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Tips on How to Handle a Recorded Statement for Your Workers’ Comp Claim

While no two workers’ compensation cases are alike, all of them have one thing in common. When you file a claim for workers’ compensation benefits, the insurance adjuster will likely ask you to give a recorded statement, and then the adjuster will ask questions and you will answer them.

This blog addresses a critical question you will probably be asked that can make or break your North Carolina workers’ compensation claim: “Were you doing your usual work routine when this happened?”

What is Considered “Usual” or “Unusual”?

In North Carolina, if you have sustained an injury to a body part other than your back as a result of a specific incident at work, the injury must generally be the result of an unusual set of circumstances for you to obtain coverage. However, if the injury is the result of a usual activity that you routinely do at work, it may not be covered.

  • For example, an auto repairman may routinely get down on one knee to change a tire. If, on a particular occasion, he kneels in the same manner as he routinely does and sustains a meniscus tear to his knee, the injury will probably not be covered.

Insurance companies are typically for-profit businesses. And some may look for any reason to try to deny some claims. Leaving out factors that show that the circumstances resulting in your injury were unusual at the time of the injury may result in an initial denial of your claim or a denial within 90 days of the notice of your claim.

How to Answer Insurance Adjuster’s Questions

When you sustain a work-related injury, it is important that you provide a detailed explanation about how your injury occurred. Omitting relevant facts could result in denial of your claim even if your employer or the workers’ compensation carrier initially authorizes you to receive medical treatment and compensation payments.

The North Carolina Workers’ Compensation Act allows your employer and the workers’ compensation carrier to make these payments from up to 90 days after receiving notice of your injury.

The more serious your injury is or becomes, the greater the financial incentive the employer, and/or the workers’ compensation carrier, may have to deny your claim – especially if you have left out relevant factual information in a written accident report and/or a recorded statement. There are several ways that what you say in your workers’ comp recorded statement can trap you, so we recommend that you have an attorney present or on the phone with you when making this statement.

How to handle a recorded statement for workers' compensation - have an attorney present or on the phone.

What to Watch for in the Recorded Statement

If you have been injured at work, the insurance adjuster may still request that you participate in a recorded statement even if you’ve been authorized to receive medical treatment for the work-related injury and/or have received compensation payments. North Carolina insurance claims adjusters know that if they are able to get you to agree that the injury was the result of how you usually performed the activity, then they may be able to legally deny the claim.

The Workers’ Comp Adjuster’s Open-Ended Questions

Adjusters sometimes ask fair open-ended questions during the recorded statement to try to get you to say nothing unusual happened.

Example: “What, if anything, unusual occurred that resulted in your injury?”

It is important when asked an open-ended question by a workers’ comp insurance adjuster that you describe all possible unusual factors that may have resulted in your injury.

The Workers’ Comp Adjuster’s Trick Questions

On the other hand, some workers’ compensation adjusters seem to try to trap the injured employee. They might ask a leading question to try to get a specific answer in their favor.

Example: “Isn’t it true that you were doing your usual job routine when you were injured?”

Be truthful, but careful in how you answer this question. They may ask it several times and in several different forms during the recorded statement. It is important that you describe all possible unusual factors that may have resulted in your injury.

We recommend that you secure legal advice before going on record with an adjuster. A lot is at stake, and every word you use or do not use to describe a work-related injury can affect the outcome of whether your claim is ultimately accepted or denied.

Get a FREE Evaluation From an Experienced Workers’ Compensation Lawyer

The workers’ comp insurance company may have its own financial interests in mind instead of how to help you heal and get back on your feet. If your claim is denied because you left out relevant facts in a written accident report or in a recorded statement, we urge you to seek legal counsel. Ideally, contact us or call us at 1-866-900-7078 before you proceed with a recorded statement.

Here at the Law Offices of James Scott Farrin, our workers’ compensation team has successfully helped thousands of injured employees.1 And we can fight for you, too.

What You Can Do if Worker’s Comp Has You Under Surveillance

Some insurance companies may look for ways to stop sending you a weekly check while you’re recovering from your on-the-job injury. They’re in business to make money, not give it away.

When you receive workers’ compensation benefits, that is usually money coming out of the insurance company’s pocket and going into yours instead. That’s why some insurance companies may try to find ways to avoid paying you benefits. Sometimes, that means an insurance company may completely deny responsibility to pay for your injury. When this happens, they pay you no benefits at all, while you fight (sometimes for years) for what you potentially deserve.

Worker’s Comp Insurance Tactics to Pay You Less


We have seen some insurance companies try to wait out the injured worker while they’re hurt, out of work, and in financial distress. The longer they wait, the more urgent your need for money becomes, and the less compensation you may be likely to settle for. And that means less money they have to pay out.


Delaying compensation is not the only way some insurance companies may try to help themselves. Even when an insurance company accepts responsibility for your work injury, they can – at any time – try to reduce or even stop paying you benefits. We have seen them try to cut off injured workers’ weekly checks. Other times they may try to avoid paying for a recommended medical procedure.

No matter how some insurance companies may try to keep money for themselves, it is you, the injured worker, who is simply trying to get better and go back to work, that can end up paying the price.


Do insurance companies randomly decide one day that they are not going to pay you? Of course not. They must have proof that they don’t have to pay you. To help them in their efforts, they may try to piece together evidence to prove your benefits should be decreased or stopped altogether.

We have seen some insurance companies resort to hiring a private investigator to spy on injured workers to try to gain the evidence they need to reduce or stop workers’ comp payments.

They may hire investigators to follow you to the gas station, or the grocery store, or any errand you may be on. They may watch you pick up your kids at school. They may stake out your house and neighborhood at all hours of the day and night. These are just the obvious workers’ comp private investigator tactics.

The goal is to compile reports, photographs, and video to see if you are as badly injured as you claim. Then, if the insurance company can create a question in the mind of a doctor or judge, they may be able to cut you off or reduce your benefits – even if they have previously admitted responsibility for your injury.

Insurance tactics to pay you less including delays, denials, and surveillance.

5 Ways to Handle Insurance Company Spying

You cannot stop the insurance company from hiring an investigator to watch you. But you can be smart about your behavior so that you aren’t making it easy for them to avoid paying you benefits. Here are five ways to help you avoid falling prey to workers’ comp surveillance.

1. Always follow your doctor’s orders.

Your doctor knows best what activities you should avoid while you heal. If the doctor tells you not to lift more than 10 pounds, don’t lift more than 10 pounds. The biggest risk of surveillance is that the workers’ comp private investigator will see you doing something outside the restrictions put on you by the doctor.

If that happens and the doctor is allowed to see the surveillance, the doctor may think you have been exaggerating your symptoms. In a worst-case scenario, the doctor may decide to no longer treat you.

2. Be thoughtful.

If you aren’t following your doctor’s orders about activity restriction, it may not necessarily be because you are not injured. More likely it might be because you weren’t thinking about what you were doing, or you were in a hurry or distracted. Life happens, and you have to lift your 20-lb toddler out of her car seat. That happens to all of us.

But when you have a work injury, and an insurance company may be paying someone to watch you, the cost of being thoughtless can be significant. Violating your doctor’s restrictions just a handful of times could suggest to the insurance company and the doctor that you’re not as injured as you claim to be.

