FAQ – What if my workers’ comp check is late?

One of the most frequent calls I receive from my workers’ comp clients is that their workers’ compensation check is late. Unfortunately, (and I don’t believe that this is the client’s fault), the calls I receive are from the same client’s again and again. This means that the same insurance companies are routinely late in processing their weekly workers’ comp checks.

Is this surprising? Not at all. If you think about it, the insurance companies job is to make being on workers’ comp as difficult as possible. That way, when the time comes to try and settle your case, you will be thinking in the back of your head about all those late checks and how you just want that to be over. When your weekly workers’ comp check is late, it puts you and your family in financial jeopardy. I understand that the injured worker depends on these checks to pay their bills and feed their family. A check that is a week late can have devastating effects on an injured worker and their family.

Unfortunately, the insurance companies know this, so they will do everything they can to push the limits of the law.

What can you do if your check is late? If it is a routine occurrence, I recommend that you hire a lawyer. If nothing else, you would then have someone you can call when the check doesn’t come in and they can bother the insurance company until you receive your check. If the check is more than 14 days late, then you are entitled to a 10% penalty on the amount that is late by more than 14 days.

So, in a nutshell, here is what you do if your check is late:

  1. Determine whether there was a holiday that would have delayed the mail.  This frequently is a cause of late checks.
  2. Look to the history of your payments. Is this an isolated incident, or a more frequent problem. You may want to keep a log of your checks and the dates you received them since your case was opened.
  3. If this is an ongoing problem, or if checks are longer than 14 days late, you need to contact a workers’ compensation lawyer.
  4. Once you have a lawyer, contact them. My office will call the adjuster once or twice a day until the client receives their check or we receive verification that the checks have been paid on time.

 

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.

 

NC Workers’ Comp CLE – Pain, Pain Go Away

Today and tomorrow I will be attending an Intermediate Level Workers’ Comp CLE in Greensboro, North Carolina called “Pain, Pain Go Away“, sponsored by the North Carolina Bar Association.

As the title suggests, the program will focus on different forms of pain management treatments (the speakers thus far seem to suggest that epidural steroid injections are overused and expensive – they would like to see a more holistic approach to pain management), as well as proposed changes and revisions to the Industrial Commission Rules, 2010 case reviews, and an update on insurance fraud.

Exciting stuff, huh?  I bet you wish you could join me.  Seriously though, even thought half the crowd is insurance defense lawyers, this is a great opportunity for networking and meeting some of the big names in Workers’ Comp throughout the state of North Carolina.  Four of the Commissioners from the Industrial Commission are here (they sit in 3 person panels and hear appeals from the decisions of the Deputy Commissioners), and I’m sure some Deputy Commissioners are in attendance as well.

If I hear something interesting and worth writing about, I’ll make sure to post an update later this evening.

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.

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.