Insurance company myth: If you don’t report your injury in writing immediately, you have no claim

In speaking with other Workers Comp attorneys, and in my own experience as a Comp Lawyer, I have notice a disturbing trend.  In a system that was created to provide workers and employers both with a swift and low-cost way to manage benefits for workers who have been injured at work, we are seeing more and more insurance companies routinely denying claims without any legal justification for doing so.

One justification that insurance companies use when denying claims is that the employee failed to immediately report the incident to their employer in writing.  The law says that you have 30 days – but insurance companies don’t seem to care (See this post).  Their rationale is that if you didn’t report the injury immediately, then you must not be injured, or the injury must have been caused by something other than an accident at work.

However, most injured employees do not report the injury in writing – but rather they tell their supervisor verbally and off to the urgent care they go.  If written notice is ever given, it is usually only after an attorney is retained.

If you haven’t hired an attorney yet (call me at (919) 460-5422 for a free consultation), then you can send in your own notice pretty easily.  If you include the following information in your notice, you should be covered legally:

  • Your Name and Address
  • Time, place, nature and cause of the accident
  • A brief description of the resulting injury
  • The notice should be signed by the employee or someone on his/her behalf

Here is a sample letter than you can use to give legal notice to your employer that you have been injured.  Make sure to send a copy to anyone and everyone at your workplace that may need to know (Human Resources Department, your immediate supervisor, your manager, and anyone else you think should have notice that you are out of work with an injury).

Are you a victim of Workplace Violence?

When you think of Workers Compensation, most people typically think of someone becoming injured while working – after having an accident.  Perhaps they were injured by a piece of equipment, fell from a ladder, or were involved in an auto accident.

However, workers’ compensation claims can also result from incidents of workplace violence.  The most common examples are those we hear about in the news – this worker opened fire on his former co-workers in Orlando, or search this wikipedia page for a number of prime examples, but frequently it is workers who turn on one-another that leads to the most common examples of workplace violence.

In the article cited above, there are several forms of inappropriate behavior that might tip you off to a potentially violent co-worker:

  1. Waving arms or fists
  2. Excessive profanity
  3. Screaming
  4. Verbal abuse of others
  5. Threats against people or property
  6. Any behavior that intentionally endangers another person
  7. Refusal to comply with a reasonable request
  8. Intimidation, either verbally, physical closeness or gestures
  9. Throwing objects
  10. Intentionally damaging property
  11. Stalking (presumably, after-hours)
  12. Any worker who might be under the influence of alcohol or drugs

If you are the witness of any of these types of behaviors, you must bring it to the attention of your management immediately! Even when brought to their attention, Employers will frequently disregard the complaints of workers.  So you must be persistent when you see dangerous behavior on the part of your co-workers.

There are a whole line of cases in North Carolina that fall within the scope of “Assault and Criminal Activity”.  Some of the cases are compensable, and some are not.  If you or someone you love is the victim of workplace violence, we recommend that you speak with an attorney who can evaluate your claim and advise you on the proper course of action to take.

Forklift Injuries – Hazard Report released by NCDOL

A Forklift is an extremely dangerous piece of equipment.  In 2010 there were 7 forklift related fatalities in North Carolina, which amounts to almost 15% of the total workplace related fatalities that were reported last year.  This is such an important issue that the North Carolina Department of Labor (NCDOL) has issued a Forklift Hazard Alert, which outlines some precautions that should be taken whether you are operating a lift, or simply working in an area where forklifts are operating.

If you are driving the equipment, be constantly aware of your surroundings, including pedestrians, blind spots, and ramp/dock edges.  Always wear your seatbelt and never extend your hands, arms or head outside of the “safe zone”.  These fundamental tips are extremely important because several of the deaths reported in 2010 occurred because:

  1. An operator drove the lift partially off the ramp he was working on, removed his seatbelt (causing him to fall out of the forklift) and was crushed when the forklift fell on top of him.
  2. A pedestrian was run-over by a forklift.
  3. An operator reached his head and arm through the “safe zone”, accidentally turned on the lift, and died from asphyxiation.

Here are some other tips to consider when operating a forklift:

  1. Be careful not to carry unbalanced loads – another fatality occurred because an unbalanced load fell on the operator.
  2. Never stack materials above a safe stacking height.
  3. Consider using shrink wrap to enhance the stability of a stack
  4. Do not overload warehouse racks
  5. Take pre-use inspections seriously and correct any issues prior to operating a lift
  6. On inclines, always drive with the load uphill

A more exhaustive and comprehensive list of safety precautions can be found on the website for the NC Department of Labor.  If you are injured while operating a forklift or any other heavy machinery, you may need the assistance of a workers comp lawyer to help you navigate your claim.  Call Raleigh Workers Comp Lawyer James Hart at (919) 460-5422 to schedule your free consultation.

