Common Questions Before Starting Your Workers’ Compensation Case
Do I need an attorney to file a workers’ compensation claim?
The decision to hire an attorney is often based on the severity of the worker’s injury. If the injury is limited to a sprained ankle or broken wrist that is expected to heal with limited future medical treatment, the employee may choose not to hire an attorney to represent him in the workers’ compensation claim. However, employees that suffer back injuries, head injuries or traumatic injuries to a limb will usually benefit from hiring an attorney to assist with the workers’ compensation case. Learn more by reading the full blog post here.
What are common types of workers’ compensation injuries?
Examples of common workers compensation injuries would be things such as back injuries from lifting heavy equipment, wrist injuries from a computer technician or injuries from a fall on the job. Another example would be problems resulting from the use of machinery or equipment used at work. Read the full blog post by going here.
How much is my workers’ compensation case worth?
The amount of a workers’ compensation settlement may vary greatly depending on the case. The settlement is limited by North Carolina law and depends on the severity of the injury and the body part(s) injured in the accident.
If the injury is minor, the settlement may be limited to the employee’s lost wages and payment of the medical expenses related to the treatment of the injury. If the injury is severe, such as a major back injury or a traumatic amputation, the employee may lose partial or total use of the body part(s) injured in the accident for the rest of his or her life. In this case, the settlement will include lost wages, medical expenses and some level of compensation for the injury to the body part. Read the full blog post by going here.
Can I get fired for filing a workers’ compensation claim?
No, your employer cannot fire you simply because you have been injured at work and filed a workers’ compensation claim. Any employer who uses retaliatory action such as terminating you from your job due to an injury sustained on the job could be violating a North Carolina law known as the Retaliatory Employment Discrimination Act, also known as “REDA”. If an employer violates this law by terminating you because of your injury on the job, you should contact a workers’ compensation attorney immediately. In this event, you can bring a court action against the employer and seek damages from the employer. The court may order you to be reinstated to your old position and order that you be compensated for your for lost wages, benefits, and seniority. Be extra careful, there is a short time limit to file this type of claim against your employer. Read the full blog post here.
How long will my workers’ compensation case last?
It’s tough to know for sure. Some workers’ compensation cases can be wrapped up in weeks but many may take years. The complexity of your injury as well as your ability to return to work will have a big impact on how long your case will last. Because your long term health and financial well being are at stake we always encourage our clients to be patient with the process so all of the parties at hand can have a good idea of exactly what your long term prognosis and limitations are.
Can I sue my employer if I’m injured at work?
Typically you cannot sue your employer if you are injured at work. Instead, you would use the workers’ compensation laws to recover for any injuries you suffered. However, a rare exception is if your employer acted negligent then you could potentially sue them under a Woodson Claim. To learn more about your ability to sue your employer read our extended blog post where we discuss this topic in more detail.
Who is the North Carolina Industrial Commission?
The North Carolina Industrial Commission is the governing body for workers’ compensation claims. They are similar to a court system for injured workers’ and the employers of those injured workers. Find out more about the North Carolina Industrial Commission by reading are full length blog post.
What should I do if I’m injured at work?
There are a few things you should immediately do if you have been injured at work:
- Immediately notify your employer of your workplace injury;
- Send written notification (we recommend doing so certified mail, return receipt requested) to your employer so you have evidence that you have provided proper notification;
- Contact an attorney to learn whether you need an attorney for your case;
- File a Form 18;
- Complete medical treatment;
- Depending on the type of injury you have you may be able to go back to work or you may need to work closely with an attorney to determine your impairment rating and the type and amount of compensation you should receive.
What is permanent partial disability?
A permanent disability means the employee does not have the same function to the injured body part that he had prior to the injury, and the employee is not expected to regain the pre-injury function in the future. In other words, that body part will not ever be the same. The degree of permanent partial disability or disability rating is determined by a medical doctor that has been treating the injured worker and is not based on the worker’s opinion. Once the injured worker has reached maximum medical improvement, a disability rating of 0% to 100% is assigned by the physician. As a result, a strained muscle in the lower back that causes no permanent damage, a 0% disability rating based on the physician’s opinion, would not be entitled to permanent partial disability. However, if the injury to the back resulted in compressed vertebra, the physician will likely assign a permanent disability rating to the back. For permanent partial disability, the rating will be between 1% and 99%. A 100% disability rating would result in permanent and total disability.
You can read even more about permanent partial disability by reading our full blog post here.
What is temporary total disability?
