Workers' Compensation Questions
Workers’ Compensation
If you have been seriously injured on the job, and are not receiving the appropriate compensation or medical benefits, we may be able to help you. Please contact us. We are happy to explain your rights so you can choose if you need to retain an attorney.
COMMON Workers' COMPENSATION QUESTIONS
- What is workers’ compensation?
- What is the first thing that I should do if I am injured at work?
- What do I need to do to preserve my claim?
- When does the Form 18 have to be filed?
- If I complete a Form 18 and give it to my employer, is that enough? What about the Form 19 that my employer files with the Industrial Commission?
- My medical condition arose while I was on the job. Does that mean it is covered by workers’ compensation?
- When do I need to talk to a lawyer?
- When should I hire an attorney?
- How long do I have to be out of work before I get paid?
- How much do I receive from workers’ compensation?
- If I was injured more than two years ago and have not filed a Form 18, do I still have a claim?
- My employer won’t let me go to a doctor. What should I do?
- When I am out on workers’ compensation can my employer fire me?
- When I come back from being out on workers’ compensation does my employer have to give me my old job back or make a job for me?
- If I come back from being out on workers’ compensation and they hire me, can they then fire me in a few weeks without any cause?
- Can they force me to take another job with another company?
- The insurance company has assigned someone called a “case manager” to my claim and they are telling me to do things. Do I have to do what they tell me?
- The doctor says that I have reached something called maximum medical improvement. Can they stop my benefits?
- When they stop my benefits?
- Should I be concerned about people following me?
- If I had already injured part of my body, in another accident, does that keep me from getting workers’ compensation?
- Does your office handle a lot of workers’ compensation claims?
- I am not happy with my current representation. Will you see me for a second opinion or to consider taking my case?
- How long does it take for a workers’ compensation case to finish so that I can settle my claim?
- How much can I settle a workers’ compensation claim for?
- Isn’t the amount of recovery set by law, in the Workers’ Compensation Act?
- The insurance company has offered me a “rating”? Is that good and should I take it?
- The insurance company wants me to go for a second opinion. Do I have to go?
- A rehabilitation nurse has told me I can’t see the doctor I want to see any longer and that I am supposed to see a new doctor the insurance company has picked out for me. Can they do that?
- How much does your law firm charge for workers’ compensation and how do you get paid?
- What is an occupational disease?
- I was employed for cash wages. If I was injured do I have any claim?
- Won’t my employer know if I go to see an attorney?
QUESTION: What is workers’ compensation?
ANSWER: In North Carolina most employees are covered by the North Carolina Workers’ Compensation Act. While there are some exceptions for federal employees, longshoremen, and the military, the average employee can receive medical care and partial payment of their wages if they are injured in an accident, on the job, or contract an occupational disease at work. Those benefits are what are commonly called “workers’ compensation” in North Carolina.
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QUESTION: What is the first thing that I should do if I am injured at work?
ANSWER: Report the injury or the accident immediately to your supervisor and get medical care. Most denials of workers’ compensation for accidents occur when the employee waits and doesn’t report the incident just as soon as it happens. Even if it seems minor, and doesn’t keep you from working, you need to make certain that whatever has happened gets written down quickly.
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QUESTION: What do I need to do to preserve my claim?
ANSWER: The North Carolina Industrial Commission has created a document called a Form 18. This is a simple form, available here at our website, or from the Industrial Commission, that needs to be filed very soon after an accident. It merely tells the Industrial Commission, and your employer, that you have had an accident on the job and you want to be covered for benefits under the Act. A Form 18 does not require a trial and it is not adversarial, rather it merely puts everyone concerned on notice that there is something which could be serious down the road.
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QUESTION: When does the Form 18 have to be filed?
ANSWER: Notice has to be given to your employer within 30 days of any accident, and a Form 18 must be filed with the Industrial Commission within two years of the accident in order to preserve your right to any compensation, medical or financial.