Also, mind what you post on social media. Even if there is not an investigator directly watching you, they could find photos or posts on Facebook, Twitter, Instagram, or some other social medium that do their work for them. If you’re not thoughtful, they may use your posts against you.

3. Remember that appearances count.

Sometimes, insurance company surveillance can be harmful even when you are not caught doing something against your doctor’s orders. Even simple appearances can be enough to cause problems. For example, let’s say your doctor told you not to push more than 10 pounds. And let’s say you’re mowing your lawn with a self-propelled lawnmower that doesn’t require pushing more than 10 pounds. And let’s further say there’s an investigator recording you.

All the doctor may see when he watches this video is someone who is well enough to do yard work, including pushing a potentially heavy lawnmower. You can explain to the doctor that the mower is self-propelled, but the damage may already be done. We are not suggesting you become paranoid, but it is important to be aware of how your activity may look to an outsider.

4. Don’t talk to a suspected investigator.

Workers’ comp private investigators are likely to be very discreet, and you may never know you’re being watched – as long as that works in their favor. However, if they deem it necessary, they may approach family members or friends, and interact with them to try and get them talking.

If you think you’ve spotted an investigator who is watching you, don’t confront them or interact with them. This goes for you, your family, and your friends. The investigator will not be intimidated, and will only use the interaction to gather information from you that the insurance company may later try to use against you.

5. Hire a workers’ compensation lawyer.

When you try to take on the insurance company yourself, it is not a fair fight. History tells us that many insurance companies may try to figure out ways to maximize their profits and minimize your compensation. Surveillance is just one tactic they sometimes rely on. They have adjusters and lawyers, many of whom spend their time trying to determine the best ways to reduce their payout.

5 ways to handle insurance company spying including following doctor's orders and hiring a lawyer.

Get Your Free Case Evaluation From Workers’ Comp Lawyers

To try to make sure the insurance companies do not use surveillance or any other tactic to deny you benefits, call the Law offices of James Scott Farrin. Our workers’ comp attorneys have the knowledge, experience, and dedication needed to try to see to it that the insurance company doesn’t get away with claiming your injuries are less disabling than they really are. Contact us today or call 1-866-900-7078. Your initial case evaluation is absolutely free.

Should I Negotiate My Own Workers’ Comp Settlement in NC?

After a serious injury on the job, many people may assume that they will be able to return to their life as it was prior to the injury. They may believe they will be able to regain their health 100%, keep their same job, and live relatively symptom free. And they may be tempted to rush the process and either negotiate a settlement on their own or accept an early settlement offer from the insurance company. For most workers’ comp cases, I usually advise against these two courses of action.

Your Employer May Want You to Settle Your Workers’ Comp Claim

History tells us the reality is often much different when there is a significant trauma or a serious injury that requires an extended period of time to recover. People are often surprised to learn that:

  • employers may not be obligated to hold their jobs until they reach a full recovery
  • doctors may not let them return to the type of work they performed prior to getting hurt
  • doctors may release them to return to “full duty” or work with “no restrictions” when their injuries prevent them from doing their regular job duties

What comes next for many of these injured workers can be even more surprising. They are often contacted by the insurance company or their employer about settling their workers’ compensation case.

However, even if things have been going smoothly up to this point (benefits have been coming in regularly, medical treatments have been paid on time), there is no guarantee that the employers’ interests are aligned with what’s best for their employees when it comes time to settle.

Can the Court Make Me Settle My Workers’ Compensation Case?

The court, which is the North Carolina Industrial Commission in workers’ compensation claims, cannot make parties settle a claim. The law does not require an injured worker to enter into an agreement to resolve their case. So why, then, do insurance companies and employers sometimes put pressure on injured workers to close out, or settle, a workers’ comp claim? They may instead be looking to end their exposure as quickly as possible.

As a basic rule, a settlement is a complete end to a worker’s rights for further workers’ compensation benefits. This means the insurance company would not have to pay for any further medical care or benefits, even if an employee cannot return to work due to the injury.

I strongly urge you to have legal representation when negotiating a workers’ comp settlement.

Do I Need a Lawyer to Settle My Workers’ Comp Claim?

Based on my experience, the goal of many insurance companies when settling is to try to reduce their liability to the injured worker to as little money as possible. If you have been injured at work and don’t have legal representation fighting for you – someone who knows workers’ comp laws and its many interpretations and nuances – this could mean you’ll be left without adequate health care protection.

We’ve seen situations where people have settled workers’ compensation cases on their own, not realizing the long-term consequences, and have put their entire family in a downward financial spiral. And we’ve heard of others being left without enough money to cover their living expenses until they can find another suitable job.

People experience financial problems when settling workers comp cases too soon.

When Is a Workers’ Compensation Settlement the Best Option?

There are times when an injured worker may benefit from a workers’ comp settlement. It may allow them to move on from a difficult work situation. It can take away the uncertainty of a court result. It may allow an injured worker sufficient resources to get treatment on their own without dealing with the insurance company’s doctors. It can also give an injured worker sufficient resources to pursue training for a new occupation. Under these circumstances, settlement can make sense for the injured worker if the settlement is fair.

If you are approached by an insurance company or employer with an offer to settle your claim, we urge you to question whether it is fair and in your best interest. At my firm, we provide a free case evaluation  (with no obligation to hire us). I encourage you to give us a call at 1-866-900-7078 before you accept a settlement offer.

Is the NC Industrial Commission Looking Out for the Injured Worker?

The purpose of the workers’ compensation system is to help restore an injured worker as near as possible to their pre-injury earning capacity – both medically and in terms of actually returning to a job. The NC Industrial Commission administers the Workers’ Compensation Act with a mission of ensuring that all parties are treated fairly and equally in accordance with NC law. This is not the same thing as making sure that injured workers get what they need or deserve. The law also places the burden on the injured workers to prove their entitlement to benefits.

The insurance company and employer may tell you that the NC Industrial Commission has to approve a settlement and will determine whether the settlement is fair and in your best interest. While this is technically true, read on to learn of some of my experiences working at the NC Industrial Commission.

My Experience Working at the NC Industrial Commission

I worked as a Special Deputy Commissioner at the Industrial Commission prior to joining James Scott Farrin as a workers’ compensation attorney. I often approved settlement agreements in which an injured worker did not have an attorney and accepted the employer’s settlement offer. My responsibilities were not necessarily to ensure that the injured worker got the best deal, but instead, to see that they received at least the minimum required by law.

There were certainly times when I sent a proposed settlement agreement back to an insurance company and injured worker indicating that I could not approve the settlement as being fair because the amount was too low. But even in those cases, I could not tell the parties what I thought a reasonable amount was.

More importantly, I could not tell injured workers whether I thought they were getting everything they may have been entitled to under the Workers’ Compensation Act. People sometimes accepted settlement amounts that did not consider:

  • their future medical needs
  • how long it would take them to find new jobs
  • whether they needed money for retraining
  • how to make up future lost wages

So what seems like a fair settlement to the injured worker may actually be a bargain basement deal for the insurance company.

What Laws Protect Me If I Am Injured at Work?

While North Carolina’s workers’ compensation laws provide some protection, a workers’ compensation lawyer who thoroughly understands these laws may be needed to help ensure that you are adequately and properly protected.

