WHAT IS WORKERS’ COMPENSATION?
Workers’ Compensation is a system that provides certain benefits to workers who sustained a compensable injury by accident arising out and in the course and scope of their employment. Benefits can also be paid for "occupational diseases" such as asbestosis, chemical exposure, bursitis, carpal tunnel syndrome, and hearing loss.
You may be entitled to benefits for lost wages, permanent disability, medical compensation and vocational rehabilitation.
Lost Wages: An injured employee is entitled to 66 2/3% (.6667) of their average weekly wage after the first seven (7) days of disability. The average weekly wage is usually calculated by looking at the gross (pre-tax) wages earned in the 52 weeks preceding the injury. Once calculated, the average weekly wage is multiplied by .6667, which yields the weekly compensation rate. An injured employee will receive weekly checks at this rate until their period of disability is over or for a maximum of 500 weeks. There are some exceptions to the 500 week maximum and you should consult with an experienced attorney to discuss these exceptions.
Permanent Disability: Sometimes an injured body part does not heal 100%. When this occurs, you doctor will assign an "impairment rating". Benefits for this rating are calculated using the "Schedule of Injuries; Rate and Period of Compensation" set forth in N.C.G.S. § 97-31. Benefits under this schedule will vary depending on the body part injured and the rating assigned by the treating physician. If you are not satisfied with the rating, you have the right to obtain a second opinion on the rating as set forth in N.C.G.S. § 97-27(b).
Medical Compensation: If the insurance company has accepted your claim, all medical bills related to your workers’ compensation claim, including prescriptions, and travel to and from your doctor’s office should be paid by the insurance company. Generally, the insurance company has the right to direct medical care; however, employees have the right to a second opinion evaluation and an injured worker can file a Motion to Change Treating Physicians.
In regard to travel expenses, you are entitled to collect for mileage for travel to treatment facilities at the rate of 50.5 Cents ($0.505) per mile, provided that travel is 20 miles or more per round trip. In addition, injured workers with special needs may be provided with transportation to and from their medical appointments.
Vocational Rehabilitation: Sometimes, an injured employee is unable to return to his/her previous job because of physical restrictions that have resulted from their workers’ compensation injury. In those instances, the employee can seek vocational rehabilitation. Vocational Rehabilitation can assist in finding a new job that meets the restrictions imposed by the treating physician or even help the employee get the training and education needed to find work in a new field.
WHAT IS THE NORTH CAROLINA INDUSTRIAL COMMISSION?
The North Carolina Industrial Commission is the state agency which regulates and oversees workers’ compensation claims that have been filed in North Carolina. The Industrial Commission is made up of Commissioners and Deputy Commissioners who essentially act as judges. The Commissioners and Deputy Commissioners make rulings on motions and preside over hearings involving disputes between you, your employer and the insurance company.
WHAT MAKES MY CLAIM COMPENSABLE?
You Must Show that You Sustained an "Injury by Accident". The North Carolina Workers’ Compensation Act defines an "injury by accident" as an unlooked for or untoward event such as a slip, trip, fall or other unexpected event that interrupts your usual work routine. If the injury occurs while you are performing a task in the same way you always perform it (bending down to lift a box and your knee pops), chances are that the claim is not going to be compensable.
Your Injury Must also "Arise Out of and in the Course and Scope of" your Employment. Basically, the phrase "arising out of" refers to the origin or cause of the accident. You must show a causal connection between your employment and the injury. The phrase "course and scope of employment" refers to the time, place and circumstance surrounding your injury. For the injury to occur during the course and scope of your employment, you must be engaged in an activity which you are authorized to undertake and which furthers the employers business.
WHAT IS AN OCCUPATIONAL DISEASE?
"Occupational Diseases" are specific conditions which are listed in the North Carolina Workers Compensation Act. These conditions include asbestosis, silicosis, synovitis, tenosynovitis, bursitis, and chemical exposure.