Low Clearance: Truckers watch out!

Thanks to Workers Comp Insider for drawing my attention to this video.  All of the truck accidents in this video took place at a single trestle bridge in Durham, North Carolina.  There was a prominent sign that let everyone know that trucks over 11′ 8″ tall need not pass, but it seems that too many drivers weren’t paying attention.  My initial thought would be that most of the trucks would be casual drivers and rental trucks – but the video tells a different story.  Many professional drivers were involved as well.

If there is a moral to be had in this story, it is that if you drive for work, you must always be careful to pay attention to signs – especially if you drive a semi for a living.  The higher the truck, the more risk you face of an accident on a day-to-day basis.

For you truckers out there, make sure to check the Low Clearance Bridge Database if you are travelling a new route and need to check for problem bridges.  Additionally, America’s Independent Truckers Association also maintains a Truck Escort Referral Service.

10 Tips to help prevent Workplace Injuries

One of the best ways to avoid having navigate the minefield that is a workers compensation claim is to avoid getting hurt at work in the first place.  According to workers-comp-news.com, 165 Americans die each and every day from an occupational disease, and another 18 die from a work-related injury.

It doesn’t have to be this way.  Here are 10 quick tips that will help to keep you safe on the job:

  1. When you are lifting heavy objects, make sure to lift with your legs and knees, and not your back (how many times have we heard that?)
  2. Never twist your body while lifting something heavy.
  3. When sitting for long periods, make sure to take breaks every hour to get up and stretch.
  4. Reduce the amount of overhead work you must do by using a lift to get you closer to what you need to do.
  5. When you are picking up or setting down an object, make sure not to reach more than 10 inches from your body.
  6. Whenever possible, use ergonomically designed tools that are designed to fit the hand, body and job.
  7. Avoid overexerting yourself.  Many workplace injuries are caused when workers are tired, stressed or both.  If things are getting to tough for you, take a break.
  8. Drink plenty of fluids – especially when working in the hot sun.  Soda’s don’t count – make sure that you are drinking plenty of water to avoid dehydration.
  9. If you sit at a desk most of the day, make sure your chair is comfortable and the correct height.
  10. If you do see any unsafe conditions, make sure to report them to your supervisor immediately.  If your employer won’t do anything to fix it, you should contact your state workplace safety administration.

Thanks to workers-comp-news.com for providing some of the tips that were used in this post.

Are you scared to call a Workers Comp Lawyer?

One of the things that we as lawyers often forget is that we can be intimidating.  One of the first things I tell clients who come to visit with me for the first time is that they have nothing to be afraid of.  I pride myself in not trying to pull one over on a prospective client – or an actual client.

However, as I was perusing another attorney’s website this morning, I came across a page that I found interesting.  Robert Kraft, a Dallas Personal Injury Lawyer, has put together a special page to alleviate the fears that people have of calling a lawyer.

The reasons Mr. Kraft lists on this page as to why people shouldn’t be afraid to call his firm pretty much mirror the reasons that I tell clients they should be scared to pick up the phone and call my office.

If you choose to call my firm, here are some things you should expect:

  1. Provided that I am currently available to talk – I promise I will talk with you.  If you leave a message with my receptionist, I will call you back as soon as I possibly can, usually the same business day.
  2. I don’t charge prospective clients for calling our firm.  Also, all of my Comp cases are handled on a contingency fee basis – meaning that you don’t pay us anything unless we win your case.
  3. When you call my firm for the first time, I promise to empathize with your problem and listen to why you are calling.  If you decide to schedule an appointment, I will ask you some simple questions about your case and your contact information – but nothing more.
  4. I never, ever attempt to pressure anyone into making an appointment.  I provide a ton of information on my website, so if I sense any hesitation on your part, than I will direct you to my website to do some more research and call back when you are ready.  If you choose not to call back, then that is fine too.

Just like Mr. Kraft says, if I think that I need to meet with you to discuss your problem in more detail, than I will ask you to schedule a meeting in my office.  If I don’t think I can help you, than I will refer you to the appropriate lawyer or agency for more assistance. For clients who can’t get to my office, I will either come to you (if feasible), or we can schedule a telephone or skype conference to talk in more depth about your legal problem.

Any questions?  Feel free to call us at (919) 460-5422.  We pride ourselves on building relationships with our clients – all of them.

