Intro to Your Workers’ Comp Claim. What You Need to Know.

Who is Covered by NC Workers’ Comp?

Immigrant workers

Employees in North Carolina have the right to expect a safe work environment. Nevertheless, injuries happen on the job, and the North Carolina workers’ compensation system exists to help injured workers get the treatment and compensation they need to move forward.

This includes most workers – U.S. citizens, non-citizens, and undocumented workers, too.

If your company has more than three employees (with certain exceptions), it is required under NC law to carry workers’ compensation insurance.

If your company does not, they could face stiff financial penalties and your employer could be charged with a misdemeanor, a felony, or even face prison time.

While some work injuries are minor, others have significant long-term implications. Navigating the workers’ compensation process can sometimes seem to cause as much pain as the injury itself.

Navigating Your Workers’ Comp Claims

If you have been injured on the job, you need to know your legal rights and options. And practically speaking, you need to familiarize yourself with some of the potential problems you may be facing in a workers’ comp claim.

Many insurance companies are for-profit businesses. The less they pay out in claims the more money they make. So in order to try to minimize your payment or your medical expenses, the worker’s comp carrier may spy on you and patrol your social media to see if they can catch you “faking.” They might assign a workers’ comp case “nurse” to attend doctors’ appointments with you and report back to them. Even one little administrative paperwork slip on your part and you could unwittingly end up losing your benefits.

Some workers’ comp insurance carriers reportedly sponsored contests to see who could pay out the least in claims! In the book Delay Deny Defend, author Jay Feinman outs Unum, the nation’s largest seller of disability and long-term care insurance:

“All insurance companies have an incentive to chisel their customers in order to increase profits. Unum, the largest seller of disability and long-term care insurance in the United States, became notorious for failing to pay what it owed to sick or injured workers. Numerous courts castigated the company for unscrupulous tactics, nonsensical legal arguments, and lack of objectivity amounting to bad faith in denying claims. Employees who were especially aggressive in denying claims were recognized with the company's ‘Hungry Vulture Award.’ Under a settlement with insurance regulators in all the states, Unum was forced to review claims denied between 1997 and 2004, and it reversed its decisions in 42 percent of the cases, paying out $676 million in additional benefits.”

Insurance Horror Stories PDF thumbnail We see delay, deny, and defend tactics from some insurance companies every day. So many in fact, that we developed our own book of insurance horror stories.

For these reasons and dozens more, we strongly recommend consulting with an experienced North Carolina workers’ compensation lawyer. The sooner after your injury the better. There have been many times that clients came to us very late in the process and had already damaged their case by not coming to us sooner. There are so many things you can do unintentionally that can harm your case – simply because you are unfamiliar with workers’ comp law.

Even seemingly simple acts can hurt your case and any potential for settlement, like returning to work or not filing the right forms in the timeframe required. What many people do not know is that once you return to work, North Carolina workers’ comp law says your benefits can be cut off. That could be the end of your case. And all because an injured worker did not know the law. (Why would they?)

How Does Workers’ Comp Law Define Disability?

The North Carolina Industrial Commission (NCIC) defines a disability from a medical standpoint as a physical impairment and inability to perform physical functions normally. From a legal standpoint, disability is defined as permanent injury to the body for which the person should or should not be compensated.

What is the North Carolina Industrial Commission (NCIC)?
Simply put, the North Carolina Industrial Commission is the state agency responsible for ensuring that you, your employer, and its insurance company are all playing by the rules. Think of it as something like a workers’ compensation court.

Three Types of Disability Benefits

North Carolina workers’ compensation statutes divide disability benefits into three types:

Temporary total disability (TTD) benefits are paid for the time period when an injured person is totally unable to work in any capacity. During this time they receive medical treatment in accordance with NCIC guidelines.

After a seven-day waiting period, employees are entitled to obtain weekly benefits equal to two-thirds of their average weekly wage up to the maximum compensation rate set by the NCIC. If the disability continues for more than 21 days, the employee is entitled to receive these benefits for the first seven days as well.

