The Workers’ Comp Doctor: What to do on that first visit…

I just finished up a report on what to do and what not to do on that first trip to the dreaded workers’ comp doctor. Here’s a quick overview/summary of my recommendations:

  • Be nice, even if you don’t like the doctor
  • Be prepared with notes explaining exactly how you were injured – explain this to the doctor. Rinse, and repeat.
  • Do like your parents taught you – don’t lie or exaggerate your symptoms. Workers’ Comp doctors have a way of knowing.
  • Don’t say or do anything that you don’t want the Industrial Commission to find out about.
  • Order your records after the visit to insure that they accurately reflect your visit.
  • Talk to the doctor about their opinion with regards to return to work restrictions.
  • Don’t let the doc have a meeting with the nurse without you.
  • Don’t talk bad about the nurse or Workers’ Comp carrier in front of the doctor.  You can call me and do that.
  • Even if you hate the doctor, don’t lose your temper. Again, call me and shout all you want.
  • Don’t get treated for an unrelated condition while you are seeing the Workers’ Comp Doctor.
  • Don’t tape the visit, unless you are being sent to an IME – in which case you probably need a lawyer. Feel free to call me.
  • If you decide not to tape your IME, make notes of the visit.

If that is too much for you to read – remember to be nice, keep notes, don’t lie. That’s about it. Questions? My number is (919) 460-5422.

What is Fair?

What is fair? Today’s post is a bit off the beaten path. I’m on the “legal documents” committee of my homeowner’s association.  Basically, our committee’s job is to review all the legal documents for our HOA (bylaws, covenants, articles of incorporation, etc.) Exciting stuff, right? Well the whole point of this little exercise is that some of the homeowners in our community are charged higher homeowners dues than other members. The homeowners that pay higher dues live in million dollar homes, while the homeowners that pay less live in “regular” homes.  I fall into the latter camp.

Fortunately, we have legal documents that govern how our dues are calculated and what we pay.  It is very difficult to change these documents. Thus the question – what is fair? Is it fair that I pay less in HOA dues than someone in a million dollar home? Is it fair that I have access to the same amenities and community property that they do? I knew what I was getting into when I bought my house – so yes, I think it is very fair. Trying to change the rules now, after I’ve bought my house – that’s not fair.

What in the world does this have to do with Workers Compensation law? Everything. You took a job with an employer. You work hard for them and they pay you a wage which may or may not be fair. You work for the same company, year after year, and then the unthinkable happens. You get injured on the job.

What is fair? Fair is an employer that does what they are supposed to do under the law. They (or their insurance company) pay you for your time out of work, they provide you with medical treatment, and they do all of this promptly so that you can get better and get back to work.

Unfortunately, all too often the employer is the million-dollar homeowner. They are completely fine using you as an employee, and as soon as you are injured and unable to work, they want to change the rules. They will either deny your claim outright, they will pay your medical bills but refuse to pay for your time out of work (forcing you to go back to work before you are physically able), or they’ll pay you, but payments will be consistently late and unpredictable.

I bring this up now because election season is quickly approaching. Last year, we had a tough battle with the insurance companies that tried to shred our workers’ compensation system under the guise of “getting North Carolinian’s back to work”. Fortunately, we had a Governor with veto power who was able to keep lawmakers from taking things too far. This year, the governor’s race is up for grabs. Pat McCrory is a million-dollar homeowner who wants to change the rules, make it easier for insurance companies to justify denying your claims and make it more difficult for you to prosecute your case, if you need to. Simply put – that’s not fair.

We have a good system in place. It’s a fair system. Let’s keep it that way.

 

 

Who does your nurse really work for?

In some Workers’ Comp cases in North Carolina, the case and employee will be assigned a Nurse to help coordinate benefits, schedule doctor’s appointments, and basically make sure that the medical treatment is progressing as it should.  The nurse is supposed to be employed by an independent company, such that they are not unduly influenced by the insurance companies.  Most nurses that I’ve dealt with are great to work with, and I’ve generally had very few problems. The purpose of this post is not to bitch and moan about how the rehab nurses are really working for the insurance company, however…

Today I received a call from a new nurse on a case.  The old nurse had been taken off the file – for reasons unknown to me (again, I’m not going to speculate that she was doing too good of a job for MY client, as opposed to doing what the insurance company wanted her to do).

That being said, when I returned the call, the number went straight to the insurance company, and my newly assigned nurse has an extension at the insurance company.  (Although she does “technically” work for an independent agency – for all I know her office is next door to the adjuster’s office).

