Workers Compensation Lawyers

What is workers' compensation?

Workers' compensation is a system of benefit payments for those persons injured by accident arising out of and in the course of their employment. It also provides compensation for workers who develop an occupational disease as a result of their employment.

Injured workers can receive temporary total disability checks while they are out under a doctor's care, medical treatments which are reasonable or necessary to effect a cure, give relief, or lessen the period of disability, and payments for permanent injury based on their impairment rating, impaired wage earning capacity or permanent total disability.

What is the north carolina industrial commission?

The North Carolina Industrial Commission is a state agency charged with the duty of regulating and overseeing workers' compensation claims filed in North Carolina. The Industrial Commission is located at 430 N. Salisbury Street, Raleigh, North Carolina 27611. The phone number is (919) 733-5020. The ombudsmen's number is: (919) 733-0345.

How long do I have to file a workers' compensation claim?

The employee must file a Form 18 with the North Carolina Industrial Commission within two years of the date of injury. Otherwise, the claim may be forever barred unless the employer intentionally engaged in actions to deliberately mislead the employee about his right to pursue workers' compensation. In occupational disease cases, the employee must file a Form 18 or Form 18B with the Industrial Commission within two years of being advised by a doctor that he has a work-related disease.

In addition to notice to the Industrial Commission, the employee must also give written notice of the injury to his employer within thirty days of the accident, unless the employer already has actual notice that the injury occurred. Failure to give the employer written notice of the accident within thirty days can result in the claim for compensation being barred, even if a Form 18 is filed with the Industrial Commission within two years of the injury, unless the employee has a reasonable excuse, in which case this requirement can be waived.

Must all employers in North Carolina carry workers' compensation insurance?

All employers who regularly employ 3 or more workers must carry workers' compensation insurance in North Carolina. A subcontractor who is employed by a general contractor must carry workers' compensation insurance if it has one or more employees. Some companies self-insure their businesses for workers' compensation. In these instances, the employee may deal directly with the employer rather than an insurance company.

Liability and Employee Rights

What makes an injury compensable?

Injuries must generally be accidental to be compensable under the North Carolina Workers' Compensation Act. There must be a slip, trip or fall, or some unexpected event which interrupts the usual work routine, for the injury to be characterized as accidental. The standard is more lenient, however, for hernias and back injuries, which are compensable even if not accidental if they were the result of a specific traumatic incident at work.

In addition, in order to be compensable, the injury must arise out of and in the course of the employment. Generally speaking, the injury must result from a risk inherent to the job and not common to the public, and also must occur at a place and time during which the employer's business is being furthered. If the injury occurs off the employer's premises while the employee is engaging in activities which in no way benefit the employer, the injury is generally not compensable.

What is an occupational disease?

Diseases or conditions which arise slowly or over a period of time can be paid as workers compensation, if the employee was placed at an increased risk of contracting the disease compared to the general public not equally exposed and if the hazards of employment significantly contributed to the occupational disease.

Martin & Jones was founded as a firm concentrating its practice on occupational disease claims. Textile workers exposed to cotton dust contract a condition known as byssinosis, or brown lung. Workers exposed to asbestos many years ago in factories, in shipyards, on ships, at construction sites, and on other jobs can develop asbestos-related diseases. Many workers exposed to asbestos develop asbestosis, mesothelioma, lung cancer, and other cancers.

Some workers have been exposed to chemicals in the workplace over long periods of time which can lead to cancer or other debilitating conditions. Workers who have jobs in factories and in offices where they continually use their hands in a repetitive manner can contract a condition known as carpal tunnel syndrome.

Can I sue my employer?

Generally, the injured worker may not sue his employer for ordinary negligence. The exclusive remedy provision of the Workers Compensation Act protects employers from direct suits by their employees for on-the-job injuries where the employer contributed to the accident. However, a special set of circumstances may exist where the employer is liable.

If the employer intentionally engages in misconduct knowing with substantial certainty that serious bodily injury or death would result, a direct civil action can be pursued. Also, if the employer intentionally harms the employee, the employer can be sued. Otherwise, an ordinary negligence suit against the employer is not permitted. Please note, if a third party outside of the company causes the injury, you can sue that third party in addition to filing a workers compensation claim against your employer.

What if the accident was partly or all my fault?

Workers compensation is a fault free system. The relative contributions of the employee or the employer in causing the accident are not relevant in determining whether the worker is entitled to compensation benefits.

The only exception to this general rule is if the employee is intoxicated at the time of injury and the intoxication proximately causes the accident to occur, then the workers compensation claim can be barred. If the employee willfully disobeys a safety rule which causes the injury to occur, the compensation the employee is entitled to receive can be reduced by ten percent.

The failure of the employer to obey a safety rule can result in a ten percent increase of the workers compensation benefits.

What are my rights if I am hurt by someone other than my employer or a co-employee?

Whenever an employee is hurt by someone other than an employer and a co-employee, in addition to the workers; compensation claim the worker can file, he or she also has the right to file a claim against the person who caused the injury. This is a civil action which the employee must be able to show that the third party was negligent and that the employee did not contribute to the accident.

It is very important to pursue these claims, because there may be additional recoveries obtained above and beyond what the Workers Compensation Act allows the injured worker to receive.

A good example of where a third party claim is allowed is when a delivery driver is involved in an automobile accident and the person causing the accident is not the employer or a co-employee. In this instance, the injured worker can file both a workers compensation claim and a third party negligence claim against the driver who ran into the vehicle.

