Currently if you are injured and you cannot return to suitable employment, you are entitled to draw workers' compensation benefits for life. For nearly twenty years Todd Oxner has been telling people if they live to 102 and die in a bar room brawl they'll get paid until they're 102. No more. "Lifetime" claims are now limited to 500 weeks unless you are completely disabled from all work - not just suitable employment. Basically it's going to be 500 weeks unless you are in a wheelchair. As long as you can work as a Wal-Mart greeter on a stool it's 500 weeks. It's somewhat more complicated than that and we will deal with that in an upcoming article. But it won't apply to most people at all.

Big Change Number Two.

If (when) you return to work at reduced wages you will be entitled to draw wage loss for a period of 500 weeks. That is an increase from the 300 weeks under current law. Same as now, any week of total disability paid is deducted from the 500 week total. But in a positive twist, the 500 weeks is not a timer that begins on the date of accident. If your employer brings you back to work in transitional duty or make-work for a period of time that period is not deducted from the 500 week total.

It is important to note that these changes apply to cases arising after June 24, 2011.

There are some significant twists to these provisions which we will be addressing in upcoming weeks. In the meanwhile, however, if you have a new case, most of the strategies which were used before are now not going to work. Call OTP and let us help you work out a roadmap to your success in workers' compensation.

A few years ago Chip Permar handled a case where the employer called an injured person back to work and had him sitting in an unheated, unlit trailer on a construction site doing absolutely nothing in the middle of winter. The scenario was so over-the-top that it became almost an urban legend in terms of how illegal it was. Not any more.

The court of appeals recently permitted an employer to return an injured employee to a make-work position if it was therapeutic; that is, if performing the light-duty job would help the injured worker get better then it was acceptable. The new law takes this idea and eliminates any need for a positive benefit to the injured person. The law explicitly states that prior to maximum medical improvement the injured worker may be forced to return to "noncompetitive employment." What does that mean? It means sitting in an unheated, unlit trailer on a construction site doing absolutely nothing in the middle of winter.

You might ask yourself; well I'm going to get paid aren't I? The answer to that is "yes." You will get paid. But the danger - and one that we have seen occur literally hundreds of times - is that as soon as you go back to work the employer finds an excuse to fire you. They can claim you were late to work, had a poor attitude, or were incompetent, and they will fire you. Will the adjuster turn your checks back on? Don't count on it.

If your employer is trying to bring you back to work before you have reached maximum medical improvement it is almost imperative that you have an attorney representing you. That offers basically the only layer of protection between you and almost certain disaster. In our experience employers are much less likely to play games when you already have an attorney. They normally rely on your ignorance of the law to help them implement their plans. Thus having a lawyer on your case will make them pause. It isn't a guarantee but it certainly increases your odds of survival.

Despite that, we are happy to announce the new Oxner Thomas + Permar Facebook page!!! We are just building it as we speak but enough of it is live now that we want you, yes YOU, to Like us! In addition to all the educational materials we have on our website we will be putting pictures and articles about our community service projects as well as our extended OTP family. This will let us share some of our personal sides with all of you.

As many of you know we have had a policy that we did not become "friends" with clients in an effort to protect everyone's identity. We've set up the page so that only the site administrators (three of us in the firm) are the only ones who will se who has "liked" us. Additionally, for the foreseeable future only the administrators will be writing on the wall. Again, we want to protect the identity and privacy of our friends.

A lot of clients come to us concerned about private investigators. In workers comp cases these guys usually aren't too subtle. Often they park directly across the street from your house in an SUV with darkened windows. Then when you leave to go to Biscuitville they fire up and follow you in an attempt to prove that you couldn't possibly be injured if you're capable of driving to a fast food restaurant. OK, that might be a little sarcastic. But generally private investigators are more of a nuisance than a hazard.

Our three rules:

1. Don't get caught doing something you specifically told a doctor you cannot do. The doctor will think you're a liar and won't believe what you tell him.

2. Don't get caught doing something clearly outside of your restrictions. If you can do it for eight hours at home you could probably do it for eight hours at work.

3. Don't get caught working a different job, get caught taking your paycheck to a bank, and then get caught going to a bar to spend your paycheck. We don't really have to explain why this is a bad idea.

But I have discovered a fourth instance which I have never warned a single client about. This error is so catastrophic that it really could be The Eleventh Way to Wreck a Workers Comp Claim. Don't get caught dressed in drag competing in a spoon race. Here's the whole story:

A jailer in Naugatuck, Connecticut, Garrett A. Dalton, brought a workers comp claim for a back injury. While out of work and drawing disability checks his local radio station ran a contest to win tickets to a Hannah Montana concert. This particular contest required (male) contestants to put on dresses and high heels and then do a 40-yard dash while carrying a spoon with an egg balanced on it.

As you might imagine this was an amusing scene and a local television station covered the event. Sadly for Officer Dalton, he did not win the race or the Hannah Montana tickets. Worse yet, a co-worker saw the TV broadcast, recognized Dalton, and alerted their employer. Next thing you know, Dalton was criminally charged with workers compensation fraud.

