that the conditions of work can lead to the condition or medical problem.
b) Your work must have exposed you to a greater risk of developing the disease or medical condition, than the risk experienced by the general public.
c) In order to establish that you meet the requirements for an occupational disease under the workers’ comp act, you need a doctor to say these things!  And a doctor saying something like “it could be” or “it might be” is not even close to what is required.  They must be willing to say that it is “more likely than not”.
2.  The timing or deadline for filing an occupational disease case is somewhat “flexible”.
a) Usually the deadline for filing a claim starts to run when you first miss work due to the occupational disease.
b) If you have a condition and you are not sure that it came from your job, the time to file a claim may not start until a doctor first tells you that your condition arose from your job.

II.  BENEFITS: There are really four different types of benefits that you can receive.
A.  Medical benefits.  All of the reasonable and necessary medical treatment that arises from your injury or disease should be covered.
1.  This includes payment of medical expenses that are consequences of your disease or injury, such as payment for psychological counseling for depression that arises secondary to chronic pain from a back injury.
2.  Unfortunately, the employer or insurance carrier generally gets to pick the medical provider, if they have accepted the claim and are paying medical expenses.  Because having a good doc is more important than having a good lawyer in a comp case, there may be times when a worker should use their medical insurance or pay out of their own pocket to get a “second opinion” from a “non-company” doctor.
3.  The obligation to pay for medical treatment ends two years after you last receive disability benefits, unless you have had on-going treatment, or you file a motion with the Industrial Commission asking that your case be kept open because of expected future treatment, such as a total knee replacement ten years or more after a knee injury.
            B.  Temporary total disability benefits paid to you.
1.  These benefits are two-thirds of your “average weekly wage” (AWW).  The average weekly wage is usually calculated by totaling up gross pay of any sort that the worker received from the employer in the 52 weeks immediately before the injury.  That is divided by 52 to give AWW.  Your benefit amount is two-thirds of that.
2.  Benefits are due afer you have been out of work one week.  If you stay out of work more than 4 weeks, then you should receive pay for the first week that you were out.
                        3.  Comp disability benefits are tax free under state and federal law.
4.  Because of the 2011 amendments to the Workers’ Comp Act, in most situations Temporary Total Disability benefits can be received for only a maximum of 500 weeks “from the date of first disability”, which is about 9.6 years.  There is a provision that allows benefits beyond the 500 week limitation, but that is only in very extreme situations.  However, for workers who were injured before June 24, 2011, and have an on-going case, Temporary Total Disability benefits can go on for the rest of your life, if you turn out to be “permanently and totally disabled”.
5.  Your average weekly wage and weekly disability amount is “frozen” as of the date of the injury. There is no “cost-of-living” or inflation adjustment.
            C.  Temporary partial disability benefits or “wage differential”
                        1.  If you return to work at some job and, because of your injury, you are earning
                                    less than you did at the time of the accident, you are entitled to receive
                                    two-thirds of the difference between the AWW amount and what you
                                    make each week in your reduced-pay job.  These are called Temporary
                                     Partial Disability (TPD) benefits or “wage differential”.
2.  Under the 2011 amendments to the Comp Act, injured workers can receive up to a total of 500 weeks of partial differential benefits, with any weeks of temporary total disability payments being deducted from that total.  The 2011 amendments actually improved the partial disability benefits, as those who were injured before June 24, 2011, can only receive such benefits for a maximum of 300 weeks (12 weeks less than 6 years) from the date of the injury.
D.  “Permanent Partial Disability” (PPD) payment as a lump sum to you.
1.  If, after you have recovered from the injury as much as you will, you have some permanent restrictions or disability, you can receive a lump sum payment for that.  However, you CANNOT receive that lump sum payment and still continue receiving weekly disability payments. 
2.  The amount of the payment is set by statute based on the number of weeks of
benefits that the legislature has determined each body part is worth.  For instance, loss of a leg is “worth” 200 weeks of benefits.
3.  The PPD is a percentage rating that your doctor gives you.  If the doctor says
after arthroscopic knee surgery that you have a 10% permanent partial disability of your leg, that would be “worth” 20 weeks of benefits.  If your weekly benefit amount is $400, then that would be $8,000.
4.  If you are not satisfied with the rating that your doctor gives you, you have a
 right to get another opinion on the rating from another doctor, to be paid for by your employer or the insurance carrier
5.  You should NEVER take a lump sum payment for a PPD, unless you are back
 at work making at least what you were making at the time of the injury, and you think that you won’t have any problems continuing to work.
                        6.  Once you take the lump sum payment for a PPD, you only have two years to
 re-open your case if your disability worsens and you can’t work any more. (BUT REMEMBER, THE AGGRAVATION OF A PRE-EXISTING CONDITION, IF IT HAPPENS ON THE JOB, CAN BE A NEW COMP CLAIM)
III.   PROCEDURES
            A.  The statute says that you should notify your employer in writing within 30 days of the
injury.  FILE AN ACCIDENT REPORT EVERY TIME YOU GET HURT, EVEN IF IT IS JUST A MINOR INJURY!!!  It appears that a number of cities and counties have adopted policies that say that employees must report on-the-job injuries within 3 days.  As a result, I have had first responders who have told me that when they talked to a supervisor a week after they got hurt on the job about reporting the injury, they were told they were too late because of the “3 day rule”, and they could not report it now.  No local policy can modify or overcome the state law that says the you have 30 days to report an injury, so if you wait say 2 weeks and are told you are “too late”, go on and file the written report any way [but make sure you keep a copy of what you file].  If your claim gets denied for not reporting the injury in 3 days, the Industrial Commission and the Courts will reject that argument.
B.  Actually, if you told an official of the employer about your injury, you will probably
                        be okay, as long as you file for a hearing in time.
C.  If you are never paid workers’ comp disability benefits (and salary continuation
or short term disability benefits do not count), then your employer and its insurance carrier may not have admitted liability for your claim.
D.   The payment of medical expenses, without ever paying weekly disability benefits,
                        DOES NOT ADMIT LIABILITY.
E.  If your employer has never admitted liability for your injury, you must file a request
for a hearing with the Industrial Commission within TWO YEARS OF THE INJURY.  If you do not, it is likely that your case will be deemed untimely.
F.  Workers’ comp cases are handled by the North Carolina Industrial Commission in
Raleigh.  The form for a worker to report an injury is a Form 18.  The form to request a hearing is a Form 33.  The forms can be down-loaded from the Industrial Commission’s web site.
            G.  You must also send a copy of any form that you file with the Industrial Commission,
                        to your employer and the insurance company, if you know who that is.
            H.  If you mail anything to the Industrial Commission, send it certified mail, return
                        receipt, so you have proof that the Commission received it.  Documents filed at the Commission get lost more than they should.
            I.  From the time you request a hearing from the Commission, until the time a decision
issues after a hearing is often more than one year.  If an appeal is then taken, it could take a year or even several years more.