So next time you (injured worker) start up a conversation with your rehab nurse about the status of your condition and your case in general, just remember who they are really working for.  Just my 2 cents for the day.  That’s all.

Is Workers’ Comp my only recourse if I’m hurt at work?

I get asked, on quite a regular basis, whether my client’s can recover for pain and suffering if they are injured in a workplace accident.  Unfortunately, the answer is usually no (99.9% of the time, we’ll leave the 0.01% for another day). One of the problems with workers’ comp is that an employee is generally  limited to receiving medical treatment for their injuries and 2/3 of their Average Weekly Wage (AWW) for the time they miss from work.

However, in exchange for giving up the right to seek pain and suffering, a worker is given (theoretically) a streamlined system in which benefits are paid quickly in an administrative setting, and the worker is not forced to go to court and prove that the employer was negligent.  The workers’ comp system is a no fault system in North Carolina, which means that the employee is entitled to benefits even if the employer was NOT negligent, so long as the employee suffered an injury by accident.

That being said, even though the employee may not recover for pain and suffering against their employer, there are instances where the employee may have the ability to sue other parties, or even sometimes, the employer.  Some examples include:

  1. Where the employee was injured due to the fault of some third party.  In other words, if the employee was injured while using a piece of equipment that was designed defectively, the employee could sue the manufacturer of the equipment and any party that was involved in the sale of that machinery.  These are known as “third-party claims”, and sometimes come up during the representation of Workers’ Comp clients.
  2. If the employee was injured at work, filed a workers’ comp claim, and was then let go by their employer, the injured worker may be able to file a Retaliatory Employment Discrimination Act (“REDA”) complaint with the NC Dept. of Labor.  Once you file a REDA complaint, the Dept. of Labor will investigate your claim.  If it has merit, the Dept. may take a number of actions, including suing the employer on your behalf or issuing a right-to-sue letter so that you may sue your employer.  If successful, you may be entitled to triple the amount of wages you lost as a result of the employer’s actions, as well as payment for your attorney’s fees.

 

Is my injury covered by Workers’ Comp?

How do I know if my injury should be covered by Workers’ Comp?  Whether your injury should be covered, or actually is covered, are two different questions. If the system worked the way it was supposed to, I wouldn’t have a job, and the insurance companies would do what they should in every case. But this isn’t fantasy land, it is real life.  Here are the type of injuries that SHOULD be covered by Workers’ Comp in North Carolina:

  1. Injuries by accident, arising out of and in the course of employment. If however, you are engaging in your “normal work routine” when you are injured, the injury may not be compensable.
  2. Back Injuries as a result of a specific traumatic incident are also considered compensable.
  3. Occupational Diseases are considered compensable.  NC Statute 97-53 sets out 27 specific diseases which are compensable.  In order to recover for an occupational disease claim, you must be diagnosed with a covered disease, and the disease must have been attributed to your employment.
There are many instances where a worker is injured in the normal scope of his or her employment, and thus has not suffered an “injury by accident“.  Oftentimes, in these cases the employer/insurance company will deny the claim.  However, it is important to review your medical records and determine whether you have also suffered an occupational disease or back injury as a result of a specific traumatic incident, in which case your claim may very well be compensable.
Any variation from the normal, regular work routine may be sufficient to constitute an “accident” at the workplace.  These cases can become very fact-intensive, and the only way to know for sure whether your claim is compensable is to consult a Workers’ Comp Attorney for an initial consultation.  Please feel free to call our office at 919-460-5422 if you have any questions regarding whether you have suffered a compensable claim.

Ethical Boundaries of Discovery in Social Media

Today I gave a presentation for NBI on Ethics and Social Media.  Following is a link to my manuscript on the Ethical Boundaries of Discovery.

Ethical Boundaries of Discovery – Manuscript from presentation on December 15, 2011

Exposed – How Art Pope’s Money could influence Workers’ Comp Benefits

Next year is going to be an important year for politics in North Carolina and across the country.  Workers’ Comp laws throughout the nation, including in North Carolina, are under attack.  In order to preserve a system that is fair to both workers and employers alike, we must support candidates for our legislature that care more about our state than receiving funding from people like Art Pope.

Visit www.artpopeexposed.com for more information.

Should I settle my Workers’ Comp case at mediation?

In North Carolina, Workers’ Comp cases can find their way to mediations in a number of different ways.  If you file a Form 33 (Request for Hearing), then your case will be ordered to mediation before it will be put on the hearing docket.  If a Form 24 (Request by the Defendant to suspend benefits) was either approved or denied, then you can agree to submit to mediation before going forward to a hearing.  Or, sometimes the parties will just agree to mediate because one side (typically the defense) wants to settle.  (The parties can agree to use anyone as a mediator, but typically, mediators are chosen from a list of Superior Court Mediators).

