THE BASICS OF WORKERS’ COMPENSATION LAW AND PROCEDURES North Carolina Guide (Originally posted by M. Travis Payne July 9, 2014)
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.
If you, a co-worker, friend, neighbor, family member, or a loved one was injured on the job, please know we're here to help. We provide complimentary case evaluations for workplace accidents any where in the state of North Carolina
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