Temporary total disability is a legal term, also known as “TTD”, and is a disability rating assigned in a North Carolina workers compensation case. Temporary total disability (TTD) is assigned when a worker is injured on the job and cannot work for a “temporary” or short term time period. This short time period can be a few days or a few months. The employee must report the injury and usually wait seven days before they can begin receiving workers compensation benefits. These benefits usually include 2/3 of their average weekly wage, up to a maximum wage set by state law. The injured worker is also entitled to medical treatment during this time period. It is presumed the worker will eventually return to work at his or her job after a recovery period. Typically, a doctor will be the one to decide when the injured workers can return to work.
Read the full blog post here.
What is total and permanent disability?
Total and permanent disability is defined by North Carolina General Statute §97-31(17) as “The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, shall constitute total and permanent disability…” As a result, a paraplegic, quadriplegic or double amputee is automatically determined to be totally and permanently disabled. An individual with these injuries may return to work and earn wages while still being eligible for total and permanent disability benefits. For example, an employee who loses both legs in an accident may be able to obtain a job as a clerk or computer programmer that is a more sedentary job. The injured worker is still entitled to compensation under total and permanent disability.
Learn more about total and permanent disability by reading the full blog post here.
What is vocational rehabilitation?
Vocational rehabilitation is the process of assisting an injured worker find a job or obtain the necessary education to better prepare them for a job. Learn more about vocational rehabilitation by reading our full blog post discussing vocational rehabilitation.
Can I get pain and suffering for my workers’ compensation case?
Unfortunately, you cannot recover pain and suffering in a workers’ compensation case in North Carolina. The workers’ compensation laws were written to avoid punitive (punishment) damages and pain and suffering.
Do I have to be a United States citizen to get workers’ compensation?
You do not have to be a U.S. citizen or even a documented worker to recover workers’ compensation in North Carolina. If you have been hurt at work and are an undocumented worker you still have rights and should still seek the assistance of a workers’ compensation attorney to see how you can best protect yourself and recover the benefits you deserve.
What if my employer doesn‘t have workers’ compensation insurance?
An employer of three or more employees is required to carry workers’ compensation insurance. If they do not have workers’ compensation insurance and a worker is injured then they can be sanctioned for failing to follow state laws. Additionally, the state of North Carolina has supplemental coverage that protects a worker who was injured while working for an uninsured employer.
Learn more about this topic by reading our full blog post.
What is a Form 18?
The Form 18 is the Notice of Accident to Employer and Claim of Employee, Representative, or Dependent. What this really means is this form is the official notification to your employer that you were injured by an accident at work. The form asks for your personal information, including your name, address, and information about your injury and your job. You must disclose the date, time, location, and nature of injury. You must also list your weekly wage and average hours and days worked per week.
Learn more about a Form 18 by reading the our full blog post.
What is a Form 19?
A Form 19 must be completed in its entirety and no section may be left blank. It is very important that this form is accurate, as it is the employer’s initial contact with the Industrial Commission. Of course, the first information asked for on the form is the employees, employers and their insurance carrier’s contact information. They then ask what the nature of the employer’s business is and then go into requesting information about the specific injury. The employer must list the location the injury occurred, the county and department where the injury occurred and must specify if the state that the injury occurred in is the same state where the employee resides.
To learn more about a Form 19 review our blog post that discusses the form in more detail.
What is a Form 33?
North Carolina Industrial Commission (NCIC) Form 33 is the Request That Claim Be Assigned for Hearing. This form is used when the two parties, the injured employee and the employer/insurance company, cannot come to an agreement on compensation for the injuries the employee sustained and require a formal hearing. A copy of the form must be sent to the opposing party, and the original must be mailed to the North Carolina Industrial Commission. Within 45 days of receiving their copy of NCIC Form 33, the opposing party must complete and submit a Form 33R, which is the response to the request for a hearing. Through the use of these two forms each party will submit in detail the reason that an agreement cannot be reached and/or any details of the case that cannot be agreed upon.
To learn more, visit our blog post further discussing a Form 33.
What is an occupational disease?
The North Carolina Supreme Court has ruled in order for a worker to prove the elements of an occupational disease the worker must prove:
1) the employee was exposed to a hazardous substance in the employment,
2) the employee developed a disease,
3) the occupation exposed the employee to a greater risk of developing the disease compared to the general public,
4) the exposure to the substance was a substantial factor in the employee developing the disease, and
5) the occupational disease caused injury or death.