The primary goal of mediation work out a settlement that is agreeable to both sides.  In the Workers’ Comp world, settling typically means that the injured will accept a cash payment in exchange for giving up all future benefits under the Workers’ Comp Act.  The worker will be asked to sign what is commonly called a “Clincher” agreement in North Carolina.  In addition, many employers will request a resignation and release – meaning that you will be asked to leave your job.

Whether or not you settle your case will depend, in large part, on a number of different factors such as:

  • Is this an accepted or denied case?  In an accepted case, where the Employer has already been paying benefits, they are more likely to offer a large cash settlement to get rid of the claim.  However, in denied cases, the Employer knows that the injured worker must prove their claim in court.  It is a lot harder to prove a case than it is to defend one, so the Employers are typically only going to offer what is commonly referred to as “the cost to defend” or “nuisance value” to settle the case.  This is typically only a couple of thousand dollars, and is not likely to result in a settlement at mediation.
  • Is the injured worker back at work for the employer?  If the injured worker is back at work for the employer, they are not likely to want to give up their job.  Because the employer is likely to ask the employer to resign their position, a settlement is increasingly unlikely if the worker is back to work (but not impossible).  There are cases where an employer will not ask for a resignation, but they are rare.
  • How serious were the worker’s injuries?  It goes without saying, that the more severe the injuries, the higher the cost to settle the case.  This is especially true where the worker may never be able to return to work.  The more money that the insurance company is going to pay out, the harder it will be to settle the case without litigating.
  • Does the injured worker want to settle?  This is probably the most important question, especially for clients that are receiving benefits each week.  There are certainly costs associated with remaining in the comp system.  It is important that the client have a full and complete understanding about what a settlement means to them and their future benefits.
If I am able to obtain a fair settlement for my client at mediation, I am all for it.  However, if the defense attorney wants to lowball my client in an effort to settle a case on the cheap, then I firmly believe in pressing forward.

What can happen if insurance companies have their way…

Here is a brief example of what will happen in North Carolina if insurance companies are successful in continuing to “reform” Workers’ Compensation laws in North Carolina.

Anatamy of a Workers’ Comp Case

If you have been injured on the job in North Carolina, you are probably scared (about your health and possibly loss of income/job security), nervous and a little uncertain of what the future will hold.  However, knowledge is power – so the more you know about how the process will unfold, the more confident you will become.  Here is a quick rundown (big picture stuff) of the Workers’ Comp process in North Carolina from A-Z…

  1. You are hurt in an accident at work.
  2.  If you haven’t already, you should immediately report the accident to your employer.
  3. Seek medical treatment for your injuries.  Your employer may have a doctor on-site, or they may direct you to a designated health care provider.
  4. Tell the medical services provider that your injury occurred at work, and give them the name of your employer so that the treatment can be billed as a Workers Comp claim.  (Give the doctor as much detail as possible about how the accident occurred, what it did to your body, what you felt/experienced at the time of and immediately after the accident, and any other details that are necessary for the doctor to adequately understand what happened to you and how it has affected your body.)
  5. Give written notice to your employer of the accident.  The law requires that this notice be given within 30 days of the accident.  It would be prudent to copy the notice and give it to several people, in addition to keeping a copy for your files and to give to your attorney (should you require one).
  6. You can use Form 18 to provide the notice in #5 to your employer.  A Form 18 must also be filed with the Industrial Commission within two years of the accident.
  7. Follow the instructions and restrictions provided by your doctor.
  8. Return to work – hopefully without being out for too long.
  9. In the event that your claim is denied, you should speak with a Workers’ Comp lawyer to help you decide what to do next.  You will probably have to request a hearing and will need the help of an attorney to do this.
  10. If you are out of work longer than 7 days, or get terminated as a result of the injury, you should speak with a lawyer about what to do.

Most people are cleared to return to work after only being out a couple of weeks.  However, if you have sustained a more serious injury that involves a complete or partial disability, then you may be out of work much longer than that.  Since Workers Comp benefits can go on indefinitely, the insurance company will do everything they can to cut off or limit the amount of those checks.  Many people are more than capable of handling their claim on their own – but as with everything in life, the more complicated the claim, serious the injury, or difficult the adjuster is being, the more likely you are to need an attorney to help you.

 

Hot Coffee: An HBO Documentary