Another third party claim arises when a defective machine or product causes a worker to be injured. In such cases, he or she may file both a workers compensation claim and a product liability claim against the manufacturer of the machine or defective product.

Can my employer fire me because I have filed a workers compensation claim?

Your employer cannot fire you because you have pursued a workers compensation claim. If your employer has retaliated against you for pursing a workers compensation claim, the North Carolina Department of Labor should be contacted immediately at (800) 522-6762. You must take action within 180 days of the retaliatory act.

Benefits and Return to Work

How long must I wait before my weekly benefits start?

The worker must have missed at least seven days before the entitlement to weekly benefit checks begins. This does not have to be seven consecutive days. The entitlement to receive medical treatment, however, is not contingent upon missing any time from work: You may receive medical treatment immediately upon being injured.

What payments do I get while I am being treated and out of work?

While the employee is out of work under a doctors care, he or she is entitled to receive temporary total disability and reasonable or authorized medical treatment.

How are my weekly benefits figured?

Compensation is paid based on two-thirds of the average weekly wage. The employees gross wage, including overtime and payments in lieu of wages are calculated for the 52-week period preceding the accident to determine an average of the weekly wage.

If the period employed prior to accident is less than 52 weeks, whatever time period the employee worked is used. However, if the time period is so short so that using the gross pay for that time would be unfair to either the employee or the employer, the parties can use the wages of a similar or comparable employee.

If no similar or comparable employee is available, it becomes whatever calculation would be fair to the employer and employee that can be devised.

Is my employer required to provide me with light duty if my doctor says that i cannot return to my normal job?

Your employer does not have to provide light duty work merely because you have been hurt on the job. The Federal American with Disabilities Act requires that your employer make reasonable accommodations for you to perform work, but this is the extent of its obligation.

Medical Treatment and Bills

How do my medical bills get paid?

Medical bills are paid by the workers compensation insurance company. These bills must be forwarded to the insurance company by the doctors office. The insurance company then forwards the bills to the North Carolina Industrial Commission for it to review the bills and approve them, if they are reasonable charges. The Industrial Commission then notifies the insurance company of this authorization to pay the medical bills and then the insurance company makes direct payment to the doctors office.

If the insurance company refuses to pay medical charges, the injured worker can file a request with the North Carolina Industrial Commission for a hearing to seek an order that the medical bills be paid.

How long can I receive medical treatment?

The injured worker can receive medical treatment which is reasonable and necessary while under the doctors care. Upon being released, the worker has two years to petition the Industrial Commission to receive additional medical treatment. Those workers injured before July 5, 1994 are entitled to receive lifetime medical treatment.

The worker must be able to show that treatment sought is causally related to the on the job injury. Only those consequences which would reasonably and naturally flow form the on the job injury will be paid by the insurance company. The employee must be able to show that the medical treatment is reasonable or necessary to effect a cure, give relief, or lessen the extent of the disability.

What if I want to switch doctors?

Hiring a Workers Compensation Lawyer

Should I hire a lawyer to represent me in my workers compensation claim?

A lawyer should be retained to represent the injured worker in a serious injury claim. Upon being injured, you should call an attorney and discuss the circumstances of your injury with him. There is no charge for an initial consultation and the lawyer will be glad to give you an honest determination of whether an attorney will be helpful to you. A good rule of thumb is that an attorney should be retained in any serious injury claim.

If the insurance company denies my workers compensation claim, what can I do?

If the insurance company denies your claim, you should contact an attorney as to whether there are good grounds to pursue a claim for workers compensation benefits. A form 18 must be filed with the Industrial Commission within two years of the date of accident in order for a claim to be properly registered. Then, the injured worker can file I.C. Form 33 to contest the denial of workers compensation benefits.

Normally, it takes from 6 to 12 months for a case to be placed on a hearing docket for a deputy commissioner to review the matter and decide whether or not the injured worker meets the requirements to receive workers compensation benefits. The insurance company or your employer will be represented by an attorney at the hearing. While the injured worker can appear at the hearing without an attorney, in most cases it makes sense to hire an attorney at this state.

How do I pay the attorney?

Settling the Claim

How do workers compensation claims get settled?

There are several potential methods a case can be settled. Workers compensation cases get settled based on the impairment rating ordered by the physician. The body is divided into separate parts; the fingers, hand, arm, back, legs, foot, etc. A maximum number of weeks of benefits can be paid based on whichever part of the body is injured. The impairment rating allows the worker to get whatever percentage of the maximum number of weeks payable for that member.

Another type of settlement is based on the wage differential, which is payable for up to 300 weeks from the date of the accident. A third form of settlement is payment for permanent and total disability, should the injured worker be unable to ever return to work. Some insurance companies wish to clincher which closes the case forever. They will usually pay some amount of cash, lump sum, to close the case. Normally, an injured worker has a period of time to claim future medical care or to reopen his case. A clincher of the case precludes the right to ever receive additional medical care, reopen the case for change of condition or to ever have a hearing before the North Carolina Industrial Commission.

What happens if I settle my claim and then my condition worsens?

If a worker has settled his case on any agreement other than the clincher, he or she has two years from final payment of compensation to ask the Industrial Commission to reopen the case for additional compensation or medical treatment if his or her condition changes materially.

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