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QUESTION: If I complete a Form 18 and give it to my employer, is that enough? What about the Form 19 that my employer files with the Industrial Commission?
ANSWER: The notice given by your employer to the North Carolina Industrial Commission of an accident does not preserve any right or make any claim on your behalf. If you give the Form 18 to your employer you do not preserve any right on your behalf. You have to file a Form 18 by mailing it to the proper address on the Form 18, and that must be done timely. Your employer or their insurance company has no responsibility to file any claim for you, regardless of what care, or compensation, they are providing.
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QUESTION: My medical condition arose while I was on the job. Does that mean it is covered by workers’ compensation?
ANSWER: Not necessarily. Every state has different rules about what is and is not covered. In North Carolina the only medical condition from employment that is covered by workers’ compensation is an “accident” or “occupational disease”. That means that a movement that twists your ankle or knee, or pops your shoulder when you are lifting something heavy or in some other way damages you that is not a result of an “accident” may not be covered under workers’ compensation. It is absolutely critical that a worker understand the term “accident” in describing the event to the insurance company.
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QUESTION: When do I need to talk to a lawyer?
ANSWER: Under the North Carolina Workers’ Compensation Act an attorney must report to the North Carolina Industrial Commission, and an employer and insurance carrier, when they are retained by an injured employee. As a consequence, our firm believes that injured employees should have the right to obtain basic information about their problems, and their claims, without having to “retain” a law firm. As a consequence basic advice is often given free of charge, such as how to file a Form 18, where to send the Form 18, or what kind of information to exchange with the insurance company or benefits to expect from an injury by accident.
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QUESTION: When should I hire an attorney?
ANSWER: If the employer or insurance company denies your claim, or if there is a conflict in medical care and treatment or compensation, or extended delay, it may be necessary to hire an attorney early in the proceedings.
Often the minor problems early in an accident can be resolved without a lawyer, but the process of concluding a claim, particularly where is either future medical care involved or payment of permanent compensation, needs the help of an attorney to make certain that all benefits are paid and medical compensation provided.
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QUESTION: How long do I have to be out of work before I get paid?
ANSWER: The general rule is a week, but that may vary depending on the type of accident (if it is clear you are going to be out for longer than a week) and the speed of your employer in reporting the accident and the insurance company in paying. North Carolina law allows several weeks of legal “delay” between the right to receive compensation and the actual check being written, under certain circumstances.
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QUESTION: How much do I receive from workers’ compensation?
ANSWER: Most workers in North Carolina will receive two-thirds of their average weekly wage in compensation benefits. For some workers making in excess of $50,000 a year the percentage may be less.
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QUESTION: If I was injured more than two years ago and have not filed a Form 18, do I still have a claim?
ANSWER: There are many exceptions to the two year rule of filing a claim with a Form 18. This is one situation where, without exception, you need to talk to a knowledgeable lawyer as quickly as possible.
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QUESTION: My employer won’t let me go to a doctor. What should I do?
ANSWER: First you need to give written notice to your employer of the accident. If they still don’t authorize a doctor’s visit, you need to go and get the medical treatment you need. That could either be through your health insurance, an emergency room visit, or some other means.
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QUESTION: When I am out on workers’ compensation can my employer fire me?
ANSWER: Unfortunately in North Carolina if you are not able to work for any reason, and you are not protected by some other statute, (such as the Americans with Disabilities Act or the Family Medical Leave Act) you can be fired.
An employer may not fire someone just because they have filed a workers’ compensation claim, but paradoxically they can fire someone for being out of work because of the workers’ compensation claim.
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QUESTION: When I come back from being out on workers’ compensation does my employer have to give me my old job back or make a job for me?
ANSWER: No, your employer does not have to take you back or make the job for you in most circumstances, but it may mean that you are entitled to weekly compensation benefits for an extended period of time if they do not.
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QUESTION: If I come back from being out on workers’ compensation and they hire me, can they then fire me in a few weeks without any cause?
