Enforcing the Workers’ Compensation laws in North Carolina

The following is a guest blog post written by a colleague and good friend of mine, Kevin Bunn.  Kevin is also an exceptional North Carolina workers’ compensation lawyer.

I read Harry Payne’s editorial in last week’s Raleigh News and Observer and was struck by the lack of progress on enforcing North Carolina’s mandatory workers’ compensation laws.  With very few exceptions, any business that employs three or more employees in North Carolina must provide for workers’ compensation benefits. Typically businesses do this by buying workers’ comp insurance.  Unfortunately a large number of employers cheat the system, either simply refusing to buy the insurance coverage or misclassifying actual employees as “independent contractors.”   As a result we see frequently bad and occasionally horrific situations where injured workers go without the workers’ compensation benefits to which they are entitled.  Meanwhile, the cheaters get a competitive advantage over the legitimate businesses that play by the rules.

As a workers’ compensation attorney, I know the problems with uninsured employers first hand.  A few years ago I represented the widow of a truck driver who died in a fire when his truck ran off the road.  The trucking company was uninsured, although the owners acknowledge that they knew they should have had coverage.  The simply made a business decision to pay themselves rather than buying workers’ comp.  After two hearings and much time they finally paid the claim from their own funds.  It would have been much less expensive for them to have simply bought workers’ comp insurance in the first place.

Last year the News and Observer’s Mandy Locke ran an excellent series of articles exposing this employer fraud.  There appeared to be a broad political consensus that something needed to be done.  Insurance Commissioner Wayne Goodwin convened a bipartisan commission to look into the issue.  And as Mr. Payne noted, they discovered that the problem is even worse than believed:  “Employers who disobey the (workers’ compensation) law are also likely to cheat the government, their employees and their competitors by failing to pay unemployment insurance taxes, Social Security taxes, and income taxes.”   The commission recommended that the legislature provide that the mischaracterization of independent contractors be vigorously pursued and severely punished.  Unfortunately, very little has happened since.

It is past time to make some progress on this issue.  In a state as technology-savvy as North Carolina it is beyond belief that we cannot meet the challenge of ensuring that businesses comply with the mandatory workers’ comp laws.  After all, who do you think pays the cost of the medical treatment and disability for badly injured workers who work for uninsured employers?

Kevin Bunn, Attorney at Law, Cary, North Carolina

Another reason for Health Insurance Reform

It is no secret that the current Health Insurance system in America is not working. Whether you agree or disagree with the tenets of the Affordable Care Act that is now in front of the US Supreme Court, nobody can argue that the current health care system isn’t broke. It is.

Here is another example of why we need reform – a report from the News & Observer that non-profit hospitals which are supposed to be providing “charity care” to the poor, aren’t.

Charity care is health care that is provided to poor patients who lack health insurance. In return for their non-profit status, the hospitals are expected to write off the bills of patients who lack insurance and are financially needy. However, nearly 2 out of every 3 patients that would otherwise qualify for charity care are not even informed that is exists.

And when charity care is offered, it is often in the form of promissory notes with steep consequences if the patient fails to pay on time. In this report, the patient profiled was offered a promissory note in which 1/2 of her $5,000 debt would be forgiven if she made payments on time and paid off the other half of the balance. If she failed to pay, the entire balance would immediately become due, along with collection costs and legal fees. Where I’m from, those unconscionable contracts are illegal forms of “usury” agreements. The patient in the article refused to sign the agreement and is still being hounded by collections agencies.

It is my hope that articles like this will draw attention to these “non-profit” hospitals, such as Person Memorial Hospital in Roxboro, so that the state can take a closer look at their non-profit status.

Additionally, in my opinion, this is just another glaring example of why we need an individual mandate. If this patient had health insurance, all of a sudden she does not have a huge medical bill looming that she cannot afford to pay. Additionally, the hospitals will save money on collection efforts and unpaid medical bills, which are ultimately passed on to those of us that DO have health insurance.

