North Carolina Workers' Compensation Guide (9 Common Mistakes That Can Destroy Your Workers' Comp Case)

9Common Mistakes That Can Destroy Your Workers’ Compensation Case

By: Benjamin T. Cochran Board Certified Specialist In Workers’ Compensation Law

1-800-600-7969www.lawyerNC.com

And How to Avoid Making Them

About Hardison & CochranHardison & Cochran is a personal injury law firm servicing all of North Carolina. The firm’s practice areas include:

- Injury Cases - Dog Bites- Car Accidents - Social Security Disability- Truck Accidents - Dangerous Drugs- Motorcycle Accidents - Defective Medical Devices- Boating Accidents - Nursing Home Negligence- Workers’ Compensation

Hardison & Cochran’s Client Satisfaction GuaranteeIf you are not 100% completely satisfied with the way we treat you and your claim, during the first 30 days after hiring our firm, you may take your file, no attorney fees and no questions asked.

1-800-600-7969www.lawyerNC.com

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Benjamin T. CochranBenjamin T. Cochran has been representing injured employees in North Carolina since 2002. A graduate of the University of North Carolina at Chapel Hill and Norman Adrian Wiggins School of Law, he is the Managing Partner of Hardison & Cochran. Mr. Cochran is a Board Certified Specialist in Workers’ Compensation. He holds memberships in the American Trial Lawyers Association and the North Carolina Advocates for Justice where he is in the Leaders’ Forum. As a compassionate believer in educating others of their rights, he often speaks publicly and has authored a book, 9 Common Mistakes That Can Ruin Your Workers’ Compensation Case And How To Avoid Making Them, for residents of the Tar Heel State. Mr. Cochran believes in a team approach when it comes to handling a client’s case. He feels that everyone in a selected division should be intimate with the details of a case. This way not only one person can help the client, but everyone on any given day can be of assistance. Mr. Cochran is described as someone who grasps the leadership role with confidence, energetic about his duties, and is dedicated to helping others; be that client, fellow attorney or staff member.

A Message From Benjamin T. Cochran


I would like to thank you for viewing or downloading this Power Point presentation on the topic of North Carolina Workers’ Compensation. Even though I may know many of the arguments the big insurance are going to make in your claim. I am not allowed to give legal advice in this presentation. I can offer suggestions and identify certain pitfalls and traps, but please do not take anything in this book to be legal advice unless you have agreed to hire me, and I have agreed, in writing, to accept your case.

If you have any questions or comments after viewing this presentation, please do not hesitate to contact me by e-mail, [email protected], or by phone, 1-800-600-7969. I gladly welcome feedback and if you have a question, it will be answered within 24 hours.

mailto:[email protected]

What Is Workers’ Compensation?


● The North Carolina Workers’ Compensation Act was adopted to protect injured workers from loss of income and for payment of medical bills.

● The legislative intent of the Act is to make employers responsible for the injuries of their employees who were injured by accident in the furtherance of the employer’s business.

● The Act also compensates injured workers for any permanent disability or lasting inability to earn the same wages due to the compensable accident.

● Workers’ Compensation is a “no-fault” system which means you usually don’t have to show your employer did anything wrong to have caused your injury. You simply have to prove you were injured while working as a result of an accident.


4 Myths of NC Workers’ Compensation1. My employer will file all necessary forms to protect my claimThe employer is required to file a Form 19 report of injury to the Industrial Commission. This form does not protect your claim. You must file notice to the employer and a Form 18 with the Industrial Commission. A Form 18 will be covered later in this presentation.

2. Workers’ Compensation claims require that I sue my employer.This is not true. You file claim (not suit) with the Industrial Commission which is a state government agency. Workers’ compensation is an administrative hearing process and not civil litigation. The injured employee is filing the claim against the employer’s insurance company most of the time unless the employer is uninsured or self-insured.

3. I can collect for pain and suffering in NC Workers’ Compensation claim.This is not true. The NC Workers’ Compensation act does not compensate for pain and suffering.

4. My employer states that since the accident was my fault I can’t pursue a workers’ compensation claim.This is not true. Workers’ compensation is a no fault system. The accident can be 100% your fault and you still are entitled to full benefits under the NC Workers’ Compensation Act.

Workers’ Compensation Terms


Accepted claim: A claim in which the insurance company accepts or agrees that your injury or illness will be covered by workers' compensation.

Medical only claim: A claim in which the insurance company or employer accepts or agrees that you have suffered an injury, however, they believe that you are still capable of working and as such are only going to pay for medical treatment only.

