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Workers Compensation Law NC2021-06-16T21:28:48-04:00

Workers Compensation Law NC

If you feel you have been wrongly terminated for a workplace-sustained injury or have not received adequate workers’ compensation benefits for a workplace injury or illness, please contact us about your case.

What is Workers Compensation?

Workers Compensation insurance helps protect businesses and their employees from financial loss when an employee is hurt on the job or gets sick from a work-related cause. Workers compensation benefits cover lost wages and medical expenses after a work-related injury or illness.

Pain scales and other subjective issues with reporting pain2021-04-23T20:49:50-04:00

Pain scales and other subjective issues with reporting pain

So I hate pain scales. When you’re hurt and in a decent amount of pain and want a doctor to take you seriously, you’re naturally going to rate your pain highly on a scale of 1 to 10. But the reality is that a 10 should be akin to natural childbirth or that the pain is so great that you’re going to pass out. In my not so humble opinion, if you’re going to say you’re at an 8 on a 1-10 pain scale, a bone needs to be sticking out of your skin or you are on fire. I like this pain scale from Hyperbole and a Half (by Allie Brosh) if you haven’t read her blog or her books, you’re missing out.

At any rate, you get the gist. If a health care provider asks you to rate your pain, ask them to set the high and low number values for you. Pain is subjective at its core because we all experience it differently. Some people have bulging discs with little to no nerve pain, others have significant nerve pain and other neurological issues which gets me to objective findings coupled with subjective reports of pain.

Many doctors (mostly back doctors) are going to want to see objective findings that correlate to your subjective reports of pain and they can get those objective findings a number of ways during a physical exam or scan. A common method of testing for exaggeration of faking is the use of Waddell’s signs.

These signs include:

Positive Waddell’s sign for tenderness- if there is deep tenderness over a wide area, that is a positive sign.

Stimulation – downward pressure on the head causes low back pain is a positive sign. The examiner holding the shoulders and hips in the same plane and rotating patient, resulting in pain is a positive sign.

Distraction – straight leg raise causes pain when formally tested, but straightening the leg with the hip flex 90 degrees to check Babinski sign does not cause pain, is a positive sign.

Regional – if there is weakness in multiple muscles not enervated by the same root sensation, such as a “glove and stocking” loss of sensation, this is a positive sign.

Overreaction – if there is an excessive show of emotion, this is a positive sign.

Test to detect false paresis (weakness or loss of voluntary movement) is the “arm drop” test. The examiner holds the paretic hand above the patient’s face and drops it, if that hand misses the patient’s face on the way down, the paresis is non-organic.

Bottom line, don’t malinger or try to seem like you’re worse than you actually are. You’ll get caught because doctors are good detectives when assessing their patients and then you’ll alienate your doctor.

I signed a Form 26A (or Form 21), but now I don’t want it approved, can I do anything about it?2021-04-23T20:45:02-04:00

I signed a Form 26A (or Form 21), but now I don’t want it approved, can I do anything about it?

Immediately contact the Industrial Commission and ask that the Form 26A be denied or “put on hold.” Send the request in writing via fax or e-mail to expedite it and get confirmation that the Form 26A has been denied or will be “held.”

Once the Form 26A agreement is approved by the Industrial Commission, it is nearly impossible to have the agreement set aside. However, you may have other options after the Form 26A is approved as you still have an opportunity to receive medical benefits and potentially qualify for the resumption of temporary total (or partial) disability if you’ve had a change of condition.

I went through mediation, but now I don’t agree with the mediation agreement, what can I do?2021-04-23T20:42:28-04:00

I went through mediation, but now I don’t agree with the mediation agreement, what can I do?

Typically, once you go through mediation and a settlement agreement is reached, a Mediated Settlement Compromise Agreement (MSCA) will be completed and this should summarize what the agreement is. Afterwards, the terms of the MSCA will be put into a Compromise Settlement Agreement (CSA or “clincher”), which should be signed by all parties and then submitted to the Industrial Commission for approval.

If you (or your attorney) signed a MSCA and have since changed your mind and don’t want to sign the clincher, it will be extremely difficult for you to get out of the terms of the agreement. In essence, the MSCA is a contract and in order to get out of the agreement, you or your attorney would have to show that the contractual terms of the MSCA are too vague, or there was a mutual mistake, fraud, duress, or that the agreement doesn’t contain the basic necessary legal language.

Odds are, an attorney (or three) will be attending the mediation and will make sure that the contract terms are legit. Any terms that are explicitly bargained will be upheld – even if you refuse to sign the clincher, the other side can get the Industrial Commission to enforce the agreement.

Workers’ compensation mediation: What do I need to know?2021-04-23T20:39:05-04:00

Workers’ compensation mediation, what do I need to know?

Mediation is not Las Vegas – things said in mediation can be shared outside of mediation unless you enter into a confidentiality agreement before mediation starts.

What you (or your lawyer) cannot do, is use statements made in mediation at a hearing (trial) as evidence. Even though statements made in mediation can be shared with others afterwards, the mediation itself cannot be recorded (audio or visual).

What if I was not legally working when I was injured? Can I still file for workers’ compensation?2021-04-23T20:37:19-04:00

What if I was not legally working when I was injured? Can I still file for (and expect to receive) workers’ compensation benefits?

Yes. There are options for injured workers who do not have a valid social security number so that they can still receive benefits if they would otherwise qualify. However, you should notify your attorney immediately as to any fabricated social security number (or alias) as your attorney will need to disclose that information to the other side.

Failure to disclose that information will likely be reflect poorly upon you as you will appear dishonest and untrustworthy in a hearing. No one at the Industrial Commission or with the insurance company (or your employer) has an affirmative duty to notify USCIS of your status.

What role does short term or long term disability insurance play in a workers’ compensation case?2021-06-16T21:02:07-04:00

What role does short term or long term disability insurance play in a workers’ compensation case?

If your claim has been denied, and you are unable to work, these insurance plans could allow you to pay your bills until your claim is accepted or are able to return to work. Depending on whether you (or your employer) pays for the STD or LTD insurance, and if you are successful in your case after an initial denial, your employer may get to take credit for STD and LTD benefits paid to you out of accrued Workers’ Compensation benefits owed to you.

If you’re unable to work and your workers’ compensation claim has been denied, you should reach out to your HR person a.s.a.p. in order to initiate those benefits.

Doctor has told me that my pre-existing conditions are to blame, not the accident. What can I do?2021-04-23T20:07:34-04:00

The doctor has told me that my pre-existing condition(s)/injury is causing most of my problems and that my current symptoms are not related to my recent injury (or occupational disease) at work. What can I do?

This issue can be tricky. The Workers’ Compensation Act says that there should be no apportionment for previous injuries or pre-existing conditions.

This means, for example, if you had pre-existing degenerative joint disease in your knee (or arthritis) and your compensable trip/fall has significantly worsened so that now you need a knee replacement, your employer (or their workers’ compensation insurance carrier) should pay for the cost of your knee replacement.

Further, any permanent partial impairment rating given should not be reduced because of your pre-existing unrelated conditions unless you were paid compensation based on a previous impairment rating.

If you believe that you are not receiving treatment (or a rating) and are not getting anywhere with your doctor or adjuster, please gather your medical records and contact an attorney today. Many times doctors and adjusters are ignorant on the finer points of law as it relates to Workers’ Compensation and an attorney is just necessary for the best resolution in contested cases.

How can lying about a previous injury impact my claim?2021-06-16T21:02:28-04:00

How can lying about a previous injury impact my claim?

In 2011, the North Carolina Legislature amended the Workers Compensation Act relating to “employee misrepresentation.” See N.C.G.S. § 97-12.1. These changes apply to claims arising after June 24, 2011 and basically say that if the misrepresentation relating to the employee’s physical condition was knowing and willful and the employer relied upon the false representation in hiring the employee, and there is a casual connection between the false information and the injury, the employee will be barred from recovery.