Average Weekly Wage – What’s that all about?

If you are injured at work in North Carolina, then you are entitled to Workers Comp benefits.  One of the most important calculations that you or your attorney will make at the beginning of your case is your “average weekly wage”.  Many people mistakenly believe that this amount is simply your stated weekly salary – but that’s not the whole truth.

Your average weekly wage includes a number of other inputs that the insurance company will conveniently leave out if they are allowed to calculate this number for you.  For example, your average weekly wage should include the following items:

  • Any overtime you have been paid
  • Mileage checks
  • Per diem checks
  • Tips
  • A value for the use of company vehicles
  • Any other item which comes to you as salary or pay in the form of either cash or goods (excluding health insurance or other benefits)

The reason this number is so important is because the Average Weekly Wage is used to calculate your weekly benefit checks if you are unable to work because of your injury.  The insurance company will pay you 2/3 of your Average Weekly Wage – so if this number is not correct, then you could be short-changing yourself hundreds, if not thousands of dollars over the course of your claim.  To make matters worse, if and when you go to mediation to resolve your claim, the insurance company will use the average weekly wage calculation to determine a potential lump sum payout amount.  The wrong calculation could lead to an artificially low settlement amount.

If you have questions about your average weekly wage, and feel that it is lower than it is supposed to be, then please call us at (919) 460-5422.  We would be happy to review this information with you so that the insurance company can get it right.

*In Most cases, the average weekly wage amount in improperly calculated in favor of the insurance company.  However, if you ask for a recalculation and you received too much compensation, then you run the risk of the insurance company either asking for a lump sum payment from you, or withholding checks until the arrearage is paid back.  For this reason, it is important that you consult with an attorney prior to requesting a recalculation of your average weekly wage.

Snow and Ice Create Dangerous Conditions on NC Roads

Ok, so I admit – I’m a bit of a work-aholic.  My wife isn’t exactly pleased that I decided to head to work this morning, but now I’m here, so I might as well update my blog! In case you didn’t get the memo, the roads in central North Carolina are treacherous today (see stories here and here regarding the conditions).

Governor Perdue has warned people to stay off the roads so that the DOT can properly ice the roads while we wait for some warmer weather.

What does this have to do with Workers Compensation claims in North Carolina?  Everything.  If you are employed as a driver by your company, you must be extremely careful today.  Talk to your employers about whether you should even be driving.  Anyone who drives for a living is affected by the weather conditions outside, including the postal delivery workers (including UPS, FedEx and DHL), as well as other truckers and pizza delivery workers (on days like today, many people will order pizza for delivery!)

In addition, even if you don’t drive for work, but your employer required you to come to work against your will and you get in an accident, you could have a compensable claim.

Bottom line, if at all possible, stay home from work today.  However, if you have to go out driving today – be careful.  If you drive for a living and get in an accident, call a Workers Comp lawyer to discuss your rights.

Why do I need a lawyer for my Workers Comp case?

Lot’s of people believe that they have no need for a Workers Comp lawyer.  This could be for a number of reasons, including:  they don’t think they have a claim or don’t wish to file a claim, they believe that the system is “fair” and they they can handle their case on their own, or perhaps they just don’t like attorneys and don’t want to hire one.  Still others are scared of some sort of retaliation by their employer (which is illegal, by the way).

Obviously, I am a bit biased here, but if you have been injured at work, and there is any chance at all that you might miss a prolonged period of work, I strongly recommend that you contact a lawyer.  Here are a couple of reasons why:

  1. Worker’s Comp lawyers generally will not charge you for the initial consultation
  2. There are a lot of “issues” or “disputes” that might arise that would most people won’t fully comprehend
  3. A lawyer can help you the most when they have been involved from the very beginning – i.e. they can coach you through the recorded statement and other communications with the insurance company
  4. They can answer your questions so that even if you decide to proceed without a lawyer, you will have information you need

Although workers comp may appear to be fairly straight-forward and simple, there are a number of “disputes” that can arise during the course of your case.  One dispute might be as to the amount of your weekly average wage, another might be as to your right to be compensated at all.

When the employer has workers comp claims made against it, the insurance company will increase the insurance premiums it collects to cover the increased risk of future claims or payouts.  Accordingly, the employer has a substantial incentive to decrease the number of claims filed against it, and assist in getting them settled for as little as possible – leading to conflict between the worker and the employer when there is a potential claim.

On the flip side, the insurance company makes money by paying out as little money as possible.  They have lots of very smart attorneys working for them to interpret the rules and statutes in a way that most favors the insurance company – which leads to lots of “disputes”.

