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L A W L I B R A R Y:
General Information About Workers' Compensation
Written by Elliot Pishko Morgan, P.A.
Questions &
Answers about Workers' Compensation
GENERAL
INFORMATION
The law regarding
on-the-job injuries varies from state to state. In this state, the
North Carolina Workers' Compensation Act (Chapter 97 of the North
Carolina General Statutes), requires that the employer or its
insurance carrier pay benefits, including reasonable and necessary
medical expenses, for injuries sustained by employees on the job.
The Act states what injuries or occupational diseases entitle a
worker to receive benefits and what benefits an injured worker can
receive, such as weekly disability payments, payment for reasonable
medical expenses, and compensation for permanent injury. If you have
been injured or have contracted an occupational disease during the
course of your employment, you may have a claim for workers'
compensation benefits under the Act. 2
Claims for worker's
compensation benefits are filed at the North Carolina Industrial
Commission (the "Commission"), in Raleigh, North Carolina.
The Commission is a state agency which oversees various aspects of
workers' compensation cases, including but not limited to, answering
questions from the public, maintaining claim files and records of
employers' insurance coverage or self-insurance, enforcing the Act
and Commission rules at the administrative level, and scheduling and
holding hearings in disputed claims. The general contact information
for the Commission is as follows:
North
Carolina Industrial Commission
4319 Mail Service Center
Raleigh, NC 27699-4319
(919) 733-4820
Web Site: http://www.comp.state.nc.us/
The Commission can
provide you with free claim forms, as well as its information
pamphlet, The Bulletin. The Commission's Statistics Department can
provide you with the name, address, and telephone number of your
employer's insurance carrier or administrator. Claim forms, The
Bulletin, and employer insurance information are also available
through the Web site. [hyperlink to IC website above.] You can
e-mail individuals at the Commission through the personnel directory
maintained at the Web site.
A workers'
compensation action differs from a personal injury action, in that
the injured person does not have to prove that the employer's
negligence caused the injury in order to recover benefits. An
injured worker does have to show that the injury arose out of and in
the course of his employment. Types of injuries which are covered by
the Act include back injuries, broken bones, crushed limbs, and head
injuries, and occupational diseases such as asbestosis, carpal
tunnel syndrome and other diseases unique to a particular
occupation. Injuries caused by the worker's intoxication or use of a
controlled substance, or by the worker's intent to injure or kill
himself or another, are not compensable under the Act.
Benefits
recoverable by an injured worker may include the following:
- Weekly disability
benefits for as long as the worker cannot earn wages due to the
injury
- Payment of
reasonable and necessary medical treatment
- Reimbursement for
prescriptions and sick travel
- Compensation for
permanent impairment to a body part
- Compensation for
reduced earning capacity due to the injury
In some cases,
injured workers are entitled to more than one of the above weekly
benefits, but the choice or "election" of one type of
benefit may prohibit the election of a more valuable benefit. Before
choosing between benefits or signing a settlement agreement, you
should consult an attorney.
Unfortunately, the
Act does not require employers or their insurance companies to pay
injured workers for their mental anguish, or pain and suffering.
However, if the injured worker has a personal injury claim against a
third party (not the employer), arising out of the work injury,
compensation for pain and suffering from the negligent third party
or its liability insurance carrier may be recovered.
"Knowledge is
Power" Insurance companies and administrators for self-insured
employers are knowledgeable about workers' compensation and often
will use that knowledge to attempt to minimize their payment of
workers' compensation benefits to injured workers. We recommend that
injured employees consult with an attorney experienced in workers'
compensation before negotiating with an insurance company or a
self-insured employer.
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WHAT
SHOULD I DO IN THE EVENT OF AN INJURY AT WORK? SHOULD I REPORT THE
INJURY?
If you sustain an
injury during the course of your employment or experience physical
symptoms which you feel may be related to your employment duties or
environment, you should immediately report the injury or symptoms to
your immediate supervisor. Your supervisor, or the individual in
charge of handling injuries at your company, should immediately
complete the employer's report of the accident, Form 19. Your
employer is required to give you a copy of the completed Form 19,
and required to file it with the Commission for injuries involving
more than $2,000.00 in medical expenses or when more than one (1)
day is missed from work. Your company may require the completion of
additional internal forms.
You should also
promptly file a written notice of your claim with the Commission,
preferably on a Form 18. The employer's Form 19 is not an employee
claim form, and clearly says so at the top of the form. Although you
have two (2) years from the date of your injury, or two (2) years
from the date a doctor tells you that you have an occupational
disease, to file a written claim, you should not postpone filing
your claim, and should file it promptly. Even if you believe your
injury is minor, promptly and timely filing a written notice of your
claim with the Commission will preserve your claim in the event your
symptoms require medical treatment or you become disabled from
working due to your injury.
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SHOULD
I REQUEST MEDICAL TREATMENT?
If you are injured
due to an accident at work or believe you are experiencing symptoms
of an occupational disease, you should seek medical treatment from
an appropriate doctor or hospital. If you have not already done so,
you should notify your employer that you have been hurt and are
seeking medical attention. If your employer or its insurance carrier
have accepted liability for your injury, or agreed to pay benefits
under the Act, they may direct your medical treatment to an extent.
Refusal to comply with their recommendations for medical treatment
could result in a termination of benefits or refusal to pay for
additional medical treatment.
However, you are
entitled to medical treatment by the physician or hospital of your
choice, subject to approval of the Commission. If you disagree with
your employer or its insurance carrier regarding the selection of a
doctor or hospital or medical procedure, you may write the
Commission to request approval of medical treatment with the
physician or hospital of your choice, or in some cases, to request
denial of the employer or insurance carrier's choice of medical
treatment.
