Information To Bring To Your Workers’ Compensation Attorney Consultation
Before you talk to an attorney about your workers’ compensation case, it is best to be prepared says WRS&D attorney Jesse Shapiro, Board Certified by the NC State Bar as a Specialist in Workers’ Compensation Law. According to Jesse, the more you can bring, the better. Your attorney will first need to get some general personal information about where you work and what doctors you have seen. Once that information is taken down, your attorney will start to look into the specifics of your case: how the injury happened, what treatment doctors have recommended, what restrictions you have, if an insurance adjuster has contacted you, etc. Records that establish that you were hurt, that your employer was notified, that you have been referred for additional treatment/therapy, and that you have restrictions will allow your lawyer to hit the ground running and start fighting for your rights. If your lawyer has to request, and wait for, all of this information, it will be days (and potentially weeks) before he or she can really start fighting for you.
Your Employer and Their Insurance
In the state of North Carolina, workers’ compensation is insurance required by all employers with three or more employees . This type of insurance offers specific benefits to injured employees. An injury can be caused by an accident on the job or because of an occupational disease. Examples of an occupational disease include asbestosis, bursitis, carpal tunnel syndrome, chemical exposure or hearing loss.
Workers’ compensation laws are different from the tort/negligence system because these laws are designed to provide coverage for economic losses. Tort/negligence, however, may award compensation depending on emotional factors, such as pain and suffering.
Employees who are injured or disabled on the job are qualified for workers’ compensation. Workers’ Compensation laws are designed to protect employees from being forced to pay the cost of medical treatment on their own. Workers’ compensation also covers employee wage losses that are a direct result of the accident or permanent physical impairments related to the accident.
The NC Industrial Commission in Raleigh oversees all workers’ compensation claims in North Carolina. You must file your injury claim with the Commission. Then they can take jurisdiction over your case. As the injured worker, you must file an Industrial Commission Form 18, while the employer must file an Industrial Commission Form 19.
Your employer is required to provide you with a blank Form 18 to complete, according to Industrial Commission Rule 04 NCAC 10A .0104. You should also receive a copy of the employer’s completed Form 19, which will help you fill out Form 18. Injured workers can file a Form 18 online here after setting up an account.
Workers’ compensation cases are monitored and overseen by the NC Industrial Commission and not a court, so juries are not involved. During the appeal process, if you need to appeal the ruling of the NC Industrial Commission, the claims are sent to the North Carolina Court of Appeals and then to the North Carolina Supreme Court.
No, you are not legally required to have an attorney to file for and claim workers’ compensation. As with most of your important and potentially expensive life responsibilities – from your car to your health to your home – it’s in your best interest to seek the help of a professional. Attorney Jesse Shapiro puts it this way, “If your car is broken, you don’t take it to a plumber. It’s even better if you can find a mechanic who specializes in working on your type of car. That’s what I do with workers’ comp.”
The North Carolina Industrial Commission must approve all attorney fees. Do not pay an attorney for your workers’ compensation claim without prior approval from the Commission.
At Wilson, Reives, Silverman & Doran, we handle workers’ compensation claims on a “contingency fee” basis. In general, we take 25 percent of any recovery (plus costs and expenses). Unless there is a recovery of benefits, you will not be charged any fees.
We also offer a free consultation for workers’ compensation cases. Wilson, Reives, Silverman & Doran lawyers are here to provide you with expert, effective legal counsel. Our main focus is on your claim, which allows you to focus on recovery and moving on after a work-related accident.
All employers with three or more employees in Apex, Sanford and throughout the state of North Carolina. The individual employee is not responsible for carrying workers’ compensation insurance.
If you are injured while working, the first thing you should do is notify your employer and ask them to direct you to a doctor for medical attention.
Do not wait to see if your injury heals on its own. If you wait even a day or two to tell your employer about the injury or go to their doctor, the insurance company may argue that the injury did not occur at work or even that it occurred at a different date and time.
To avoid these arguments by the insurance company, notify your employer/supervisor in writing and then further verify your claim and injury by requesting and obtaining a timely report from a doctor or medical professional. This report should include information such as the date, time, and circumstances surrounding your injury.
In North Carolina, the employer/insurance company has the right to direct and control your medical treatment. There are some exceptions to this rule, but especially at the beginning of the case, it is crucial that you follow the direction of your employer. When you see the doctor, be sure to give specific details about your injury and the circumstances surrounding it to the doctor, nurse, physician’s assistant or other health care professional. Additionally, document on the intake form that your injury occurred at work. Most hospitals and doctors’ offices provide these forms.
Yes, as part of your workers’ compensation benefits, you may receive partial or whole lost wages, disability (temporary or permanent) payments, compensation for your medical bills, and compensation for vocational rehabilitation, a process designed to help you go back to work following your injury. The benefits could also pay for medical and rehabilitative care needed to cure your symptoms related to the injury or provide relief and lessen your disability. The benefits cover treatment such as diagnostic testing, doctors’ visits, pain management, chiropractic care, physical therapy, prescriptions, surgical costs and even a return to school if it is needed.
