Workers’ Compensation: An Overview of the Law The following is a personal overview of workers’ compensation law in North Carolina. For more information online, the Industrial Commission has a great website (www.ic.nc.gov) and staff called “Ombudsmen” who can answer questions by telephone.
           A work injury can be one of the worst things to happen to anyone: paychecks are gone, employers and even doctors seem to turn against you. The promise to fix and take care of a good man or woman seems broken. But the law of workers’ compensation is positive. With help using these laws, people do get better and go back to jobs or new careers. Workers’ compensation cases take time and everyone seems to have some periods of confusion, frustration or downright anger. Having the experience and knowledge of workers’ compensation law on your side can make a difference.

When is Workers’ Compensation required?

        North Carolina requires Workers’ Compensation for all jobs or businesses with three or more employees.  Workers’ Compensation may also be available to uninsured workers who work through or with an insured company.  An example of this would be a subcontractor on a construction site.

What Workers’ Compensation covers?

            Workers’ Comp covers injuries or harmful diseases that happen as a result of employment.

Injuries:

Back Injuries and hernias require a specific traumatic incident, that is an injury that occurs at a definite time during work.

All other injuries:

            Eyes, toes, arms, knees, hands, legs, etc. must happen because of an ACCIDENT.

Occupational Diseases:

            Work-related diseases, for example lung disease, carpal tunnel syndrome, hepatitis, etc. must come about from workplace exposure.  The workplace need not be the only cause of the disease, but the workplace must be a substantial contributing factor.  For occupational disease benefits, the workplace exposure must be more likely to cause the disease or condition than would normally be expected among the general public.

What is an accident?

            An accident can mean an unexpected event such as a “slip, trip or fall”.  But accidents may also occur with a change of work routine, while driving between work sites, training for new jobs or unusual exertion.

            In North Carolina it does not matter whether the injured worker was negligent in causing his own injury or not.  Unlike Virginia and some states, there is no doctrine of contributory negligence.

What notice must be given?

            Practically speaking, notice should be given as soon as possible after an injury to a superior or one in authority.  To prevent later confusion, write down the names of persons who may be aware of the injury with the dates and times.  This will help if there should be a delay in reporting the claim or a later denial.  Employers are required to file a Report of Accident to the Industrial Commission known as a Form 19.  Employees are required to file a Report of Accident known as a Form 18.  Under the law, an employee’s Form 18 must be filed within two (2) years of injury or two (2) years following his or her first absence from work due to occupational disease.  An employer should provide the injured employee with a blank Form 18 to complete.

What benefits are provided?

            Once an injury and disability have occurred the primary benefits are wage payments and medical coverage.

            Wage benefits are weekly payments initially paid during the period of recovery.  The amount of a wage benefit should equal b of the employee’s average weekly wage for the year before injury.  This should include overtime and bonuses, living allowances while working away from home and possibly other employer contributions.  Cash payments as well as payroll checks can be used to figure wage benefits with proper documentation.

            Medical Benefits:

After an injury, Workers’ Compensation should provide appropriate diagnosis and treatment without co-pays or deductibles.  The Workers’ Compensation insurance company or employer have the right and responsibility to arrange treatment.  Someone who is seriously injured should not delay emergency treatment or treatment from a private provider subject to certain Industrial Commission Rules.  Industrial Commission does allow second opinions and a change in doctors or other medical providers in appropriate circumstances.

Medical coverage can include X-rays, MRIs and other testing.  It can also include pain management, physical therapy and almost any medical, surgical or psychological treatment necessary to provide a cure or relief from pain.

Compensation for Permanent Injury:

            Generally, medical and wage benefits continue until recovery is reached.  This point is called Maximum Medical Improvement (MMI).  At MMI, a doctor will give a medical rating or percentage disability for the loss of use of the injured body part.  An example of this might be a 10% disability of the back, 15% of the foot and so forth according to a medical guide.  These medical ratings convert to weeks of workers’ compensation payments.  This is only one measure of permanent partial disability.

            The other measure of permanent partial disability may be the difference between the average weekly wage earned before the injury and the lower pay an employee may receive at a new job after he recovers.  Often someone out of work cannot return to the same job at the same pay he or she earned before the injury.  If, for example, the worker earned $900.00 per week before the injury but is only able to earn $600.00 per week at MMI at a new job, Workers’ Compensation will pay b of the difference or $200.00 (b x 300) a month tax-free.  This would continue until the employee’s new earnings are the same or greater than what was earned before the injury.

            At the point of Maximum Medical Improvement (MMI), the injured party will have to make a choice between the medical rating or the wage difference method described above.  The best choice can depend on the particular injury, the money available, the job skills of the worker and his or her ongoing medical needs.  The wage difference method for permanent partial disability is limited to 300 weeks from the date of injury or disability from an occupational disease.

Permanent and Total Disability:

            Lifetime Total Disability Benefits are awarded to those who are unable to work in any employment.  Wage benefits and medical coverage continue until the date of death.  Insurance companies do not easily accept Lifetime Disability cases in the early stages and, it is important that the seriously injured not give up his or her determination to overcome the disabling condition.  In the end, Workers’ Compensation applies disability standards much like Social Security.  Permanent Disability will depend on the combined effects of the disabling injury as well as age, education and work experience and other health conditions of the employee.

SPECIAL ALERT.

Social Security, Medicare, Medicaid and private disability policies have special rules where Workers’ Compensation is involved.  Anyone who is receiving Workers’ Compensation and expects to receive Social Security Disability or private disability  should see a qualified attorney before final settlement.

Future Benefits:

            After an employee has been seriously injured, completes treatment and reaches Maximum Medical Improvement (MMI) what other benefits may apply?

            In the more straight-forward case, the worker who has successfully recovered can receive the payment for his permanent/partial disability rating.  If he relies on his doctors medical rating such as 10% of the hand, 20% of the foot, back or whatever, his case will remain open for two (2) years following the date he receives the last wage benefit check.  An open case with only the disability rating means the employee may continue to receive medications, medical care and continue wage benefits during this two (2) year period.  If the disabling condition should worsen or deteriorate;  for example surgery fails, the back or knee “goes out” again-, wage benefits are payable again for a new period of disability at the same rate as before.  Further, where a physician completes the proper forms, indicating the need for future treatment, it is possible to keep a claim open for continuing medical treatment for life.

Settlement Consideration:

            What to do about settling a case or entering a “clincher” depends a lot on the health conditions, ongoing treatment needs and work abilities in a given case.  Typically, an insurance carrier or employer will offer an additional sum of money over and above the disability rating to encourage the employee to give up the right to future wage and medical benefits that may arise.  At this point, money should not be the only consideration.  Often private disability programs, Social Security, Medicare and Medicaid will be reduced or eliminated without thoughtful planning.  Medicare, for example, now requires a “Set-aside” of settlement funds to cover all future treatment for work-related injuries or conditions.  The bottom line, is what appears to be a generous settlement may not accomplish the goals of the injured employee or his family.

            The “Homeruns” in  workers’ compensation cases happen when the disabled worker completes medical treatment and is able to earn the same or greater income as before the injury.  This can require a job change, re-training or classes.  At times, Social Security Disability may be the only choice.  In many Workers’ Compensation claims going back to the old job will not be possible.  The problems finding work or a career or coping with disability should be dealt with early on - not at the last minute before settlement.  It takes guts.

Fees:

            All fees in Workers’ Compensation cases whether for attorneys or medical providers must be approved by the Industrial Commission.  We will typically request approval of a fee based upon 25% of the settlement or award the client receives at the conclusion of a case.  This can vary with each case.