Practice Areas

• Workers' Compensation
• Personal Injury
• Social Security Disability
• Employment Law

Firm News

• When the injured worker returned to work he was immediately fired...
  
• Workers' Compensation: The IC ruled that the employer, who willingly paid the medical claim and workers comp for the employee's foot injury, must also pay for pain management because this injury aggravated the employee's pre-existing fibromyalgia and hypertension and was now considered a chronic condition. Although it is tough to win these claims we can usually do it if we the treating physician will agree that the pre-existing condition is worse now than it was and that this change is due to the worker's comp accident....
  
• Workers' Compensation: The Industrial Commission denied the employee's claim for temporary partial disability compensation. The Commission ruled that the reduction in wages that our client received was because of problems with the company's workload due to the economy. It was determined that he didn't receive less pay because of his injury or from the less-paying job within the company that he had to take because of the injury....
  
• Workers' Compensation: The NC Industrial Commission determined that the employer was required to pay our client's medical bills and also continue workers' compensation payments until our client could find a job with his limited physical capabilities. The employer was unable to find work for him at the company and he was fired, which was unacceptable, although it was explained by the employer as happening because of excessive absences....
  
• Workers' Compensation: The North Carolina Industrial Commission threatened to hold CNA in contempt of court because they refused to authorize the medical tests which would prove that the plaintiff was unable to do his job. This was a classic example of an adjuster getting an opinion from a reliable doctor and then refusing any other evaluation which could help the injured worker....
  
• Workers Compensation: The North Carolina Industrial Commission held that National Benefits Association had wrongfully denied this claim for more than a year...but only when the Industrial Commission finally heard all the evidence -- that the employer admitted that they knew the plaintiff was hurt, that they had sent him to a doctor but didn't follow his direction, and that there was no way our client could do his job with his severely-injured back....
  
• Workers' Compensation: North Carolina Industrial Commission says Liberty Mutual must provide yardcare and housecleaning to an injured brickmason....
  
• Workers' Compensation: North Carolina Industrial Commission rules that a restaurant dishwasher who slipped and fell, and was taken straight to an emergency room has proven that he was injured on the job....
  
• Workers' Compensation: North Carolina Industrial Commission finds that Diebold and Broadspire MUST pay weekly benefits even after they fired the injured worker from her "light duty" job....
  
• Workers' Compensation: North Carolina Industrial Commission rules against The Hartford Insurance Company and holds that a nurse who was still on her employer's property when she was hit by a car is within the course and scope of her employment and entitled to workers' compensation benefits....
  

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Library

Workers' Compensation

• Psssst! Who's that following you?
• NCIC Form 25T: Mileage Reimbursement form
• Form 28T: Notice of Termination of Compensation by Reason of Trial Return to Work
• Form 33R: Response to Request that Claim Be Assigned for Hearing
• 10 Things Your Insurance Adjuster Won't Tell You (download)

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"Being injured turned into a life-changing event, but it was comforting to know that you understood me and were only a phone call away."

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How the North Carolina Legislature Made It Worse to Be an Injured Worker

How the State Legislature Has Made it More Difficult for

Injured Workers to Get Workers Compensation Benefits

In 1929, the North Carolina State legislature created the Workers Compensation Act. The purpose of this was, and is, to provide swift compensation for the employee while limiting the liability of the employer. This tradeoff saw injured workers losing the possibility of compensation for pain, suffering, loss of full benefits, etc., while making it considerably easier for them to get some benefits. This was made clear by the North Carolina Supreme Court as early as 1932 when the Court stated that [one of the guiding principles of the Act was prompt payment of those limited benefits.] Unfortunately what started out as an evenly balanced system has grown increasingly tilted in favor of employers. This is due largely to the overwhelming amount of financial pressure the employers and insurance companies exert on the legislature. No, those lobbyists aren’t just in Washington, D.C. They’re in Raleigh as well.

The most recent setback for workers across the State occurred with the amendment to the Workers Compensation Act which became effective on October 1, 2005. Before then, an employer and/or its insurance company was required to make a decision within fourteen days of notice of the injured worker’s claim. At that point the defendants could (1) accept the claim and pay benefits on a Form 60; (2) deny the claim on valid grounds, using a Form 61, and provide the injured worker with a “statement of the facts, as alleged by the employer, concerning the injury or any other matter in dispute; a statement identifying the source, by name or date and type of document, of the facts alleged by the employer; and a statement explaining why the facts, as alleged by the employer, do not entitled the employee to workers’ compensation benefits” (NCIC Rule 601); or (3) start “payment without prejudice to later deny the claim” on a Form 63.

Under the pay without prejudice (note that “prejudice” has the legal meaning of “finality.”) provision if an employer could not complete an investigation within two weeks they would pay the injured worker while they concluded their search for the facts. This situation was consistent with the initial goal of the Workers Compensation Act – to provide swift compensation to the injured worker. Most lawyers correctly interpreted this statute to require defendants to accept, deny, or pay without prejudice within fourteen days. If they failed to deny the claim the insurance company gave up the right to do so. Anything less was to deny the purpose of the Act.

Sadly, the current legislature has lost sight of those early goals of the Act. The 2005 amendments to the Workers Compensation Act give the employers and insurance companies 30 days to conduct their investigation. If they take longer than 30 days then the injured worker may ask the Industrial Commission to order a decision by the defendants. Unfortunately the division of the Industrial Commission responsible for addressing these grievances is the most-overworked, understaffed one. Thus defendants can reasonably anticipate that it will take at least 60 days before the Industrial Commission responds. It is not unusual for the Industrial Commission to take 180 days to respond to these petitions, or “motions” as they are called by lawyers. This means that employers and insurance companies now have at least 90 days to decide whether to pay a claim. During this time the injured worker is not receiving any pay or any benefits which places a huge financial burden on them.

In these situations the insurance companies will carefully balance the potential sanction assessed by the Industrial Commission against the benefits they could reap by violating the law. Thanks to the legislature they have avoided the “death penalty” of having their late denials thrown out. In fact the legislature specifically protected the insurance companies by prohibiting the Industrial Commission from striking the defenses with prejudice. So what exactly has the Industrial Commission been doing to instill fear in the heart of insurance companies? They might fine the defendants $250.00.

The defendants are playing the odds that you will return to work, shift your medical care to health insurance, and let your workers compensation claim slip away. Just as bad, they are trying to force you into settling your case for far less than it’s actually worth by putting you in a financial bind when the defendants know yours is a valid claim.

So what does this mean for an injured worker? Anyone injured on the job should immediately begin documenting their witnesses, their doctors’ visits, and their efforts to report the claim. It won’t be enough to simply tell your supervisor – the proper documentation must go to the adjuster. Although the amendment doesn’t specifically address this, it should be expected that the Industrial Commission will give additional time if the insurance company claims that they didn’t receive the report of injury from the employer. Thus it is absolutely critical that the adjuster is identified, contacted, and that the contact is documented. Remember: the adjuster is a professional, trained to reduce the number of claims that are admitted, and to reduce the benefits paid in those few cases they do accept.

At our offices we have had a lot of success in obtaining either accepted claims or a pay without prejudice. In our experience the earlier we get on the claim the greater the likelihood that it will be accepted. While no one likes to go running to lawyers as soon as something goes wrong workers compensation claims should be an exception to this rule. The rules are so lopsided in favor of the defendants that any injured worker needs to at least speak with a lawyer to find out what can be done to even the odds. The odds can, indeed, be evened. But it isn’t easy and requires knowledge and experience. With the proper planning and calculations we have been able to secure success after success for our clients. While the legislature has made this more difficult for us we remain dedicated to that single goal.