IV.  ACTIONS TO PROTECT YOUR RIGHT TO WORKERS’ COMP
A.  If you get hurt or experience pain on the job, report it, and the best way is to report it in writing.  Keep a copy of any written report that you submit.
            B.  If you go to your regular doctor, or a doctor that you have seen before, after you hurt
yourself on the job, MAKE SURE YOU TELL THE DOCTOR THAT THE PAIN OR PROBLEMS STARTED AFTER SOMETHING HAPPENED TO YOU ON THE JOB.
            C.  If you hurt one body part, maybe like a wrist or a knee from a fall at work, and a few
days to a few weeks later, you start having pain in other areas of your body, like in your neck or back, MAKE SURE THAT YOU LET YOUR DOCTOR KNOW ABOUT THE PAIN THAT IS DEVELOPING IN THE OTHER AREAS.  If you have never before had pain in those areas, you need to make sure that you tell the doctor that.
            D.  If you are hurt on the job and report the injury, it is likely that you will be called and
interviewed by a claims adjuster for the insurance company, with the interview being recorded.  YOU DO NOT HAVE TO TALK TO THEM. (Although if you refuse they will probably use that as an excuse to deny you disability benefits.)
            E.  If you do submit to a recorded interview, be VERY CLEAR that what caused your
injury was an accident or something out of the ordinary at work; or, in the case of a spine (back/neck) or hernia injury, that the pain started from a specific incident.  The claims adjusters will ask you questions in a way to get you to say things that give them an excuse to deny your claim, so do not let them do that to you.
            F.  If you are receiving on-going medical treatment that workers’ comp is paying for,
you will probably have a “nurse case manager” assigned by the insurance company to your case.  Understand that they are employed by the insurance company in hopes that they will save the company some money.  Even though comp is paying for your treatment, you still have a right to have private meetings and examinations with your doctor.  NEVER ALLOW A NURSE CASE MANAGER TO COME INTO THE EXAM ROOM WHILE THE DOCTOR IS EXAMINING YOU AND TALKING WITH YOU ABOUT HOW YOU ARE DOING.  The nurse case manager will often try to answer the doctor’s questions for the injured worker, and also try to get the doctor to not recommend further treatment or tests.
            G.  After a doctor has completed their examination of you, the case manager can talk to
the doctor, if the doctor is willing to do so.  However, the nurse case manager is only supposed to talk to the doctor in your presence.  NEVER ALLOW THE NURSE CASE MANAGER TO TALK TO THE DOCTOR OUTSIDE OF YOUR PRESENCE.
            H.  Many insurance companies, or the nurse case mangers for the insurance companies,
will ask workers to sign medical authorizations that allow the company to get medical records from any doctor that you have ever seen at any time in your life, and also that allows the insurance company to talk to doctors outside your presence.  NEVER SIGN SUCH A MEDICAL RELEASE.  The only type of release that you are required to sign gives the insurance company and the nurse case manager the permission to get the records ONLY from the doctors that have treated you for your work-related injury.  It also does not allow them to talk to the doctor.  That medical release is a Form 25C.  THAT IS THE ONLY TYPE OF MEDICAL RELEASE THAT YOU SHOULD EVER SIGN IN A WORKERS’ COMPENSATION CASE.
            I.  DO NOT trust a plant nurse or doctor.  Make a record of every time you go to see
                        them about your work-related injury, and the types of things that you tell them.