Finally, the individual mandate would eliminate shady businesses such as AccessOne, a credit card company that offers interest free options to pay off medical bills. However, when payments are missed, rates will rise sharply. Interestingly, this company was started by a doctor who wanted to solve the problem of patients who can’t pay their medical bills.

 

Infant Tylenol allegedly kills 3 month old

As an expectant father for the second time (as of writing this post, my wife is just over 38 weeks pregnant with our second child), my wife and I are increasingly sensitive to the risks associated with over the counter medication for our children, especially a newborn. According to the Chicago Tribune, we are right to be nervous.  In April 2010, a 3-month-old infant died after taking infant-formula liquid Tylenol. It seems that some of the drugs had been contaminated with bacteria.

This is a sad story, and I can honestly say that my wife and I have used liquid medicine for our first born on many occasions – and he is now a happy and healthy 2 year old. However, what I take away from this is that it is important that we as parents think twice before we make a decision about what we put into our children’s small bodies. Newborns especially do not have the ability to fight off bacteria as an older child or adult does. This is true for not only medication, but vaccines and foods as well.

Principal shot on way to work suffered a compensable injury

On April 9, 2009, James Hunt, a principal at Fairmount Middle School in Lumberton, was shot on his way to work. Earlier this month, the Court of Appeals affirmed a decision determining that Mr. Hunt suffered an injury that arose out of and was within the scope of his employment. (A full copy of the opinion can be found here).

The central issue in this case was something called the “coming and going rule”. Generally speaking, if you are in some type of accident while driving to or from work, it is not a compensable “injury by accident”, the standard required to have a compensable workers compensation injury in North Carolina. However, there are exceptions to this rule, and it appears that the Court of Appeals has carved out another exception in this case.

The Court of Appeals looked at several things in coming to this conclusion. First, evidence was presented to suggest that the shooting was related to Mr. Hunt’s anti-gang activities at the school. Second, the Court of Appeals found evidence that Mr. Hunt was on his cell phone with a school staff member at the time of the shooting. In addition, the phone he was using was paid for by the school district.

Finally, the Court of Appeals looked to the exceptions to the coming and going rule, one of which is called the “contractual duty” exception. Under this exception, if the employer provides transportation or allowances to cover the cost of transportation, than an exception applies. Because Mr. Hunt was provided a travel allowance, then this exception applied.

I find this to be an extremely interesting case that shows just how complicated the workers compensation laws in this state can be. Very few cases are so black and white that they are either compensable or not. There are many shades of gray – and the facts of these cases are all too important.

 

 

Talking on your Cell Phone while driving forbidden in Chapel Hill

Those of you who frequently talk on your cell phone while driving take note – this practice will become illegal in Chapel Hill on June 1. Yesterday, Chapel Hill, North Carolina became the first town in the nation to outlaw talking on a cell phone, whether hands free or not, while driving.

Of course, this may not be the last word on the issue.  State Attorney General Jess Mekeel has said that “the town may not regulate activity in a field where the state intends to provide ‘a complete and integrated regulatory scheme.’ ” The state currently bans the use of cell phones by drivers under the age of 18, school bus drivers, and anyone reading email or texting while driving.

According to Mekeel, “An ordinance by the Town of Chapel Hill regulating motorists’ use of cell phones is preempted by State law, and therefore, unenforceable.”

However, the National Transportation Safety Board (NTSB) supports the ordinance in Chapel Hill, and there is currently a ban on hand-held cell phones in Evanston, Illinois, home of Northwestern University.  Since enacting the ordinance two years ago, accidents there have decreased 17.6%, according to Chapel Hill Town Council member Penny Rich.

I am of the opinion that is a prudent and smart move by the town. People will have to get used to the change, but the ban itself is likely to decrease the number of accidents and hopefully save lives. I believe it is just a matter of time before this becomes the norm across the state. I previously wrote about my opinions on this here.

Just received a Form 24 – What now?