How OTP works to your advantage. Whether it's getting reimbursements for your mileage; making sure your overtime, bonuses, or per diems were included in your average weekly wage; or demanding the workers' compensation insurance company pay for your yard care or housecleaning if you cannot do it, we never let an adjuster cheap out on your case.

2. Injured Workers With Attorneys Who Aren't Aggressive. Even better than an unrepresented injured worker is one with an attorney who doesn't do anything. Most of their clients don't realize how easy it to switch to an attorney who's going to get things done. If the attorney is too slow-moving to even return phone calls or meet face-to-face with clients, he'll never get the adjuster to back down.

How OTP works to your advantage. We are known widely for being just about the most aggressive firm in North Carolina. Our workers' compensation attorneys take more cases to hearings than any other - and that reputation pays off even for those whose case doesn't need to go to hearing. Adjusters know they'll never get rid of us easily or cheaply.

3. Knowing an Injured Worker Needs the Weekly Checks. Workers' Compensation adjusters know the Industrial Commission lets them withhold checks for no good reason. They can do this for three weeks at a time and as often as they like if an attorney doesn't intervene. If an adjuster can do this a few times, the injured workers will be desperate to settle - and usually for the first or second offer.

How OTP works to your advantage. We move quickly to obtain orders from the Industrial Commission requiring timely payment to you. We've even filed motions to have workers' compensation adjusters held in contempt if they continue to play games with your checks. The result is that most adjusters have learned not to bother our clients.

4. Doctors Who Will Return You to Work Without Restrictions. Experienced adjusters know this is a golden opportunity for them to cut your claim's value immediately. So they hand-pick the doctors in advance to increase the chances this could happen to you. In most cases the Industrial Commission will let the insurance company adjuster cut off your weekly workers' compensation checks, with little advance notice, unless you act fast to prevent it.

How OTP works to your advantage. We've developed a system for combating this. As soon one of these company doctors attempts to release you without restriction, we file a series of legal documents which require the workers' compensation insurance adjuster to hire an attorney, provide you with a visit to a new doctor, and ultimately stall off any attempt to cut your checks off.

5. The Myth That Attorneys Will Take Most of Your Settlement. This myth is spread by adjusters, doctors, and rehabilitation professionals, but it's often far from the truth. The adjusters' own research group found that injured workers with attorneys average settlements that are 2.7 times greater than those without a lawyer. Workers' Compensation Adjusters know that attorneys shouldn't charge more than 25%, so even after paying a fee the average injured worker will get more than twice as much having an attorney as they would otherwise.

How OTP works to your advantage. Note very clearly here: We think it is a complete ripoff for attorneys to charge on ongoing benefits they didn't get for you. We think fees should be limited to 25%. We think fees should be paid only when we win or negotiate something for you. And we don't take cases where you're not going to come out ahead after paying a fee.

6. Employers Who Offer Light Duty. The adjuster just wants to get you off of her payroll and back onto the company payroll as quick as possible. What happens after that isn't her business. In fact, if your employer can find a reason to fire you then you'll be on no one's payroll at all. Best yet, for the adjuster anyway, is that in most situations she won't have to put the injured ex-worker back onto weekly checks.

How OTP works to your advantage. Just as with full-duty return to work notes, we have a system in place which immediately smothers the adjuster and the employer with legal paperwork to make sure that any proposed light duty job is legal, is beneficial to you, and does not jeopardize your claim. This is a highly complex area of the law and it is one where we've seen hundreds of injured workers have their claims go down the drain because they were not protected by tough lawyers.

7. Rehabilitation Nurses and Vocational Rehab Counselors Who Break the Rules. These Rehabilitation Professionals are hired by adjusters to help keep costs down. But the RPs charge as much as $85.00 per hour to do this. How does that save the adjuster money? All too often it's because the RPs are violating the Industrial Commission's Rehab Rules. And they do it in a way which almost always guarantees a win for the adjuster.

How OTP works to your advantage. RPs have a begrudging respect for us. Many of them will privately concede that we make them tow a line that few other lawyers do. We keep databases of rehab professionals from different files and note their strengths, weaknesses, and areas where we've had to back them down. We don't go into dealings with these people without being fully prepared, and we don't let our clients do so either.

Any sense of decency and privacy came to an end with the new workers' compensation law passed in June. And - most importantly - this part of the law is in immediate effect. That means even if the rest of your case is governed by the old law you have lost any meaningful sense of privacy thanks to the new legislature.

What can the adjuster or employer do?

1. Get any medical records that they (in their own opinion) is relevant - even in denied claims. Unfortunately the Industrial Commission routinely permits these records to include gynecology, mental health and marriage counseling matters.

2. Withhold copies of the records received for up to thirty days. There is no stated penalty for withholding them for a longer period of time.

