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Can I Get Fired for Filing a Workers’ Compensation Claim?

construction worker holding knee after being hurt at workMany injured workers are afraid if they file a workers’ compensation claim they’ll be fired. You cannot be fired for making a workers’ compensation claim. Not legally, anyway. But it happens. A lot.

I’ve seen it happen over and over for more than 22 years in the workers’ compensation field. I saw it when I was Deputy Commissioner at the North Carolina Industrial Commission where, for 10 years, I presided over 500 hearings for workers’ compensation disputes. (The North Carolina Industrial Commission (NCIC) is the impartial agency that administers and enforces workers’ compensation laws.)

North Carolina worker’s compensation laws were designed to help protect injured workers. I should know. I helped write some of our state’s worker’s compensation laws as a four-term North Carolina senator.

Yet unfortunately, some employers do sometimes bend and break these laws. And it is not uncommon for an employer to fire an injured worker who makes a claim.

If you were my sister and you were injured on the job, I would arm wrestle you until you cried UNCLE and promised to contact a lawyer. (What can I say, I’m a rebel. Read my bio.) Experience tells me you’re frequently on the losing side of a worker’s comp claim without a lawyer. Being on the losing side can put you and your family in a downward spiral fast. I’ve seen these spirals and they’re ugly. Even more frustrating, many of these spirals could potentially have been prevented with the right legal guidance.

File a Complaint with the N.C. Department of Labor

If you believe you have been fired for making a workers’ compensation claim, file a complaint with the North Carolina Department of Labor. You can’t obtain the legal right to sue your employer for wrongfully terminating you without filing this complaint first. And you must make sure you file the complaint so that the Department of Labor receives it within 180 days from the date you alleged your employer retaliated against you for making a workers’ compensation claim.

Click here for instructions on how to file a complaint with the N.C. Department of Labor.

Even if you do file a complaint, you may still have an uphill battle ahead of you. What our firm has experienced over our many years of representing injured workers is, the Department of Labor will most likely do a minimal investigation and then close your file. Of course, they will likely interview the employer to determine what they “claim” was the basis for your termination. As you might expect, employers typically will not admit they terminated you because you made a workers’ compensation claim. They know that is illegal. More than likely they will defend their termination by alleging misconduct or some such similar claim.

(Are you beginning to see why we suggest you contact a workers’ compensation lawyer?)

Document. Document. Document.

Another important thing to consider. Document anything and everything related to your termination grievance. Document all evidence related to your injury and your employment (including past reviews, especially if they are positive), emails, and anything that supports your case.

Your “Right to Sue”

While the North Carolina Department of Labor rarely takes an employer to court for wrongful termination, they may at least issue you a “right to sue” letter. You then have the legal right to take your employer directly to court to have a jury decide whether your employer retaliated against you because you filed a worker’s comp claim. If you prevail, you may win your job reinstatement and receive back lost wages.

This is another area of workers’ comp law where you would be prudent to hire a lawyer, as this reinstatement does not always bode well for the reinstated employee. We’ve seen some who have been “reinstated” only to be fired again for any number of reasons. Since North Carolina is an “at will” state, your employer can fire you for no reason (with some exceptions).

Being Fired Under Family Medical Leave Act (FMLA)

When can your employer legally fire you for being out of work? When you have remained out of work due to a workplace injury.

As long as workers who are out of work due to workplace injuries are treated the same as employees who are out of work for non-work related injuries, the North Carolina Department of Labor does not consider such a termination a violation of the law. Employers generally terminate employees who are unable to return to work after they exhaust their Family Medical Leave Act (FMLA) leave. In this particular instance, while you may not be able to keep your job, you may be entitled to receive workers’ compensation benefits until you are able to find a new job.

There are so many nuances and ways to interpret workers’ compensation law. And there are many good workers’ compensation lawyers in North Carolina. If you do decide to hire one, click here to download key questions to ask before making your choice. Here are just some of the things we believe set us apart.

What Makes the Law Offices of James Scott Farrin Different?

Our firm was named one of the “Best Law Firms” for workers’ compensation by U.S. News – Best Lawyers® for the greater Raleigh area in 2017.3 This recognition is based on client and peer reviews. We have strength in numbers and strength in knowledge.

