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.



New Workers’ Compensation Bill signed into law in North Carolina

Earlier this week, North Carolina Governor Bev Perdue signed a new Workers’ Compensation bill into law that will make several major changes to the current law.  This bill, entitled the “Protecting and Putting North Carolina Back to Work Act” contains number of changes to the existing Workers’ Compensation law that injured workers must be aware of.  Many of the new provisions affect pending claims, while some will impact future claims.

Here is a quick summary of some of the major changes to current system:

  1. Restricts the ability of an injured worker to select their own physician by requiring an employee to apply to the Industrial Commission for a change in treating physician. For the Commission to grant such a request, the employee must show that the requested change of treatment or health care provider is reasonably necessary to effect a cure, provide relief, or lessen the period of disability.  If the employee does not seek permission first, the Commission may disregard or give lesser weight to the opinion of any health care provider not otherwise authorized by the employer or Commission to evaluate, diagnose or treat the employee before the employee file the request for a change.
  2. Provides a procedure by which employers may request medical records directly from an employee’s treating health care provider, so long as they give the employee contemporaneous written notice of any request for medical records and prior notice of any request to talk to the employee’s doctors.
  3. Places a 500 week limit, subject to some exceptions, on the duration of compensation that is paid for total disabilities.
  4. Increases the maximum duration of compensation for partial disability from 300 weeks to 500 weeks.
  5. Allows the employer to request a termination of benefits for as long as an employee refuses “suitable employment” without justification.

These are just a few of the changes to the existing law.  This bill became the law in North Carolina as soon as Governor Perdue signed it into law, although some sections of the legislation apply to claims pending on or after the effective date, and some apply only to claims arising on or after the effective date.

Exactly how this legislation will affect injured workers, or how it will be interpreted by the courts remains to be seen.

Workers Comp Reform: An Open Letter to NC Taxpayers

A Workers Comp reform bill is set to be filed in the NC General Assembly within the next several weeks.  This bill is bad for everyone but the insurance companies and self-insured businesses (think Wal-Mart) that a lobbying for it.  Don’t let this bill go through without speaking out against it!  Here is an open letter to taxpayers in North Carolina letting you know just what is at stake…

Dear fellow NC Taxpayers:

Starting this week, working families across the state need to call Republican House members to ask them NOT to support the workers’ compensation bill that Representative Dale Folwell is planning to file sometime in the next few weeks.  (The House deadline for the filing of public bills is March 24th, so we know the bill will be filed in the next two weeks).

The draft of the bill that is circulating is worse than originally thought.  It turns the current workers comp system on its head by giving the insurance company complete control over medical treatment.

First, they would get to choose the treating physician (and while the worker could change treating physicians once in the case, his “choice” would be limited to choosing from one of a group of three or more doctors chosen by the insurance company!).

Second, the treating physician would have to get prior approval from the insurance company for every single referral and recommendation.  The worker will be forbidden from putting on medical evidence (notes and any testimony) from a doctor who has not been authorized by the insurance company.  This includes your family doctor.

And, to make matters worse, the insurance company and defense attorney would be able to talk to your physicians without your prior knowledge or consent.

The current version of the bill would allow the insurance company to stop an injured worker’s disability benefits on the grounds that the injured worker failed to cooperate with medical treatment– even if he or she hasn’t previously been ordered to comply with medical treatment.

And that’s just the part having to do with medical treatment.  The current draft of the bill artificially caps benefits at 500 weeks (with only a few exceptions for very seriously injured workers).  And it completely does away with the requirement that a new job pay somewhere near what the pre-injury job paid.   If you have been injured and are not able to go back to your old job, your disability checks will be cut off if they can find you a job flipping burgers for minimum wage.

It doesn’t matter that the bill hasn’t been filed yet.  In fact, that’s a good thing.  Because once it’s filed, it’s probably too late.  We need to try to get some attention now while the bill is still being drafted.  Because maybe if your representative sees how unpopular this bill is, he will talk to Representative Folwell and ask him to introduce a less harmful bill.  If this bill becomes law it will:

  1. Take away your right to choose your own physician, and take away your right to ask the Industrial Commission to approve a treating physician of your own choice;
  2. Take away all of their medical privacy rights by allowing the insurance company (and the insurance company’s attorney) to talk to your doctors without your prior knowledge or consent;
  3. Let the insurance company cut off your compensation based on the claim that you aren’t cooperating with the doctors they selected;
  4. Artificially cut off your compensation after 500 weeks without regard to whether you have wage-earning capacity; and
  5. Require you to take a job that pays a lot less than you were making when you got hurt.

You can find the name and contact information for your local representative by clicking here.

Please write, email, and call them today.


Legislative Update: Status of Workers’ Compensation in North Carolina

Today I am attending a Workers’ Compensation Roundtable at the North Carolina Advocates of Justice in Raleigh, NC.  After lunch, Gina Cammarano provided us with a legislative update regarding the status of Workers’ Compensation reform at the General Assembly.

Although a bill has not yet been filed, it is clear that the insurance companies have the ears of our state representatives.  We initially thought that the bill would include a cap for lifetime benefits at 500 weeks, even in cases where an injured worker is completely and totally disabled.  We also thought that the bill would include language that gutted the statute with regards to the current requirement that an injured worker must have “substantially similar” employment to go back to work.

However, now we are aware that the effects of the bill may be far worse than originally expected…  Here are some of the things that we learned today.

