Information About Workers’ Compensation Claims in North Carolina

What is workers’ compensation?

Workers’ compensation is a system of benefit payments for people who contract an occupational disease or who are injured by an accident arising out of and in the course of their employment.

Injured workers can receive:

  • temporary total disability checks while they are out under a doctor’s care;
  • medical treatment that is reasonably necessary to effect a cure, provide relief, or lessen the period of disability; and
  • payments for permanent injury based on their impairment rating, impaired wage earning capacity, or total and permanent disability.

What is the North Carolina Industrial Commission?

The N.C. Industrial Commission is the state agency which regulates and oversees workers’ compensation claims filed in North Carolina.

The Commission also offers an information specialist to assist people who call for information.  The specialist’s telephone number is 800.688.8349 or 919.807.2501.

How much time do I have to file a workers’ compensation claim?

You must give written notice to your employer immediately or within thirty days after the accident.  Even if your employer is aware that the injury occurred, you should ask to fill out an incident report so that there is documentation of this notice.  If you have a reasonable excuse for failing to give the thirty-day written notice, this requirement can be waived.

Your claim must be filed with the N.C. Industrial Commission within two years of the date of the accident by completing and filing Industrial Commission Form 18.  If a Form 18 is not filed within two years, the claim may be forever barred unless the employer intentionally engaged in actions to mislead you about your rights to pursue workers’ compensation.

In an occupational disease case, an employee must file a workers’ compensation claim with the Industrial Commission within two years of  becoming disabled and being informed by a competent medical authority of the nature and work-related cause of the disease.

Must all employers in North Carolina carry workers’ compensation insurance?

All employers who regularly employ three or more workers must carry workers’ compensation insurance in North Carolina.  Some companies self-insure their businesses for workers’ compensation, so you may have to deal directly with the employer rather than an insurance company.

What makes my injury compensable?

For an injury to be compensable and covered by workers’ compensation it must have been (1) caused by an accident, (2) arising out of, and (3) in the course of your employment.  The first requirement, that the injury was caused by an accident, applies unless it is a back injury or a hernia.  Accidents are a slip, trip, fall, or some event which breaks the normal work routine.  A back injury is usually compensable even if it happens when normal job duties are being performed.

The injury must also arise out of and in the course of the employment.  The injury must be one for which the risk is identifiable with the job, and it must occur at a place and during a period of time in which the employer’s business is being furthered.  This is commonly known as the time, place and circumstances of injury.

What is an occupational disease?

Deteriorating health conditions which arise slowly and over a period of time can be grounds for workers’ compensation under certain conditions:

  • the employee was placed at an increased risk of contracting the occupational disease compared to the general public not equally exposed, and
  • the hazards of employment significantly contributed to the occupational disease.

For example, textile workers exposed to cotton dust can contract a condition known as “brown lung,” or byssinosis.

Other workers have been exposed to a hazardous mineral known as asbestos, which can lead to asbestosis, mesothelioma, and other cancers.  These diseases strike workers who were exposed to asbestos many years ago in factories, shipbuilding sites, construction, insulation, brake production and transportation.

Some workers have been exposed over long periods of time to chemicals in the workplace.  This can lead to cancer or a myriad of other ailments.

Workers who have jobs in factories and in offices where they continually use their hands in a repetitive manner can get a condition known as carpal tunnel syndrome.

Can I sue my employer?

You may not sue your employer for ordinary negligence if your claim is covered by workers’ compensation.  The exclusive remedy provision of the Workers’ Compensation Act protects employers from direct suits by their employees for on-the-job injuries where the employer contributed to the accident.

However, if the employer intentionally engages in misconduct knowing with substantial certainty that serious bodily injury or death could result, then you may sue.  Also, if the employer intentionally harms the employee, then the employer can be sued.

Otherwise, an ordinary negligence suit against the employer is not permitted.  Please note, if a third party outside of the company causes the injury, then you can sue that third party.

What if the accident is partly or completely my fault?

Workers’ compensation is a fault-free system.  This means that the relative contributions of the employee or the employer in causing the accident are not examined in determining whether the worker is entitled to compensation.