  • Many of our workers’ comp attorneys have been acknowledged by colleagues and peers. They are often asked to speak at seminars for other workers’ compensation attorneys. Others are accomplished authors of scholarly articles and two have received coveted awards for workers’ compensation, including Best Lawyers “Best Lawyers in America” for 2017.5 One was named NC Super Lawyers Magazine’s “Super Lawyer” four times (2014, 2015, 2016, 2017) and Best Lawyers “Lawyer of the Year” for Raleigh twice, (2015 and 2017).6,7
  • More than half our workers’ comp attorneys are N.C. Board Certified Specialists in Workers’ Compensation law. This N.C. State Bar certification denotes a high level of proficiency in a particular practice area, and less than 4% of attorneys licensed in N.C. can make that claim.4
  • A former North Carolina Industrial Commission Special Deputy Commissioner and Deputy Commissioner are on our staff.
  • As stated earlier, I was a four-term North Carolina State Senator for eight years and helped write some of North Carolina’s workers’ compensation laws.
  • Our attorneys are champions of the people. Many of them joined our side because they are advocates for those without a voice. And that is often the injured worker. 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 active members in their communities – from teaching at local colleges, to counseling the Hispanic/Latino community.

N.C. Workers’ Compensation Lawyers Offer FREE Case Evaluation

If your employer terminates you while you have a workers’ compensation claim, or even if you think you might be fired as a result, contact us. Even if you are fired while receiving treatment, stop to consider if your employer may be firing you because of your claim.

We have been in the workers’ comp industry a long time – always championing the individual worker over the employer or insurance company.

I won’t attempt to arm wrestle you and make you cry UNCLE, but I do urge you make a call to our firm if you suffered a work related injury.  A phone call costs nothing, and our confidential case evaluations are free.

If you’ve been injured in a work accident contact us today or call 1-866-900-7078 to learn how a workers’ compensation lawyer from the Law Offices of James Scott Farrin could potentially benefit you.

3Visit www.bestlawfirms.com for more information about criteria for inclusion.

4Figures from the N.C. State Bar as of December 2016.

5,7For more information regarding the standards for inclusion, visit www.bestlawyers.com.

6For more information regarding the standards for inclusion, visit www.superlawyers.com.

Why We Are Not Wired to Multitask and Drive

What is Multitasking?

Family in the car tripYou know what multitasking is. Everyone does. It’s almost a given these days. I don’t care what task you are performing you are probably in the habit of multitasking while doing it.

I’m multitasking right now.

I’m answering a colleague’s question, kicking off my shoe under the desk, while I am typing this sentence. Meanwhile, Taylor Swift is whining on Spotify about some guy who’s so mean all he’s ever gonna amount to is mean. But she’ll be livin’ in a big ol’ city. Oh… and I just got a ping from my cell – my sister wants me to drive to her house this weekend (150 miles). Her peaches are coming in fast and she has to pick them before the birds eat them. So now I’m also weighing the pros and cons of fighting holiday traffic for a bag of fresh-picked peaches.

But I am stationary behind my computer screen. I am not behind the wheel of a two ton vehicle traveling 60 miles per hour with many other innocent drivers and bystanders nearby.

Do I multitask behind the wheel?

Do you?

Unfortunately we all do. And we may not even realize we do it.

Back in the day it used to be fine to sip a soft drink while driving, and maybe even change the radio “dial” or “roll down” our windows. But that was before seven-lane highways rife with left turns, commuting bicyclists, roadway signage everywhere, and millions of cars on the roads with minivan-wielding soccer moms filled with distracting kids rushing from practice to Chik-fil-A and on to the next practice.

And cell phones. Texting. Bluetoothing.

Our driving habits have become a real mess.

Who’s Guilty of Distracted Driving?

We are all guilty. Teens. Moms. Dads. You. Me.

Many people think distracted driving is a teenager problem. Not entirely. All of us become side-tracked and distracted without even realizing we’re doing it. Or realizing what a mistake it can mean to your life or someone else’s.

I was shopping in a locally-owned shop recently when the owner learned I work at the Law Offices of James Scott Farrin in personal injury. She shared her tragic story of why she had to go back to work after she’d retired. Her husband was hit by a distracted driver, suffered a severe brain injury and had to leave his job as CEO of a major corporation. Their lives took an abrupt about face as they lost nearly everything they had due to medical bills. (He did not hire a lawyer, unfortunately.)

The at-fault driver was a teenager. He was texting.