Unfortunately, we often see carriers miscalculate TTD benefits. They may omit overtime or bonus pay when they take an average. Or the employer may submit incorrect information about your pay and hours. Since you’re already getting reduced pay, an error in how much you are supposed to receive can be very damaging to you and your family. Some insurance companies have sometimes seemed to play games with our clients’ TTD payments, changing the amount of their checks or not mailing their weekly checks on a consistent basis.

Temporary partial disability (TPD) benefits are paid when your doctor says you have recovered enough to return to work, but you are not able to return to your full wage-earning capacity.

Employees are entitled to compensation equal to two-thirds of the difference between the post-injury and pre-injury weekly wages for a maximum period of 500 weeks.

Permanent partial disability (PPD) may be paid when an employee suffers a total or partial loss of use of a body part.

Once an employee has reached maximum medical improvement (MMI) after treatment for a work injury, the treating physician will assign an impairment rating for any part of the body injured in the accident. Some injuries, such as strained muscles or superficial cuts, may have no long-term effects on the worker’s body. These would be assigned a 0% impairment rating and would not be eligible for PPD. However, an injury that results in long-term physical impairment, such as nerve damage or a compressed vertebra, would be assigned an impairment rating between 1% and 100%.

As shown here, each body part is assigned a number of weeks of compensation, in accordance with North Carolina law:

North Carolina law:

Body Part

Period of Benefits

Body Part

Period of Benefits

Thumb

75 weeks

Arm

240 weeks

First/index finger

45 weeks

Foot

144 weeks

Second/middle finger

40 weeks

Leg

200 weeks

Third/ring finger

25 weeks

Eye

120 weeks

Fourth/little finger

20 weeks

Hearing (one ear)

70 weeks

Great toe

35 weeks

Hearing (both ears)

150 weeks

Any other toe

10 weeks

Back

300 weeks

Hand

200 weeks

 

 

The total compensation an injured worker can receive for a permanent injury is two-thirds of the average weekly wage at the time of injury (up to a state maximum), multiplied by the applicable period of benefits, multiplied by the percentage of impairment.

It’s not as complicated as it may seem. Let’s say an injured worker was earning $750 per week before losing 50% of his hearing in one ear. He would earn a total compensation of:

$500 (2/3 of weekly wage) x 70 (weeks of benefits for loss of hearing in one ear) x 50% (impairment rating) = $17,500

Injured employees are entitled to these benefits even if they are able to continue working.

In the example above, if the injured worker were able to return to his job despite his hearing loss, he would still be entitled to compensation for permanent physical impairment.

3 Immediate Steps to Take After an NC Job Injury

When you have sustained an injury while at work, there are three things you need to take care of immediately and in the following order:

  1. Report your injury immediately to your supervisor and then seek immediate and appropriate medical treatment. You will need to get instructions on where to go for medical treatment. Depending on the workplace and the circumstances of the injury, this may involve going to an on-site health provider, a designated off-site health provider such as an occupational health clinic, or another off-site provider such as an emergency room. Regardless, it’s important to not only tell the health provider that the injury happened while you were working, but also that you comply with the medical provider’s instructions. In addition to your healing process, this is very important to your possible settlement. (Click here for more on the impact that improperly documented medical treatment can have on your potential compensation.)
  2. Notify your employer in writing of your injury. North Carolina law states that it is the injured worker’s responsibility to notify the employer of the injury. You are required to give written notice to your employer as soon as is practical and within 30 days of the date of the injury. Beware. We’ve seen some insurance companies sometimes deny your claim if you fail to give notice to your employer within 24 to 48 hours, even though the legal notice requirement is 30 days.
    When you give your written notice, state only the facts. Because insurance companies can sometimes try to prove the injury was not work related and try to deny your claim, your written words could come back to haunt you if not chosen carefully. Be brief and to the point. Simply include your name and address, the date and time of the injury, where the injury occurred, and the nature and cause of the injury. No more, no less.
  3. File a Form 18. You will need to file a Form 18 with the NCIC within 30 days. This form tells your employer and the NCIC that you are seeking workers’ compensation benefits. If you don’t file this form, your claim may become invalid after a period of time.

