Duncan Law Blog

Do All Employers Need to Provide Workers’ Compensation Insurance?

Oct 08, 2010 3 Comments by

In short, it depends. According to North Carolina General Statute §§ 97-2(1)97-2(3)97-93 an employer must carry workers’ compensation insurance if:

Three or more employees regularly employed in the same business or establishment, or

One or more employees employed in activities which involve the use or presence of radiation, or

If providing agriculture or domestic services, 10 or more full?time nonseasonal agricultural workers regularly employed by the employer

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This is to ensure that if an employee were to be injured on the job then the insurance company could handle the cost, therefore limiting the risk of the employer being insolvent and not being able to pay for treatment.  This also ensures that the employee will receive compensation for their treatment sooner.

However, there are some exceptions to this rule.  One of these exceptions is when there is an independent contractor working for an employer.

Since an independent contractor is not an employee, the employer does not have to provide workers’ compensation insurance for them.  Since, technically, they are not an employee, the North Carolina Industrial Commission does not have jurisdiction over this relationship.  The definition for employee is defined by North Carolina statute §97-2, but there are some easy ways to determine if you are an employee or an independent contractor.  The first of these would be to look at the kind of tax form you receive.  If you are receiving a W2 then you are most likely an employee, if you are receiving a 1099 then you are probably an independent contractor.  Also do you get paid overtime or certain hourly wages? Do you wear a uniform that the owner of the business has required you to wear? These are all helpful ways to determine if your “employer” must have workers’ compensation insurance  in case you are injured on the job.

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How Are Workers’ Compensation Benefits Determined?

Oct 07, 2010 No Comments by


Workers’s compensation benefits are determined by a variety of factors.  One of the first questions is whether the injured worker is able to return to their job?  When a worker is injured on the job they are sent to a physician to determine the extent of their injury.  The physician may allow the worker to return to work and they will receive their regular salary as they perform their regular work duties.

On the other hand, the physician may determine the employee cannot work their regular job and may allow the worker to work, for example, only 20 hours per week.  If they are seriously injured, the physician may not allow them to return to the job until they reach what is known as “maximum medical improvement” or “M.M.I.”.  If the worker is unable to work their full schedule or a partial schedule, the employer’s workers’ compensation insurance company must compensate the injured worker’s benefits, such as salary, the worker would had received if they had not been injured.

Normally, the injured worker receives two-thirds of their average weekly wages lost due to the injury. The worker usually receives a weekly paycheck from their employer’s workers’ compensation insurance company to compensate the worker due to the lost time because of the injury.

Doctor Examining an X-Ray | Workers' Compensation

You may ask why only two thirds of the average weekly wages?  The general consensus is if the worker is receiving “full” benefits or 100% of their usual income, the worker would have no “incentive” to return to work.  Also the worker does not have to pay transportation cost or wear and tear on a vehicle if they are at home injured. Therefore, the North Carolina Industrial Commission has ruled that two-thirds of the worker’s salary is fair compensation.

The worker should receive these benefits until they are allowed, by the physician, to return to work or until a settlement is reached with the insurance company of the employer.

If you have been injured while at work it is important to contact a North Carolina workers’ compensation lawyer immediately.

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What Should I Wear to My Bankruptcy Creditors’ Meeting?

Sep 29, 2010 No Comments by

After filing for bankruptcy you will need to attend a creditors’ meeting. The creditor’s meeting, or 341 meeting (because it’s under Section 341 of the Bankruptcy Code) is a meeting with the Bankruptcy Trustee. The Bankruptcy Trustee is the representative for your creditors. However, creditors also have the right to attend this meeting as well. Despite this, creditors will rarely show up. The Trustee will ask you some different questions about your bankruptcy case. Don’t stress over the creditors’ meeting – your bankruptcy lawyer should help prepare you.

One of the frequent questions we get from our clients when discussing what happens at the creditors’ meeting is what type of clothing to wear. Do you need to “dress up” for your creditors’ meeting? No!