  1. The proposed legislation will give the insurance companies complete control over your medical care
  2. You will be able to choose your doctor, but only from a list of doctors pre-approved by the insurance company
  3. In cases where you have the burden of proof at a hearing, you will be unable to introduce expert witness testimony from an independent doctor (this doesn’t seem to pass constitutional muster to me, but sometimes the state representative’s don’t understand that)
  4. You will have to make an election of benefits
  5. The insurance company representatives will be able to talk to your doctor without your presence or knowledge!!

This is all a ploy to transfer the burden of paying expenses for injured workers from the insurance companies that are contractually liable to pay these expenses to the taxpayers of the State of North Carolina.

Bottom Line? This bill is bad for injured workers, it is bad for doctors, it is bad for business, and it is bad for North Carolina and it’s taxpayers.  Don’t let the insurance companies reap a windfall at the expense of the taxpayers.  Contact your representative and tell them to stand up for North Carolinians and vote NO on Workers’ Compensation reform.

NC Workers Comp Reform News – www.ProtectNCworkers.com goes live February 17th

For those of you that have been following the news in the NC Workers Comp Reform world recently – you know that injured workers throughout North Carolina are in a fight for their lives… literally.

The insurance companies and big business lobbies want to limit the benefits paid to injured NC workers to 9 and a half years – even if that worker is totally and completely disabled – which means that they can never go back to work.  This is a fiscally irresponsible bill that will do nothing but shift the cost to care for these injured workers from the insurance companies to the taxpayers of our great state.

I have been and will continue to be posting quite regularly on this NC Workers Comp reform on this website, but there is a new website that goes live tomorrow – www.protectNCworkers.com, that will have lots of news and information about the upcoming legislation.

Also, if you have not already done so, it is important that you contact your legislator and tell them to vote NO on this legislation and stick up for the rights of all North Carolinians!

Of course, if you need more information on this bill, please feel free to contact my office at (919) 460-5422.

Workers Compensation Section Meeting at the NCAJ

This afternoon I attended the Workers’ Compensation Section Meeting at the Raleigh office of the North Carolina Advocates of Justice (NCAJ) – an organization of which I am a proud member.  Here is a sampling of some of the things that were discussed:

  • NCAJ president Phil Baddour and CEO Dick Taylor gave an update on the state of Workers’ Compensation Reform at the statehouse.  The sense is that the legislature is going to take up Medical Malpractice reform first, and a Workers’ Compensation reform bill will follow within the next several weeks.
  • Todd Barlow, a member of the NCAJ Political Affairs Counsel gave some background into how the reform bill will be introduced – via what committees, and how the legislation is likely to proceed.
  • Dan Deuterman of the Deuterman Law Group laid out a strategy for how we will be educating the public on Workers’ Compensation Reform and how it will impact workers across the state… not in a good way.
  • Mike Okun from Patterson & Harkavy discussed the Union’s perspective on all of this talk about Workers Compensation reform and how we, as Comp lawyers, can keep the Union support.

Following the Section Meeting was an open house for members of the legislature.

Here are some things that the public must understand about what the legislature is trying to do to the Workers Compensation system in North Carolina:

  1. The legislature wants to move quickly and without much fanfare to destroy the laws that are currently in place to protect injured workers;
  2. The proposed legislation would limit compensation for injured workers to 9.5 years – less than a decade – even for workers that are young and completely disabled;
  3. This bill is bad for both workers and taxpayers, because after their compensation runs out, the taxpayers would be forced to foot the bill that rightfully belongs to the insurance company;
  4. This bill is nothing but another insurance company bailout. The only winners are big business and insurance companies – small businesses and workers will suffer.

Call your representative TODAY and tell them to vote NO on cutting benefits to workers.

Insurance Company Lobby wants NC Legislators to cut benefits to Workers

Anyone who has been following Workers Compensation in North Carolina over the recent months (or years) knows that there is a constant battle raging with the insurance company lobbyists that are trying to persuade legislators to introduce a bill (we think, the bill hasn’t been introduced yet) to cap benefits for totally disabled workers at 500 weeks and force workers to take jobs that are not substantially similar to what they were doing pre-injury (and at lower income levels).

Your state representatives are being pressured by insurance company lobbyists and the NC Chamber of Commerce to reduce benefits to injured workers. One of the changes being pushed is placing an artificial cap on the number of weeks of weekly compensation benefits an injured worker can receive. That would allow weekly compensation benefits to be stopped even if someone is still disabled. Another change being considered is forcing injured workers to take any type job they can find if they can not return to the job they were doing when they were injured. An example of this would be a teacher, electrician, construction supervisor or any other worker being forced to take a Wal-Mart greeter job. The loss of income claim resulting from the job change would be capped. Several other reductions to benefits are being considered.

If you are an injured worker who is reading this blog, I encourage you to take action and contact your state representative to tell them how these changes might affect your lives. I ask that you call and write your Representative and Senator and ask them to vote against any new laws that reduce workers’ compensation benefits to injured workers. These new laws will probably pass if legislators don’t hear from the people they represent.

When you contact your representatives, tell them the following:

  • Please tell them how important your workers’ compensation benefits are to you and your family;
  • Let them know what the impact would be on you if your workers’ compensation benefits were reduced or stopped;
  • Tell them about your injury and how it has affected you;
  • Tell them not to give in to the insurance company lobbyists who want them to put profit before injured people;
  • You can also ask your family members and friends to call and write;

If you are not able to speak with your representatives when you call, please leave a detailed message outlining your concerns.

You can figure out who your representative is by going to this web page and inputting your zip code (You will need to go here first to look up the last four digits of your zip code).

If you have any questions, or need some help – please feel free to call my office at (919) 460-5422.  I’d be happy to look up the information for you.