Denied claim: A claim in which the insurance company or employer does not accept or believe that they have a responsibility to provide compensation for your injuries.

Average Weekly Wage: The injured employee's average weekly salary prior to the injury. In order to determine the average weekly wage you must look to the 52 weeks of the injured's salary prior to the date of the accident. Generally you total the yearly salary then divide it by 52 weeks. If there are not 52 weeks then most of the time the insurance company or employer simply uses the average of those weeks that the injured employee worked prior to the date of the injury. (This may or may not be correct as it depends on what is fair and reasonable. For example: If you have only worked at the employer for less than three months then more likely than not this is an accurate picture of what your wage earning capacity would be for that position.)

Workers’ Compensation Terms (Cont.)


Compensation Rate: The compensation rate is two-thirds of the injured employee's average weekly wage.

Temporary Total Disability: Weekly disability compensation provided to the injured employee for his/her inability to work. The disability payments are provided at the employee's compensation rate.

Temporary Partial Disability: Weekly disability compensation provided to the injured employee for his/her reduction in their average weekly wage due to the compensable injury. The disability payments are two-thirds the difference of the injured's pre-injury wages and those wages after the date of injury.

Permanent Partial Disability rating: The percentage amount assigned to a body part intended to determine the number of weeks the injured is entitled to for compensation for their injury. The permanent partial disability rating is assigned by the treating physician.

Maximal Medical Improvement (MMI): Once it is unlikely that the injured employee's condition will change or improve with or without further medical treatment, an "MMI" is determined. Maximum medical improvement is determined by the authorized treating physician. Usually when the injured employee reaches maximum medical improvement he/she is released from doctor's care.


Workers’ Compensation Terms (Cont.)Modified or Light-Duty Work: Temporary employment offered by the employer to the injured employee while they are on restrictive duty by the treating physician.

Suitable Employment: Once the employee reaches MMI, the law requires that the injured employee be returned to suitable employment. Suitable employment is permanent employment available in the competitive marketplace, within the employee's physical, education, and vocational abilities. The employment also must be comparable in wages as to the injured's pre-injury position.

Vocational rehabilitation: If you are permanently unable to do your usual job, and your employer does not offer other suitable employment, you will qualify for this benefit. It may include job placement counseling, retraining and a vocational rehabilitation maintenance allowance.

Common Mistake #1


FAILING TO REPORT YOUR ACCIDENT● The most important step if injured on the job is to reporting the injury to the employer.

● Many employers have an accident policy in place which can be referenced in the employee manual. If this is the case, follow the guidelines spelled out to report the accident.

● If no policy exist, I find it most helpful to let co-workers, supervisors and human resources department know about the injury.

● Some employers and insurance companies will say that they cannot file a claim because they were not notified in time or that they had to have notice within 24 hours. THIS IS NOT THE LAW.

● The law generally requires written notice within 30 days. There are exceptions to this rule.

● The most common exception is if the employer, an agent or representative had actual knowledge of the accident then the employer is also deemed to have notice of the injury. This is why it is important to report the accident to everyone at the place of employment.

● There are other exceptions. If the injured employee’s claim has been denied for failure to report in time then they need to contact an attorney immediately to determine if the appropriate time limits have been applied or to determine if their claim meets one of the exceptions.

Common Mistake #2


FAILING TO GIVE FULL AND ACCURATE HISTORY TO MEDICAL PROVIDERS

● I cannot stress this enough: If an injured employee fails to tell the medical providers where they were hurt and how they were hurt , they will not only be hurting their chances of getting well, but they will hurt their legal claim as well. ● When the insurance company is investigating a claim they not only take statements from the injured party and witnesses, they also inspect medical records. For this reason, the injured employee must be as specific as possible about their injuries when speaking with medical providers.

● Medical records are one of the most compelling pieces of testimony that will be entered if it is necessary that your case go to trial. When being evaluated by a Deputy Commissioner, they are given greater weight because they are written by someone who has zero stake in the claim. ● Remember, a medical provider will need every bit of information about the injured worker’s injury to make a proper diagnosis.

● In closing, being honest and thorough when explaining an injury with a medical provider will ensure that the injured worker protects themselves physically and legally. The injured employee may see different medical providers, but they need to explain everything in detail to each and every one.

Common Mistake #3


FAILURE TO FILE A FORM 18

● In the State of North Carolina there are certain time limitations which govern when an injured employee can pursue a workers’ compensation claim.

● A Form 18 is not the notice to the employer that I spoke about earlier. It is a form filed with the North Carolina Industrial Commission helping protect the injured employee’s right to compensation.