Once you have been injured on the job, your employer is supposed to file a Form 19 with the NCIC within five days of learning of your injury. But they may not always file, or file within that required timeframe. Unfortunately, you can fall off the NCIC’s radar if your employer does not file. And even more unfortunately, there is no penalty to your employer if they do not file within this deadline. But you may be penalized big time – by having your claim denied.

Remember to document everything, every time, including phone conversations.

Medical Rights, Treatment, and Expenses

Immigrant workers

In North Carolina, employees injured at work must go through their employer or the employer’s workers’ comp insurance company to obtain medical treatment for their on-the-job injury. In other words, they will send you to one of their approved doctors.

The workers’ comp insurance company will initially choose a medical provider for you. They may pick certain doctors for their own reasons, and those reasons may have little to do with your best interests.

Workers’ compensation is supposed to pay for all reasonable and necessary medical care for your on-the-job injury, including:

  • Doctor’s visits
  • Prescriptions
  • Mileage reimbursement for trips to the doctor and pharmacy and other medical travel. Employees who need to travel at least 20 miles round trip for medical visits are entitled to reimbursement for mileage.
  • Physical therapy benefits
  • Nursing or attendant care
  • Chiropractic care (usually limited to 20 visits)
  • Prosthetics
  • Health aids
  • Vocational rehabilitation
  • Other care, in certain instances

What Does Reasonable and Necessary Care Mean?

Your definition of reasonable and necessary medical care is probably going to be different than what the insurance company thinks. Many insurance companies are generally looking to pay out as little as possible. (Remember, many are for-profit companies.) Likewise, explaining why you want to change doctors or appeal a treatment decision to the NCIC is a difficult and complex process. Having an attorney can be a huge asset if there is any dispute over treatment.

Medical Visits

First visit

Upon your initial visit to the medical provider you will undoubtedly have a stack of forms to complete. It is important to your workers’ comp claim that you carefully and accurately complete these and all forms. They are pivotal not only to your recovery, but also when it comes time to try to settle your claim. Whatever you tell the doctor is what they will (or should) write in your records. And that will largely determine the basis for any potential settlement. If you claim something else is bothering you later and you did not report it right away, the initial medical documentation can be used against you to try to deny treatment.

Ongoing visits and treatment

Make sure your medical provider documents all issues you continue to have and any new ones too. The adjuster may deny treatment for your knee, for instance, if you don’t mention knee soreness until several weeks after the injury. It is important that you document everything clearly and fully on each and every medical intake form at every medical practitioner you visit for the duration of your worker’s comp claim.

Right to Request a Second Opinion

While you have the right to ask for a different doctor than the one provided, in North Carolina the insurance company has the right to select your doctor. If the insurance company denies your request, you have the right to appeal that decision to the NCIC.

You also have the right to a second opinion which, if denied, can be also be appealed to the NCIC. Choosing another doctor for a second opinion in a workers’ compensation claim requires more than simply Googling the name of a doctor that handles your type of injury. Here are some of the factors you will need to take into consideration:

  • How much experience and training does the doctor have treating your type of injury?
  • Does the doctor treat workers’ compensation injuries?
  • How many workers’ compensation claims has this doctor handled?
  • Would this doctor have the time to or even take the time to validate their second opinion in mediation or in court, if necessary?
  • Would the doctor be viewed as credible by a workers’ comp hearing officer (workers’ comp cases are not tried before a jury)?

Beware the Nurse Case Manager

The nurse case manager is an overseer hired by the workers’ comp insurance company to “monitor” your care and report back to the insurance adjuster. This monitoring often includes attending medical visits with you and can easily infringe on your rights to privacy.

In our experience, some workers' comp nurses have tended to focus more on costs to the insurance company instead of the patient’s health and rehabilitation.

If you have a nurse case manager assigned to you, you have rights.