In August of 2014, the North Carolina Court of Appeals issued a decision where an injured worker’s claim for benefits was denied because she (1) lied about her previous back injury and lifting restrictions on an application and during the interview; (2) the Court found that the employer relied on the employees false information, and (3) the employee re-injured her back because she engaged in activities that were outside the scope of her lifting restrictions (causal connection).

See Prucell v. Friday Staffing found here: http://appellate.nccourts.org/opinions/?c=2&pdf=31300

If in Purcell the employee had not disclosed a previous back injury and lifting restrictions, and was injured in a trip and fall where she injured her knee, it is unlikely that a claim for benefits relating to an injury to her knee would have been denied as there would not be any casual connection between the willful misrepresentation, hiring and subsequent injury.

Moral of the story: liars beware – when in doubt about your physical abilities in applying for jobs, if you cannot go back to the doctor for clarification, you should disclose as much as you recall about your physical condition (work restrictions), and then specifically indicate that you do not have any (other) limitations to the best of your recollection. Once a doctor assigns restrictions, the doctor may state that they are your “permanent” work restrictions, but my experience is that if you’ve been assigned restrictions and feel that you can do more, most doctors will lift (or amend) the restrictions previously assigned.

I need medical treatment that the insurance company has denied, what can I do?2021-06-16T21:02:49-04:00

I need medical treatment that the insurance company has denied, what can I do?

Legislation passed in 2014 made significant changes to the Workers’ Compensation Act, specifically N.C.G.S. § 97-25, in terms of how disputes involving medical treatment are handled by the Industrial Commission. Even though these changes went into effect on July 22, 2014.
The new law can be found here: http://www.ncga.state.nc.us/Sessions/2013/Bills/Senate/PDF/S794v7.pdf

As a result of this law, the Industrial Commission had to make new procedures in order to implement the change in the law.
These procedures may be found here: http://www.ic.nc.gov/NewMedicalMotionProcedureGuidelines.pdf

Generally, if you are unable to reach an agreement regarding your medical treatment (and don’t want to retain an attorney – generally at no out-of-pocket-cost to you), you can file a motion for medical treatment with the Executive Secretary’s Office for an administrative ruling, you may file a motion requesting an expedited full evidentiary hearing before a Deputy Commissioner (to be filed with the Chief Deputy Commissioner), or in cases of an emergency, you may file an “Emergency Medical Motion” with the Chief Deputy Commissioner.

Motions filed with the Executive Secretary’s Office will not have a hearing and may only include a telephonic conference call in exceptional cases. “Expedited Medical Motions” should be assigned to a Deputy Commissioner within five (5) days of submission to the Chief Deputy Commissioner and a full hearing (with a court reporter, sworn testimony and everything else) should be held in your matter within thirty (30) days of your motion being submitted.

Emergency Medical Motions are administrative in that even though they are submitted to the Chief Deputy Commissioner, your motion is decided based upon the documents you submit (which had better include medical records) and your motion should be ruled on within five (5) days of your motion being submitted.

Because of the recent changes to the law, appeals of Medical Motions have become very complex and difficult. It is a very good idea to get an attorney to handle your Medical Motion (and any appeal) – it is easier when something is done right the first time rather than having to hire an attorney to correct or clean-up your medical request that was denied by the Industrial Commission.

I’ve received a Form 24/ the insurance company is trying to terminate my ongoing compensation, what can I do?2021-04-23T19:30:53-04:00

I’ve received a Form 24/the insurance company is trying to terminate my ongoing compensation, what can I do

Normally, ongoing disability (temporary total or temporary partial) compensation can only be stopped when you’ve been able to go back to work and earn the same amount of money you did as before your work-related injury.

In cases where injured workers have been able to go back to work the insurance carrier should file a Form 28 or Form 28T (if the injured worker went back to work with restrictions). Sometimes insurance carriers file the Form 24 (asking the Industrial Commission to approve termination of ongoing disability compensation) in cases where their doctor has “released” you to work without restrictions or with restrictions.

After an injury, there can be significant confusion and even miscommunication as to an injured worker’s abilities. Typically, the insurance adjuster is in another state. An adjuster may read your doctor’s report and read your job description and believe that there is no good reason for you to continue to collect disability checks and so they file a Form 24.

An attorney can be critical to help facilitate an appropriate trial return to work and work with you to make sure that you’re truly able to go back to work in any capacity.

Unless you don’t care, or otherwise agree that the compensation you’ve been receiving should be terminated, you should definitely object and respond to the Form 24 so that you can be part of the telephonic hearing and explain why you are still disabled within the meaning of the act.

Again, disability only means an inability to earn wages (the same amount or more) as you had before your injury. If you’re not sure what your options are, you should contact an attorney to discuss your options.

How long does the insurance company have to pay me?2021-04-23T19:27:08-04:00

How long does the insurance company have to pay me?

If you are out of work because of your injury or occupational illness, you are not owed any temporary total disability (wage loss compensation) until your period of disability (the time you have been unable to work because of your injury) is more than seven days. Therefore, you may not receive compensation until you’ve lost more than one week from work.

Once temporary total disability compensation is owed, it should be paid on a weekly basis. Your employer (or its insurance carrier) has two weeks to issue you payment when payment is due – this means that they have up to two weeks to issue the check. Thereafter, you should get a check every week you are “disabled.”
Once your Form 26A is approved by the Industrial Commission, the insurance company (or self-insured employer) has two weeks from receipt of the approved Form 26A to issue payment (they have another week or so to cut the initial check).

From a Compromise Settlement Agreement (a.k.a. Clincher), you should be paid a small portion of the settlement amount as “consideration” as part of the contract. After the Compromise Settlement Agreement is approved by the Industrial Commission, the Insurance Carrier (or self-insured employer) has ten days to issue payment (write and send out a check).

After a hearing (trial) with a Deputy Commissioner, and ONLY IF your employer (or its insurance carrier) DOES NOT APPEAL the award of the Deputy Commissioner, your employer (its insurance company) has ten days to issue payment (write and send out a check).

What types of compensation are allowed under the Workers’ Compensation Act?2021-04-23T19:24:52-04:00

What types of compensation are allowed under the Workers’ Compensation Act?

Medical benefits (paying medical bills associated with your injury), if you are taken out of work (or unable to work in the case of traumatic accidents) you can receive “indemnity” benefits which is meant to compensation you for the wages you lost while you were taken out of work (or working at reduced wages because of your injury and/or restrictions), and vocational rehabilitation benefits.

Indemnity benefits are typically calculated by the insurance adjuster handling your claim and it is up to you (or your attorney) to make sure that they are fair and correct. The Workers’ Compensation Act says that there are five ways your indemnity benefits can be calculated and it depends on your employment situation (length of employment, manner of payment, recent promotions, etc.). Please see the FAQ on how the average weekly wage can be calculated for further clarification.

Again, medical benefits are payment for treatment related to your injury and should include any fall-out from your injury including psychological care as well as care to body parts that were injured during any period of healing or overuse.

Another kind of benefit allowed under North Carolina law is vocational rehabilitation. There have been some recent changes to this part of the Workers’ Compensation Act and vocational rehabilitation compensation can include payment for work related training, college tuition, and even a rehabilitation case manager (someone who assesses your abilities and helps you find suitable work).

What are the time limits for filing for Workers’ Compensation?2021-04-23T19:22:50-04:00

What are the time limits for filing for Workers’ Compensation?

My favorite answer: it depends!

Let me give you the absolutely maximum time limits for making a claim, but please note that delaying reporting an accident or injury to the Industrial Commission or your employer could negatively impact how the insurance company deals with your claim as your delay could be used as a basis for a denial of your benefits.