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We always tell our clients to wear whatever they would wear on a typical day. There is no need to wear a suit to the creditors’ meeting just for the sake of getting dressed up. However, if you wear a suit to work every day then wearing a suit to your creditors’ meeting isn’t a problem either. Usually the creditors’ meetings only last a couple hours or so. Therefore, most people will go back to work after their creditors’ meeting. So just wear whatever you would typically wear to your place of employment.

With that said, we do encourage clients to obviously dress respectfully and appropriately. Men should make sure that they wear their pants around their waste, have sleeves on their shirts and they shouldn’t wear a hat or anything on their head unless they do so for spiritual purposes. Women will want to make sure that they don’t wear low cut blouses or especially short skirts or dresses. It really comes down to using common sense. If you wouldn’t wear it to church or around family – don’t wear it to court or your creditors’ meeting.

Finally, we always encourage our bankruptcy clients to dress in layers. Anytime you have a large group of people in one place, the temperature will never be just right for everyone. If you dress in layers you can easily add clothing if the room is cold or you can remove some of those layers if the room is warmer than your preference.

Again, there is no need to get dressed up for your creditors meeting. However, make sure you use common sense and dress in layers. Best of luck at your creditors’ meeting!

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What Injuries are NOT Covered by Workers’ Compensation Laws?

Sep 27, 2010 No Comments by

North Carolina Workers' Compensation Lawyers | Duncan Law, PLLCThe first question to ask is whether your employer falls under the Workers’ Compensation Act.  Generally speaking, an employer with three or more employees is required to carry workers’ compensation insurance.  As a result, if your employer has only two employees, they are most likely not required to carry workers’ compensation insurance and any injury you sustain would not be covered under workers’ compensation.  However, it will depend on the structure of the legal entity of the business and they type of business, so this number may be more or less.

You must also be an employee to receive workers’ compensation benefits.  Contract “employees” or independent contractors are not covered by the workers’ compensation act, so an injury incurred while working as a contract “employee” may not be covered by workers’ compensation

Next, is the injury sustained by an accident while performing your assigned job functions?  This question can best be answered by comparing what injuries can and cannot be covered by workers’ compensation.  Injuries you incur while on the job and while performing your job duties are generally included in a workers’ compensation claim.

Examples of Injuries Included in Workers’ Compensation:

If you work in a warehouse and a crate falls and breaks your foot as you are attempting to remove it from a shelf, the injury would be considered a workers’ compensation claim.

You are a sales person and while at a customer’s location you are accidentally hit by a forklift, this would most likely be a workers’ compensation claim.

Examples of Injuries NOT Included in Workers’ Compensation:

You are chasing a fellow employee in the parking lot after work, and you trip, fall and break your foot.  This would most likely not be considered a workers’ compensation claim.  You are obviously at work, but you are not performing your job duties when the accident occurred.

You are a sales person and you stopped to buy gas.  When you went into the store to purchase a cup of coffee, you slip and fall and you break your leg.  You may have a claim against the store where you fell, but you would most likely not have a workers’ compensation claim.

As you can tell by these examples, a workers’ compensation claim requires the accident occurred while you were an employee performing your job functions. Like most areas of the law, workers’ compensation claims can become pretty complex. To learn more, contact our Charlotte, NC workers’ compensation lawyers or our Greensboro, NC workers’ compensation lawyers.

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What If I Stop Receiving Mortgage or Car Statements After Filing for Bankruptcy?

Sep 24, 2010 No Comments by


Once you file a bankruptcy, an automatic stay goes into effect.  This automatic stay states that no creditor can try to collect any debt from you; according to statute 11 U.S.C § 362 (6), “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title”.   If a creditor does contact you with payment demands, a Charlotte bankruptcy lawyer or Greensboro bankruptcy lawyer can file what’s known as a “motion for sanctions” which reprimands the creditors attempting to collect the debt.