In North Carolina’s workers’ compensation system, many injured workers think that they can handle their case on their own, especially if the case is accepted by the insurance company (meaning that you are receiving weekly benefit checks and medical treatment from the insurance company). Unfortunately, many of these same workers don’t realize the mistake they have made (by not hiring a workers’ compensation lawyer) until their benefits have already been cut off.

One of the biggest threats to an injured workers’ benefits in North Carolina is called the Form 24. Under the North Carolina Workers’ Compensation system, once an insurance company accepts a claim, there are only two ways that they can stop paying benefits to the injured worker: 1) if the worker returns to work, or 2) if the Industrial Commission approves their Form 24 application.

What most workers don’t realize is that the fight to defend against a Form 24 begins long before the insurance company submits this application to the Commission. And unfortunately, once an unrepresented worker receives the Form 24, it is often already too late to do anything about it.

In order to be successful on a Form 24 application, the insurance company must have a legal basis for asking the commission to turn off benefits. Here are some examples of legally sufficient reasons that the industrial commission may grant a Form 24:

  • The injured worker has failed to comply with their medical treatment (a workers’ compensation lawyer will help you stay on track)
  • The injured worker has refused an offer of suitable employment (only a workers’ comp attorney can advise you on whether the job offered is “suitable”)
  • A doctor (usually one hired by the insurance company) has returned the worker to full duty work (a lawyer can help you request a second opinion from another doctor)

Getting an attorney involved early in the process, before the worker receives a Form 24, can greatly increase your chances of defeating this insurance company tactic, and more importantly, keep your benefits from being turned off.

Workers’ Comp Mileage Rates in NC

Did you know that if you have to travel farther than 20 miles roundtrip to attend an appointment for medical treatment, you are entitled to reimbursement from the workers’ comp insurance carrier?

Per the North Carolina Industrial Commission, the IRS mileage rate for January 1, 2011 through June 30, 2011 is $0.51 per mile. On July 1, 2011, the IRS mileage rate was increased to $0.555 per mile and applies to travel for medical treatment on or after July 1, 2011.

Click here to review a copy of the Form 25T that is used to submit your mileage for reimbursement. If you are a client of The Hart Law Firm, please email or fax the completed form to our office and we will submit the form for reimbursement on your behalf.

Workers’ Comp and the Obesity problem

I was reading an article this morning on how the Obesity problem in America “weighs” on the Workers’ Comp system. It is not surprising that obese clients will take longer to heal after a work related injury, and there may be an increase in the cost to treat this worker in the workers’ comp system as a result.

What was surprising to me is how anti-worker the author is. They seem to imply that the problem lies entirely with the overweight workers, and that the employer should be shielded from liability, which is distressing to me. The Workers’ Comp system was created to provide an efficient, no-fault system for workers’ to be compensated for their work-related injuries, receive the medical care they require, and get back to work as soon as possible.

The author uses an extreme example (a 300 pound worker who required 7 months to recover from a “sprained” ankle) to illustrate her point. The author says nothing of how severe the ankle injury was, or what type of work the injured worker was required to perform. The studies cited by the author were no doubt commissioned by pro-business, pro-insurance groups to illustrate their points.

This is concerning to me at a time when obesity is such a prevailing problem in America. Businesses who employ workers, and presumably provide them with health insurance benefits, are in the best position to address this issue through wellness programs, incentives to lose weight and educational programs.

In addition, the statistics cited surprise me given the fact that so many of my clients are injured performing difficult, manually demanding jobs. Our clients are, for the most part, blue-collar workers who work extremely hard and deserve to be taken care of by their employers and/or the insurance company when they are injured. It goes without saying that many of these workers get a lot more exercise, and are in much better condition as a result of their work than your typical office worker who sits at a desk all day.

Before we start blaming obese workers (who are few and far between) for the increasing cost of workers comp insurance (another statistic that could be debated), may the insurance companies and employers should take a look in the mirror to determine whether they are helping or contributing to the problem.

Cell phones banned while driving in Chapel Hill?

