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.

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.

What your Workers Comp Adjuster won’t tell you – #1 The insurance company is in the business of making money

North Carolina’s Workers Comp Statute and Rules are complicated and difficult for a normal person to understand without the assistance of a lawyer.  Insurance company adjusters know this and will hold back information from you to accomplish the #1 goal of the insurance company – to make money.  This is the first in a series of posts that will outline specific things that the adjuster for your Workers Compensation claim doesn’t want you to know.

As I just mentioned, topping this list is the fact that – your adjuster doesn’t want you knowing that the insurance company is in this business to make money, not to make sure you get the best treatment possible.

How does the insurance company make more money?  There are several ways:

  1. By increasing premiums – (Although they are not likely to do this, because the employer will just find another carrier).
  2. By paying out fewer claims
  3. By paying out less money with each claim they do pay out
  4. By denying claims
  5. By getting your back to work as soon as possible (thus stopping your Workers Comp checks)

When you talk to the insurance adjuster, they will probably be very nice to you.  They will do everything they can to reassure you that they will take care of you and that you will get the benefits you deserve.  In so doing, they will ask you to give a recorded statement – just so that they can “document their file” and authorize your benefits.  They will tell you that this is just routine, and that they aren’t trying to trick you with any of their questions.

What they don’t tell you is that they have scripted the questions they will ask you in such a way that you will give the answers they need so that they can deny your claim.  They are very sly about this, and most ordinary folks don’t even realize what is happening.

I don’t want to give the impression that these adjusters aren’t nice people – many of them are.  But they have a job to do just like anyone else, and their job is to make sure that the insurance company doesn’t pay out any unnecessary benefits.

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.