Bills in Mailbox

Even though you are current, and are going to keep your house or car; many creditors will still not send you a bill once you have filed the bankruptcy.  Ever heard the phrase, “better safe than sorry”?  Well, this is exactly why you are not receiving your statements now; they do not in any way want to violate the automatic stay.  If you had set up automatic bill pay, this will likely stop as well.  You just have to remember regardless of whether you receive a bill, you must continue to make your house or car payment!  If not, the creditors have the legal right to foreclose on your home or repossess your vehicle.

What can you do?  Simply call them and request that they still continue to send you your statements.  They may send something to your bankruptcy attorney asking for he/she to sign off to give permission for you to resume receiving statements for their records, but in most cases, it is as simple as that.  Again, the main reason a creditor stops sending you statements is because they do not want those statements to be viewed as an effort to collect a debt which would violate the automatic stay that goes into effect when your bankruptcy is filed.

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Do I Have to Pay Taxes on Debts Wiped Out in Bankruptcy?

Sep 22, 2010 No Comments by


The short answer is no, you do not have to pay taxes on debts that are wiped out in bankruptcy. Quite often those trying to decide between bankruptcy and some type of debt consolidation will look to see which option will be most advantageous for them when it comes to tax implications. Usually, filing bankruptcy will be most beneficial when it comes to taxes.

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Unlike debts that are consolidated or forgiven by a creditor, debts that are discharged in a bankruptcy are not subject to being taxed. Section 108 of the Internal Revenue Code explains that Title 11 (bankruptcy) cases are not subject to the traditional taxes on forgiven debt. This is important because other debts that are forgiven or wiped out outside of bankruptcy will be viewed as your gross income, which is taxable. Therefore, you could pay quite a bit of taxes on debts that were otherwise forgiven.

After wiping out your debt in a bankruptcy you may receive a Form 1099(c) from the IRS. If this were to happen, it is important that you fill out a Form 982 to tell the IRS that the debt was discharged in a bankruptcy and is, therefore, non-taxable.

This section of the Internal Revenue Code can be a big money saver for those trying to decide between bankruptcy and some other form of debt negotiation. When money is already tight it is almost impossible to pay the thousands of dollars that you may be required to pay on your forgiven debt outside of bankruptcy. Instead, liquidating your debts in a Chapter 7 bankruptcy or paying them back through a Chapter 13 bankruptcy will allow you to get rid of debt and avoid any tax implications.

Learn more about how bankruptcy can wipe out debt and save you money by contacting a Charlotte bankruptcy lawyer or Greensboro bankruptcy lawyer.

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Can I Still Get Workers’ Compensation Benefits If I Return to Work?

Sep 20, 2010 No Comments by

Returning to work after suffering an injury at work can be a risky move.  If your claim says that you are completely unable to work and then you return to work while you are still able to receive workers compensation benefits, then your employer no longer has to continue paying your workers compensation benefits.

Injury at Work | Charlotte, NC & Greensboro, NCThere is an option to have a trial return to work.  According to North Carolina Statute  §97-32.1, this is where you will return to work for a certain amount of time (up to 9 months), during this period you can still receive partial benefits from your employer.  You would have to file certain forms and paperwork to do this.  You want to make sure your employer and the Industrial Commission are fully aware that this is simply a trial period and you are not returning to work permanently at the current time.  If you make a full return to work then your compensation benefits will be terminated.  If during this trial period it is determined that you are still unfit to work then you can continue to receive full benefits that will be unimpaired by your trial return to work.  The trial period can only last for a maximum of nine months.

In summary, in most situations if you fully return to work you will no longer receive workers’ compensation payments.  However, you have a couple options other than fully returning to work. First, you can go back to work on a limited basis and receive reduced payments. A second option is returning to work for a trial period and, if you then decide you are not ready for a full return, then your full payments will resume and be unaffected.  The main point is if you and your doctor both feel you are not ready to return to work then you should consult your workers’ compensation attorney before deciding to return to work. Returning to work prematurely will cause you to lose any future benefits.