For example, you may not be able to return to the type of job you had before you got hurt. The law states that consideration must be given concerning the possibility for re-training, further education, or vocational rehabilitation before injured employees return to a job suitable to their new restrictions.

North Carolina workers’ compensation laws make these and other services available to injured workers if they cannot return to their pre-injury position. When negotiating a settlement, a skilled attorney takes into account:

  • permanent work limitations and/or restrictions that could impact a worker’s ability to return to work full-time
  • retraining, education, and job rehabilitation benefits

The law also states that you are allowed to obtain a second opinion with a physician of your choice. If you need further treatment, you can apply for medical care even if the doctor your workers’ comp insurer sent you to releases you from medical care. An experienced workers’ comp attorney knows the value of involving doctors who are able to adequately explain any future complications you may face because of your injuries. Without this type of medical opinion, there is often no way to receive compensation for those potential future medical needs.

How a Second Medical Opinion May Help Your Workers’ Comp Case

Let’s say you injured your knee at work. The doctor your insurance company sends you to may treat your current injury and release you from further treatment. As your attorney, I may advise you to seek another opinion from a doctor of your choosing.

This other doctor (the one you chose) may point out that your injury has made it more likely you will need a knee replacement at some point in the future as a result of your work-related injury. This could be a surgery that workers’ compensation insurance would be responsible for covering – whether that replacement occurs two months after the initial injury or two years.

Insurance companies might suggest that you get a second medical opinion. But they might also tell you which doctor you should see – sometimes without seeming regard for whether the doctor has the expertise you may need. I know of a situation where an injured worker had a severe wrist injury, an operation which resulted in an extended healing period. She wanted a second opinion, and the workers’ comp insurance company sent her to an allergist!

You have the right to a second medical opinion during your workers' comp case.

How Can an Attorney Help Me Settle My Workers’ Compensation Claim?

If you are considering settling your claim or have been contacted about settling your workers’ comp claim, we strongly urge you to have an experienced North Carolina workers’ compensation attorney review your case to determine whether thorough consideration has been given to the complexities of your injuries and their impact on your ability to return to work at your same wages.

A settlement for a discounted amount could leave you and your family facing long-term financial difficulties if your interests were not adequately addressed by the insurance company or protected by an experienced workers’ comp lawyer.

When Is the Best Time to Settle a Workers’ Comp Claim?

Every case is unique, of course, but often it makes the most sense to settle after your major medical treatment is done. I advise you to be wary if your employer or the insurance company seems to be pushing you towards a premature settlement – that often is in their best interest and may not be in yours.

Our Workers’ Comp Lawyers Have Clients’ Best Interest at Heart

As a North Carolina State Bar Board Certified Specialist in Workers’ Compensation law representing injured workers at the Law Offices of James Scott Farrin, I try to look out for all of my clients’ potential needs. In fact, that is one of the most important aspects of my role as an attorney – to make sure I try to consider and address each and every need in settlement negotiations.

Before advising our clients, our workers’ compensation attorneys strive to have a comprehensive understanding of:

  • our clients’ medical conditions
  • the injury’s impact on work abilities
  • the local job market

This sometimes means trying to obtain a second opinion to provide a comprehensive overview of our clients’ medical conditions. We also often calculate varied cost projections on medical and disability exposure. And we consider all the various types of workers’ comp benefits that may apply. We do not want any of our clients to enter into a settlement agreement unless they feel that it makes economic sense and is in their best interest for their future health.

Why Choose Us When It Comes to Workers’ Comp Settlements?

There are many good workers’ comp lawyers here in North Carolina. So why us? Here are five heartfelt reasons that don’t have a lot to do with fancy credentials and memberships in organizations or affiliations. Here are reasons to choose our workers’ compensation team that do have to do with credentials and memberships in organizations or affiliations. We think both of these are important to consider.

James Scott Farrin Offers Free Workers’ Comp Case Evaluations

If you are contacted by an insurance company about a workers’ compensation injury settlement, we urge you to contact us or call 1-866-900-7078. We offer a no-cost case evaluation regarding your claim. It may be that the insurance company is being fair with you. We have seen that happen – although it shouldn’t be relied on, in our experience. That is why I hope you take the time to give us a call so you can make that decision for yourself.

Workers’ Comp Benefits Stopped for No Reason? That May Be Against the Law.

We’ve seen and experienced our share of insurance horror stories – the deceptions by some companies, delay and deny tactics, even outright lies in some cases.

So it is not surprising to us when a client contacts us because they’ve been abruptly and for no apparent reason cut off from receiving medical treatment or cut off from their paychecks.

Unfortunately, this can be an all too typical scenario:

You’ve been hurt at work, and the insurance company has been paying for your medical treatment. Then, one day, your medical treatment stops. The doctor’s office calls to tell you that your appointments have been canceled and they will no longer have your prescriptions refilled.

Dumbfounded, you call the adjuster from the insurance company assigned to your case to find out what’s going on. She tells you, “We’ve closed your file.”

What gives? Can the insurance company do that? Can they just stop your medical treatment without your knowledge?

No. But that doesn’t mean some may not try to get away with it. Sadly, some do.

Your insurance company can't close your case because they don't want to pay for appointments or send checks.

The experienced workers’ comp attorneys at the Law Offices of James Scott Farrin are here to fight for you when an insurance company tries to take advantage of you and deny you the benefits you may potentially be owed. An insurance company may be banking on the fact that you don’t know they can’t do that.

Your Right to Medical Treatment as an Injured Worker

If the insurance company has accepted responsibility to pay for your injury, the law requires them to pay for the medical treatment recommended by your doctor. Sometimes, however, the doctor’s recommendations may be expensive and the insurance company may not want to pay. We have seen such circumstances in which the insurance company has canceled appointments outright, putting the onus on the injured worker to challenge them. (That is when many turn to us for help.)

But they don’t have the right to just cut you off. You have the right to get the medical treatment you need to heal so you can try to get back to work. Sometimes, you may be forced to consider hiring a workers’ compensation attorney to fight for you to protect that right.

Your Right to Treatment May Extend to 2 Years after You’re Declared “Healed”

Medical care might continue 2 more years even after doctor says nothing more to offer.

What we’ve seen happen to some injured workers is that when they contacted their insurance company within that two-year timeframe, they were told their case had been closed.

If that happens to you, you may have the right to go back to the doctor for up to two years after the last date the insurance company paid for any treatment.

Your Right to a Second Opinion

Injured workers also have the right to request a second opinion from another doctor. We typically urge our clients to take advantage of this opportunity. If the request is approved, a second opinion can help to try to make sure nothing has been missed and no other treatment is available that might help improve your condition.

The insurance company may try to ignore your request for a second opinion and try to tell you after your doctor releases you that your case is closed.

Your Right to Benefits Checks

Insurance companies can’t close your case because they’re tired of sending you a benefits check every week. In most circumstances, once the insurance company starts sending you a weekly benefits check, they must continue to send that check until you’ve returned to work or the insurance company has been given permission by the state to stop the checks.

Even then, you may have the right to start getting the benefits checks again if you have to go out of work. The insurance company may have to restart paying your claim even if they stopped your check once.

Can Your Workers’ Comp Case be Closed Without Your Knowledge?

Your case may be closed without your knowledge if more than two years has passed from the time you either made the claim or benefits were last paid. This is the general statute of limitations in workers’ compensation cases.

