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

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.

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?



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.




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.

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.

Hot Coffee: An HBO Documentary

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.