ANSWER: An employer who simply uses re-employment as an excuse to terminate an employee who has a permanent disability can be responsible for continued payments under workers’ compensation for an extended period of time.
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QUESTION: Can they force me to take another job with another company?
ANSWER: If your employer won’t take you back, the insurance company can require that you look for work with a different employer. If the insurance company finds you a job that is comparable in wages and benefits to the one that you have lost, you may have to make the choice of working for the new employer or losing your weekly compensation benefits. This is a situation where you need an attorney.
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QUESTION: The insurance company has assigned someone called a “case manager” to my claim and they are telling me to do things. Do I have to do what they tell me?
ANSWER: Rehabilitation Specialists are very often hired by insurance companies when there is a serious injury and there is going to be difficulty in the person going back into the work force. The insurance company cannot stop your weekly benefits just because you are not working, but they can stop your benefits for failure to cooperate with rehabilitation personnel. Never say “no” to a case manager.
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QUESTION: The doctor says that I have reached something called maximum medical improvement. Can they stop my benefits?
ANSWER: No they cannot stop your benefits just because of a medical condition improving; you also have to be employed.
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QUESTION: When they stop my benefits?
ANSWER: In North Carolina benefits cannot be terminated without a hearing before the North Carolina Industrial Commission. The way hearings to stop benefits generally happen is if the injured worker is back at work and no longer needs to receive benefits, the injured worker refuses employment which the doctor says that they could do, or the injured worker refuses to cooperate with “rehabilitation” provided by the insurance company.
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QUESTION: Should I be concerned about people following me?
ANSWER: Some insurance companies hire private investigators to follow injured workers, photograph or videotape them, and interview their neighbors and friends. If you are recovering from a serious medical problem, be very careful about your activities.
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QUESTION: If I had already injured part of my body, in another accident, does that keep me from getting workers’ compensation?
ANSWER: No, it should it not interfere with initial treatment or compensation. It should not affect the initial medical payments or compensation. However a prior condition may have substantial affect on the final compensation you receive, the method of rating, and potentially whether you are able to return to work. These are matters that need to be discussed with an attorney.
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QUESTION: Does your office handle a lot of workers’ compensation claims?
ANSWER: We have been representing injured workers in Southeastern North Carolina for more than 30 years. We have one of only four Board Certified workers’ compensation attorneys in Wilmington as the senior attorney in the office and we do not represent insurance companies or employers. Our approach is to provide complete, competent representation for disabled people, one client at a time.
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QUESTION: I am not happy with my current representation. Will you see me for a second opinion or to consider taking my case?
ANSWER: This is one of the most difficult questions we get. Sometimes the dissatisfaction with another law firm is only a matter of communication, sometimes it is a matter of substance. Unfortunately there are occasions when the claim and litigation are so far advanced that our firm would not be able to help, even if we were to take over the claim.
Every situation is unique. Our general practice, since we do not charge for consultations in the area of workers’ compensation, is to decline to second guess another attorney in the middle of litigation. However we have taken over cases from other law firms and successfully prosecuted them when it was in the client’s best interest and there was a genuine problem in the representation beyond just a difficulty with communication, or the speed with which a claim was being handled.
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QUESTION: How long does it take for a workers’ compensation case to finish so that I can settle my claim?
ANSWER: Conclusion of a workers’ compensation claim depends on the nature of the injury and the type of work. Relatively minor or simple injuries with full recovery or very specific damage which allow a client to go back to work without difficulty can be settled in a matter of weeks. More severe injuries, particularly those that have life altering consequences, can take much longer.
Before any settlement can be discussed our client has to have recovered medically to the fullest possible extent, and either be back at work or know that they will not be able to work again. Only at that point can a workers’ compensation case be concluded.
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QUESTION: How much can I settle a workers’ compensation claim for?
ANSWER: The value of a settlement in workers’ compensation depends on the amount the injured worker was making, and the extent of the permanent damage to the workers’ wage earning capacity.