● If the injured employee fails to file a Form 18 immediately with the North Carolina Industrial Commission, their claim may be barred after a period of time.

● You may have heard that you have 2 years to pursue benefits in the State of North Carolina. This may be true in most instances, but it is not true in all situations. It depends on what kind of benefits are being pursued.

● Remember, if the injured employee wants to pursue workers’ compensation benefits then they should file a Form 18. If a Form 18 has not been filed in a case where I have been retained, I file a Form 18 every time.

● Simply, a Form 18 lets the Industrial Commission and the employer know that the injured party is claiming workers’ compensation benefits.

Common Mistake #4


FAILURE TO COMPLY WITH MEDICAL TREATMENT

● In the State of North Carolina the workers’ compensation insurance company or employer generally has the right to direct the medical treatment of the injured worker.

● If the injured employee is out of work receiving weekly benefits it is very important that they comply with the recommendations of the treating physician when it comes to attending medical appointments and therapies.

● If the injured employee fails to attend medical appointments, they may jeopardize their benefits.

● If the injured employee willfully fails to attend medical appointments that have been scheduled by the insurance company, employer, or the physician then the insurance company or employer will request that the injured employee be ordered to attend these appointments by the Industrial Commission.

● If the injured employee willfully fails to comply with the order to attend medical visits from the Industrial Commission, the insurance company will file an application to terminate or suspend their benefits. If their benefits are suspended, it could take months, even years, to get them reinstated.

● Complying with medical treatment is in the injured employees best interest physically and keeps the insurance company from having a reason to terminate their benefits.

Common Mistake #5


NOT KNOWING WHEN TO RETURN TO WORK

● Most employers, at the request of the workers’ compensation insurance company, will provide light duty to injured workers. Either the employer or insurance adjuster may then require the injured worker to return to work.

● Prior to returning to work it is necessary for the injured worker to know what they will be doing for the employer.

● Some employers will simply say, “We will find something.” This may breed a hostile environment which may have poor ramifications on recovery, but also the injured employee’s employment with the employer.

● In order to avoid this, the injured employee needs to request, in advance, a specific job description and ask that it be submitted for approval to the treating physician. If the physician is confident that the inured employee will be capable of performing the duties, they may return to work.

● The injured employee needs to perform the tasks within their restrictions. If asked to do anything outside of those restrictions, they should show the employer the physician's note.

● If the employer fails to provide a job description or the doctor fails to approve the job description and the insurance company or employer refuse to provide weekly benefits, then the injured employee needs to contact an attorney immediately.

Common Mistake #6


FAILING TO REQUEST A SECOND OPINION● Like stated, the insurance adjuster may be correct in telling and injured employee that they can tell them where to treat, but they cannot keep them from having a second opinion.

● If an injured employee is directed to treat with a particular physician and the physician subsequently releases them after treatment at maximum medical improvement by North Carolina law, the injured employee is allowed to seek a second opinion with a duly qualified licensed doctor of their choosing.

● Too many times I have had injured employees calling my office to tell me they were told they were not allowed to seek a second opinion. THIS IS NOT THE LAW.

● If an injured employee receives a permanent partial disability rating (this is discussed more later) and they are not satisfied with the rating, they may invoke their right to seek a second opinion. An injured employee must not let the insurance company mislead them.

● If released and still in pain, an injured employee should seek a second opinion. If the second opinion physician recommends additional treatment they may apply to the Industrial Commission to have a change in treating physicians and then request the recommended treatment.

● The insurance company or the employer is not going to freely allow this, so it may be necessary for the injured employee to obtain legal representation to be successful in this endeavor.

Common Mistake #7


SETTLING FOR THE RATING ONLY

● What happens when the doctor releases an injured employee and says they are as good as they are going to get? As stated before, this is called maximum medical improvement. It is at this point and time that the injured employee may be entitled to a settlement.

● The North Carolina Industrial Commission has a set of guidelines that outline to the treating physician how to assign a permanent partial disability rating. It is called the North Carolina Ratings Guide. It takes into account many different considerations.

● When the physician has assigned a permanent partial disability rating the insurance company creates a Form 21 utilizing this information which establishes the settlement amount.

● The settlement amount is guided by law. It is calculated by using a mathematical formula which includes your compensation rate multiplied by your rating then multiplied by the number of weeks assigned to the injured body part of the employee.

● This type of settlement should only be used if the injured employee has returned to work with their employer and they have not had a reduction in their ability to earn wages.

● By the above I mean that the injured employee is making the same or greater wages than they were before the injury. If they are not back to work at a real job or they are making significantly less money, they should not settle on the rating alone!