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What if I Accidentally Leave a Creditor Off of My Bankruptcy?

Sep 17, 2010 No Comments by


Under the stress of a bankruptcy filing, there are times when a creditor is inadvertently forgotten and left off of a bankruptcy filing. If you file Chapter 7 bankruptcy or Chapter 13 bankruptcy and realize that you accidentally left a creditor off of your bankruptcy, it may not be too late.

Bills in MailboxIf you realize before your creditors’ meeting that you have omitted a creditor, you will need to contact your attorney immediately. Generally speaking, you can add a creditor before your creditors’ meeting. Your attorney may charge a small fee and the court will charge a filing fee, but for most debtors these fees are insignificant compared to the amount owed to the omitted creditor. Your attorney will also send out the proper notices to the omitted creditor after the creditor has been added to the bankruptcy filing.

If you realize after your creditors’ meeting that you have omitted a creditor, there are more strict time limitations to adding a creditor and you will need to contact your attorney immediately to determine whether or not the time frame for you to add a creditor has lapsed.

The most important way to avoid accidentally omitting a creditor from your bankruptcy prior to the filing of your petition is to double-check your credit report from each of the three main credit reporting agencies: Equifax, TransUnion, and Experian (visit www.AnnualCreditReport.com to get your free credit report). You will also want to double-check your bills from your creditors to make sure that you have included all of your debts on your bankruptcy petition.

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How Much Debt Can I Have When I File for Bankruptcy?

Sep 16, 2010 No Comments by


Every potential bankruptcy client has a different amount of debt owed. Even the type of debt varies from debtor to debtor – some debtors have almost all credit card debt, while others may have almost all medical bills. A common question that potential bankruptcy clients have is whether their bankruptcy will be denied by the Court if they owe “too much money.”

For potential Chapter 7 bankruptcy clients, there is not a specific limit to the amount of debt that can be owed. However, the Bankruptcy Court will always do an analysis in each case to examine the amount of household income in relation to the amount and type of debt owed to ensure that the debtor is not abusing the bankruptcy system.

Bankruptcy InformationFor potential Chapter 13 bankruptcy clients, there are some limitations to the amount of debt that is allowed. Under Section 109(e) of the Bankruptcy Code (also known as the federal bankruptcy laws), an individual with regular income cannot owe more than $250,000.00 in unsecured debt and $750,000.00 in secured debt. In some bankruptcy courts, the bankruptcy Judge will hold a hearing for confirmation of your Chapter 13 Plan if there is more than $100,000.00 in consumer debt (credit cards and personal loans). These limitations are set to ensure that the debtor is not abusing the bankruptcy laws.

One way to avoid having issues with the amount of debt you owe is to stop using your credit cards as soon as you consider filing bankruptcy. In some cases, the Court may ask you when the last time you used your credit cards was. The Court asks this question to make sure that you did not run up your credit card charges immediately before filing bankruptcy.

You should contact a Charlotte bankruptcy attorney or Greensboro bankruptcy lawyer to get a more specific analysis of your own situation, but you can use these general guidelines to prepare yourself for whether or not the court will deny your bankruptcy if you owe “too much money.”

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Do I Have To Be A U.S. Citizen to File for Bankruptcy?

Sep 13, 2010 2 Comments by


In short, no. Surprisingly, being a citizen of the United States is not required to file for bankruptcy. The U.S. Bankruptcy Code does not have a citizenship requirement. However, you still need to establish residency in the state where you plan to file bankruptcy. That means you need to live in the state for the greater part of 180 days or three months. If you do not reside in the United States or the state where you plan to file bankruptcy, but own property here, you may be able to file for bankruptcy protecting that property against your creditors. You will have to show that there is regular and consistent contact in the jurisdiction you are looking to file.
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If you are not a U.S. citizen but need to file bankruptcy, you will be required to prove your identity to file a bankruptcy case and must have a valid photo ID and a valid Social Security Card or Individual Tax Identification Number (ITIN).

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