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Common Questions About Workers' Compensation In North Carolina

What is the North Carolina Industrial Commission?

What if the accident was my fault?

What if I’m unhappy with the doctor chosen by the insurance company?

Can I sue my employer?

What are my rights if someone other than my employer caused my injury?

What happens if my condition worsens after I settle my claim?

What happens if I can’t go back to my job after an injury?

Are workers’ compensation benefits taxable?

Can my employer fire me because I filed a workers' compensation claim?

Can I be compensated for the pain and suffering caused by my injury?

Can I receive both Social Security Disability and workers’ compensation benefits?

What is the North Carolina Industrial Commission?

The North Carolina Industrial Commission is the state agency that regulates and oversees workers' compensation claims in North Carolina.  The Commissions acts as both a government agency and as a court system that handles disputes over a worker's right to workers' compensation benefits. 

The Industrial Commission is located at 430 N. Salisbury Street, Raleigh, North Carolina 27611.  The phone number is (919) 807-2500.  The website is www.ic.nc.gov.

What if the accident was my fault?

Workers' compensation is a no-fault system.  Even if a worker is at fault in causing his or her own accident, he is entitled to workers' compensation benefits.  The only exception to this general rule is when the employee is intoxicated at the time of injury, and the intoxication causes the accident.  Under such facts, the workers' compensation claim can be barred.

If the injury is caused by the employee’s willful disobedience a safety rule, the compensation due the employee can be reduced by ten percent.  The willful failure of the employer to obey a safety rule can result in a ten percent increase of the workers' compensation benefits.

What if I’m unhappy with the doctor chosen by the insurance company?

As a general rule under North Carolina law, the employer and its insurance company have the right direct medical treatment, which includes selecting the injured worker’s treating physician.  However, the injured worker can request a comprehensive second opinion evaluation at any time during treatment.  Importantly, the second opinion request must be made to the insurance company in writing.

Moreover, an injured worker may select his or her own health care provider, subject to the approval of the Industrial Commission.  A request to change physicians should be made to the Commission in writing.  Before the Commission can grant the request, the injured worker must prove that the change is reasonably necessary for recovering from the injury or for getting back to work.

Finally, when a claim has been denied, the injured worker can choose his or her own physician while challenging the denial.

Can I sue my employer?

The answer to this question is almost always “no.”  Generally, an injured worker may not sue his employer for negligently causing his or her injury.  A worker's "exclusive remedy" for a workplace injury is workers' compensation benefits.

There are some extremely limited circumstances when an injured worker can sue his employer.  First, when the employer intentionally harms the employee, a lawsuit is allowed.  Second, a lawsuit may be allowed when the employer engages in misconduct knowing with “substantial certainty” that it will result in serious injury or death.  Finally, an injured worker can bring a lawsuit against a coworker when his or her “willful, wanton, or reckless negligent conduct” caused the injury.  Again, lawsuits against employers and coworkers are extremely rare.

As explained below, if a third party (i.e., someone other than the employer or a coworker) negligently injures a worker, the injured worker can maintain a workers’ compensation claim with the employer and file a lawsuit against the third party.

What are my rights if someone other than my employer is responsible for my injury?

Whenever a worker is injured by someone other than his employer or a coworker, he might have a lawsuit, commonly called a “third party claim,” against the negligent party.  In such circumstances, the injured worker can maintain a workers’ compensation claim with the employer and file a lawsuit against the third party.

Third party claims are not unusual.  They frequently arise from injuries on construction sites where several different contractors are working at any one time.  In addition, a worker injured in an auto accident may have a third party claim if the accident was caused by the negligence of another driver.  Sometimes workers are injured or made ill by defective products used in the workplace.  In such circumstances, the worker may have a product liability claim against the product manufacturer.  

It is very important to pursue third party claims because they can provide money damages to an injured worker above and beyond the benefits allowed under workers’ compensation.  The most obvious example is that damages for pain and suffering are allowed in third party claims but are unavailable under workers’ compensation.

For more information about third party claims resulting from workplace injuries and illnesses, please see our Construction Accident and Occupational Exposure pages.

What happens if my condition worsens after I settle my claim?

The answer to this question depends on how the claim was settled. 