Further, it can make you look sketchy and make a Deputy Commissioner question the truthfulness of your testimony if a hearing has to be held.

The time limit for filing a work related injury by accident is: two years from the date of injury.

The time limit filing for a work related injury that is an occupational disease is: two years from the date you were told by a doctor that you suffer from an occupational disease.

I’ve recieved a Form 61 or my insurance carrier is not covering my accident, what should I do?2021-04-23T19:18:25-04:00

I’ve received a Form 61 or my insurance carrier is not covering my accident, what should I do?

The use of the Form 61 usually means that the insurance carrier (or employer if your employer is self-insured) is informing you that they are denying your claim. The insurance carrier is supposed to use this form to explain their reasons for denying your claim.

This does not necessarily mean that your claim was correctly denied. It means that the insurance company has pieced together enough information to determine that your injury may not be compensable according to the Act.

In my previous job, I became aware of countless instances where a claim was initially denied, but then found to be compensable by the Industrial Commission. Have you ever had a moment when you just can’t get the right words out? If you believe that you’ve suffered a work-related injury, please call me so that we can discuss your situation.

What is the Industrial Commission?2021-04-23T19:15:35-04:00

What is the Industrial Commission?

The Industrial Commission is an agency of the State of North Carolina (Division of the Department of Commerce – I think it just got placed in that section in the 1970’s, but don’t quote me). The Industrial Commission has had the authority to administer the Workers’ Compensation Act since 1929 (almost 100 years!).

In terms of Workers’ Compensation, the Industrial Commission is kind of like a court system for Workers’ Compensation cases. Sometimes they decide issues administratively (such as the approval of Form 24’s, Compromise Settlement Agreements and Form 26A’s).

They also hold hearings (trials) before Deputy Commissioners and parties can appeal to the Full Commission (oral arguments only). After the Full Commission, if parties are unhappy with the decision of the Full Commission, a party may appeal the case to the Court of Appeals and the Supreme Court.

Why was my injury denied when my coworker’s injury was accepted?2021-04-23T19:13:48-04:00

Why was my injury denied when my coworker’s injury was accepted when we had the same type of injury?

Again, it depends. One the more frequent things I see is when employees try to claim something like a rotator cuff tear based on an accident, when in reality, they should have claimed a rotator cuff tear as an occupational disease.

The correct words and phrases can mean the difference between an accepted claim and a denied claim and it really depends on your situation, your injury, the type of work you do and many other factors.

To discuss your injury and whether your injury is compensable, please contact my office a.s.a.p. as a delay in reporting any injury could mean a denial and you have a very short time frame with which to appeal the insurance company’s denial to the Industrial Commission.

Again, the insurance company (or your employer) can deny anything at any point in time. They can deny your claim, specific kinds of medical treatment, continuing disability benefits and so on. As the plaintiff (injured employee) it is your obligation to file the appropriate paperwork with the Industrial Commission because the Industrial Commission is kind of like a court for workers’ compensation and is set up to resolve disputes between injured workers and employers/insurance companies.

My employer fired other employees who got hurt on the job, what will stop them from firing me?2021-04-23T19:06:41-04:00

My employer fired other employees who got hurt on the job, what will stop them from firing me?

To be frank, North Carolina law affords little protection for employees. Generally, you can be legitimately fired for almost anything. However, if you are fired in retaliation for filing a Workers’ Compensation claim, that is illegal and your employer can be in some big trouble and have to pay all kinds of money for damages to you as well as fines and penalties. But it can be difficult and time consuming to make these wrongdoers pay for their actions. Most employees don’t think it is worth the stress and hassle, which is very understandable.

The trick is proving that you were fired in retaliation for doing something that is protected by law. If you notice this trend in your workplace, keep notes or a journal. Try to keep the contact information of other employees that you think were fired because they got hurt.

Further, if you are fired after an injury and have permanent work restrictions, you may be entitled to ongoing disability compensation and even vocational rehabilitation. Please call my office immediately as a delay in action could cost you and your family.

I got hurt at work, what do I do?2021-04-23T19:03:20-04:00

I got hurt at work, what do I do?

You should file a notice of accident or injury that is required by your employer’s policies and procedures. If you believe you’ve suffered an injury that is compensable through the Workers’ Compensation Act, you should file a Form 18 which can be found here: http://www.ic.nc.gov/forms/form18a.pdf

The filing of a Form 18 with the Commission will require your employer/insurance carrier to file a form notifying you that your claim has been accepted, provisionally accepted, or denied. The Industrial Commission has the ultimate say on whether your case should be compensable.

If you claim has been denied by your employer or their insurance carrier, please contact an attorney immediately as the time limits for review by the Industrial commission are short and your inaction could result in significant financial and emotional hardship.

I was injured in NC but I live in another state, can I file a claim in NC?2021-04-23T19:01:01-04:00

I was injured in NC but I live in another state, can I file a claim in NC?

It depends! But, it is very likely that you have the option of choosing whichever jurisdiction has the best system and again, you will need to investigate (talk to several attorneys in both states) and choose accordingly.

Typically, you can receive workers’ compensation benefits pursuant to North Carolina law if you were injured in North Carolina. However, you may be entitled to workers’ compensation pursuant to another state’s laws as well and if you take any kind of affirmative action (filing a form for example) within one state and later change your mind, you may be stuck with the original state having jurisdiction if the statute of limitations has run.

I was injured in another state, can I file a claim in North Carolina?2021-04-23T18:58:41-04:00

I was injured in another state, can I file a claim in North Carolina?

Yes! You may have the option of choosing whichever jurisdiction has the best system! Investigate and file accordingly because each state has their own Workers’ Compensation system and some states are more generous than others. I

n order to file in North Carolina when you were injured in another state, you have to show any one of the following: (1) that your “contract of employment” (your offer of employment and acceptance) was made in North Carolina; (2) your employer’s principal place of business (usually headquarters) is located in North Carolina, or (3) your (the employee’s) principal place of employment is within North Carolina.

Now, a lot of states are registered in Delaware, New Jersey, and even New York because of advantageous business and tax laws, so just because your company’s headquarters may be located in another state, it will be up to your attorney to establish that North Carolina is actually your employer’s principal place of business.

How do I find out if my employer has Workers’ Compensation Insurance?2021-06-16T21:09:30-04:00

How do I find out if my employer has Workers’ Compensation Insurance?

The North Carolina Industrial Commission allows you to search their database for information on insurance coverage of an employer in the State of North Carolina. The website can be found here: https://ccms.ic.nc.gov/insurancecoverage/inscov/insCoverageSearch

What if my boss says he has no Workers’ Compensation Insurance?2021-06-16T21:09:22-04:00

What if my boss says he has no Workers’ Compensation Insurance and offers to pay for my medical bills if I don’t report him?

This is a dicey situation for sure. For most employers, Workers’ Compensation Insurance is required by law and failure to purchase such insurance may result in civil fines and penalties in addition to having to pay for benefits (like medical expenses and compensation for lost time) that are owed to you.

If you fail to report your injury to the Commission through the filing of a Form 18, you are placing a great deal of trust in your employer and letting someone get away with breaking the law. However, it really depends on your situation and the severity of your injury and I would love to help you sort it out and understand your options. Remember, you don’t have to hire me after talking to me, and I can only help you understand your options better.

Here is what the North Carolina Industrial Commission website says to do when your employer does not have insurance:

“What if my employer does not have workers’ compensation insurance?
The employee should report the lack of workers’ compensation insurance or approved self-insurance to the NCIC Fraud Section and, if injured, should file a Form 18 and Form 33 with the Commission. Please e-mail your completed Form 18 to forms@ic.nc.gov.”

I was injured at work and the doctor wants me to have surgery, but I need to lose weight, what can I do?2021-06-16T21:09:14-04:00

I was injured at work and the doctor wants me to have surgery, but I need to lose weight, what can I do?