V.  OTHER EMPLOYMENT IF YOU CANNOT RETURN TO YOUR JOB
            A.  While you are recovering from your injury, many employers will put an injured
worker in a light duty “make work” position.  That is probably acceptable under the workers’ comp law, and if you refuse to do the “make work” job, you may be fired and also be denied your weekly comp benefits.
            B.  Once you have completed the healing period and your doctor says that you are at
maximum medical improvement (MMI), then your employer cannot force you to work in a “make work” position.  Instead, any job offered after you reach MMI must be a regular job that is available in the job market.  If no such job is available from your employer, then you should be placed out of work and the employer and insurance carrier should pay you your weekly workers’ comp benefit.
            C.  An issue arises from time-to-time where your employer offers you a job that is
different than the one your were doing when you were injured, and that pays you less than what you were making.  Alternatively, through vocational rehabilitation (see the next section), you may be offered a job with a different employer that pays less than you were making at the time you were injured.  The courts have ruled that an injured worker receiving workers’ comp weekly benefits can only be  required to take a job that constitutes “suitable employment”.  Suitable employment used to mean a job that meets your permanent physical restrictions, and that offers the injured worker the ability to have a wage earning capacity comparable to their wage earning capacity before the injury, and that offers them comparable opportunity for wage advancement.  Unfortunately, the 2011 amendments to the Comp Act have now defined “suitable employment” in a way that is favorable to the employers.  It is now any job that an injured worker is physically capable of performing, that is within 50 miles of the worker’s home, without regard to the wages that the job pays.
D.  If a job is offered that does not meet the requirements for “suitable employment”, an injured worker can turn it down and their weekly comp benefits should continue.  But if the job does constitute “suitable employment” and the worker turns it down, their weekly comp benefits can be terminated.
E.  If it becomes clear that, because of the injured worker’s lack of education and training, they are not likely to find suitable employment after they have reached MMI and still have significant permanent restrictions, it is possible that the employer or insurance carrier will have to pay for the injured worker to go to school such that they can start a new career.  The 2011 amendments added a provision making clear that if an injured worker has returned to work and is earning less than 75% of what they made before their injury, the worker may request training and education at a community college or at a campus of the University of North Carolina system.  In such cases, the employer/carrier would have to pay for tuition and books, as well as reimburse the injured worker for travel expenses to and from the school if it is more than 10 miles one way.  An issue that has not yet been addressed under this new provision is whether the worker can demand to go to school full time, and as a result stop working in the low paying job and receive TTD benefits while they are going to school, or can the employer force them to continue working in the low paying job and only take courses in the evenings or other times when they are not at work?

VI.  ACTIVITIES TO ANNOY AND FRUSTRATE INJURED WORKERS
            A.  Vocational rehabilitation
                        1.  If it becomes clear that an injured worker will not be able to resume their old
job, then the employer/carrier often initiates “vocational rehabilitation”.  This involves having the worker meet with a “rehabilitation specialist”, often on a weekly basis, who “assists” them in job search activities.
2.  The workers’ comp law requires an injured worker who is receiving weekly benefits to participate in “reasonable” vocational rehabilitation activities.  If they do not, their weekly checks can be stopped.
                        3.  Most often the rehabilitation efforts are not really about finding an injured
worker meaningful work or a new career, but about annoying and frustrating the injured worker to the point that they do something, such as refusing to apply for jobs,  that gives the employer/carrier a basis for terminating the weekly benefits.
4.  In general an injured worker should “cooperate” with vocational rehabilitation by attending all meetings with the vocational specialist, and applying for all jobs to which they are referred, even if those jobs are not suitable.  If an employer wants to interview the injured worker, they should attend the interview and not “sabotage” it.  But an injured worker should not accept any job that does not meet the requirements for “suitable employment”.
            B.  Surveillance
1.  In cases where an injured worker appears likely to continue receiving weekly comp benefits for many years, and maybe for the rest of their life, it is fairly common for the claims adjuster to employ private investigators to surveil the worker.
2.  Surveillance normally occurs on a sporadic basis for a few days at a time, rather than for weeks at a time.
                        3.  Surveillance in a workers comp case often results in videos of the injured
 worker shopping at supermarkets, shopping malls, or home improvement stores.  Occasionally the videos show the injured worker engaged in activities around their home, such as cleaning and maintenance activities.  Sometimes they show the worker engaged in recreational activities.
                        4.  The intent of the videos is to show the injured worker doing something more
than what they have told their doctors that they can do.  That could be lifting heavy items, such as wooden timbers or bundles of shingles at a home improvement store, or maybe lifting a TV or other large appliance into their car at a shopping mall.
5.  In fact, it is rare that surveillance videos show injured workers doing anything that exceeds the limitations given them by their doctors.  Indeed, most times the videos confirm those limitations.
                        6.  The real impact and intent of surveilling an injured worker is to frustrate the
injured worker and make their life miserable, such that they will again do something that gives the employer/carrier a basis to stop the weekly benefits; or such that the injured worker wants out of the workers’ comp system so bad, that they are willing to settle their case cheap.

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