However, if the injury is caused by the employee’s willful disobedience of a safety rule, then the compensation the employee is entitled to receive can be reduced by ten percent.  On the other hand, failure of the employer to obey a safety rule can result in a ten percent increase in workers’ compensation benefits to the employee.

What are my rights if I am hurt by someone other than my employer or a co-employee?

In addition to the workers’ compensation claim, you also may file a claim against the person who caused the injury.  This is a civil action where you must be able to show that the “third party” was negligent and that you did not contribute to the accident.

It is very important to pursue a third-party claim, because there may be additional recoveries beyond what the Workers’ Compensation Act allows.  A good example of a third-party claim is when a delivery driver is injured in an automobile accident and the person causing the accident is not the employer or a co-employee.  The injured worker can file both a workers’ compensation claim and a third-party negligence claim against the driver who caused the accident.

Another third-party claim can occur when a defective machine or product causes a worker to be injured.  The injured worker can then file both a workers’ compensation claim and a product liability claim against the manufacturer of the machine or defective product.

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

No.  If your employer has retaliated against you for pursuing a workers’ compensation claim, you should contact the North Carolina Department of Labor.  Retaliation can also include other types of adverse action, such as suspension or demotion.

You must act within 180 days of the retaliation.

How long will I have to wait before my weekly benefits start?

You must have missed at least seven days before the entitlement to weekly benefit checks begins.  This does not have to be seven consecutive days.  The entitlement to receive medical treatment, however, is not contingent upon missing any time from work.  You may receive medical treatment immediately after being injured.

What payments do I get while I am being treated and out of work?

While you are out of work under a doctor’s care, you are entitled to temporary total disability payments, called TTD payments, and reasonable authorized medical treatment.

How are weekly benefits figured?

Compensation is paid at two-thirds (66-2/3 percent) of the injured worker’s average weekly wage.  The employee’s gross wages, including overtime and payments in lieu of wages, are calculated for the 52-week period preceding the accident to determine an average of the weekly wages.  If the period of employment prior to the accident is less than 52 weeks, then whatever time period the employee worked is used.

However, if the time period is so short that using the gross pay period for that time would be unfair to either the employee or the employer, the parties can use the wages of a similar or comparable employee.  If no similar or comparable employee is available, then a calculation can be devised which would be fair to the employer and the employee.

Does my employer have to provide me with light duty if my doctor says that I cannot return to my normal job?

Your employer does not have to provide light-duty work merely because you have been hurt on the job.  The federal Americans with Disabilities Act requires that your employer make reasonable accommodation for you to perform work, but this is the extent of its obligation.

What happens if I return to work and cannot earn the same wages or work the same hours as before?

If an employee returns to work unable to earn the same wages or work the same hours as before the injury, then he or she is entitled to temporary partial disability, also known as the wage differential.  This wage differential is paid at two-thirds (66-2/3 percent) of the difference between the previous average weekly wage and the new rate of pay.  The calculation is done on a week-by-week basis.  There is a maximum of 300 weeks from the date of the accident that a worker can draw a wage differential.

How do my medical bills get paid?

Medical bills are paid by the workers’ compensation insurance company.  These bills must be forwarded to the insurance company by the doctor’s office.  The insurance company then sends the bills to the Industrial Commission to make sure they are reasonable charges.  When the Industrial Commission clears the bills, the insurance company pays the doctor’s office.

If the insurance company refuses to pay medical charges, the injured worker can file a request with the Industrial Commission for a hearing to order that the medical bills be paid.

How long can I receive medical treatment?

An injured worker can receive medical treatment which is reasonable and necessary while under the doctor’s care.  After you get your final payment, you have two years to petition the Industrial Commission to receive additional medical treatment.  Workers injured before July 5, 1994, are entitled to receive lifetime medical treatment.

You must be able to show that treatment sought is related to the on-the-job injury.  Only those consequences which would reasonably and naturally flow from the on-the-job injury will be paid by the insurance company.  The employee must be able to show that the medical treatment is reasonably necessary to effect a cure, provide relief, or lessen the period of the disability.