The woman shared with me how very sad she felt for that teen who was not only unrepentant, but snarky about what his carelessness did to her family.

I was stunned.

One careless mistake and an entire family’s path went south.

Multitasking Behind the Wheel is Epidemic

Distracted driving has become epidemic. National Highway Transportation Safety Administration (NHTSA) statics show distracted driving was the highest cause of “human choice” accidents, with six of 10 caused by distractions.

Cell phones, as we all know, are a common distraction (and one of the most deadly). In the era of Smartphones, one of the most common causes of accidents has been distractions from texting and using apps behind the wheel – even a map app.

Why Our Brains are Not Wired to Multitask

According to numerous research studies, our brains were not designed to focus on multiple tasks at once. Psychologists who study what happens inside your brain when people try to perform more than one task at a time have found that we are not wired for heavy-duty multitasking.

Switching between tasks (multitasking) can cause a whopping 40% loss in brain productivity, and the National Safety Council underscores why multitasking is particularly dangerous behind the wheel.

If you can walk and chew gum at the same time, why can’t you drive and talk on your cell phone? Walking and chewing gum involve both thinking and a non-thinking task. Driving while talking on your phone are two thinking tasks that involve many areas of the brain. Your brain rapidly switches between two cognitive activities rather than processing both simultaneously and some things can get lost or minimized in the switching.

Isn’t talking on a cell phone the same as talking to someone in the car? No. Drivers talking on cell phones are more oblivious to changing traffic conditions because they are the only ones in the conversation who are aware of the road. When you are talking to another adult in the car (with another set of eyes) they may be able to help you remain aware of traffic.

Isn’t using hands-free devices safer than a cell? Research shows it is not. As different parts of our brain share tasks, activity in one part will decrease as activity in another part increases. If you focus on a conversation, whether it’s with another passenger, using a hand held device, or cell phone, activity in the parietal lobe will decrease by as much as 37% says a Carnegie Mellon University study.

When you use a cell phone you get what is known as “inattention blindness.” You look but you may not see. You can miss seeing up to 50% of your driving environment.

Drinking and driving vs. driving while distracted. A study by the University of Utah illustrated in a controlled simulator that using a cell phone while driving is just as dangerous as driving with a blood alcohol level of 0.08, which is the legal limit behind the wheel in North Carolina. Just like alcohol, people can become addicted to their cell phones. Click here to find out the fascinating biological reason why.

Text behind the wheel and you are 23% more likely to cause a crash says the National Highway Transportation Administration (NHTSA) website, nhtsa.gov. As a matter of fact, it’s the same as drinking four beers. Both cause distraction and impaired driving that can result in following too closely, not being able to brake on time, or weaving into oncoming traffic.

We’ve all seen those cars that drift outside their lane. The RAC Foundation, a British motoring research organization, reports that texting while driving reduces steering control by 91%. And it decreases reaction time by 35%.

Multitasking Results in TMI

All of this is a result of too much information causing cognitive overload – our brain’s inability to hold so much information.

We are wired to have a working memory that can retain only two to four pieces of information at a time.

When more is required, our brain replaces the old with the new or it borrows from the auditory and visual parts of the brain.

Even when contemplating the next task, researchers discovered that an interruption – be it a phone call or deciding to check your email can cause you to take up to five minutes to refocus on your work.

Here’s a trivia question for you. What is the #1 distraction behind the wheel? (Keep reading for the answer.)

Just Drive

  • Don’t put your car in drive until you and your passengers are settled in and ready to go.
  • Take the time to check your surroundings and make sure anything you may need while driving is in reach so you won’t need to look for them on the road
  • If you need directions, get them before you put your car in gear

Keep your hands on the wheel and eyes on the road and just drive.

Get a FREE Case Evaluation from an N.C. Car Wreck Lawyer

If you or a loved one were the victim of any kind of distracted driving accident, we strongly encourage you to seek legal help. We don’t want anyone to end up in a situation like the shop owner whose husband was incapacitated and didn’t hire a lawyer which could have potentially helped save his family from financial ruin as a result of that car wreck.

Contact us or call 1-866-900-7078 for your free case evaluation.

Trivia answer. The #1 distraction behind the wheel, according to Safestart.com? Wandering thoughts.

I’ve worked all my life. Why aren’t I eligible for Social Security Disability Benefits?