Don’t fall victim to delay, deny, and defend tactics of some insurance companies.

Workers’ Compensation Lawyers Offer FREE Case Evaluation

If you have any questions about your case being closed, we advise you to contact the Law Offices of James Scott Farrin.

The sooner you contact us after your job injury, the better. We can answer your workers’ comp questions about your situation. Any delay in contacting us could give your adjuster a chance to deny, delay, or stop benefits.

Based on our workers’ compensation team’s 250 years of combined experience, it is almost always a good idea to speak with us about your circumstances. Our confidential case evaluations are free, and you may learn that you’re entitled to more than the insurance company claims.

If you’ve been injured in a work accident or know someone who has, 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.

What Is a Permanent Impairment Rating?

It’s bad enough that you’ve been hurt on the job.

You want to get better and return to work, but you don’t want to go back to work too soon and risk further injury or hurt your chances for a full recovery. Most people who’ve been through a workers’ compensation claim can tell you, things can get complicated pretty quickly. And your recovery may often seem like it gets lost among the noise of this complicated machine known as the workers’ compensation system.

Oftentimes, insurance companies will send injured workers to doctors they prefer. We’ve seen over and over that sometimes these doctors may clear our clients to go back to their jobs before they feel ready.

If you don’t feel you are medically ready to return to your job, contact us immediately. We may be able to help you get another doctor’s opinion.

Maximum Medical Improvement (MMI)

In workers’ compensation language, when your healing period ends, you have reached what is known as “maximum medical improvement” or MMI.  If you have made a complete recovery and have no pain or loss of function, your doctor will likely record in your medical records that you have made a 100% recovery and you are back to normal – the way you were before your injury.

However, if you still have deformity, pain, weakness, or loss of function that has not improved through medical treatment, your doctor may assign you a “permanent impairment rating.” A permanent impairment rating is supposed to reflect the percentage of change from your normal pre-injury condition.

If you don’t agree with this rating, or you don’t feel medically ready to return to your job, we can help you take the necessary steps to try to get a second opinion with a doctor you choose. Not necessarily one the insurance company chooses!

Permanent Impairment Rating is the percent change from pre-injury condition.

Permanent Impairment Chart for Total Loss Compensation in North Carolina

Most of our clients are shocked to learn that North Carolina state law sets a maximum amount of compensation for each body part. Here is a list of the maximum amounts you could receive for a total loss of body parts: 

workers comp disability rating impairment rating chart for body parts and number of weeks

Permanent Partial Impairment Ratings for Compensation in North Carolina

For anything less than total loss, benefits are figured on a percentage basis. For example, a 10% partial impairment rating to the leg would be worth 20 weeks of benefits at your weekly compensation rate. A 10% rating to your back would be worth 30 weeks at your weekly compensation rate.

Permanent Partial Impairment Ratings Chart for 10% Rating

permanent partial impairment rating chart for compensation with 10% rating

The North Carolina Industrial Commission publishes a ratings guide to help physicians make impairment evaluations. Here are those rating guidelines that include impairments such as the following:

  • Shortening of the leg
  • Rotation of the hip
  • Motion of the knee, foot, and ankle
  • Optimum position of the fingers, elbow, and shoulder
  • Fractures
  • Lacerations
  • Nerve injuries
  • Back injuries
  • And more

If your workers’ comp claim has been approved, you are likely entitled to receive this payment for permanent impairment even if you are able to go back to work and even if you don’t have any reduction to your wages. This is a partial settlement that is made in a lump sum, usually when the injured worker goes back to work for the same employer earning the same wages as before the injury. Under this kind of partial settlement, the injured worker retains the right to request additional medical treatment for another two years.

If you disagree with the doctor’s rating, you are entitled to get a second opinion from another doctor of your choosing. The Industrial Commission will average the two ratings to determine your benefits. 

If, however, your healing period ends and you are still unable to return to work, you can choose to continue receiving weekly compensation checks instead of payment for your disability rating. Except under special circumstances, you can only receive weekly benefits for a total of 500 weeks from the date you became disabled.

Complicated, isn’t it?

Workers’ Comp Lawyers in NC Evaluate Your Case FREE

Workers’ compensation law can be extremely confusing and complicated. That’s why we believe it’s best to have legal guidance to help you try to make the right decisions at every step of this process. Our workers’ compensation lawyers have the training and the experience to help you potentially get the medical treatment and compensation you need.

Many of us are North Carolina State Bar Board Certified Workers’ Compensation Specialists. Out of the 30,512 attorneys licensed in North Carolina, only 152 can claim that distinction.* We also have a former Special Deputy Commissioner, and a former Deputy Commissioner from the North Carolina Industrial Commission (one of whom was a state senator).

When you’re injured, the last thing you need is to try to become an attorney in workers’ compensation law. You just need to focus on getting better and trying to get a check to put food on the table for your family during your recovery.

Contact us online to let our highly experienced workers’ comp team evaluate your case for FREE, or call on our 24/7 North Carolina workers’ comp hotline at 1-866-900-7078.

*NC Board Certification figures provided by the NC State Bar through February 2021.


Is Your Insurance Company Spying on You? (Possibly!)

Will the Insurance Company Watch Me if I Have a Workers’ Compensation Claim?

Based on my experience, and depending on your injury, yes they very well might. Some insurance companies may do anything they can to pay you as little as possible. Private investigators are still used in many instances, but with social media, it’s now easier to get information to use against you – even seemingly harmless information.

I had a client3 who was seen in a social media photo walking around and drinking with some friends while he had a denied claim for lower leg injury. One of the recipients copied on the picture was his boss. The boss claimed my client was seen walking in such a way that seemed to indicate he was not as injured as he claimed, so he reported this information to the insurance adjuster. That information, in part, led to the denied claim.

Why Would My Insurance Company Watch Me?

The short answer is the insurance company is often skeptical of your injury and the extent of your disability and is likely to spend money and resources on efforts to determine if you are as injured as you claim.

Insurance adjuster spying on you through a rip in a white canvas.

For example, let’s take a situation where the insurance company has accepted your claim and is providing medical treatment and wages while you are out of work and treating for your injury. The doctor has you under restrictions of no lifting/pushing/pulling greater than 25 pounds and only occasional bending. Even when you are injured, it is still necessary to maintain some degree of a normal life. Usual activities for many of us include grocery shopping, picking up and dropping off kids, basic yard work, and household chores.

Many insurance companies in my estimation typically take the stance that you aren’t as injured as you have reported to the doctor and that they may be able to prove that by hiring an investigator to follow you and observe and record your activities. The investigator may follow you to the grocery store, park, church, restaurant, or simply park outside your home or neighborhood.

A private investigator from the insurance company may observe and record you performing one of these seemingly harmless activities:

  • carrying a bag of groceries or a carton of milk
  • pushing a trashcan to the curb
  • bending over to put a leash on your dog to walk around the block
  • playing with your kids outside

While these activities are not inconsistent with the restrictions your doctor has prescribed, video surveillance or still shots can oftentimes be misleading or taken out of context to give the appearance that you are performing physical activities in excess of your restrictions.

What the insurance company may hope to do with surveillance they have gathered is to provide it to your treating physician in an effort to get the doctor to release you. They may also use surveillance as a way to try and push you toward settlement.

Is It Legal for a Private Investigator To Follow Me?