An occupational disease claim must be filed within two years of the diagnosis by a physician.
You can find more information about an occupational disease in workers’ compensation by reading the entire blog post on this topic.
Common Questions After Starting Your Workers’ Compensation Case
Can I choose my own doctor for my workers’ compensation case?
In a workers’ compensation case you are not able to choose your own doctor. As a general rule, your employer has the right to choose a doctor to treat your injuries. The doctor chosen does not have to be your own personal doctor and is, instead, likely to be a doctor that your company regularly uses.
There are, however, three exceptions to this rule:
- Where the employer neglects or refuses to provide prompt and adequate services;
- Where the employee is confronted with an emergency; and
- Where the statute itself authorizes the employee to procure a physician of his own choosing.
What should I do if my employer doesn’t report my injury?
Even if your employer has not taken the proper steps of reporting your injury to the North Carolina Industrial Commission you should take the appropriate steps. In particular, you should file a Form 18 with the Industrial Commission. This allows the Industrial Commission to know that you’ve been injured at work and your employer is then required to file a Form 60, 61 or 63 in response to your Form 18.
How much will I be paid while I’m out of work?
If you are held out of work due to your injury and your workers’ compensation claim has been accepted by the insurance company then you will be paid your compensation rate which is 66% of your average weekly wage. However, if your claim has been denied then you will not receive anything while being out of work. In either case, it typically makes sense to at least consult an attorney about your different options.
When will my checks start coming if I’m injured at work?
Your workers’ compensation for your workplace injury should start as soon as the insurance company accepts your claim. This typically happens within two to three weeks after your injury date. At that time, they will have to pay you 66% percent of your average weekly wages for each week missed. You will receive your checks on a weekly basis.
How often am I paid while I’m out of work?
When you are out of work due to your accepted workers’ compensation injury you will be paid on a weekly basis for time you miss while out of work.
Am I responsible for my medical bills if I’m injured at work?
The short answer is, yes, the workers’ compensation insurance company pays medical bills if they have accepted your workers’ compensation claim.
When someone gets hurt on the job, one of the first things that likely goes through their mind is, “How am I going to pay for all of this?” If you take action and inform your employer about the accident, you may be covered under their workers’ compensation insurance. Every company that has over two employees is required to carry workers’ compensation insurance on their employees. You do not necessarily have to have a workers’ compensation attorneyfor your claim, but hiring an attorney can help you ensure you get all of the benefits and compensation available in your case.
Do I still receive my benefits while I‘m out on workers’ compensation?
Typically you do not. Since benefits like health insurance, retirement contributions, disability insurance and other benefits at work are deducted from your regular gross income when you receive workers’ compensation you do not receive your full income so, therefore, they will stop the contributions for benefits as well. Therefore, you may need to obtain your own health insurance, etc.
What if I‘m receiving my workers’ compensation checks late?
Too often injured workers will receive their workers’ compensation checks late. Although the majority of injured will receive their checks on time it is not uncommon to hear of insurance companies dragging their feet in making their weekly distributions to those who have been injured at work. We believe a lot of insurance companies do this to try to frustrate the injured worker in an attempt to make them settle their case too quickly or take actions that would hurt their workers’ compensation claim. If your checks are coming in late then you should immediately reach out to your attorney so they can try to help ensure you get your checks in a timely manner.
What should I do if my workers’ compensation case is denied?
If your workers’ compensation case is denied it means you will receive (or have already received) a Form 61 that was filed with the Industrial Commission from your employer’s insurance company. This means they have rejected your workers’ compensation claim. If that happens you should immediately reach out to an experienced workers’ compensation attorney. We have seen insurance companies deny claims in the past that should, without a doubt, have been accepted. However, many injured workers’ will just give up on their case if the insurance company has initially denied their claim. Don’t do that. If you were legitimately injured at work contact an attorney who can discuss with you what options you have.
What is maximum medical improvement?
In its simplest form, maximum medical improvement or MMI, is the doctor’s way of saying “it’s as good as it’s going to get.” When an injury has occurred and the employee reaches a state where his or her condition cannot be improved, the doctor will inform the patient/client they have reached MMI. Once MMI is reached, the treating physician is saying no other reasonable treatment can be done to help the patient/client improve. Although, you may not be 100% better, you have reached a state where you have done everything you can do in that point in time. All of the treatment options should be exhausted before it is determined a patient has reached MMI.
You can reach our entire blog post about maximum medical improvement (MMI) by going here.
What is a compensation rate?