If you have pre-existing issues or comorbidities that prevent you from receiving recommended treatment, you may be entitled to additional benefits such as weight loss assistance, blood pressure treatment, and even anemia treatment through Workers’ Compensation. Remember, just because you are told “that isn’t covered” by someone at the doctor’s office or with the insurance company, they may not be correct and you should consult with an attorney (at no out of pocket expense for you!) before accepting what you are told.

I was assaulted at work, can I get treatment through Workers’ Compensation?2021-06-16T21:09:08-04:00

I was assaulted at work, can I get treatment through Workers’ Compensation?

If you’ve read many of these posts, you probably know that the answer is: it depends! It depends on a variety of factors like whether your job created a risk of assault, if you were assaulted in the course and scope of your job duties, if the assault was related to work or non-work issues, and even the location of the assault.

In my opinion, the Commission, the Court of Appeals, and Supreme Court have been slightly inconsistent in this area and it really boils down to the evidence you or your attorney can present at the hearing. For instance in Culepepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 377 S.E.2d 777, aff’d, 325 N.C. 702, 386 S.E.2d 174 (1989), a cocktail waitresses’ injuries she sustained when she tried to escape from a guest who kidnapped and assaulted her was held to be compensable even though she had stopped on a road owned by the resort in order to offer the guest help after her shift ended.

Contrast that case with Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 404, 233 S.E.2d 529, 532-33 (1977) where an employee whose job duties included taking deposits to the bank was abducted, robbed and finally killed. In this case, the Court of Appeals held that the victim’s death was not related to her employment because there was no evidence that the assault and robbery were motivated by her employment because she was not carrying any money belonging to the shoe store the night of the robbery and because there was no evidence that the assailant knew or expected her to hold funds belonging to the shoe store. Had there been sufficient evidence to show that the victim had at an increased risk of robbery by virtue of her job duties, the outcome may have been vastly different.

If you or someone you know has suffered violence in the work place, please contact an attorney to discuss your options. The incident may not trigger coverage under the Workers’ Compensation Act, but there may be other options to help the victim.

What is an accident according to Workers’ Compensation Act?2021-06-16T21:08:56-04:00

What is an accident according to Workers’ Compensation Act?

Everyone knows what an accident is. The real question is: what is an accident under the Workers’ Compensation Act? The Act does not provide compensation for all injuries occurring at work – only injuries by accident or occupational diseases (see the FAQ on occupational disease).

The fact that you are injured at work does serve to establish that an accident occurred and an accident must occur before the injury. The most classic definition of an accident is an unlooked for and untoward event which is not expected or designed by the injured employee – simple to understand, right?

If you’re still confused, you’re not alone. Many cases are still tried because there is a question of whether an injury really occurred because of an accident. You (or your lawyer) need to be able to describe the injury using the right words and phrases – failure to do so can result in a denial. This doesn’t mean you’re out of luck if your initial report or filing gets denied. It means you need to find an attorney a.s.a.p. to review the incident with you and file the appropriate paperwork to get the matter corrected!

Are psychological injuries caused by a work-related accident covered under Workers’ Compensation?2021-06-16T21:08:51-04:00

Are psychological injuries caused by a work-related accident covered under Workers’ Compensation?

Firstly, get help immediately. We all know the toll depression, anxiety, and post traumatic stress disorder (PTSD) have on our families and our society. Please don’t suffer in silence. If you don’t know who to reach out to, try the toll free Crisis Call Center Hotline at (800) 273-8255 so that you can receive emotional support and referral assistance for resources in your area.

Secondly, it is not uncommon for work related accidents to cause psychological harm. Some examples include: a jarring motor vehicle accident that causes PTSD for a trucker, or a convenience store clerk suffers from depression or anxiety after a robbery.

Further, if you’ve suffered a severe physical injury and have had to deal with significant pain, pain can induce depression and any treatment may be the responsibility of the insurance carrier. Feel free to reach out to me and describe your situation, if I think I can help, I’d like to try.

How can I make sure that I will get a medical treatment in the future?2021-06-16T21:08:37-04:00

How can I make sure that I will get medical treatment in the future?

Forms, forms and more forms! The Industrial Commission seems to loves forms. But what bureaucratic organization doesn’t really? If you think that you will more than likely need medical care in the future, but don’t know if it will be in the next two months or twenty years and are worried about the two year time limit for additional medical treatment (see the FAQ on the two year window), you can file what is called a Form 18M.

Here is a link to the form: http://www.ic.nc.gov/forms/form18a.pdf

You should list any and all treatment you believe will be required because of your injury on Line 1 of the Form 18M. Use additional paper if necessary. There is even a section on the Form 18M that your treating physician can fill out, and I would encourage you to ask your doctor to fill it out.

Warning: the treatment you request should be more than likely needed in the future and be related to your injury. If your doctor says that “it is possible” or that you “could” or “might” need certain treatment in the future, your request may not be approved.

I cannot stress how beneficial it is to retain an attorney (again, no out of pocket expense to you!) to help you secure medical treatment in the future. Lawyers generally know how to get doctors to be more specific and certain and say the right words to get the desired result.

What NOT to do: don’t be vague or general and don’t just complain about your pain. If the Form 18M isn’t filled out properly, insurance adjusters won’t bother to respond because even if the Commission approves the Form 18M, it may be so vague that it may be unenforceable.

When filing the Form 18M please make sure you send a copy to the adjuster/insurance company, or defense counsel if they have retained an attorney.

I injured a limb, and now my other limb is hurting, what can I do?2021-06-16T21:08:32-04:00

I injured my limb and now my other limb is hurting, what can I do?

Sometimes, when people hurt one limb they overcompensate with the other limb. Generally, if overuse is associated with an accepted or compensable injury, any treatment for overuse should be covered through Workers’ Compensation.

Example: I reviewed a case where a school bus driver/cafeteria helper who had a total knee replacement of the left knee due to a trip and fall at work, I noticed that the medical records showed that she was having worsening pain with her right knee and the treating physician wrote something like “this (right) knee pain is from overuse and/or compensation, but is not compensable and she will need a knee replacement.”

As a side note, I really love it when doctors give legal advice or make legal opinions! I was able to educate both the worker and the adjuster and not only did the injured worker receive compensation for the left knee, the right knee replacement was accepted and she received permanent partial disability compensation for the right knee as well!

If you suspect that you’ve injured another body part from overuse or over compensation, please contact my office so we can discuss your options.

I am at maximum medical improvement but still in a lot of pain, what can I do?2021-06-16T21:08:26-04:00

My doctor says I am at maximum medical improvement and that there is nothing else that can be done, but I am still in a lot of pain, what can I do?

In my former life, I saw many examples of situations where the authorized treating physician thought their treatment was perfectly appropriate even though their patient was still in significant pain! There are certain doctors in this state who seem unable to understand that their surgery/treatment failed and that additional intensive treatment is required.

If you find yourself in this situation, especially if the adjuster is pushing you to sign off on a Form 26A, you really should contact an attorney so that they can help you try to get a second opinion for treatment options and even change the authorized treating physician.

If you are unable to get your adjuster to agree for you to have a second opinion for treatment options or change your authorized treating physician, you can file a written request as a motion by e-mailing your request to medicalmotions@ic.nc.gov or fill out a Form 33 (found here: http://www.ic.nc.gov/forms/form33.pdf) for a full evidentiary hearing before a Deputy Commissioner.

Having an attorney make the request for you can be immensely helpful as they are able to make sure all the right words are in the request and point you to a doctor that may be able to help you – not every doctor takes a patient with a workers’ compensation claim.

What is maximum medical improvement?2021-06-16T21:08:19-04:00

What is maximum medical improvement?