Yes, it is generally legal for a private investigator to follow you. It’s business as usual in certain cases, as long as there is no reasonable expectation of privacy. That means that most evidence gathered in a public setting is considered to be legally obtained. For example, they may observe you working in your yard or standing on your front porch, as you are likely within public view under these circumstances.

Today, more and more information is obtained through social media.

Social Media Dos and Don’ts to Maintain Privacy from Insurance Companies

Our attorneys and staff at the Law Offices of James Scott Farrin have seen an increase in electronic surveillance of social media sites by the insurance companies. We have seen some insurance companies use this information to try and embarrass our clients and diminish their potential for compensation.

The emergence of social media sites was just what the doctor ordered for insurance snoops. And snoop they will.

Facebook, YouTube, Twitter, Instagram, Google, Pinterest, LinkedIn, and even Snapchat. Any site where you share information with others can be a treasure chest of information for the insurance company. Many use sophisticated software to troll for something – anything – they can potentially use against you now or in the future. (Some are even starting to use the information to potentially affect premiums clients pay.)

If you have been injured in any way, even if you don’t think you will file a workers’ compensation claim, here are some helpful social media guidelines to try to keep the insurance companies out of your personal life.

While we strongly urge you to NOT post anything about your injury on any social media site, if you must post, follow these Dos and Don’ts.


  • Set the Highest Privacy Settings.

This means making sure that only friends can see your information, and not friends of friends or the general public.

  • Know Who Has Tagged You.

You need to monitor your posts as well as posts from friends and others you may not know well who have tagged you. Be especially diligent about allowing what is portrayed about you on others’ sites. This is easily trackable.

  • Be Careful Who Your “Friends” Are.

Accept friend requests only from people you actually know. Remove people you have as “friends” currently who are only acquaintances or people you don’t know or barely know.

  • Make Yourself Invisible.

Remove yourself from Facebook search results by selecting “friends only” under search visibility in your profile settings.

Remove yourself from Google by going to your Internet Privacy Settings and unchecking the box for Public Search Listing.

  • Turn off Your Geolocation.

All social media sites have a geolocation feature. Geolocation shows anyone where you are and what places you frequent. Unless you want the insurance company to know you were at the local pub the night of your accident, turn this off. Even if you were drinking ginger ale all night and were the designated driver, they may try to say you were drunk. Go to the section of all your social media sites or click on the location button before posting.

  • Be Extra Cautious.

Assume anything and everything you write on your social media pages, including status updates, check-ins, messages, and wall postings will at some point be seen by the insurance company.


  • Email, Post, Share, or Tweet Any Information About Your Case.

Do not send emails to anyone except your lawyer regarding your claim and its progress, or your health. Don’t share anything with anyone concerning your accident. Don’t even share information about how you feel as it relates to your accident. “Not to worry, I’m fine” may be a comforting post for friends and loved ones, but to an insurance company it can mean you are not injured. And they may try to use that post against you.

  • Join Web Chat Groups.

You do not own the information you post online, and it is highly searchable. Do not post on message boards, participate in or comment on blogs, or go into chat rooms about insurance or claims related issues. Do not create your own website or start your own blog about your experience.

The Law Offices of James Scott Farrin Has Helped More Than 50,000 Injured People Since 1997

We at the Law Offices of James Scott Farrin work with you as part of your legal team in your fight against the insurance companies.

Since 1997, we’ve recovered over $1.2 billion gross for over 50,000 clients.1 And these numbers don’t include the $1.25 billion we helped recover against the U.S. government for 18,400 claimants in a historic class action case.4

We’ve done this because we have lots of quality professionals. Over 50 attorneys, roughly 200 staff, and nine attorneys who are North Carolina State Bar Board Certified Specialists in workers’ compensation law, which is something less than 1% of the 30,000+ attorneys5 licensed to practice in NC can say.

Personal Injury Attorneys Evaluate Your Claim FREE

Follow the restrictions prescribed by your doctor at all times and in all settings – for your recovery first and foremost. But also, it is prudent to assume the insurance company is watching when you have a workers’ compensation claim.

If you or a loved one has been injured in an accident, don’t post, tweet, or share anything about the injury.

Call us at 1-866-900-7078 or contact us online. Just like social media, we’re available 24/7.

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

4Re Black Farmers Discrimination Litigation, the Law Offices of James Scott Farrin led a team of firms to recover $1.25 billion for African-American farmers from the U. S. government for discrimination.

5Figure provided by the N.C. State Bar as of February 2021.

Your Workers’ Comp Claim: What Is an FCE Test?

When a worker is injured on the job, they undertake a course of medical treatment to help them get better. Of course, “getting better” from an injury isn’t a black or white question. How is it determined when the worker is well enough to return to work?

Your doctor is generally responsible for releasing you back to work when your medical treatment has concluded. To avoid liability and the risk of further injury, a medical release is usually required before you return to work. If your injury was minor and your recovery was complete, it may be relatively easy for the doctor to determine that you are capable of returning to your former job. However, in many cases, it is more complicated to determine just exactly how much work an employee is still capable of doing after their injury.

Sometimes the doctor will feel comfortable assigning work restrictions based on their own opinion about your physical ability. Often, though, especially with more serious or complicated injuries, doctors prefer to base any work restrictions on a Functional Capacity Evaluation (FCE). The FCE, which is also sometimes called a functional capacity assessment or functional capacity examination, is supposed to be based more on science and facts than thoughts or opinions.

An FCE can help your doctor determine:

  • When it is physically safe for you to return to work
  • When you are physically able to do the same job you did before you got injured
  • How much physical effort you can safely perform at work without reinjuring yourself

What Happens During a Functional Capacity Assessment?

The FCE puts you through your paces, typically after the physical therapy process has been completed. Can you bend? Can you reach? Can you twist? Can you lift? Can you do the many fundamental physical movements and motions required of your job?

The tests generally last for several hours and involve a number of physical challenges, such as repetitive lifting, bending, walking, and stair climbing. These tests are intended to measure your exact physical strengths and weaknesses and compare them to the actual requirements of your job. You may also be asked to come in on consecutive days, in order to evaluate your stamina and strength across a greater time period.

While the physical tests are standardized, the focus of the examination will vary based on the job in question. If your job requires repeat heavy lifting throughout the day, for example, that will be an area of focus for your particular Functional Capacity Evaluation.

Where Are FCE Tests Performed?

FCEs generally are performed by a physical or occupational therapist. Your test will be administered at a medical facility of some kind. A physical therapy center is a very common location to perform the FCE.

Things may be overwhelming or hectic on the day of the exam, so here is a quick checklist of what to do and not do on test day:

At a functional capacity evaluation, dress comfortably, bring medications & your job description.

Can the FCE Be Used Against You?

Sometimes, the insurance company orders a Functional Capacity Examination to try and demonstrate that you are capable of returning to work – even if you don’t feel ready. We have come up against situations where the insurance company has tried to use the FCE as a weapon. This may be part of their efforts to try to:

  • Convince the doctor that a client is faking or exaggerating their injury
  • Send someone back to their job, even if it may be too physical for them to handle
  • Release a worker from treatment before they feel physically ready
When the manager of an injured truck driver tried to get him to go back to work before he felt ready, he asked for a second opinion. That’s when things got ugly and he contacted us. Read Christopher’s story here.