3. Write to the doctor and ask questions about your diagnosis, treatment, work restrictions, causation, and permanent disability.

4. If, in the opinion of the adjuster or the employer, they wouldn't be able to get an answer in writing they may call the doctor and chat him up. But they have to give you a summary of what the doctor said - within two weeks.

5. Mail the doctor additional "evidence" that they adjuster or the employer thinks would be "helpful." This would include affidavits from company nurses or co-workers or private investigators saying that you didn't really hurt yourself at work, or that they have seen you doing all sorts of things when you are supposed to be hurt.

Is this the end of the world? No, but it can cause a lot of headaches and embarrassment for injured workers. There are ways to fight back. In an effort to make this horrible law appear "fair" the legislature has put in some feeble safeguards. But the problem is they are so complicated that the average worker would have no idea how to protect themselves. Additionally, the section of the Industrial Commission which rules on most of these issues has a history of simply not seeing the big picture. Therefore it requires an aggressive and vigilant attorney to protect you from these invasions of your privacy.

As always we are here to talk about your case and how we might be able to help you. There is never a cost or obligation for doing this.

If you were injured by the negligence of a coworker it is essentially impossible to bring anything but a workers compensation claim against your employer. On the other hand, if you were injured by the negligence someone outside of your company you can bring a lawsuit against them - in addition to your workers comp claim.

Here is where it gets tricky... Because your employer lost out due to that other persons negligence your employer can also bring a claim against that negligent person. But only one claim can be brought. We've seen situations where the employer slips in and tries to collect all the available money without ever telling the injured worker about it.

Another problem area occurs when the injured worker does all the work to recover money from the negligent party and then the workers comp adjuster swoops in and tries to take most or all of it. Can she do that? As awful as it seems under North Carolinas anti-injured worker leanings, yes she can. there are certain things which you can do to protect yourself from that.

At Oxner Thomas + Permar we have substantial experience is coordinating the workers compensation and personal injury cases so that you get the maximum combined recovery. This is a very tricky area of the law. So, if you believe you were injured due to someone else's negligence give us a call so that we can help explain your options.

Even if the adjuster is also paying you weekly checks you need to make sure that she had filed the appropriate Industrial Commission forms. In most cases these will be either a Form 60 or a Form 63.

If the adjuster gives you a Form 63 you should be concerned. This particular form was developed by the Industrial Commission to give the insurance company a chance to back out of the claim. Basically it means that the adjuster can control your case for 90-120 days and then, if she doesn't like the way it is going, deny the claim. A Form 60 provides a bit more safety to you because the adjuster cannot back out of it.

The other thing to be very wary of is the use of either a Form 60 or a Form 63 as a "medical only" acceptance of the claim. What this means is that the adjuster is accepting liability for the need of medical treatment but is not agreeing to pay weekly checks if you go out of work. The problem with this is two-fold. First, on a Form 63 the normal deadlines to admit or deny the claim are suspended. So an adjuster could deny the claim a year or more after she filed the Form 63. Second, even if the authorized treating physician takes you out of work the Industrial Commission is not compelling the adjuster to start weekly checks without a full evidentiary hearing - which can take a year or more to occur. The effect of this is that the adjuster can pick the doctor, authorize a surgery, and if the surgery goes poorly leaving you out of work and unlikely to return to work soon... well all she has to do is deny the claim and leave you without income or the capacity to work. From the adjuster's point of view this is just business as normal because you will undoubtedly have to settle cheap in order to pay your bills.

There are three things which should trigger a call from you to an attorney:

1. Paying benefits or directing medical care without filing an Industrial Commission form.
2. Filing a Form 63 instead of a Form 60.
3. Filing either a Form 60 or Form 63 marked as "medical only."

If any of these happen, you should definitely speak with a lawyer.

1. An RP referred an injured worker to sell wooden outbuildings from the back of a pick-up truck on the side of the highway in the mountains of Ashe County.  On commission.
2. An RP referred a client of ours to a job as an interior decorator for mobile homes which were sitting on the sales lot.  When our client went early for the interview, he observed the RP dropping off a local provate investigator from her car.  The "interview" took place as a breakfast joint at a table next to where the investigator was sitting.  And the "interview" was with another American Rehab RP who was pretending to be an employer.
3. An RP referred a client to a "work from home and early $1000s per week" advertisement in the local paper.  All the client had to do was scrape up $500 for the information kit - and the insurance company wasn't going to pay for it.  The client's refusal to pay the $500 was documented as non-compliance.
4. An RP recently wrote a report to be attached to a Form 24 stating that he had referred our client to over 100 jobs but had not received any independent confirmation that he had put in a single job application.  When questioned about this, the RP admitted that he had only asked two of the "over 100" employers if the client had put in an application.  And both of them said that because they were not hiring at the time, they didn't keep any applications at all and thus could not say one way or the other if the client had applied.  The RP was outraged that we suggested his statement "I haen't received independent confirmation" was misleading just because he had made essentially no effort to obtain that independent confirmation.