Unlike personal injury actions, there is no recovery for pain and suffering, loss of future earnings, or damage to the family from the accident. The recovery is for the loss of wage earning potential of the injured employee. The job of the attorney for the injured employee is to make certain that every element of possible recovery is considered.
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QUESTION: Isn’t the amount of recovery set by law, in the Workers’ Compensation Act?
ANSWER: No, the only thing the Workers’ Compensation Act sets are specific dollar amounts for injured various body parts, such as a hand or a foot or an eye. The far more difficult question is what impact the injury will have on the injured workers’ ability to earn wages for the rest of his or her life. The amounts which can be obtained in recovery for workers can vary tremendously from case to case for what appears to be identical injuries. The more experience an attorney has in representing claimants against insurance companies, specific adjustors and specific employers, the better able the attorney will be to make recommendations about the maximum recovery.
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QUESTION: The insurance company has offered me a “rating”? Is that good and should I take it?
ANSWER: Ratings are misunderstood by a great many people, particularly physicians. Generally a rating is only relevant if there is injury to only one body part, such as a hand, the injured worker is back at work without loss of a job or future wage earning potential, and there is no need for future medical care. Ratings usually pay the lowest amount to an injured worker.
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QUESTION: The insurance company wants me to go for a 2nd opinion. Do I have to go?
ANSWER: The insurance company has a right to a second opinion for both surgical questions, and for ratings of impairment. However you are also entitled to a second opinion (paid for by the insurance company in the same situations).
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QUESTION: A rehabilitation nurse has told me I can’t see the doctor I want to see any longer and that I am supposed to see a new doctor the insurance company has picked out for me. Can they do that?
ANSWER: Once treatment has begun, and if you are satisfied with the treatment that you are receiving, the insurance company and rehabilitation personnel cannot change your doctor, or your medical care, just because they don’t like the way that you are being treated. To set them straight, and continue the medical care that you have begun, may require a hearing before the North Carolina Industrial Commission.
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QUESTION: How much does your law firm charge for workers’ compensation and how do you get paid?
ANSWER: Our firm does not charge for consultations in workers’ compensation claims. We believe that any injured worker needs someone to give them basic advice for handling their claim without having to “hire” that law firm for the entire claim.
When we do undertake representation our fee is based on a percentage of compensation paid. Usually that means one-fourth of any settlement that can be obtained from the insurance company and employer. Sometimes the best “settlement” for an injured employee is not in a lump sum payment, but weekly payment of compensation for the rest of their life. In situations such as that a different fee arrangement will be considered based on a percentage of future weekly compensation.
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QUESTION: What is an occupational disease?
ANSWER: In North Carolina workers’ compensation covers accidents and occupational diseases. Traditionally occupational diseases were easy to identify like brown lung from cotton mills or black lung from coal mines. More recently the definition of occupational diseases has been expanded to include repetitive motion disorders like carpal tunnel syndrome or injury to the ulner nerve at the elbow. The definition of occupational diseases has been changing rapidly over the last decade, and now can include medical conditions never considered for workers’ compensation in North Carolina in the past such as heart attacks, strokes, and emotional injuries brought about by stress in the work place.
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QUESTION: I was employed for cash wages. If I was injured do I have any claim?
ANSWER: In North Carolina most employees are entitled to workers’ compensation benefits regardless of how they are paid, or what they were called by an employer. Someone injured on the job by an accident when they are paid by someone else to do that job are generally entitled to weekly benefits and medical coverage. The presumption in North Carolina is for compensation, not the denial of compensation.
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QUESTION: Won’t my employer know if I go to see an attorney?
ANSWER: No, all consultations are absolutely confidential, and even the fact that you have been to our office to consult with us is a confidential communication and will not be divulged to anyone unless you choose to tell them. Neither your insurance company nor your employer has a right to know whether you have consulted with an attorney or to ask questions about your workers’ compensation claim. They only have a right to know when you hire an attorney who actually begins representing you.
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