Maximum medical improvement, known by the acronym of “MMI” is actually supposed to be a finding of fact by the Industrial Commission. In practical reality, it is when the authorized treating physician thinks and says you’ve reached the end of your healing period and you’re either as good as you’re going to get after your injury, or there isn’t anything else that doctor thinks they can do to help you (with the exception of ongoing pain management).

When you reach “MMI,” you could be entitled to permanent partial disability compensation, ongoing temporary total or partial disability, and if working a job that is unsuitable, can choose to collect ongoing temporary partial disability compensation instead of working.

As a former Special Deputy Commissioner, I’ve seen cases where a worker reached MMI, but six months later had a worsening of symptoms and had to receive additional treatment and be taken out of work. MMI is not a stagnant thing and once the doctor pronounces it, it doesn’t mean that your rights to medical care or compensation are cut off.

How can Facebook, Twitter, Instagram, and social media be problematic in my workers’ compensation claim?2021-04-16T17:53:52-04:00

How can Facebook, Twitter, Instagram and any other social media be problematic in my workers’ compensation claim?

Recently, a story made rounds in the news about a ring of cops who claimed disability, but were faking it. What helped bring them down were social media posts and pictures of them engaging in activities that a “disabled” person would not do. If you’re injured, faking your symptoms, or prolonging any periods you’re out of work is not only fraudulent, but it can actually harm your mental and emotional well being. People don’t get rich for being hurt on the job – there is no compensation for pain and suffering. If you want to try to stay out of work as long as you can, please look for an attorney elsewhere.

If you’re still reading this, then I hope it is because you want to get back to work and you’re just trying to educate yourself and understand your rights. If you’ve been injured on the job, you need to be cautious about what you post (or others post) on your wall/site/account because it could look like you’re not hurt or injured and are just scamming the system. It is the insurance adjuster’s job to reduce their company’s liability and if they don’t believe you’re injured, they can use whatever information they find against you.

They can even hire private investigators and cyber forensic experts to find information from “deleted” social media accounts. Once you put something on the internet – it is out there for anyone to see and use forever! It does not look good if you tell your doctor that your knee pain has flared up and you haven’t been able to bowl, and then get tagged at a bowling alley by a friend. Be careful, be smart, and always err on the side of caution. Don’t risk it unnecessary confusion and distraction.

At the very least, you should either suspend your account or modify the privacy controls so that no one can post or share anything on your site and be very selective about what you comment on or share with the world.

As an example of what not to do, a few years back there was a worker who claimed to have ongoing disability because of a low back injury. This individual also decided to create tape an “intimate” encounter that highlighted his physical stamina. Needless to say, his claim was denied. You can imagine how awkward the hearing (trial) was for everyone to muster through with a straight face.

Moral of the story – make sure that your social media accounts are secure and that no one can post anything without your permission and approval. And for the love of God, don’t make a sex tape.

I’ve been injured and my doctor says I can go back to work on light duty but I can’t do a real job, do I have to go?2021-06-16T21:11:11-04:00

I’ve been injured and my doctor says I can go back to work on light duty, but I can’t do a real job, do I have to go?

It depends! Due to recent statutory changes, if your injury occurred after June 24, 2011 and have not yet reached maximum medical improvement (see the FAQ on MMI), you do have to go back to work – even if the “work” you do isn’t a real job anyone else would do for your employer. If you don’t, you could lose out on benefits such as temporary disability compensation and may be barred from receiving medical benefits.

However, if your hours or pay is reduced, you may be entitled to compensation in order to make up the difference in your wages.

Once you’ve reached maximum medical improvement, if your job is not a real job or is not suitable to your post-injury abilities and skill, you may be entitled to choose to collect ongoing temporary total disability. You may also be entitled to additional benefits such as vocational rehabilitation and should probably talk to an attorney to fully understand your options.

What are work restrictions?2021-06-16T21:11:36-04:00

What are work restrictions?

Work restrictions can be temporary or permanent. And even “permanent” work restrictions can be lifted later on if you and your doctor think it is appropriate.

Work restrictions are meant to serve as rules for you and your employer in terms of what you can and cannot do. For example, if you had a rotator cuff repair, odds are you will have restrictions relating to your ability to lift or do overhead work.

First, it will likely be difficult and/or painful for you to lift or do overhead work, and secondly, the doctor doesn’t want you to undo her repair of your rotator cuff by trying to hoist 70 lbs above your head.

Normally, you will have a lot of input on the restrictions your doctor assigns and those restrictions can be based on objective (MRI documenting a rotator cuff tear) and subjective things (like your reports of pain).

A recent change in the law relating to work restrictions can also drastically affect your case. In 2011, the North Carolina legislature enacted a change in the law such that if an employee knowingly and willfully withheld telling a potential employer that he had permanent work restrictions to an employer when the employee was hired and the employer relied on those false representations and there is a casual connection between the injury and restrictions, the employee would be barred from any compensation or recovery. The causal connection is key!

Example: If Ms. Hardworker intentionally lied about permanent work restrictions relating to her lifting abilities, but injured herself by tripping over a pallet and breaking her am, she would be entitled to compensation through the Act because there was no casual connection.

However, if Ms. Hardworker lied about those lifting restrictions because of a prior rotator cuff tear, and the employer relied on her false representation in hiring her, and Ms. Hardworker re-injured her rotator cuff, she would likely be barred from any recovery and would be on her own for any medical bills or lost time from work.

In a workers’ compensation case, can I get reimbursed for travel to a doctor’s office?2021-06-16T21:11:44-04:00

In a workers’ compensation case, can I get reimbursed for travel to a doctor’s office?

Yes, if you travel 20 miles or more (round trip) for medical treatment. This can add up!

You can collect for mileage at a rate of 51¢ per mile for travel between January 1, 2011 and June 30, 2011; 55¢ per mile for travel done between July 1, 2011 and December 31, 2012; 56.5¢ per mile between January 1, 2013 and December 2013, and 56¢ per mile after January 1, 2014.

Keep a log of mileage to and from all doctor’s visits, hospital stays, physical therapy appointments, chiropractic appointments, psychological therapy appointments, and any other appointment related to your care.

What is a Functional Capacity Evaluation and why should I participate?2021-06-16T21:11:53-04:00

What is a Functional Capacity Evaluation and why should I participate?

A Functional Capacity Evaluation (FCE) is a test conducted by a trained physical therapist to help the doctor determine what, if any, permanent work restrictions she or he should assign to you. It is usually done towards the end of your treatment, when you are nearing maximum medical improvement (see the FAQ on maximum medical improvement).

The FCE is designed to fish out fakers or people who show what is called “symptom exaggeration” – so try your best. You will not be asked to do anything you feel you cannot do and you can stop any task that causes significant pain. However, you really need to apply yourself, show up on time, wear clothes and shoes you can move in.

When I would help draft opinions and awards after contested hearings as a Special Deputy Commissioner, a lot of emphasis would be placed on the FCE and any symptom exaggeration or submaximal (less than full) effort would not reflect well on the worker. You should bring copies of your current (and pre-injury) job description with a list of the physical requirements of your job.

If you’re currently working in light duty, or modified position you should let the therapist know. Once the FCE is completed, you should request a copy of the FCE from the doctor.

If your job is physically demanding, you should make sure you understand your limitations and make sure the doctor and the therapist truly understand the physical demands of your job.

Conversely, make sure that you have a detailed understanding of your permanent work restrictions when you are released from your treating doctor.

The last thing you or your doctor want is for you to reinjure yourself because you did not understand that you shouldn’t be doing certain activities. See also the FAQ on work restrictions generally.

What if I’ve been injured but my only permanent injury is a scar, can I get compensation?2021-06-16T21:12:02-04:00

What if I’ve been injured, but my only permanent injury is a scar, can I get compensation?

It depends – unless you have been assigned a permanent partial impairment rating to the body part that was scarred and the scar is factored into the rating, you can receive permanent partial disability compensation for scars.