Common Mistake #8


SETTLING YOUR CLAIM WITHOUT A JOB

● What happens if an injured employee can no longer perform their previous job and the employer does not have another position for them within their restrictions? The injured employee should not settle for the rating.

● North Carolina workers’ compensation is intended to compensate the injured employee for the loss in wage earning capacity. If an injured employee can no longer perform their position after maximum medical improvement is reached then a scheduled injury settlement will not compensate them for their injuries.

● The insurance company or employer will have to assist the injured employee in finding another job in the competitive marketplace that offers them wages as close as practicable and within their physical restrictions. ● The insurance company or employer will do anything within their power to convince the injured employee to resolve their claim without truly attempting to try and offer them compensation for their inability to return to their position.

● The insurance company or employer do not wish to put the injured employee into vocational rehab due to the cost. In this situation, benefits will still have to be provided and trained specialist will have to be paid.

● If an injured employee cannot return to work with their previous employer due to physical restrictions, they should not settle in a hurry at the first offer. They should make sure the compensation that they receive is reasonable.

Common Mistake #9


NOT HIRING A LAWYER, OR HIRING THE WRONG LAWYER● While it seems that most people should know it is important to seek advice when they are injured, statistics show that many people don’t. The four main reasons why people don’t hire a lawyer immediately after an injury include:

1. They don’t know if they need a lawyer, so they are hesitant to talk to one.2. They don’t know a lawyer personally, so they don’t both to look for one.3. They aren’t sure if they can trust a lawyer, so they don’t want to use one. 4. They believe it when the insurance companies tell them that they will end up with less money if they hire a lawyer. (This is absolutely false.)

● These reasons are not good ones. Immediately after being injured at work, an employee is thrown into an adversarial legal system. The insurance company or the employer has in place a team of adjusters, investigators, and attorneys who are working against you. They are seeking to pay as little as possible and get you back to work as quickly as possible.

● Some people may have had a bad experience with an attorney in the past (in a divorce for example). Some people, like stated above, may not trust attorneys. These people may attempt to represent themselves. After they have realized they got in “above their heads”, they contact an attorney. Unfortunately, there are many mistakes, such as providing damaging statements to adjusters, that cannot be “undone” by even the best workers’ compensation attorneys.

● Sometimes an attorney is not even needed in your workers compensation case. Bottom line, at least contact an attorney and get some free legal advice. At Hardison & Associates, we do this everyday for residents of North Carolina. When we say everyday, we mean 24 hours a day, 7 days a week.

9 Questions To Ask A Law Firm Before Hiring Them


1. Are you a Board Certified Specialist in Workers’ Compensation Law by the North Carolina State Bar?

2. How much experience does your law firm have in representing injured employees?

3. Have you ever been sued for legal malpractice?

4. Are you covered by a legal malpractice insurance policy?

5. Have you ever been disciplined by the State Bar of North Carolina?

6. Will you copy me with everything you do in my case?

7. Do you have licensed adjusters who will assist the lawyers in the day-to-day handling of my case?

8. Who at your office (both attorneys and non-attorneys) will be communicating with the insurance company on my case?

9. If I am not happy with your firm the first 30 days after I hire you, can I take my case and owe you no fee?

In Closing


The time following being injured at work can be a stressful and confusing one. This is the main reason we created this presentation. If you were searching the internet for answers to your questions, hopefully this has been of help. This presentation has only hit on some of the highlights of the North Carolina Workers’ Compensation system. Chances are this presentation has raised even more questions.

If you already have an attorney in your workers’ compensation claim, please discuss these questions with your current attorney. I do not want to interfere with any legal relationship you currently have now. My firm normally does not accept cases in which another attorney has been involved.

If you do not have an attorney and want to talk about your legal rights, I welcome you to contact me at my office for a free consultation. At my firm, it is our goal to create a situation where you feel comfortable talking to a legal expert about your legal options. That situation involves absolutely no pressure. Right now is no time to be pressured. Now is the time to know what can be done to get medical treatment and make sure you are getting better.

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Copyright Information


Copyright © 2008 By Benjamin T. Cochran

All rights reserved.

No part of this presentation may be used or reproduced in any manner whatsoever without the written permission of the author.

HARDISON & COCHRAN 4800 Six Forks Rd., Suite 220

Raleigh, North Carolina 27609www.lawyernc.com

Phone: 1-800-600-7969Fax: (919) 835-1379

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Education

North Carolina Workers' Compensation Guide (9 Common Mistakes That Can Destroy Your Workers' Comp Case)