  • You are entitled to a private exam with your doctor, outside the presence of the nurse
  • You are entitled to be present when the nurse talks with your doctor
  • You can request the nurse be removed from your case for advocating for the insurance company or for violating the rehabilitation rules

Compensation You May be Due

Compensation for Lost Wages

Under North Carolina law, the first seven days of lost work after an injury are not compensable through workers’ compensation unless the worker is disabled more than 21 working days. In general, compensation for lost wages is paid on a weekly basis, which means the first compensation check will generally not include payment for days one through seven of disability. However, if the disability continues beyond day 21, the next check should include payment for days one through seven.

Employees are eligible to receive two-thirds of their average weekly wage, up to a maximum weekly benefit that is set by state law. In 2017, the maximum weekly benefit was $978 (adjusted annually). In most cases, these benefits are capped at 500 weeks maximum.

Permanent disability benefits

Click here to read about compensation for permanent disability benefits.

NCIC Workers’ Compensation Forms

Filling out form

Accurate and thorough documentation is key to a workers’ comp claim. The NCIC requires that a form be completed for dozens of situations and circumstances. It is important that these forms are completed correctly and within the timeframe the NCIC requests.

Errors on forms or missed deadlines can have significant consequences for injured workers.

Errors could result in reduced or denied benefits. Because deadlines are so important, a worker who gets an attorney involved early in the process is more likely to protect themselves from these types of mistakes. Here are some of the more common forms filed. Click here for a complete list of NCIC forms.

File Immediately After a Work Injury

Form 18
A Form 18 is the form you will file to document your work injury and request for compensation. A Form 18 should be filed with the NCIC as soon as possible, but no later than two years from your date of injury. You should notify your employer immediately after you are injured, or as soon as is practical, and within 30 days of your injury. This form lets the NCIC and your employer know that you are requesting to be compensated for your injuries. If you do not file within the 30-day deadline (which begins the day you were injured), your claim could be denied.

Form 19
A Form 19 is the form your employer should complete to report your injury. It must be filed within five days of the employer’s knowledge that you were injured. Do not assume your employer will file this claim or file it within the deadline. We have seen employees’ claims get bogged down right from the start because this form was not filed or not filed on time. If you are able, we urge you follow up, as there is no penalty to the employer if they do not file.

To Determine Benefits Status and Amount

Form 60
If your employer accepts responsibility for your injuries, they should file a Form 60 listing every injured body part and agreeing to pay full workers’ comp benefits (wage loss benefits and medical treatment).

Form 61
If your employer denies responsibility for your injury, they will file a Form 61 stating the reasons why they are denying responsibility.

Form 62
Your employer or insurance carrier should file a Form 62 to make modifications to your weekly benefit amounts and explaining the reasons.

Form 63
A Form 63 allows your workers’ comp insurance carrier to pay some of your medical bills, while they investigate your claim. However it does not obligate them to accept responsibility for your injury or to pay wage loss benefits.

For Mileage Reimbursement

Form 25T
The insurance company may not always mention this mileage benefit to you. You should be aware that you are allowed reimbursement for mileage to medical appointments when you have to drive more than 20 miles round trip.

Returning to Work

Form 26A
Be vigilant when signing Form 26A. This form is typically used when you are able to continue working for your employer in your pre-injury job after your medical treatment has concluded. The insurance company fills out Form 26A utilizing the information from your doctor’s assigned permanent partial disability rating. You will receive a lump sum based on a statutory formula, which is based on your weekly compensation rate and the part of your body that was injured. We have handled thousands of workers’ comp settlements and we can tell you from experience that it is prudent to have a worker’s comp lawyer on your side when finalizing your settlement. The insurance company has their own lawyers to call on when determining your settlement amount.

Requesting a Hearing

Form 33
If you believe you require a hearing before the North Carolina Industrial Commission, you can file a Form 33 to request one. Be forewarned. Your employer and the insurance company will almost certainly be represented by attorneys who will fight for their rights which could include not paying you benefits.

When Should You Return to Work?

If you return to work too soon, you may lose your workers’ compensation benefits.