Yes, you can continue to receive workers’ compensation after returning to work. For example, you may be entitled to reimbursement for lost wages, temporary or permanent disability, continued medical costs, and vocational rehabilitation.
If you can never return to your previous job duties, you may have access to vocational rehabilitation. This is a comprehensive process during which an injured employee with a verified workers’ compensation claim receives assistance. Your assistance will come from a qualified rehabilitation professional. It’s designed to help you return to work after a disabling injury. In addition, if the employer does not have work that is within your restrictions, you should continue to receive a weekly wage loss check (TTD) until you can find work for up to 500 weeks.
In workers’ compensation cases in Apex, Sanford, and throughout North Carolina, the term “vocational rehabilitation” is used for the delivery and coordination of services outlined in a plan designed for each individual. The ultimate goal is to return the injured worker to “suitable employment.” Examples of the services offered in this plan include an assessment, job searching, counseling, testing, job modification, and job placement.
Yes. Legally, any injury you experience at your workplace or while doing work-related activities that impairs your ability to work and to earn money should be covered by your employer’s insurance.
Work in different industries can result in varying on-the-job injuries. A few examples of workers’ compensation injuries include:
Accidents that occur during traveling, between work locations, or on work-related trips such as vendor meetings or office supply purchases can result in serious injuries such as:
No. Firing someone for filing a claim would be a violation of the Retaliatory Employment Discrimination Act (REDA). If you feel your employer has indeed fired you for filing a workers’ compensation claim, you should immediately contact the Employment Discrimination Bureau of the North Carolina Department of Labor at (800) 625-2267. You should file the claim with the Department of Labor within 180 days of the firing or your claim may be lost. The Department of Labor will investigate and either take your case on or issue a “right to sue” letter. If you receive a “right to sue” letter, you must file a claim in court within 90 days.
Claims
Yes. As soon as you are injured, you should report the injury to your supervisor and ask him/her to direct you to a doctor for medical attention. Especially at the beginning of a claim, it is very important that you go to the doctor your employer or the insurance company desires.
No. There is a specific form you must complete to file for workers’ compensation. Although an employer is required to file a Form 19 within five (5) days of learning of the accident. Even then, you are still required to file a Form 18 Notice of Injury with the NC Industrial Commission. Filing has been streamlined so that you can now complete and file a Form 18 online here.
No law requires you to give a statement or sign a medical authorization form for your employer. You may, however, be asked by the insurer to do either or both of those actions. There are many possible repercussions for allowing the insurer access to your records, including the invasion of your privacy and the insurer’s ability to access medical records unrelated to your accident. If you are pressured to sign a medical authorization form or give a recorded statement and do not want to do it, contact a lawyer immediately. You can ask your lawyer to communicate and even negotiate the terms of the release on your behalf with the insurer.
Yes, the insurance company can stop payments with an Order from the Industrial Commission. This process requires an informal hearing that is usually over the phone. If the insurance company stops payments without an Order, you have the right to a hearing to have your benefits reinstated. It would be very inadvisable to go through either of these hearings without experienced representation.
First and foremost, BE VERY CAREFUL if and when the insurance company offers to pay you for disability (your rating). This offer usually comes as an Industrial Commission Form 26A. The Insurance company will not tell you that you are making an election of benefits that could result in your case being devalued by thousands of dollars. Talk to a lawyer before you sign anything that promises you a lump sum of money.
If your work-related injury caused permanent disability to a part of your body, the North Carolina Industrial Commission will work to understand the extent of your injury and the benefits you should receive. The degree of your permanent impairment is based on a rating guide called the schedule of injuries. Doctors have a guide to help them determine the extent of your disability. An experienced attorney can also use the guide to potentially help determine the full extent of your rating.
The schedule of injuries assigns a value to all your body parts. The value assigned is for 100 percent loss of a body part.
For example, a 100 percent loss of the use of your hand results in 200 weeks of benefits at your weekly rate.
With a partially permanent disability, such as if you regain 90 percent use of your hand but still have restrictions and limitations, the doctor would assign a 10 percent PPD rating. That means you could decide to receive 10 percent of 200 weeks, or 20 weeks, of additional compensation for your injury. Again, be very careful and talk to an experienced workers’ comp lawyer before you agree to take this payment.
Yes, this type of claim is known as a third-party lawsuit. For this to occur, your injury needs to be caused by an accident that is covered under workers’ compensation and is also a result of the negligence of a third party.
For example, an employee who is driving a delivery truck is injured when an individual runs a red light and causes a wreck. The delivery driver is entitled to workers’ compensation benefits and he/she could pursue a personal injury claim against the negligent driver.
Like in the example above, there would need to be some evidence that a third party was involved in causing your accident and resulting injury.
The third party cannot be your employer. Other examples beyond the car wreck above could include the manufacturer of faulty equipment or workers visiting an offsite facility and being injured as a result of that facility’s negligence. If there is a third party that caused your accident, you may be able to file both a personal injury lawsuit and a workers’ compensation claim. Even if you think a third party claim might be a possibility, make sure to tell your lawyer. An experienced attorney will be able to guide you through this complicated process.