 

blogs.ktk985.com

I previously blogged about the perils of texting while driving, and it appears that there is now a movement for a total ban on cell phone use while driving that is receiving increased public support in Chapel Hill, North Carolina. Apparently, the Chapel Hill town council is set to vote on this measure, which would be the first of its kind in the state, on March 12th.  The bill would also make texting while driving illegal when a car is in motion.

This proposal comes on the heels of a recommendation from the National Transportation Safety Board (NTSB) recommending a full ban on the use of cell phones while driving in December 2011.

We have all seen drivers that are distracted by the use of their phone.  This is not a popular position, but it is one that is necessary to protect and save the lives of our loved ones and children. I applaud the Chapel Hill town council for taking such a step on such a controversial issue.

 

 

 

FAQ – What if my workers’ comp check is late?

One of the most frequent calls I receive from my workers’ comp clients is that their workers’ compensation check is late. Unfortunately, (and I don’t believe that this is the client’s fault), the calls I receive are from the same client’s again and again. This means that the same insurance companies are routinely late in processing their weekly workers’ comp checks.

Is this surprising? Not at all. If you think about it, the insurance companies job is to make being on workers’ comp as difficult as possible. That way, when the time comes to try and settle your case, you will be thinking in the back of your head about all those late checks and how you just want that to be over. When your weekly workers’ comp check is late, it puts you and your family in financial jeopardy. I understand that the injured worker depends on these checks to pay their bills and feed their family. A check that is a week late can have devastating effects on an injured worker and their family.

Unfortunately, the insurance companies know this, so they will do everything they can to push the limits of the law.

What can you do if your check is late? If it is a routine occurrence, I recommend that you hire a lawyer. If nothing else, you would then have someone you can call when the check doesn’t come in and they can bother the insurance company until you receive your check. If the check is more than 14 days late, then you are entitled to a 10% penalty on the amount that is late by more than 14 days.

So, in a nutshell, here is what you do if your check is late:

  1. Determine whether there was a holiday that would have delayed the mail.  This frequently is a cause of late checks.
  2. Look to the history of your payments. Is this an isolated incident, or a more frequent problem. You may want to keep a log of your checks and the dates you received them since your case was opened.
  3. If this is an ongoing problem, or if checks are longer than 14 days late, you need to contact a workers’ compensation lawyer.
  4. Once you have a lawyer, contact them. My office will call the adjuster once or twice a day until the client receives their check or we receive verification that the checks have been paid on time.

 

Given a deadline to return to work, now what?

This is one of the most frequent questions I get from my clients, because it is a frequent tactic used by insurance companies to either: 1) cut off your benefit checks in accepted cases, or 2) show that you are capable of working in denied cases. If you don’t already have an attorney, and you have been given a request or demand that you return to work, now is probably a good time to seek counsel. The decision whether or not to go back to work can have a huge impact on the course of your workers’ compensation claim.

If you have an accepted case and are being paid weekly indemnity checks (typically 2/3 of your Average Weekly Wage), then there are only two ways that an insurance company can stop payment of these checks. The Industrial Commission can order that payments are stopped by granting a “Form 24” application, or you can return to work. Some of the things you need to consider before making this decision include:

  • Is the position offered “suitable“? You will need an attorney to help you determine this.
  • Do you want to do the job they are offering you?
  • Can you medically do the job they are offering you?
  • Do you want to return to work for this employer?
  • Can you afford to keep living off of your weekly indemnity checks?
  • Do you anticipate that the employer is offering you this job merely so they can fire you after you return?
  • Do you have personal knowledge of how your employer has treated other workers in similar situations?

In a denied case, you will not be receiving any type of indemnity checks from the insurance company. You may or may not have accepted a position with another employer that falls within your medical restrictions. You will be feeling a lot of pressure to accept the position offered. Again, tread lightly here and seek the advice of an attorney.

As mentioned before, the decision you make here will have a huge impact on your case. If you have received a request to return to work, I suggest you contact a workers’ compensation attorney to help you decide what to do.