There is also a "catch all" provision which defines an "occupational disease" as any disease where your job exposed you to a greater risk of contracting the disease than members of the public generally and that your exposure significantly contributed or was a significant causal factor in the disease’s development. A common "occupational disease" that is included under this provision is carpal tunnel syndrome.
CAN I SUE MY EMPLOYER?
Generally, you cannot sue your employer in the North Carolina Courts for a work-related injury.
However, there are two (2) exceptions to this rule: First, if the employer intentionally engages is misconduct knowing with substantial certainty that serious bodily injury or death would result from the misconduct, a direct civil action can be pursued; second, you can sue your employer if he or she intentionally harms you.
WHAT IS A THIRD PARTY CLAIM?
A third party claim results from your having an injury at work but the responsible party who causes the accident is a person who is outside of your company. For example, you are making a delivery for your employer and you are involved in a motor vehicle accident. If the party who causes the accident is not a co-worker and they are at fault, you can sue this person in the North Carolina Courts for their negligence in addition to filing a workers’ compensation claim.
It is extraordinarily important that you pursue such a claim as you may be entitled to additional compensation beyond what you would receive under the North Carolina Workers’ Compensation Act.
WHAT DO I DO AFTER I HAVE BEEN INJURED ON THE JOB?
Immediately Report the Injury to Your Supervisor. Under North Carolina law and the North Carolina Workers’ Compensation Act, you are required to report your injury to your employer within thirty (30) days of the accident. However, it is recommended that you report the injury as soon as possible.
Notify your supervisor of the injury and document the report in writing. Many employers have a form for this purpose and you should request the form and complete it. If possible, have your supervisor sign the written report and request a copy of the report for your own records. In addition, if there are witnesses to the accident, bring them along, have them make a written statement and get a copy for your records.
If a written report is not made, the door is left open for the employer and insurance company to deny that you ever gave them notice of the injury.
Seek medical attention immediately. Most of the time we can be tough people who will “gut it out” and hope that the pain from an injury will go away after just a couple of days. However, if the pain does not go away and an injured worker waits even a couple of days to go to the doctor, you may have armed the insurance company with "evidence" they can use to deny your claim. If you wait to go to the doctor, the insurance company may doubt that your injury occurred at work and contend that your injury occurred outside the workplace at a time later than what you have claimed. A timely report from a doctor that outlines the time, place and circumstances surrounding your injury can go a long way in helping you prove your case.
If your employer denies benefits and you do not have health insurance, try and find a doctor who will help you. You can go to the Emergency Room and you can also try and get help by applying for Medicaid benefits or contacting your local county Vocational Rehabilitation Department.
Make your own file and journal. Every time the insurance company contacts you, they make an entry in their records. You should do the same thing. Keep a journal or diary and write down the date and time of all calls concerning your case. Write down who you spoke to and the subject of the conversation. Keep copies of all Industrial Commission Forms that have been filed, all letters about your case and all medical records in your own file.
Make sure your claim is filed properly. The North Carolina Industrial Commission in Raleigh is the state agency which regulates and oversees workers’ compensation claims. All claims must be filed with the North Carolina Industrial Commission before the Commission can take jurisdiction over your case.
A claim is filed with the North Carolina Industrial Commission by completing and submitting an Industrial Commission Form 18. Failure to file a claim within this two year period will result in a time bar to your claim unless you can show that your employer and/or the insurance company intentionally engaged in conduct intended to deliberately mislead you about your right to seek workers’ compensation benefits.
In "occupational disease" claims, you must file an Industrial Commission Form 18 or Form 18B within two (2) years of being advised by a doctor that you have a work related "occupational disease"
You should also make sure that your employer files a notice of injury with the Industrial Commission. The form that an employer is required to complete is an Industrial Commission Form 19.
CAN I BE FIRED BECAUSE I FILED A WORKERS’ COMPENSATION CLAIM?
Your employer cannot fire you because you have filed a workers’ compensation claim. If you believe that your employer has engaged in such conduct, you should immediately contact the North Carolina Department of Labor at (800) 552-6762. You must take action within 180 days of the termination or your claim may be lost.