What’s the catch, you ask? As explained above, in order to receive permanent partial disability compensation for a scar to an area other than your head or face, the scar cannot be a factor in any other impairment rating.

Further, the discretion of paying compensation based on “serious bodily disfigurement” that is visible and could therefore impact your employment, compensation is capped at $10,000.00 and within the sole discretion of the Industrial Commission.

For “serious facial or head disfigurement” the Industrial Commission must award compensation with a cap of $20,000.00. You can receive this type of compensation without a hearing (trial) through a form agreement. Just provide before and after pictures and try to agree on an amount (sometimes adjusters ask the Industrial Commission to come up with a number) and use Line 9 or an attachment to explain the basis for the compensation and the agreement.

I’ve had an injury at work that causes migraines, am I entitled to permanent partial disability compensation for migraines?2021-06-16T21:13:01-04:00

I’ve had an injury at work that causes migraines, am I entitled to permanent partial disability compensation for migraines?

Yes. Again, assuming you’re able to work and earn your pre-injury wages (and that you’re not missing any significant time or wages because of sick days related to your migraines), you should be entitled to permanent partial disability compensation up to $20,000.00 for the loss of an important “organ” – the brain.

Sounds a little crazy that a brain could only worth $20,000.00, right? But the statute hasn’t been updated in a long time with regards to traumatic brain injuries, post-concussion syndrome and the like. And until the legislature decides to take it up, that’s what we’ve got to work with.

If you or your loved one have been injured at work and will likely face a lifetime of migraine management due to a work related injury, please contact my office to discuss ways to protect yourself and even your family going forward – the Act was not set up to require injured people to assume the costs of their medical treatment if they need ongoing or life-long medical care.

I have more than one rating and the insurance company is telling me that the ratings must be averaged, is that right?2021-06-16T21:13:12-04:00

I have more than one rating and the insurance company is telling me that the ratings must be averaged, is that right?

Not necessarily. If you received a rating two years ago and then received additional treatment, I would argue that the ratings should definitely not be averaged. I encountered several form agreements wherein the parties “agreed” to average the ratings when the first, and usually lower, rating was clearly outdated – even in cases where the worker was represented, but some attorneys are inexperienced or inattentive!

It is the accepted practice in the industry and for the Industrial Commission to accept averaged ratings – however, it is not mandatory. If you’re having a hard time getting the insurance company to use one rating over another, please contact me so I can help!

Again, a consultation is free and you will not have to pay anything out of pocket. And most likely, my fee will only be 25% of anything over and above the total amount of permanent partial disability listed on the Form 26A.

For example, if you’ve been given a Form 26A agreeing to pay $15,000.00 and retain me before it is approved (preferably before signing it) and I end up catching errors and/or requesting a second opinion that results in an amended From 26A with an amount of $20,000.00 (NOTE: this is a theoretical example to understand my fee – not your outcome), my “fee” would be 25% of the $5,000.00 difference or $1,250.00.

What if I don’t like the rating my treating physician gave me?2021-06-16T21:13:20-04:00

What if I don’t like the rating my treating physician gave me?

If your treating physician assigned a permanent partial impairment rating that you feel is too low, you have the right to seek a second opinion for the purposes of receiving a permanent partial impairment rating only.

However, you should be cautious when asking for this as it may impact your rights for a second opinion as to your treatment options or changing the authorized treating physician. I would first suggest that you familiarize yourself with the North Carolina Industrial Commission Rating Guide (found here: http://www.ic.nc.gov/ncic/pages/ratinggd.htm) and try to discuss the rating assigned by the treating physician.

Sometimes, physicians are unaware of the Commission’s Rating Guide minimums and are mistakenly using the American Medical Association Rating Guide as the basis sole of your rating. Doctors are busy and things get overlooked!

The bottom line is that your doctor should explain why and how he or she arrived at your rating – and be able to answer questions you have. If your authorized treating physician is unyielding in his or her opinion, please contact my office or another experienced attorney so that they can offer the name of a physician in your area who is likely to provide a more palatable permanent partial impairment rating.

How are amputations rated for the form 26A?2021-06-16T21:14:02-04:00

How are amputations rated for the Form 26A?

Basically, and I am sorry to write so frankly about such traumatic injuries, but if you lose any portion of the bone in the tip of your finger (or toe), you should receive a rating of no less than 50% (and likely more if you have additional issues such as residual nerve pain).

Further, N.C.G.S. § 97-31(7) states: “[t]he loss of more than one phalange shall be considered the loss of phalange shall be considered the loss of the entire finger or thumb…” According to Gaddy v. Anson Wood Prods., 92 N.C. App. 482, 374 S.E.2d 477 (1988), the Court of Appeals held that the amputation of part of plaintiff’s middle phalange of the fourth finger (necessitated by surgical procedure rather than amputated during the accident itself) did not affect plaintiff’s recovery under N.C.G.S. § 97-31(7).

This means that if you lost the first (distal) phalange and any portion of the middle phalange of your finger (or toe per N.C.G.S. § 97-31(11)), you are entitled to receive compensation based on a 100% loss of that digit.

If you’ve suffered an amputation of a hand, arm, foot, or leg, please call my office so that we can work together to ensure that you will receive life-long medical treatment in the form of prosthesis replacements and pain management.

How did the doctor calculate my impairment rating?2021-06-16T21:13:55-04:00

How did the doctor calculate my impairment rating?

They really don’t pull numbers out of thin air or read tea leaves. I promise!

They should base impairment ratings off treatises like the American Medical Association Impairment Guide as well as the North Carolina Industrial Commission Rating Guide which may be found here: http://www.ic.nc.gov/ncic/pages/ratinggd.htm

You (and your doctor) should be aware that there are differences between the two guides and that the Industrial Commission can and should trump the American Medical Association’s Guide.

As a former Special Deputy Commissioner, I would routinely reach out to the parties in order to push the treating physician to assign a rating consistent with the Commission’s Rating Guide. The most often “inappropriate” ratings were “whole person impairments” that were frequently used in cases of TBI (traumatic brain injury) or post-concussion syndrome with recurrent migraines.

The “brain” is considered an “organ” and if the person has been able to go back to work without any reduction in wages, their compensation will be capped at $20,000.00. Another big mistake was when a doctor would assign a permanent partial impairment rating of less than 40% when the injured worker had a total knee replacement because of the work-related injury.

Also, any time a joint of a lower extremity is entered for surgical repair with resultant osteoarthritis expected, the minimum impairment should be 10%. I saw a lot of open reduction internal fixation of the knee or ankle where the doctor assigned a 5% rating – a rating that was half of what the Commission’s Rating Guide Mandates. Don’t even get me started on finger and toe amputations…actually, please refer to the amputation FAQ.

If you believe your rating is too low or do not believe that the compensation listed on the Form 26A is fair compensation for your injury, please call my office today. It could be a quick and easy fix (the doctor needs to know about the Industrial Commission’s Rating Guide), a request for a second opinion or even a different type of settlement not based on any rating.

Again, if you’ve been given a Form 26A to sign and want to discuss your options, I guarantee that my fee will only be 25% of anything you receive above and beyond the amount listed on the original Form 26A. Please call my office today!

What are the time limits for additional medical treatment?2021-06-16T21:14:12-04:00

What are the time limits for additional medical treatment?

Say it with me: it depends!