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SHOULD
I TALK ABOUT THE INJURY?
You should limit your
conversations concerning the facts of your injury or occupational
disease to only those individuals who are required to obtain
information, such as your supervisors, your company's human
resources personnel, and your treating physicians. Additionally, you
should file a written claim with the Industrial Commission and if
you determine your employer has not done so, inform its workers'
compensation insurance carrier that an accident has occurred and
that you were injured, or that you have been informed by your doctor
that you have an occupational disease. In most cases, shortly after
the accident or notification of an occupational disease, the injured
worker will be contacted by a representative of the employer's
workers' compensation carrier, or if the employer is self-insured, a
representative of the administrator of its workers' compensation
fund. The representative will ask to interview you, usually via
telephone, and often will want to tape the conversation.
Pursuant to
Commission Rules, you are entitled to receive a copy of the
transcript of your statement within thirty (30) days of your written
request. The employer or its insurance company often use information
obtained in recorded statements as a basis to deny claims. If you
provide information to the insurance carrier, it should always be
accurate and honest. Any statement or information provided by you
concerning the facts of the accident or the injuries may be used in
Court. Prior to providing any information, you may wish to consult
with an attorney.
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WHAT
IF MY CLAIM IS DENIED?
In the event your
employer or its insurance carrier deny your claim and refuse to pay
benefits, it is required to file Form 61, Denial of Workers'
Compensation Claim, within fourteen (14) days of its notification of
your claim. The Form requires a detailed statement of the reasons
your claim is denied. If you disagree with the denial, you may
request a hearing by completing a Form 33, Request for Hearing. It
can take nine months or longer for a claim to be scheduled to be
heard by a Deputy Commissioner. Prior to the hearing, the Commission
generally orders the parties to participate in a mediation or
settlement conference. If the case does not settle at mediation, and
the hearing is held, the Deputy Commissioner generally leaves the
record open after the hearing for a period of 60 days to allow the
parties to take doctors' depositions. After the record is closed, it
often takes the Deputy Commissioner six to eighteen months to render
a final decision, or Opinion and Award. If any party disagrees with
the decision, an appeal to the Full Commission may be timely filed.
If any party disagrees with the decision of the Full Commission, an
appeal to the North Carolina Court of Appeals may be timely filed.
Hotly disputed workers' compensation cases can often take years to
be resolved through the court system. If your claim is denied, you
may wish to consult with an attorney.
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WILL
I BE UNDER SURVEILLANCE?
It is common for
insurance companies to hire private investigators to observe injured
workers periodically, especially in cases of serious injury. Please
be aware that you may be under surveillance at any time.
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WILL
I HAVE TO WORK WITH A REHABILITATION SPECIALIST?
The insurance company
may hire a medical consultant to manage your medical care or a
vocational consultant to help you return to work. Please be aware
that one of these consultants' goals is to help you BUT they have
been hired by the employer or insurance company.
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SHOULD
I GET AN ATTORNEY?
An injured worker's
rights are determined by the applicable statutes, both federal and
state, regulations, ordinances and legal precedents. The law also
governs the admissibility of evidence at trial, the legal procedures
necessary to assert your claim, and the time period during which you
must institute a claim. In some situations, this time period may be
relatively brief. As such, the law can present a complex web that
may trap the unwary. At Elliot Pishko Morgan, your initial
consultation is free. You will speak with an attorney about your
case. At the conclusion of the conference, the attorney will then
provide you with some options for your consideration. If you wish to
hire our firm to represent you, you will not be required to pay any
money for the time the attorneys work on your case unless and until
you have been compensated for your injury. If there is no recovery,
then there is no attorney fee.
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WHAT
SHOULD I LOOK FOR IN SELECTING A LAWYER TO REPRESENT ME?
Before hiring a
lawyer, you should learn all you can about the firms you are
considering. Ask for information about the lawyer's education,
training and experience,
and ask the lawyer to tell you about his or her experience dealing
with cases similar to yours. Ask the lawyer to go over the fee contract with
you in detail, and be sure you understand how you will pay the
lawyer's fee and costs at the end of the case. Ask about the
possible adverse consequences if your case is lost. Ask if your
lawyer intends to handle your case alone, and if you are told that
other lawyers outside the law the firm will be asked to assist, find
out what the fee arrangements will be with those lawyers.
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WHAT
CAN I EXPECT FROM MY FIRST APPOINTMENT WITH YOUR FIRM?
At Elliot Pishko
Morgan, you will find our staff to be courteous and professional.
Visiting a law firm for the first time can be an anxious experience,
and we will do our best to make you comfortable. We will block out
plenty of time to meet with you to discuss your situation. It is
always helpful if you bring whatever paperwork you may have
concerning your claim to the initial consultation. There will be no
charge for this initial consultation.
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WILL
I HAVE TO PAY ANY MONEY TO GET STARTED??
We handle workers'
compensation cases on a contingent fee basis. This means we are paid
a portion of any recovery we are able to obtain on your behalf.
However, our attorney fees are subject to approval by the
Commission. We do not require a "retainer fee" in workers'
compensation cases.
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WHO
PAYS FOR OUT OF POCKET EXPENSES WHILE MY CASE IS PENDING?
Out of pocket
expenses are ultimately a client's responsibility. While a case is
pending, we will usually advance expenses incurred during our
representation. These costs will be paid out of the recovery or at
the conclusion of the case. These costs may include charges for
medical records, long distance telephone calls, travel, court
reporter fees and expert witness fees.
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HOW
DO I DECIDE WHETHER TO SETTLE OR TRY MY CASE?
The decision whether
to settle or to try your case is yours. However, before you make
your decision, we will outline the pros and cons of each option for
you. Your decision will be based upon the best information we can
obtain relating to the value of your case.
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