What if I want to switch doctors?

The injured worker must first ask permission of the insurance company to change doctors.  If the insurance company refuses or does not respond to the request, a petition can be filed with the Industrial Commission requesting an order to allow a change of physician.  Failure to comply with these steps in the proper order can result in the employee having to pay the new doctor.

Should I hire an attorney to represent me in my workers’ compensation claim?

In a serious injury claim, hire an attorney with extensive workers’ compensation experience.  There is no charge for an initial consultation, and the law firm should give you an honest determination of whether representation will be helpful to you.

If the insurance company denies my workers’ compensation claim, what can I do?

You should contact an attorney to determine whether there are grounds to pursue a claim for workers’ compensation.  A Form 18 must be filed with the Industrial Commission within two years of the date of the accident in order for a claim to be properly registered.  Then, the injured worker can file Form 33 Request for Hearing to contest the denial of workers’ compensation benefits.

Normally, it takes several months for a case to be placed on a hearing docket for a deputy commissioner to hear the matter and decide whether or not the injury meets the requirements for workers’ compensation benefits.  The entire hearing process can take an additional six months to a year after the initial hearing occurs.

The insurance company or your employer will have an attorney representing it at the hearing.  While the injured worker can represent his own interests at the hearing, it usually makes sense to have an attorney at this stage.

How do attorneys get paid?

Workers’ compensation cases are handled on a contingency-fee basis.  This means that unless there is a recovery or settlement, no fee is paid.  The attorney is paid a percentage of the recovery.  All fees are regulated by the North Carolina Industrial Commission.

How do workers’ compensation benefits get settled?

Although there are several ways a workers’ compensation case can be settled, an attorney’s advice and involvement can add value to a claim in a variety of ways.

Some cases are settled based on the impairment rating ordered by the physician.  The body is evaluated by separate parts:  fingers, hands, arms, back, legs, feet, etc.  A maximum number of weeks of benefits can be paid based on whichever part of the body is injured.  The impairment rating allows the worker to get whatever percentage of the maximum number of weeks is payable for that part of the body.   An attorney’s knowledge of whether the rating may be too low is important.

Another type of settlement is based on the wage differential between pre and post-injury wages.  These payments are limited to 500 weekly installments.  Insurance companies typically resist paying these claims even when the worker is entitled to it.

A third form of settlement is for permanent and total disability when the injured worker is unable to return to any work.  Injured workers are only entitled to payment for total disability for a period of 500 weeks from the date of first disability, and must re-prove disability after that initial period.  Insurance companies strongly resist these claims.  Attorney involvement is usually needed to receive benefits for permanent and total disability.

Normally, an injured worker would have a period of time to claim future medical care or to reopen his case.  However, some insurance companies wish to “clincher,” which closes the case forever.  They will usually pay a lump sum in order to close the case.  A clincher of a case stops your right to receive payments for additional medical care, to reopen the case for change of condition, or to have another hearing before the Industrial Commission.  Great caution should be exercised when a clincher agreement is proposed.  An attorney can take steps which will add value to the claim, for example, by estimating the costs of future medical care or the potential for a change of condition.

Lastly, when there is third-party liability, as discussed elsewhere in this pamphlet, an attorney can add value to the claim by negotiating to reduce the lien against the third-party recovery.  This results in more net returns for the injured worker.

What happens if I settle my claim and then my condition worsens?

If you settle your case on any agreement other than the clincher, you have two years from final payment of compensation to reopen the case to receive additional lost wages if your condition materially worsens.

DISCLAIMER:

Martin & Jones has made every effort to insure that the information is correct and up-to-date.  However, laws change and specific fact situations may require the application of a different rule of law.  For this reason, you should consult an attorney or one of the organizations listed below if you have further questions about workers’ compensation.

Martin & Jones provides the information in this brochure for informational purposes only.  It is not intended as and should not be considered legal advice.  Contacting Martin & Jones in any manner does not imply any form of attorney-client relationship with Martin & Jones.  If you have any questions, please contact us.