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.

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.



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.

Will Workers’ Comp pay for Attendant Care in NC?

Attendant care issues come up from time to time in NC Workers’ Comp cases. When a spouse or other loved one is required to put their career on hold to take care of the injured worker, then you have attendant care issues in your case.

Insurance companies hate attendant care cases because, frankly, they are very expensive.  Even at $15-20/hour, a nurse that has to come to your home 10-15 hours a day to care for a loved one will amount to a lot of money.

For that reason, the insurance companies will fight these cases tooth and nail through the industrial commission, and possibly up to the Court of Appeals.

Typically, to receive these benefits from the Industrial Commission, you will have to find an expert to testify that attendant care is necessary, and the treating doctors will have to concur with those recommendations.  This sounds easy, but it is not.  It is expensive and can take a long time to see it’s way through the court system.

If you find yourself in a situation where you are putting your career on hold to care for a loved one that has been injured at work, you need to contact a Workers’ Comp Lawyer who is in a position to fight your case all the way to the end.

Injured at Work? Have you applied for Social Security Disability Benefits?

If you are injured at work in North Carolina, you should give some serious thought to applying for Social Security Disability Benefits, in addition to filing for Workers’ Compensation Benefits.  Here are a couple of reasons why:

  1. Filing for Social Security Disability will not adversely affect your Workers’ Compensation.  In some cases, you may be entitled to receive more benefits from Social Security than you would from workers comp.
  2. If your workers comp benefits are stopped or delayed, then you will have your social security disability checks to fall back on while your workers compensation attorney works to restart your checks (which can take 3-4 months, or longer).

The bottom line is that if you are injured at work, you may need to rely on several different sources of income to sustain you until you are able to work again.  For many people, workers’ comp is the main source of income, but Social Security Disability is another income stream, along with long term disability insurance (which you may have purchased through your employer, or privately).

One of the frequent questions I get from clients is:

Will I qualify for Social Security Disability Benefits?

In order to qualify for Social Security Disability Benefits, you must meet the following criteria:

  • You must be age 18 or older;
  • You must have worked and paid social security taxes long enough to qualify;
  • You must have a medical condition that has prevented you from working or is expected to prevent you from working for at least 12 months or end in death, and;
  • You must reside in the United States or one of its territories/commonwealths.

At first glance, these seem like easy and straightforward criteria.  However, there are a number of tricks and hurdles that can trip you up along the way.  Most denied claims are due to a technicality that could be prevented.  It is not necessary for you to hire an attorney to assist you in applying for benefits, but talking to an attorney before you apply can go a long way towards getting your claim approved.

It can take a long time and several applications before you are approved for Social Security Disability – if you feel that you may be out of work for an extended time, call our office to inquire about applying for benefits today.

Workers Compensation Benefits – An Overview

You can also find a copy of this article on Workers Comp Benefits under the “Start Here” heading on the navigation bar…  I thought I would post it here for those that subscribe to my RSS feed.  (If you are not already, you probably should!)

Workers Comp Benefits take several forms in North Carolina.  It is important that you understand the different types of benefits that you might be entitled to, so that you can be informed when it comes time to settle your case.

The major Workers Comp benefits that you are entitled to if you are injured in an accident at work in North Carolina include having the insurance company pay your medical expenses (this is often the biggest benefit), as well as receiving a weekly check that amounts to 2/3 of your “Average Weekly Wage”.  We’ll take these one at a time:

Medical Expenses as a Workers Comp benefit:  When you are injured in a workplace accident, the insurance company is required by law to pay for your medical expenses that are associated with that accident.  These may be expenses for various treatments that are designed to cure the injury or relieve you from pain, or they could be for prescription medications.  You should be aware that there is no deductible, no co-pay, and no requirement that you miss work to receive these medical benefits.

As you will see in other areas of this website, the insurance company, if they accept your claim, has the right to direct your medical care.  This means that they can pick your doctors.  However, if you feel that the doctor is biased, or that they are releasing you to do more work than you feel you can physically do, then you have the right to a second opinion with a doctor of your choice – which the insurance company or employer must pay for.  If the insurance company balks at this, which they frequently do, then you have the right to request a hearing before the NC Industrial Commission to resolve these issues.  You should also know that if you go two years without receiving medical treatment that is paid for by the workers comp insurance carrier than you run the risk of losing your medical benefits forever.

Weekly Disability Payments:  The second type of Workers Comp benefits you could receive after you have been injured in an accident at work involve weekly disability checks.  These checks will traditionally pay out at 2/3 of you Average Weekly Wage.  There are two types of checks you could receive:

  • Temporary Partial or Total Disability Checks.  When your doctors orders you to stay out of work for longer than 7 days, then you are entitled to receive Temporary Total Disability checks at 2/3’s of your Average Weekly Wage amount.  After you have been out for three weeks, then by law you are entitled to the first week as well.  Temporary Partial Disability only comes up where you are able to work, but you have to cut your hours and are unable to earn the same amount as before the accident, in which case you are entitled to 2/3’s of the difference between your average weekly wage and what you are earning now – but only for 300 weeks.
  • Permanent Partial or Total Disability Checks.  Once you have been declared permanently partially disabled by your doctor, they will assign a disability rating.  Your benefits will then be determined using a formula which factors in the average weekly wage, the part of the body that was injured, and the disability rating assigned by the doctor.  As of right now, injured workers are entitled to lifetime benefits if they are permanently and totally disabled.  (The insurance companies want to limit this – click here for more information about what you can do to stop them).

There is one other Workers Comp benefit that you should be aware of – the “Clincher” Agreement.  In some cases, workers are offered a lump sum amount to settle their case.  If you agree to a clincher, do not do sue without carefully weighing all of your options with your attorney.  When you sign a clincher, you are frequently agreeing to not pursue additional benefits or reopen the case should your condition worsen.  This may also mean giving up all of your medical benefits – which is often a huge benefit if you are unable to obtain group health coverage after your case is completed.