If the injured worker settles for rating benefits under a Form 26A, additional benefits may be available if the injury worsens.  After the final payment of benefits under the Form 26A, a two-year period begins in which the injured worker can seek additional disability benefits and medical compensation.  To obtain additional disability benefits the injured worker must file a “change of condition” claim with the Commission within the two-year period.  The injured worker can obtain medical treatment at any time during the two-year period.

If the injured worker settles under a “clincher” agreement, the claim is permanently closed, and he or she cannot obtain additional benefits if the injury gets worse.  For this reason, it is extremely important to make sure that a clincher includes enough settlement money to account for future wage loss and medical treatment.

What happens if I can’t go back to my job after my injury?

A worker who is injured so severely that he cannot go back to the job in which he was injured is entitled to continuing TTD benefits from the insurance company.  These benefits typically continue until the injured worker returns to a suitable job.  However, workers injured before June 24, 2011 (the date on which the 2011 workers’ comp “reform” bill became law) can receive TTD benefits indefinitely, even for the rest of their lives if they are unable to return to work.  Workers injured on June 24, 2011 or after can receive TTD benefits for up to 500 weeks after the date of injury.  They can, however, apply for permanent disability benefits, which extend beyond 500 weeks.

An injured worker who cannot return to his pre-injury job is probably entitled to vocational rehabilitation services as well.  The employer is responsible for helping the injured worker find another physically suitable job.  Often the insurance company will hire a vocational counselor to assist the worker in finding another job.  Sometimes, retraining or additional education are required.

Are workers’compensation benefits taxable?

No.  Neither workers’ compensation benefits nor the lump sum paid in the settlement of a workers’ compensation claim is subject to federal or state income tax. 

However, if you are awarded Social Security Disability (SSD) benefits while receiving workers’ compensation benefits, the federal government will tax you based on your full SSD benefits even though Social Security reduces those benefits to account for your receipt of workers’ compensation.  The practical effect is that receiving SSD benefits renders your workers’ compensation benefits taxable.

Can my employer fire me because I filed a workers' compensation claim?

No.  It is unlawful for your employer to fire you or to otherwise retaliate against you for filing a workers' compensation claim.  If your employer has retaliated against you for pursuing a claim, you should contact the North Carolina Department of Labor immediately at (800) 522-6762.  Note that you must take action within 180 days of the retaliatory act.

However, an employer can lawfully fire an injured worker if he or she is unable, because of the injury, to return to work.  Some workers may be protected from termination by the Family and Medical Leave Act for a 12-week period after going out of work.  Unfortunately, under workers’ compensation, an injured worker who is fired because he or she can no longer perform the job will receive no compensation for the loss of important fringe benefits such as health insurance.

Can I be compensated for the pain and suffering caused by my injury?

No.  Workers’ compensation does not allow an injured worker any compensation for pain and suffering.  For many workers, the most difficult part of their ordeal is the pain, suffering and physical disability caused by the work-related injury.  Pain, suffering, and disability can often lead to depression and leave the injured worker feeling powerless and frustrated.  Despite the severe and adverse impact a work-related injury can have on the injured worker’s life, the North Carolina legislature has seen fit not to allow compensation for pain and suffering.

Can I receive both workers’ compensation benefits and Social Security Disability?

Yes.  An injured worker can receive workers’ compensation benefits and Social Security Disability (SSD) benefits at the same time.  However, in most cases, the Social Security Administration will reduce the SSD benefits paid to the injured worker because he or she is receiving workers’ compensation benefits.  Under federal regulations, an injured worker who is eligible for workers’ compensation benefits and SSD benefits cannot receive more than 80 percent of pre-disability wages.  This rule usually operates to reduce the amount of SSD benefits paid.

Importantly, although workers’ compensation benefits are not subject to income tax, receiving SSD benefits has the practical effect of making them taxable.  The federal government will tax the injured worker based on the full SSD benefit, even though reduced SSD benefits are being paid because of workers’ compensation benefits.

Finally, an injured worker who is receiving SSD benefits must be very careful entering a clincher agreement to settle his or her workers’ compensation claim.  In most cases settlement of the workers’ compensation claim will allow the injured worker to receive full SSD benefits.  However, unless specific and technical language is included in the clincher agreement, the injured worker may inadvertently lose thousands of dollars in SSD benefits.