Not everyone is eligible for Social Security Disability Insurance (SSDI) benefits. Only those who have worked and paid FICA taxes within five of the past 10 years and meet the government’s disability requirements.

Here is a simplified explanation of what you need to know if you’re thinking of applying for Social Security Disability benefits.

SSDI is Insurance for Disabled Workers

Social Security Disability Insurance is just what its name implies. Insurance.

When you work, a portion of each paycheck goes into a federal insurance fund (FICA, which stands for Federal Insurance Contributions Act). This is a fund for SSDI. Just like medical insurance or car insurance, you hope you never have to use your SSDI. But if you’ve paid into it (which you are required to if you receive a paycheck) you will be covered for benefits if you become disabled and the Social Security Administration determines that you are unable to work.

Spotty Work History?

What if you were working but you stopped temporarily to raise your children through elementary school? Or what if you were laid off and subsequently unable to find a suitable job for several years? What if you’ve been out of work due to a work injury?

Whether you may get SSDI depends largely on the date you last worked.

The government considers this very important date as the last date you would potentially be eligible for SSDI. To determine whether you may be eligible you must pass a “recent work” test. There is only one question on this test, so you either pass or fail.

Have you worked five of the past 10 years (or in government jargon, 20 of the last 40 quarters?

If you become disabled after your date last insured (DLI) has passed, you cannot get SSDI benefits. It would be similar to getting in a car accident after you stopped paying for car insurance.

Here is an example of DLI. If you worked up until five years ago today, your DLI would be today’s date. If you worked up until two years ago, your DLI would be three years from now. If you haven’t worked for six years, your DLI passed one year ago and you are no longer eligible for SSDI unless you are found disabled before your DLI.

Show Me the Money

Occasionally we have seen instances in which someone assumed they were not eligible for SSDI. Yet upon closer inspection and reviewing their work and payment history, we discovered that a client’s employer failed to pay the employer and employee taxes and sought to correct the error. (Of course, payment is subject to IRS provisions on the ability to amend tax returns or file late.) While this doesn’t happen often, it serves as a reminder of how we have been able to help people uncover benefits they did not know were available to them.1

What if You Do Not Qualify for SSDI?

If you do not qualify for SSDI, you may be eligible for Supplemental Security Income or SSI benefits, provided you meet the extremely low income and asset requirements threshold.

SSI is for people who have never worked or haven’t worked enough to qualify for SSDI. You can only get SSI if your income and assets are extremely low.

For 2017, the federal benefit rate is $735 per month for individuals and $1,103 for couples (and this is subject to reductions). Some states supplement the federal amount. North Carolina is not one of them.

Think You Can’t Afford a Social Security Disability Lawyer?

Think again. Uncle Sam limits the contingency fees for all Social Security Disability lawyers to 25% of back-due benefits or $6,000, whichever is less.

Get a FREE Case Evaluation From N.C. Social Security Disability Lawyers

We know applying for Social Security Disability can be a confusing and lengthy process. (It can take nearly two years in N.C. just to get a judge to hear your case – 23 months in Charlotte, 22 in Greensboro, 20 months in Fayetteville, and 19 in Raleigh.)

We understand from firsthand experience what you are up against.

Nearly every person on our Social Security Disability team has worked inside the Social Security Administration.

We know how the system works, what they look for to accept a claim, the importance of filing the correct forms and meeting strict deadlines, and what medical records to present. And sometimes we know where to look for benefits you may not be aware of.

If you are considering applying for Social Security Disability, contact us as soon as possible or call 1-866-900-7078 for a free case evaluation about your unique situation. We’re available 24/7.

man in safety equipment checks water for GenXOn October 3, 2017, the Law Offices of James Scott Farrin and our co-counsel The Hannon Law Firm, LLC have filed suit against The Chemours Company and duPont Chemical Corporation seeking compensation for property related damages and funds for a monitoring program for early detection of disease because of GenX and other toxic contamination released from the companies’ Fayetteville Works Site. The GenX and other toxic chemicals, including PFOA and other perfluorinated chemicals, have contaminated water that the Cape Fear Public Utility Authority (CFPUA) in Wilmington, North Carolina uses to supply the majority of properties in Wilmington.

The CFPUA provides water to over 100,000 residents in Wilmington using surface water from the Cape Fear River. Testing done by North Carolina Department of Environmental Quality (“NCEDQ”) has verified that PFAS and PFECAs including GenX released from the Fayetteville Works Site have contaminated the CFPUA water supply from the Cape Fear River.