According to the Workers’ Compensation Act, specifically North Carolina General Statute § 97-47, you have “two years from the date of the last payment of compensation” based on an award (like a court order) or an approved form agreement (like a Form 26A, Form 21). If the only compensation paid for your injury was for your medical bills (you didn’t receive any weekly checks), you will have one year from the date of the last medical bill was paid on your behalf. “Payment of compensation” is either a check that is made out to you – like temporary total temporary disability or compensation from a form agreement or payment of a medical bill. Here some examples that may help you understand:

Example No. 1: Let’s say you agreed to a Form 26A and received the last payment from that agreement on January 1, 2014. On May 1, 2014, you went back to your authorized treating physician for a prescription refill or injection, and the insurance carrier paid the bill from that visit on June 2, 2014. In this example, the “date of last payment” would be June 2, 2014 (the date the last medical bill was paid) so if your injury was causing your problems and you wanted to go back to the doctor at any point before June 2, 2016, the insurance carrier should pay for those visits.

Note that if the insurance carrier pays for any return visit to the doctor – that visit restarts the two year clock! Now if the insurance carrier refuses to authorize any additional treatment within the two year window, you should file a motion or hearing request (or have your attorney do that for you) with the Industrial Commission a.s.a.p.!

Example No. 2: Let’s say you didn’t miss any time from work due to your injury (or missed less than 7 days) and the last medical bill the insurance company paid was paid on July 1, 2014. Let’s also assume that you were released from your doctor with a 0% permanent partial impairment rating (by the way, this should rarely happen and you should contact my office immediately if it happens to you). If no other medical bills are paid, you will have on year, up to July 1, 2015 to receive additional benefits such as medical care or temporary total/partial disability if you are taken back out of work by the treating physician.

Moral of the story: The bottom line is that the time limit is tricky and depends on whether you received medical benefits only. Many times insurance adjusters will use incorrect dates (out of ignorance more than malevolence), in my experience, to cut off benefits that the legislature intended you to have! Please speak with an attorney if you need additional medical treatment and have been told that your time is up!

I signed the Form 26A and after it was approved, I got fired, what now?2021-06-16T21:14:27-04:00

I signed the Form 26A and after it was approved, I got fired, what now?

Do not go past “Go,” and do not collect $200.00 (Monopoly© reference anyone?)! Go straight to an attorney as the time limit for additional compensation is two years from the date of your last check or the last date your insurance carrier paid a medical bill!

Unless you were fired for “cause,” if you have been fired after receiving funds from a Form 26A and were released with permanent work restrictions you may be entitled to ongoing temporary partial or total disability benefits if you’re unable to find work or have found work, but are earning less than your pre-injury wages.

As a Special Deputy Commissioner, I saw hundreds if not thousands of these types of agreements where people really wanted the money promised in the Form 26A even if they had some significant permanent work restrictions and those workers would assure me that they were still able to work in their very labor intensive position. All too often, people would call me after I approved the Form 26A when they were “let go” or laid-off – and I was unable to give them any legal advice since I worked at the Industrial Commission! It was very frustrating!

At any rate, depending on your circumstances, if you’re unable to negotiate with the insurance carrier you will likely need to file a hearing request.

At the hearing, you will need to put on evidence of any ongoing disability. I encourage you to contact my office, or any other attorney with workers’ compensation experience to help you if you’ve been fired and cannot find work because of your permanent work restrictions or injury.

How do they determine the amount of compensation for a Form 26A?2021-06-16T21:14:38-04:00

How do they determine the amount of compensation for a Form 26A?

The law that governs payment of “permanent partial disability” compensation paid to injured workers is North Carolina General Statute § 97-31. There are many subsections of the statute with all sorts of “body parts.”

For example, a total impairment to a back (and this never happens with a Form 26A) would mean 300 weeks of your compensation rate. If you sustained a permanent partial impairment (doctors say disability) of 5% to your back and your compensation rate was $350.00 per week, you would be entitled to 15 weeks multiplied by $350.00 or $5,250.00.

You can find the statute with all the accepted body parts here: http://www.ic.nc.gov/ncic/pages/statute/97-31.htm

Please note that not every injury falls into these specific categories! If you have suffered an injury resulting in a permanent injury (or partial impairment) that is not listed – you may still be entitled to compensation and should contact an attorney immediately.

For example, if you have ongoing migraines from an injury, you may be entitled to compensation up to $20,000.00 (for an organ such as the brain).

Also, if the Form 26A does not include all body parts that were injured, you may be entitled to additional medical care and additional compensation!

Do not agree to (or sign) a Form 26A unless all injured body parts, organs, or “injuries” are included!

Please contact my office if you’ve had multiple injuries from one incident OR if you have gone back to work at lower wages – you must make sure that you’re getting what the law intended you to have!

What is a Form 26A?2021-06-16T21:14:54-04:00

What is a Form 26A?

A Form 26A is a type of agreement that allows people to get compensation for a permanent “partial” impairment to a specific body part according to the Workers’ Compensation Act. The body parts specified under the Act can be found here: http://www.ic.nc.gov/ncic/pages/statute/97-31.htm.

However, many injuries are sustained to body parts not specifically outlined by the statute. In such a case, you may be entitled to compensation of up to $20,000.00 for the loss of an “organ” such as a kidney, lung, or even the “brain” for symptoms like migraines caused by post-concussion syndrome or traumatic brain injury (TBI).

The most important aspect of agreeing to receive compensation through a Form 26A is that after an injury, you should be able to go back to work and earn the same amount of money (overtime and other benefits included) as before your work related injury. If you’ve gone back to work, but have been receiving less than your pre-injury average weekly wage, please contact my office immediately as you may be giving up benefits the legislature intended you to have!

If you’ve been given a Form 26A agreement and you have questions or want someone to look it over, I will be more than happy to sit down and review it with you for free. Further, if you decide that you would like me to represent you and your interests, I will only charge a contingent fee (no out of pocket costs to you) of 25% above the dollar amount listed on the original Form 26A agreement – I am that confident!

My Adjuster wants me to sign a Form 26A, do I have any other options?2021-04-16T16:39:55-04:00

I’ve gone back to work, but am unable to work or I am making less money and my adjuster wants me to sign a Form 26A, do I have any other options?

H-double-hockey-sticks, yes! Another type of agreement commonly used in this scenario is something called a “compromise settlement agreement” or “clincher.” If you’re not able to go back to work, this type of agreement pays a lump sum and can include or exclude future medical treatment. Please see the FAQ on clinchers for more information or call me!

Alternatively, if you’re earning less than your pre-injury average weekly wage, you could be entitled to ongoing temporary partial disability for many years to make up for the difference in your pre-injury and post-injury gross wages. If your injury occurred after June 24, 2011, you could be entitled to 500 weeks (from the date of injury) of temporary total or partial compensation.

As an example, let’s say Mr. Hardworker was injured on July 1, 2013 and that his average weekly wage was $800.00 yielding a compensation rate of $533.36 ($800.00 x 66⅔ %). Let’s also assume that Mr. Hardworker was rated and released with permanent work restrictions on January 1, 2014 and was given a 10% permanent partial impairment rating to his shoulder for a repaired rotator cuff injury. According to the Form 26A calculations, if Mr. Hardworker opted for the permanent partial disability compensation, he would receive 24 weeks x $533.36 for a total amount of $12,800.64 – sounds good, right?

Let’s also say that on January 1, 2014, Mr. Hardworker returned to work in a lower paying job because of his injury and resulting permanent work restrictions and was now earning only $600.00 per week. This means that he would be entitled to temporary partial disability compensation to make up for the difference in his wages and he would be entitled to collect it through January 30, 2023 (or 500 weeks after the July 1, 2013 date of injury) for any week where his gross wages were less than $800.00.

The $200.00 x 66⅔ % or 0.6667 yields a temporary partial disability compensation rate of $133.34 per week. That doesn’t sound like much, but you have to remember that that $133.34 can be collected up through January 30, 2023, or another 472 weeks! That could add up to $62,936.48 in temporary partial disability compensation!

But wait…there’s more…if your injury occurred before June 24, 2011, you could be entitled to 300 weeks (from the date of injury) of temporary total or partial compensation.

I know it is complicated – so I cannot stress enough how important it is for you to contact an experienced attorney to discuss your situation if you’ve gone back to work at reduced wages!