A Functional Capacity Assessment should be fair, administered by an impartial professional, and based on scientific, standardized methods. Unfortunately, FCE standards can vary from provider to provider. Some FCE tests are more accurate than others at measuring a person’s capacity for actual work over an eight- to 10-hour work day. Ultimately, not all FCEs are created equal, and that’s something an injured worker needs to know.

Biased Tests and Provider Notes

The majority of FCE providers do attempt to do a fair and reasonable job for their patients. However, we have firsthand knowledge that some FCEs have been intentionally manipulated by a small number of FCE providers for the purpose of denying the injured worker continued workers’ compensation benefits.

For example, we have seen one FCE provider consistently instruct injured workers to stop the test and take a rest break. Then that provider would write in the evaluation that the person did not give full effort on the test. Another FCE provider has regularly reported that injured workers had been faking or exaggerating their injuries, when other FCE providers and physicians have reached contrary conclusions for the same workers.

FCEs put people in the difficult position of trying to prove that they are giving 100% effort on the test while not trying so hard that they reinjure themselves.

You can see that, like Christopher, your doctor may rely on the FCE test to release you to return to work before you may be ready or without any restrictions. It is very important to be aware of potential issues when your doctor starts talking about releasing you from treatment or returning you to work.

How Can a Functional Capacity Examination Help Your Case?

Your employer and their insurance company may want to get you back to work as soon as possible. If you can’t go back to work without accommodations — or at all — the FCE can be critical proof. Your attorney may order the FCE to help establish that your limitations prevent you from returning to your prior job.

Isn’t Your Doctor’s Diagnosis Enough?

Your doctor may think you’re ready to return because they don’t necessarily know exactly what your job requires of you physically. They also may not understand the laws of workers’ compensation about returning to work. For example, some doctors may assume that the best way to determine if an injured worker is ready to go back to work is to sign off on them going back to work for a short trial period. If the worker cannot perform their job during a trial return to work, your doctor may believe, then workers’ compensation insurance companies will be perfectly willing to restart workers’ compensation checks. That assumption is very frequently inaccurate.

To protect your own interests, it is best to get a written description of your job functions and discuss it with your doctor in detail. If you are having physical issues or taking medications that will keep you from being able to safely perform your job, you need to let your doctor know. Also tell your doctor if your physical issues on the job could create a danger to other co-workers or the public. No one knows as well as you the physical requirements and dangers of your job.

What Is a Failed FCE?

“Failing” the Functional Capacity Evaluation generally means it’s been decided that you can’t meet the essential requirements of the job you held before your injury. That’s bad news if you were hoping to return to your job as you knew it.

On the other hand, if you already knew that you wouldn’t be able to return to work and were worried the test administrator wouldn’t see how injured you really are, “failing” the exam can be a good thing. It may mean you have the documentation you need to get the benefits you may deserve.

Don’t Try to Fake a Functional Capacity Evaluation

Take the test normally. Don’t load up on pain medication and over-exert yourself. It’s not the Olympics. By the same token, don’t exaggerate your symptoms or injuries. Your evaluator is trained to spot signs of faking, and they’re very good at it.

The FCE is not the only thing that matters. People’s bodies can feel and respond differently on different days and the test is far from a perfect measure of work conditions. An FCE is just one piece of the puzzle.

How Can the Law Offices of James Scott Farrin Help You?

Our team is comprised of recognized professionals in workers’ compensation. Several of our attorneys have more than ten years of experience. Some speak at seminars for other workers’ compensation attorneys. And we’ve worked for the “other side,” so we know what you’re up against. Several members of our team are former defense attorneys and paralegals for insurance companies.

Many of our workers’ comp attorneys are NC State Bar Board Certified in workers’ compensation law. Of the 30,512 attorneys licensed in North Carolina, only 152 are NC State Bar Board Certified Specialists in workers’ compensation law. That’s .5%!* And several of them practice right here at our firm.

What does it mean to be NC State Bar Board Certified? It means you have an attorney with extensive knowledge and experience in their specific area of law, having undergone intensive training, years of practice, and rigorous testing.

Get a FREE Case Evaluation from Battle-Tested Workers’ Comp Lawyers

We believe in caution and prudence. There is a lot to know about workers’ compensation law and the system can be extremely difficult to navigate successfully on your own.

That is why we urge anyone who has been injured on the job to contact us or call 1-866-900-7078 immediately after their injury. We will try to ensure that all the necessary measures are taken to preserve your potential right to workers’ compensation benefits.

*Figures provided by the N.C. State Bar as of February 2021.

Workers’ Compensation Settlements in NC: Proceed With Caution!

At some point, most injured workers receive a phone call from the workers’ compensation insurance company asking whether they’re ready to settle their case. Maybe you’ve already received that call…

If so, it’s probably a good time to consult a James Scott Farrin workers’ compensation attorney. More than half our workers’ comp attorneys are NC State Bar Board Certified Specialists in Workers’ Compensation law. This is the highest level of specialization available in N.C., and only a small percentage of N.C. attorneys can make that claim. Very small.

Navigating the twists and turns of the North Carolina workers’ compensation system is hard enough while your case is still open. But when you receive that phone call, you’ve got a whole new set of issues to consider. This is your livelihood we’re talking about. You don’t want to make any decisions you later regret. And when it comes to determining the “value” of your case, Facebook said it best: it’s complicated!

Do All Workers’ Comp Cases Settle?

First thing’s first. It’s important for every injured worker in North Carolina to understand that not all workers’ compensation cases settle. There is no requirement that your case should eventually settle, and you can’t force a workers’ compensation insurance company to offer a settlement. In fact, based on my experience, some injured workers are better off leaving their cases open.

What Is a Workers’ Comp “Clincher” Agreement?

Many workers’ compensation cases do eventually resolve by “clincher” agreement. This means the insurance company offers a lump sum of money to an injured worker in return for a full and final settlement of their case. A clincher (or settlement agreement) typically closes the case in full, including all medical treatment and wage replacement benefits.

Before taking a settlement for your workers' comp injury from insurance, consult with a workers' comp lawyer.

If you find yourself considering a settlement, BE CAREFUL! Before making any big decisions, there are two important issues you should examine.

Is It a Good Time To Settle Your Case?

I’ve said it before and I’ll say it again: Every workers’ compensation case is different. Based on my opinion, however, for most cases, the best time to settle is after your major medical treatment has concluded. If the insurance company pushes you toward a settlement too quickly, they may be unable to reasonably evaluate the value of your case. This can result in lowball settlement offers, which typically do more harm than good.

Additionally, there are many other benefits you may or may not be receiving, which can adversely affect (or be adversely affected by) potential workers’ compensation settlement results in North Carolina. Social Security Disability benefits, Medicare, Medicaid, and even private disability/health insurance plans can cause complicated legal issues when it comes time to settle your workers’ compensation case. All of these issues must be carefully considered in order to determine whether settlement is a good idea, based on your particular set of circumstances.

What Is the “Value” of Your Workers’ Comp Case?

Once you decide it’s a good time to settle your case, there’s still another looming question that will need to be answered: How much?