A compensation rate is the weekly amount that an injured worker is paid while they are out of work due to their workplace injury. This rate is a calculation. Your compensation rate is 66% of your average weekly wage. If your average weekly gross income is $1,000.00 then your compensation rate would be $666.67 per week. There are minimum and maximum amounts for compensation rates that change on an annual basis. Your compensation rate is important because it helps determine the amount you will receive while out wf work as well as what your case may be worth long term.
Should I apply for Social Security Disability?
If you believe you are going to be out of work for an extended period of time you should apply for Social Security disability. You should look to see if you qualify because it is not uncommon for the process to be approved for Social Security to take over a year to complete. You will also need to discuss your applying for Social Security with your workers’ compensation attorney because there could be Social Security offsets that could have an impact on your workers’ compensation case.
Should I settle my workers’ compensation case?
It’s really hard to say. An experienced workers’ compensation attorney can give you a good idea if the time is appropriate to settle your case. However, a lot of time insurance companies will try to quickly settle with an injured worker to get them to settle for an amount that is far below what’s appropriate for their case.
What is a functional capacity evaluation (FCE)?
A Functional Capacity Evaluation (also called a FCE) is a test performed by a physician or other health care professional to determine an injured worker’s ability to perform a job and to determine their limitations after having been injured on the job. Healthcare professionals perform this standardized test to determine the worker’s functional impairment, assess the success of treatment, and to determine their ability to perform at a job in the present or future. However, completing a FCE without being represented by an attorney may put you and your case in a difficult situation.
Learn more about a functional capacity evaluation by reading our extended blog post.
What is a clincher?
In a North Carolina workers’ compensation case a “clincher agreement” is a compromised agreement or settlement between an injured employee or worker and an employer or their insurance company. When the worker and the employer’s insurance company agree on a settled amount the insurance company’s attorney will draft a clincher, or agreement, stating that the parties have reached a final resolution of the case.
The clincher agreement usually states the employee will receive a lump sum cash settlement in return for releasing all future liability against an employer. In order for a clincher to be allowed, it must be approved by the North Carolina Industrial Commission. A clincher must meet the requirements of Rule 502 of the North Carolina Industrial Commission and, if it does, the Industrial Commission will typically approve the clincher agreement. The main purpose of this approval by the Commission to make sure the employee is treated fairly.
What is a compromise settlement agreement?
A compromise settlement agreement is the agreement that is reached between two parties in a workers’ compensation case when they reach an agreement at a mediation. The compromise settlement agreement lays out the conditions and terms of the agreement between the two parties. The compromise settlement agreement must be approved by the North Carolina Industrial Commission before if fully enforceable.
Am I taxed on my workers’ compensation benefits?
The task of fighting for, being approved and actually receiving your workers’ compensation settlement is daunting enough, but what are you to do when you file taxes? Do you pay taxes on the settlements? Should you be setting money aside to cover that?
The answer to your question is no. Workers’ compensation settlements are fully tax-exempt if paid under the Workers’ Compensation Act; according to Publication 907, “Workers’ Compensation for an occupational sickness or injury if paid under a Workers’ Compensation act or similar law” is exempt.
What is a workers’ compensation mediation?
In North Carolina, if a party to a workers’ compensation case, such as an injured worker or an employer/insurance company, has requested a hearing in front of the North Carolina Industrial Commission by filing a Form 33, a mediation is required by state law. However, if an agreement or settlement is reached by all parties before the mediation, the mediation is not necessary. Sometimes, the parties agree to an informal mediation between themselves.
The purpose of the mediation is for the parties to come together, with the assistance of an approved mediator, and try to settle the matter without the cost and expense of a formal hearing in front of a deputy commissioner, who is similar to a judge.
What is an independent medical evaluation?
An independent medical evaluation is a way for an injured worker to get a second opinion if they disagree with the findings of the doctor hired by the insurance company. These independent medical evaluations have to be approved by the insurance company or the North Carolina Industrial Commission.
Will I have to go to trial for a workers’ compensation case?
It depends. You won’t necessarily go to a trial like most people think about. However, you may go to a hearing. A workers’ compensation hearing typically takes place because there is some area of the case that is in dispute. The hearing may start off telephonically (on the phone) but can also be in front of the North Carolina Industrial Commission. It’s important to be willing to go to a hearing if it is necessary because it shows the defendants and the insurance company that you are confident about your case and you are willing to go to a hearing if it means ensuring you get what is fair and reasonable.