Many people feel that they don’t need an attorney if the insurance company accepts their claim.  However, even in those cases where liability is undisputed, the lawyers working for the insurance company will make sure that you are paid the least amount possible – sometimes much less than you would receive with competent counsel.

If you have been injured at work and aren’t sure about your rights, give us a call at (919) 460-5422 for a free consultation.

The Rehab Nurse – Who do they really work for?

If the insurance company decides to accept liability for your workers comp claim, then they are able to direct your care.  As part of that care, the insurance adjuster will assign you to what is called a Rehabilitation Nurse to manage your care.  According to the NC Industrial Commission Rules for Utilization of Rehabilitation Professionals in Workers’ Compensation Claims, the purpose of these Rehabilitation Counselors is to provide for the “medical and vocational rehabilitation of the injured worker”.

The North Carolina Industrial Commission has also provided a brief summary of these “Rehab Rules” for the injured worker.

Although the Rehab Professional is supposed to be working to help you with your care, in reality they are working for and with the insurance company to assist in the effort to terminate your Worker’s Compensation benefits.  The Rehab nurse is an employee of the insurance company, and often times works side-by-side with the adjuster assigned to your case.  These nurses have a clear understanding of who signs their paychecks and how their company makes money.  No bones about it – they will do what they can to turn off your benefit checks.

While we encourage all of our clients to follow closely the instructions of the Rehab nurse very carefully, there are some things that you need to watch out for which are clear violations of the Rehab Rules outlined above.  If you nurse engages in any of the following behaviors, it is a violation of the Rehab Rules and you should contact an attorney immediately:

  1. They attempt to tell the doctor what to do or when to release you to return to work;
  2. They attempt to tell the doctor where to send you for an MRI or physical therapy, or they tell the doctor which specialist to refer you to;
  3. They attempt to give you legal advice regarding the merits of your claim or tell you what will happen if you go back to work;
  4. They are corresponding with doctors or other healthcare providers or to the insurance adjuster without copying you on those communications;
  5. They are talking to your doctor without you being present, or they insist on sitting in on your examination with your doctor; or,
  6. They try to get you to sign a release that authorizes them to talk to your doctor without you being present.

There is another type of rehabilitation specialist called a Vocational Rehab professional, whose job is to find you a new job.  The pitfalls related to these professionals will be discussed in a future post.

How Texting While Driving may impact Worker’s Comp

Worker’s Comp Insurers and Employers are beginning to take notice of a disturbing trend in society today… more and more work-related fatalities that are caused by, you guessed it, texting while driving.  A recent article by Ira Leesfield cites a statistic from the National Safety Council that an estimated 200,000 traffic accidents per year are caused by drivers who have been texting.  Also cited in the article was a study by Car & Driver Magazine which “found that texting and driving was more hazardous than drinking and driving, with texting drivers three to four times slower in their response rates than drunk drivers.”

How does this impact Worker’s Compensation Insurance?  Many employers provide their employees with mobile devices, and require continued contact with them through email or texting – even while those employees are on the roads.  The problem with this, and the reason that employers and the insurance companies are taking notice, is that when an employee is involved in a traffic accident while texting, not only could the insurance company/employer be on the hook for paying the workers compensation claim, but they could also be responsible for paying the claim to the victim of the accident under a theory of respondeat superior or direct negligence.  And because more and more accidents are caused by texting while driving, that means that the insurance companies are going to have to pay out more and more money for these workers compensation and other claims.

A prudent employer would be smart to adopt written policies banning texting while driving for all employees, and make sure that these policies are frequently and adequately communicated to employees.  The problem arises when an employee is sent out for an isolated errand – but they don’t normally drive for that employer.  If the errand was for company business, than the employer could be liable under the Worker’s Comp statute.  (I’ve frequently thought about what might happen if my legal assistant was injured in an accident while driving to the courthouse for a last minute filing or to pick up office supplies.)

Since North Carolina has a “no-fault” workers comp system, an accident caused by an employee who was texting while driving would still generally be compensable – even though it may have been the employee’s fault.  Ultimately, the courts and/or legislature will decide whether employers are responsible to pay out workers compensation claims for an employee that was injured in a traffic accident, even though they may have been texting at the time of the accident.

In the meantime, I would advise anyone who drives for a living to shut the phone off and pay attention to the road.  If your employer requires you to text and drive at the same time, then you may want to consider whether this is someone you want to work for.  Whether the employer likes it or not, your safety is more important than productivity.