My job as a workers’ compensation attorney would be a lot easier if there was a magic “settlement calculator,” but unfortunately, it doesn’t exist. In order to determine the reasonable value of your claim, an experienced professional will typically consider the following:

  • The cost of your future medical treatment
  • The likelihood that your injury will prevent you from returning to work in some capacity down the road
  • Any decreased earning potential resulting from your injury

Additionally, you may be entitled to an award for a permanent partial disability rating to your injured body part or parts. This is typically determined by your doctor. The calculation associated with this potential award is set by statute in North Carolina.

James Scott Farrin workers’ comp attorneys are trained to help you weigh the pros and cons of settling your case. If you decide to move forward with settlement, your attorney can then help you negotiate with the insurance company in order to try to maximize the amount you could potentially receive. Regardless of whether or not you decide to retain an attorney, when it comes to workers’ compensation claim settlements, proceed with caution.

North Carolina Workers’ Comp Lawyers Offer FREE Case Evaluation

Workers’ comp is complicated to navigate. We urge you to consult with us if you have any questions whatsoever.

If you think you can’t afford a workers’ comp lawyer, you may be surprised. Our attorneys work on a contingency fee basis to try to help our clients navigate the best course of action for their unique situation.2

Feel free to contact us or call us toll-free at 1-866-900-7078We’ll have an attorney evaluate your case for FREE.

When you are injured at work – and unable to return to work as a result – you are typically entitled to ongoing weekly workers’ compensation checks to replace your lost income. In North Carolina, these weekly checks are called “temporary total disability benefits.” So how do you find out if you are receiving the right amount each week?

To calculate the amount that you are entitled to, you have to first determine your average weekly wage or what you were earning on average per week before your workplace accident. The law in North Carolina provides four ways to calculate what you may be entitled to for your missed time from work.

Method 1

If you have been working with the same employer for the previous 52 weeks and you have not missed more than seven consecutive days from work, then you can use the standard calculation. If you fall under this category, you take your pre-tax earnings from the 52 weeks before the date of your injury and divide by 52. Bonuses and any daily per diem should be included when calculating your wages.

Jack example
For example, let’s say Jack was injured on the job. Jack looks at his pre-tax earnings (also called gross earnings) and finds that he made $52,000 in the 52 weeks prior to his injury. This makes his calculation easy: $52,000 / 52 weeks = $1,000 per week.

Method 2

If you have been working with the same employer for the previous 52 weeks and you have missed more than seven consecutive days, then you need to remove the gaps in employment. For example, if you were out of work for 4 weeks within the last 52 weeks then that would mean that you only worked 48 weeks. Instead of dividing your pre-tax earnings by 52 weeks, you would need to divide it by 48 weeks. You weren’t earning a wage, so those weeks basically don’t count. Removing these days where you were not working and earning income will increase your average weekly wage.

Jorge example
Jorge was off for three weeks a few months back, but has been otherwise working. He calculates that he earned $38,000 before taxes in the last 52 weeks. He subtracts out the three weeks he was without work, so his calculation looks like this: $38,000 / 49 (that’s 52 weeks, minus the three he was out of work) = $775.51 per week.

Method 3

If you have only been with the employer for a few months prior to the accident, then you would want to use the third method of calculation. Under this method, you would need to obtain wage information for a similar employee. Once you have this similar employee’s wage information, you use Method 1 from above to calculate your average weekly wage.

Karla example
Karla has only been working this job for two months. Because she doesn’t have as much history, she has to find a similar employee to herself for an equitable comparison. She knows Ronnie has been doing the same job as she has for more than a year. Using Ronnie’s income of $44,000, she can use Method 1 above. $44,000 / 52 weeks = $846.15 per week.

Method 4

Lastly, there is a catch all provision that allows the North Carolina Industrial Commission (NCIC), which is the entity that handles workers’ comp issues in North Carolina, to look at other factors in determining what is fair. In the event that none of the above methods are appropriate for calculating your average weekly wage, you would need to find another way to determine the amount that you would have been earning if you had not been injured at work. If you received a recent raise or had some change in your employment status which impacted your earnings, this may be the most appropriate method.

Shawn example
Shawn has been working with the same company for a while. He was making $50,000 a year, but he received a raise two months ago, which bumped him to $60,000. In this case, Shawn would file a hearing request with the Commission and ask to be compensated based his current weekly wage, even though he has not been earning that amount for 52 weeks.

Final Step: Weekly Wage Multiplier

Using the information above, you can determine your average weekly wage. However, there is still one more step. You have to take your average weekly wage before taxes, and multiply it by 0.6667. This results in what is called your compensation rate. This determines the amount that you should be receiving per week while you are out of work.

Tyree example
Tyree has calculated that he was making $1,168 per week prior to his injury at his job. To get his compensation rate for workers’ compensation “temporary total disability benefit” check, he multiplies that by 0.6667. The total is $778.70, and that’s the amount that each of his weekly checks should be.

It is important to remember that workers’ compensation checks are not taxable.

What if My Workers’ Compensation Checks Are Not as Much as They Should Be?

By law, you are entitled to 66 and 2/3 percent of your pre-injury wages. These workers’ compensation benefits are called temporary total disability payments and, as we said, they are not taxed.

The insurance company may not correctly calculate your compensation rate, which would lead to you receiving less than what you are entitled to receive. They may forget to include bonuses or commissions, leave out income from concurrent employment with other employers, or fail to remove periods of missed time from work.

If you feel that you are being underpaid, you should consult an attorney to see if your compensation rate was inappropriately calculated. Not only would you potentially be entitled to on-going temporary total disability checks at a higher rate, but you may also be owed a lump sum for the underpayment.

If You’ve Been Injured at Work and Aren’t Sure You’re Getting All Your Benefits, Contact an Experienced Attorney

Are you getting the right amount in your weekly checks? Even if your checks look right, it’s a good idea to talk with an attorney. It doesn’t cost you anything to have us review your situation. Not only could this lead to an increase in your weekly workers’ compensation checks, but you may also be entitled to a lump sum payment for the period where you were underpaid. Call the Law Offices of James Scott Farrin at 1-866-900-7078 for a free case evaluation, or simply contact us online.

Charles’ Story Pt. 3: Benefits, Return to Work, and Life After the Injury

When a worker is injured on the job, Workers’ Compensation is supposed to kick in and replace the earnings he or she is missing due to the injury. But how much does Workers’ Comp cover? How long do the benefits last? An experienced Workers’ Comp attorney can help answer these questions.

For now, we return to the story of Charles, our fictional example worker who was hurt on the job in North Carolina. If you have not, you may wish to read part one and part two of this series to get up to speed.

Wage Replacement Benefits of Workers’ Compensation in North Carolina

Whether they’re living alone or providing for their families, workers depend on their earnings to stay afloat. The bills keep coming in even if the paychecks do not. So how much can an injured worker get, and for how long?

The answer is, it depends. How much an employee gets to replace wages depends on a few factors, and is governed by North Carolina General Statute 97-2(5).

How Much Did the Worker Make Before the Injury and How Much of His or Her Wages Are Replaced by Workers’ Comp?

