Thom Goolsby on Worker's Comp

When is an Injury Covered by Worker's Compensation?

Workers' compensation only covers injuries that result from an accident arising out of and in the course of employment.  Only injuries that are caused by an accident are compensable.  This means there must be some identifiable cause of the injury outside of the normal work routine.  Whether an injury was caused by an accident or not is a frequent issue in contested cases and the North Carolina Industrial Commission (NCIC) has ruled on this issue in hundreds of different factual situations.  Back injuries are an exception and are usually compensable even if the injury occurs while the employee is engaged in his/her normal work routine.  Compensable injuries must arise from the employment.  This means the employee must be going about the business of his/her employer at the time of the injury.  Whether an employee was on the job is frequently a contested issue.  Occupational diseases such as carpal tunnel syndrome, brown lung, and some cancers may be compensable if: 1) the employee was at an increased risk of contracting the disease compared to the general public, and 2) the hazardous working conditions contributed to the disease.  You can recover under Workers' Compensation even if you are at fault in the accident.  Recovery may be denied if the accident is intentionally self-inflicted or is a result of the employee's use of alcohol or drugs.  Violation of a safety rule by an employee may cause the recovery to be reduced and violation of such a rule by an employer may cause a recovery to be increased.  If you are injured on the job as a result of the acts of a person who is not your employer or co-employee, you may make claims against both workers' compensation and that party.  These third party claims frequently involve auto accidents, slip and falls, and defective products.  The employer or workers' compensation carrier has the right to recoup their payments to the extent a third party is responsible for the loss; however, the amount of this recovery is negotiable.  

What is the Process for Filing a Worker's Compensation Claim?

You must give your employer written notice within thirty days of your injury, unless the employer is already aware of the injury.  You must file a Form 18 notice of your claim within two (2) years of the accident, or, in the case of an occupational disease, within two years of being informed by a doctor that you have a job related disease.  Forms may be obtained from your employer, the Industrial Commission, or an attorney.  After the claim is filed, the employer or its insurance carrier will either accept the claim and begin paying benefits, or deny the claim.  If the claim is denied, you have the right to request a hearing before the industrial commission by filing a Form 33.  You also have the right to request a hearing at any time if you feel you are due a benefit that your employer is not providing.  

Who Must Participate in Worker's Compensation?

Workers' Compensation is the system set up by the State of North Carolina to compensate people who are injured as the result of an accident arising out of and in the course of their employment.  The workers' compensation system is enacted by the North Carolina General Assembly and administered by the NCIC.  The workers' compensation system removes workplace injuries from the tort/negligence framework and generally prevents employees from suing their employer directly.  An employee may sue their employer directly only if the employer intentionally engages in conduct that is substantially certain to result in serious injury or death, or intentionally injures an employee.  Generally employers with three or more employees are included by state law in the workers' compensation system.  Subcontractors must provide workers' compensation if they employ one person.  Most companies purchase insurance to cover workers' compensation.  Some large companies are self-insured and hire outside administrators to manage workers’ compensation program.

What are the Workers' Compensation Benefits?

Workers' compensation provides three basic benefits: medical expenses, temporary total disability, and permanent disability.  Unlike the tort/negligence system which allows recovery for pain, suffering and the very real aggravation associated with injuries, the workers' compensation system provides coverage primarily for economic losses.  Because of this limitation injured employees must work carefully through each of the following benefit areas to be sure they are fairly compensated: 1) Medical Expenses:  expenses associated with medical treatment that is reasonable or necessary to effect a cure, give relief, or lessen the disability must be paid by the employer or their workers' compensation insurance company.  There is no deductible, no co-pay, and no requirement that you miss work to receive medical benefits.  You must show a relationship between the job-related accident and the treatment.  2) Temporary Total Disability (TTD):  if you are written out of work for more than seven days by a doctor you are entitled to receive TTD.  TTD is calculated based on two-thirds of your average weekly wage (AWW).  3) Permanent Disability:  If a doctor determines that you are permanently partially disabled, you are entitled to benefits determined by a formula which factors in your average weekly wage, the part of your body that is injured and the severity of the injury.  You will receive greater benefits if you are permanently and totally disabled.  In some cases, the better measure of benefits is the difference in wages earned prior to the accident and after the accident.  You have two years after you receive your last payment to request additional medical treatment or other benefits if your condition worsens.  Workers are frequently offered an additional amount on top of their entitlement in exchange for their agreement not to pursue additional benefits and not to reopen the case if the condition worsens.  This type of agreement is called a “clincher.”  Carefully consider the effect of such an agreement before executing it.

Should I Consult a Lawyer in My Workers’ Compensation Case?

If you are seriously injured, are having difficulty getting the benefits you are owed, were injured by a third party, or are considering a clincher, you should talk to an experienced workers' compensation attorney.  A lawyer can add substantial value to a workers' compensation claim by helping the injured employee understand and take full advantage of the available benefits.  A lawyer will help prepare and file your claim, obtain and evaluate important information such as medical records, negotiate with the employers' insurance carrier, and get all the benefits you are owed.  The employer will have an experienced adjuster or administrator working on their behalf.  Many people are more comfortable when they have their own experienced advocate to guide them through the system.  If I take your case, I will be paid a percentage of the benefits I recover for you.  I will not take your case unless I believe I can get a better recovery for you than you could get for yourself.

Thomas Cowart Goolsby, MBA, JD
620 Market Street, Wilmington, NC 28401
Tel: 910-763-3339, Fax: 910-763-1720
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