Read the Nix v. The Chemours Company, et al. Complaint

Learn More About GenX

On June 22, 2017, the US EPA measured over 720 ppt of GenX in the finished water delivered to properties serviced by CFPUA. In July, 2017, CPPFUA reported GenX in finished water from CFPUA at 250, 286, and 185 ppt. High levels of other perflourinated compounds including PFO2HxA and PFO3A were also found in July.

North Carolina Law Firm Offers Free GenX Case Evaluation

If you think you have been impacted by the Cape Fear River contamination, call us right now for a free case evaluation. We will review your claim and try to answer any questions you have.

Contact us or call 1-866-900-7078 for your free case evaluation.

I’ve Been Given a Workers’ Comp Rating. Should I Close My Case?

roofer hammering a nail into shinglesOne of the questions we often hear from injured workers is whether they should accept what the workers’ comp insurance company is offering to pay them, based on a rating of the injured person’s body part or parts.

That’s a good question. The answer can often depend on your unique circumstances. And sometimes on how much a doctor knows about North Carolina Industrial Commission (NCIC) ratings guidelines. We had a case a while back that illustrates this point.

A hip replacement is generally considered to be worth a 40% rating, according to NCIC guidelines. Surprisingly, not all doctors know about these NCIC guidelines. One doctor who did not know about the NCIC guidelines gave our client a rating significantly below 40% for a hip replacement. We sent the client for a second opinion with a knowledgeable doctor who assigned the more appropriate rating of 40%.

Just about every body part that you can imagine is named in the Workers’ Compensation Act, and is given a value in weeks of compensation. Here’s an illustration of hand, arm, leg, eye, hearing, and foot injury ratings, according to the North Carolina Industrial Commission (NCIC) ratings guidelines. (It is interesting, and in my opinion somewhat disturbing, to know that every finger on your hand has a value.)

NCIC Payments for Various Body Parts

Thumb 75 weeks
Arm 240 weeks
First or index finger 45 weeks
Foot 144 weeks
Second or middle finger 40 weeks
Leg 200 weeks
Third or ring finger 25 weeks
Eye 120 weeks
Fourth or 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

Whether You Should Settle Depends on Your Circumstances

Many people contact us with questions about whether they should settle based on a rating, and the answer to that question will vary depending on your circumstances. Here are some of the things we consider:

  1. Do you intend to continue working with the employer where your injury occurred?
  2. Are you receiving a weekly check from the workers’ compensation company?
  3. Do you have a substantial need of medical treatment?
  4. Have you undergone a functional capacity evaluation, and has your employer offered you employment that is appropriate for your injury?
  5. Have you been informed about your rights to file a Form 18M (an Employee’s Application for Additional Medical Compensation)?
  6. Is the impairment rating given by the doctor (often chosen by the insurance company) reasonable in light of your injury?
  7. Would you benefit from a second opinion by another doctor that is agreed upon by both you and the insurance company, and is paid for by the insurance company?

When You Settle Your Workers’ Comp Claim

The first step to resolving a case based solely on an impairment rating is by signing a Form 26A.  A Form 26A is an employer’s admission of the employee’s right to permanent partial disability to a body part or parts. We urge you to contact an experienced workers’ comp attorney before settling on a rating. You simply don’t know what you don’t know. One recent case comes to mind that illustrates this point.

We represented an injured worker who enjoyed her job and was looking forward to going back to it.3 The workers’ comp insurance company stood in the way of that goal however. Its guidelines for a full settlement of the claim stated that you must also resign from the company where you were working when you got hurt. Our client did not want to resign. So she decided to settle based on a rating alone. This would not have been in her best interest, so we embarked on extensive research that uncovered a gold nugget of information, which subsequently favored our client. Because of this new information, our client received much more than she would have otherwise based on her rating alone.1 And she got to go back to a job she loved!

N.C. Workers’ Comp Lawyers Offer Free Case Evaluation

Case evaluations are free. Furthermore, we work on a contingency basis, which means if we don’t get you compensation, you don’t owe us an attorney’s fee.2 We urge you to contact us if you are considering settling based on a rating – or settling period.

P.S. There are lots of good N.C. workers’ comp attorneys you could choose from. Here are five important reasons we believe you should consider hiring us.

3Client identity has been removed or changed to protect client’s privacy.