This seems simple, but it’s deceptive. How much Charles gets when he is unable to work depends on how much he earned in an average week before he got hurt. This is called the Average Weekly Wage (AWW). To start with, there are four ways to calculate AWW:

  • If Charles worked for his employer for more than a year before getting hurt, his earnings over the last year are divided by 52 weeks. This excludes any period of seven or more days that the workers was not earning. Ex: $52,000 / 52 weeks = $1,000 per week. In this example, Charles’ AWW is $1,000.
  • If Charles worked for his employer for less than a year, his earnings during that time are divided by the number of weeks worked. So if a worker has been employed for six months, the earnings are divided by 26.
  • If Charles had worked for his employer for less than three months, and the period of work is too short to provide a fair amount, then the earnings of a similar worker can be substituted. So, the wages of a worker performing similar duties at a similar skill level in the same location could be used to determine his average weekly wage.
  • In case where none of these methods would produce a fair result, other methods can be used to try to approximate how much Charles would be earning if he had not gotten injured.

The numbers are based off the gross, or pre-tax, wages of the worker. It counts as income things like bonuses, overtime, stipends, per diem, and allowances in addition to wage, such as those for housing or fuel. Whatever all of those sums add up to is the gross income. That number is then divided as necessary to provide the Average Weekly Wage.

Average Weekly Wage is important because in North Carolina, the Workers’ Compensation wage replacement benefit is set at two-thirds of that AWW, up to a maximum amount set by the North Carolina Industrial Commission each year. This two-thirds is called the Compensation Rate.  For 2020, the maximum compensation rate was set at $1,066.

So, if Charles was earning $52,000 a year, divided by 52 weeks, his AWW would be $1,000, and his Compensation Rate would be two-thirds of that, or $666.66.  Therefore, he would be entitled to receive a check for $666.66 from the insurance company every week that his authorized doctor said he was unable to work because of his injury.  No taxes are taken out of these checks.

How Long can a Worker Receive Wage Replacement Benefits?

Injured workers, like Charles, can get weekly checks at their Compensation Rate, as long as their authorized doctors says they are completely unable to work, up to a maximum of 500 weeks. This is called Temporary Total Disability or TTD.

If an injured worker, like Charles, is capable of doing some work, but cannot earn as much as he earned before he got hurt, he can receive partial payments from the insurance company.  These checks will be two-thirds of the difference between what Charles earned before his injury and what he earns after his injury.  This is called Temporary Partial Disability or TPD.

  • For example, Charles’ doctor says he can only work 20 hours a week. Charles goes back to work, but instead of earning $1,000 a week, he is only earning $500.00 a week.  He would be entitled to get two-thirds of the difference from the insurance company.  $1,000.00 – $500.00 = $500.00 ÷ 2/3 = $333.33.

Some insurance companies may "turn off" payments. Know how the system works and how to protect yourself.

A Word on Permanent Partial Disability (PPD)

This part of Workers’ Compensation law can be very confusing, so it is important to understand that each worker’s situation is unique, and the most beneficial course of action may be different from case to case. Here is a barebones explanation.

Payment for a Permanent Partial Disability is calculated by looking at North Carolina General Statute 97-31 and figuring out how many weeks of benefits the injury is worth. For example, a 100% injury to the knee is worth 200 weeks of benefits at the employee’s compensation rate. If an employee was given a disability rating of 10%, it would be worth 20 weeks of benefits.  In this case, he would be entitled to receive a payment of 20 weeks at his compensation rate.

a partial permanent disability may worsen over time

The Benefits and Battling to Keep Them

It happens all the time. A worker is receiving treatment and wage replacement benefits and, after a period of time, the insurance company stops paying them, or pushes the worker to return to the job. Again, this is all part of doing business and insurance companies are businesses. Paying less in benefits equals more profit.

However, injured workers should never be rushed back to work. This only increases their risk of getting reinjured and poses a risk to those around them.

There are only two reasons an insurance company is technically allowed to cancel Charles’ benefits – if he returns to work or if they get permission from the NCIC. Lots of battles arise when the authorized doctor says the injured worker is ready to go back to work full duty, but the injured worker disagrees.

In this situation, the insurance company will file an application with the Industrial Commission for permission to terminate the worker’s benefits.  The worker, or more likely the worker’s attorney, will fight back by seeking a second opinion with another doctor.  If that doctor believes that the injured worker is NOT able to return to full duty work, the worker’s attorney can submit that doctor’s opinion to the Industrial Commission to try to protect the worker’s benefits.

Returning to Work

We’ve followed Charles from the beginning. Now his saga is coming to an end. After six months of treatment, he’s feeling better. Not quite 100%, as he still has very little strength in his hurt shoulder due to not being able to use it. His back, however, is feeling a lot better and improving every day, for which he feels fortunate.

workers' comp law has intricacies on when a worker can return to work after an injury

Charles’ doctor finally clears him to return to work, but not at his full pre-injury level. His shoulder is not yet ready for that. So the doctor recommends a trial return to work. This is basically a time when Charles goes back to work to see what he’s capable of doing. Medical benefits are still in force, but the wage replacement may be suspended depending on how much he is earning. (See TPD explanation, above).

There are a number of things that can happen at this point, and handling them can be complicated:

  • Charles can accomplish the modified or reduced tasks that his employer assigns him until he’s fully capable again of returning to his pre-injury job.
  • Charles has difficulty performing the modified or reduced tasks provided by his employer. He needs to return to the authorized doctor and see about getting more appropriate restrictions.
  • Charles reinjures his back while performing the modified or reduced tasks. Again, he should return to his physician, be restricted from all work until his condition improves, and have his wage loss benefits reinstated.
  • Charles continues working at the modified job until his doctor says he has completed his treatment. Unfortunately, his doctor says he is not able to physically handle his original pre-injury job. It may be time for Charles to . Alternatively, instead of settling, the insurance company may decide to try to locate a new job for Charles at a different company.

Vocational Rehabilitation for Injured Workers

If a worker is injured and cannot return to his or her former job, the insurance company may choose to provide vocational rehabilitation. This training can include:

  • transferable skills analysis and testing
  • resume, interviewing and job application services
  • job search assistance
  • retraining/education
  • other services deemed appropriate

The End of Charles’ Story of Workers’ Compensation in North Carolina

Our friend Charles has been through a lot. From a hurt back and shoulder through the workers’ comp process, he’s been faced with many challenges. Everyone likes a happy ending, so Charles is able to return to work and makes a full recovery. Many, many workers in North Carolina are not so lucky.

In fact, many find themselves at the mercy of a system that they do not fully understand. In many of the examples of the process with and without an attorney in parts one and two of this series, the main takeaway may appear to be convenience. The truth is far deeper. A worker can, if he or she is so inclined, read everything possible on workers’ comp law in North Carolina and still miss something small that leads to big problems.

Charles was an example, and it is easy to minimize the differences when you’re not actually injured and in the system. Having an advocate with experience working in the system, battling insurance companies, and looking out for your best interests is a huge advantage in terms of both time and stress. While no result is guaranteed, who has a better chance of successfully navigating the workers’ comp system: an attorney who is dedicated solely to the practice of workers’ compensation law, or a worker who is in pain and finding his or her way through the system for the first time?

If You Were Hurt at Work, Contact an Experienced, Dedicated Workers’ Compensation Attorney

It’s not just a case, it’s your livelihood. From medical coverage to the money to pay bills, you need help as soon as possible. There are many great workers’ advocates in North Carolina. To speak with one of ours, just call 1-866-900-7078. You’ll hear a friendly voice, and get a free case evaluation, with no obligation. You can also chat with us, or contact us online. Whatever is easiest. Don’t sit and suffer. Tell them you mean business.