Examples of personal injury/workers’ compensation cases include:
Even though all employers who have three or more employees are required to carry workers’ compensation insurance, many take the risk and do not get the coverage. This is common in the construction industry, where contractors issue 1099s and try to get around the system by saying the 1099 workers are not “employees.” If the employer does not have insurance, there are two options:
Both processes can be difficult to navigate, so you should hire an experienced workers’ compensation lawyer in either case.
This is the most common choice for injured people who need to recover damages, costs, and losses associated with injuries on the job. This is also the approach that we and many other experienced workers’ compensation lawyers recommend. If you’re the injured employee, you could be filing a claim against the uninsured company or the uninsured entity employing you.
When you file this claim, the Industrial Commission will conduct an investigation and determine whether the employer is responsible for paying workers’ compensation benefits, including expenses for lost wages, disability, medical care, and rehabilitation. Additionally, the Attorney General’s office and the North Carolina Industrial Commission Fraud Investigation Unit will be involved in the claim because employers who knowingly break laws, in this case, the law requiring employers with three or more employees to carry workers’ compensation, are prosecuted accordingly. Employers who commit workers’ compensation fraud can be subject to fines and even jail time.
There are some limits on the benefits employees can seek using this approach; however, if you’re in Apex, Sanford, or anywhere in North Carolina, filing a workers’ compensation claim is a far more successful strategy than filing a civil lawsuit. A workers’ compensation claim is usually the best course of action for the employee.
Filing a civil lawsuit against your employer is a very rare (and not highly recommended) course of action. There are some narrow exceptions that allow a civil suit, and each exception has specific requirements and pitfalls. Talk to an experienced attorney before taking any steps in this regard.
Family
If you are providing for your family and suffer a disability injury, you could lose your ability to perform that job and other jobs like it, which would greatly inhibit your ability to support yourself and your family.
If the insurance company accepts your workers’ compensation claim and the authorized physician has you out of work for seven consecutive days, you should start receiving a temporary total disability (TTD) check. TTD is paid out at 66 ⅔% of your average gross wages earned in the 52 weeks preceding your injury. Some states require employers, by law, to carry long and/or short-term disability insurance, but North Carolina is not one of them. If your employer does carry disability insurance, it can pay benefits if you are not working because of injuries or illnesses that are not job-related. Workers’ compensation does not cover disabilities caused by injuries or illnesses unrelated to your job, and you will not receive benefits if the workers’ comp carrier denies your claim. Long and short-term disability insurance can be a little pricey, but if your employer does not provide it and you can afford it, such policies can be helpful.
Additionally, disability insurance also covers you if you may not be eligible for workers’ compensation, or it can be used to supplement workers’ compensation.
In this case, you are not pursuing a lawsuit against your employer; you are requesting the benefits that are legally provided to you. Filing a claim for disability can be compared to filing an insurance claim.
Many employers offer short- and long-term disability insurance as part of their employees’ benefits package. If your employer has these policies in place, you may be able to receive workers’ compensation benefits and short- or long-term disability benefits at the same time.
Who pays for your disability plan can impact the way the benefits are paid out:
FMLA coverage is available for workers in jobs where there are 50 or more employees. FMLA does not pay for lost wages, but it protects you from losing your job for a period of 12 weeks after you have been hurt and/or otherwise unable to work. After the 12 weeks expires, the employer has the right to fill the position you left vacant. There are reasons as to why it would not be to the employer’s benefit to fill your spot, and an experienced workers’ comp attorney can explain that to you.
Denials
Yes, it is possible that your workers’ compensation claim may be denied, and in many cases, a legitimate claim can and will be denied. This can happen for a number of reasons, but it does not mean you can no longer pursue workers’ compensation benefits. If you receive a letter or an Industrial Commission Form 61 saying that your claim was denied, you should talk with an experienced workers’ compensation attorney.
If your claim is denied, you will receive a Form 61, also known as a Denial of NC Workers’ Compensation Claims. On this form, your employer will detail the reasons for denying your claim. To continue the process of seeking benefits, you will need to file a Form 33. By filing Form 33, you are requesting a hearing by the North Carolina Industrial Commission.
With this request, you are asking the Commission to make a formal ruling on your case. Your case will be docketed for a hearing in front of a Deputy Commissioner who will decide if you have the right to receive workers’ compensation benefits. A “hearing” has all the look and feel of a trial, with the Deputy Commissioner acting as Judge. Witnesses testify, and attorneys have the right to cross-examine. If your case is denied, it is best to get an attorney to start helping you ASAP.
Also, when you file a Form 33, the case will be ordered into mediation, where the parties will have the opportunity to try and settle your claim. Mediation is a process with a neutral 3rd party acting as an intermediary between the parties. The mediator hears how both sides see their case and works to push everyone to reach a settlement. If the case does not settle, it will proceed to the hearing docket.
Wilson, Reives, Silverman & Doran workers’ compensation lawyers know your rights and are ready to help you receive the compensation you deserve. Your health may have already been compromised, and our attorneys are ready and able to help you get back on your feet.