Additionally, returning to work before you are ready may not be in your best interest medically. However, if recommended by your attorney, it may be advisable to return to work if your employer is willing to accommodate work restrictions, and you want to stay with that employer for a long time or permanently. If you do have restrictions, make sure your employer has a copy of them. You should keep a copy too. If you are ever asked to do anything at work that exceeds those doctor-assigned restrictions, you will have a copy to show your supervisor.

If you have a good relationship with your employer and no permanent medical restrictions, it could be in your best interest to go back to work and continue working with your employer, and be compensated for your permanent partial disability rating. The majority of claims filed through the workers' comp system resolve this way. We have knowledge and experience working with many employers throughout the state. So it may potentially benefit you to consult with us about your claim.

How a Workers’ Comp Lawyer Can Help You

As your advocate, we try to see to it that you're getting the medical care you need to heal properly. And we consider whether it is advisable to try to obtain a second opinion if you don't feel you are getting proper care or if a fairer medical opinion is needed.

We can also try to help you protect your job while you are recovering. And if you are unable to return to work, we will help inform you of your options and the compensation to which you may be entitled.

We can help you determine what other benefits you may be entitled to receive. Determining workers' comp benefits is a complex system involving complex calculations and all kinds of variables. Most working people don't know what benefits exist or how those benefits are calculated and determined.

Why Choose a James Scott Farrin Workers’ Comp Attorney?

Best Lawyers 2018 image

Not only do we have smart, talented, experienced, and hard-working attorneys (and paralegals and other administrators), we also created a system where a whole workers’ comp team works together on each client’s case, so you get the benefit of a broad spectrum of experience.

Maybe that’s why our firm was ranked one of the “Best Law Firms”1 by U.S. News – Best Lawyers® for the greater Raleigh area in 2018 – the highest ranking.

Who is on our team?

Several former defense attorneys and paralegals for insurance companies. They’ve worked for the “other side,” so they know what you’re up against.

Board Certified Specialist Workers Comp image

More than half our workers’ comp attorneys are NC Board Certified Specialists in Workers' Compensation law. This is the highest level of specialization available in NC, and only a small percentage of NC attorneys can make that claim. Very small.

Two former North Carolina Industrial Commissioners.

A former North Carolina State Senator. He was elected to serve the seventh district of North Carolina for four terms.

Several recognized experts in workers’ compensation. Several of our attorneys have more than 10 years of experience. Some speak at seminars for other workers’ compensation attorneys. Others have written books about other areas of law. Some have collected coveted awards for workers’ compensation:

Best Lawyers in America Publication

  • “Best Lawyer2
  • “Lawyer of the Year3

NC Super Lawyers Magazine

  • “Rising Star4
  • “Super Lawyer5

Attorneys who give back. Attorneys who join our side do it because they want to be advocates. This takes a certain mindset and special heart for service. And service to others is not something we take lightly. Of our 13 workers' comp attorneys, 12 are members of the North Carolina Advocates for Justice, an organization dedicated to improving the quality of legal representation in our state. Many are very active members in their communities – from teaching at local colleges to counseling the Spanish-speaking community.

Click here for more reasons we think you should consider choosing us for your workers’ comp case.


1 For more information about criteria for inclusion as “Best Law Firm”, visit www.usnews.com.

2, 3 For more information regarding the standards for inclusion for “Best Lawyers” and “Lawyer of the Year”, visit www.bestlawyers.com. Matthew Healey was selected to Best Lawyers in America’s annual list of workers’ compensation lawyers in 2013-2018, and “Lawyer of the Year” for Raleigh in 2015 and 2017. Barry Jennings was selected to Best Lawyers in America’s annual list of workers’ compensation lawyers in 2015-2018.

4, 5 For more information regarding the standards for inclusion for “Rising Stars” and “Super Lawyers”, visit www.superlawyers.com. Ryan Bliss was listed as a “Rising Star” in 2018. Matthew Healey was listed as a “Rising Star” in 2010-2013, and a “Super Lawyer” in 2014-2016. Barry Jennings was listed as a “Rising Star” in 2011-2013.