What if I worked under the table for my employer?2021-06-16T21:15:11-04:00

What if I worked under the table for my employer, should those wages be included when calculating my average weekly wage?

Yes, yes and yes! Clearly, this is illegal and the IRS would not approve, but for purposes of the Workers’ Compensation Act, unreported wages paid by an employer should be included in the calculation of an average weekly wage when someone is injured in that employment.

Example: a not-so-reputable convenience store owner pays her employees the minimum wage for the full 40 hour work week and then pays any additional hours in cash, and does not include any overtime wages paid in the W-2 so that neither the employer nor the employee has to pay tax on those wages.

The Commission doesn’t care and isn’t required to report you to the IRS or anyone else. However, being dishonest about your income may impact your case if your case relies upon your credibility (or honesty). Honesty is the best policy so please educate yourself and report dishonest employers here: http://www.dol.gov/compliance/guide/minwage.htm

How is my average weekly wage calculated when I get injured in my part-time job?2021-06-16T21:15:29-04:00

How is my average weekly wage calculated when I get injured in my part-time job?

Unfortunately, if you get injured while working in a part-time job, your average weekly wage and compensation rate will likely be based off of your part-time earnings rather than your primary job.

There are exceptions for volunteer firefighters, organized rescue squad, or authorized pick-up firefighters. If you want to know whether you may qualify as one of these types of employees, I would be more than happy to talk with you to review your situation.

What types of income counts towards your average weekly wage2021-06-16T21:15:40-04:00

What types of income counts towards your average weekly wage?

If your employer provides lodging (instead of wages) or a travel allowance that is paid whether you travel or not, those amounts should generally be included in the calculations for your average weekly wage.

All overtime should be included. If your employer paid you “under the table” – that should also be included. Signing bonuses should be included. Per diems may also need to be included in the calculations.

How was my average weekly wage calculated?2021-06-16T21:15:51-04:00

How was my average weekly wage calculated?

It depends! Also, the calculations may not be correct if the adjuster isn’t using the Form 22 correctly or get your actual gross wages earned in the 52 weeks prior to your injury.

According to North Carolina General Statute §97-2(5), there are five ways your average weekly wage can be calculated. The first method is the preferred method and is the most common and it adds up your gross weekly wages in the 52 weeks preceding your injury and divides it by 52.

The second method applies if during that 52 week period you missed work for eight consecutive days, those days should not be counted so that your gross wages would be divided by less than 52 weeks. The third method is for employees who hadn’t been working for their employer for a full year before they got hurt.

For the third method, you just divide the gross wages that were earned by the number of weeks actually worked.

If the third method is unfair (something found by the Commission), the average weekly wage can also be calculated by using the wages of someone similarly employed in the injured workers’ position – this is the fourth method.

Finally, the fifth method is rarely used and is reserved for “exceptional reasons” and it has to be because the other methods would create an unjust result. One example of the successful application of the fifth method was in the case of Early v. Basnight & Co., 214 N.C. 103, 198 S.E.577 (1938) where the worker had been recently promoted to sales and would have had a significant increase in wages but for his injury.

Please see the FAQ relating to what constituted income when calculating the average weekly wage as other things count as “income” to be included in your average weekly wage.

How did the adjuster calculate my compensation rate?2021-06-16T21:16:25-04:00

How did the adjuster calculate my compensation rate?

Your compensation rate is based on your “average weekly wage.” The act says that the “average weekly wage” can be calculated several different ways. The most common and preferred method of calculating the average weekly wage is using “the earnings of the injured employee in the employment in which the employee was working at the time of the injury during the period of 52 weeks immediately preceding the date of injury.”

As a former Special Deputy Commissioner, all too often the average weekly wage was calculated incorrectly resulting in a profound underpayment of compensation of thousands of dollars. Now, there are a variety of situations where it is impossible or unfair to calculate wages based on the wages earned in the 52 weeks preceding the injury and the Act allows other methods to be used. There are a total of five different ways to calculate the average weekly wage (please see the FAQ on that subject).

Once the average weekly wage is determined, your compensation rate is calculated by multiplying your average weekly wage by 66⅔ % or 0.6667. For example, if your average weekly wage was $800.00, your compensation rate would be $533.36 as outlined below:

$800.00 x 0.6667 = $533.36

There are caps on the maximum compensation rate that are adjusted (increased) every year. For 2014, the maximum compensation rate is $904.00. Even if you make $4,000.00 per week, your compensation rate will always be capped. Here is a link to the maximum compensation rates for the current and previous years: http://www.ic.nc.gov/ncic/pages/maxrates.htm

If you don’t think your compensation rate (or average weekly wage) was calculated correctly, please collect your payroll records, tax records and contact an attorney immediately as this type of error can be difficult to correct later down the road!

My adjuster isn’t calling me back and I need to go to the doctor, what can I do?2021-06-16T21:16:19-04:00

My adjuster isn’t calling me back and I need to go to the doctor, what can I do?

If you get injured through your employment, it is always a good idea to keep a log of communication you’ve had with the insurance carrier (and even your employer if they have an onsite workers’ compensation professional). Try to contact the adjuster’s supervisor.

If that doesn’t work, and you still don’t want to hire an attorney – and trust me, calls and e-mails tend to get answered when reputable attorneys are involved – you can file a Form 33 hearing request for medical treatment. You will be required to file the Form 33, serve it on the insurance carrier and present evidence in support of your request.

Again, hiring an attorney is immensely helpful as they know the rules civil procedure, rules of the Industrial Commission, and the rules of evidence and what burdens must be met. If you need treatment from a compensable work related injury, you do not have to suffer in silence or pay out of pocket for treatment. Don’t let them win – talk to an attorney a.s.a.p.

Again, attorneys should provide for free consultations and you should definitely shop around as not all attorneys are equal. You need to find one that has experience in Workers’ Compensation and one that you believe will work for you.

What if I’ve gone back to work but my pay/hours have been reduced?2021-06-16T21:16:45-04:00

What if I’ve gone back to work, but my pay/hours have been reduced?

You may be entitled to something called Temporary Partial Disability compensation, or “TPD.” TPD should be paid for so long as you are earning less money because of your injury or work restrictions. Note, there is a limit in that TPD benefits are capped at 500 weeks from the date of injury.

What is Workers’ Compensation?2021-06-16T21:21:45-04:00

What is Workers’ Compensation?

Many moons ago, in the midst of the Industrial Revolution, countries and states started enacting laws to make sure that employers paid for medical treatment and lost wages of workers who were injured on the job. Previously, injured workers would have to sue and prove that their employer was negligent and somehow caused the injury. This meant that a lot of injured workers didn’t have the resources to hire attorneys in cases where their employer was negligent and would be $#!+ out of luck if the employee was injured by their own fault.

The idea behind creating workers’ compensation laws was that people injured at work should not have to fall on friends, family, charity – or the government, when they got hurt at work. Back in the day, (and still today) a lot jobs were very physical or labor intensive and the legislature recognized that people are not machines that can be thrown out when broken.

If you’ve been injured at work – even if your boss tells you that you are an Independent Contractor or tells you that it was your fault, you may still be entitled to the benefits afforded from the Workers’ Compensation Act. You should contact the Law Offices of Laurie Meilleur, PLLC immediately in order to understand your rights and options and to make sure that you get what our lawmakers intended!

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While we endeavor to provide accurate information at this website and in the podcasts and blogs, we cannot guarantee that the information provided here (or linked from this site) is up to date, accurate, complete, or adequate for your needs. We provide general legal information on an ‘as-is’ basis.

We make no warranties and disclaim liability for damages resulting from its use. Legal advice must be tailored to the specific circumstances in your case, and laws are constantly changing, so nothing provided at this site should be used as a substitute for the advice of competent counsel.

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