CHARLOTTE WORKERS’ COMPENSATION LAWYER
Workers Compensation Lawyers in Charlotte, NC
Workers’ Compensation Attorneys… can they help my case? When you’ve been hurt on the job, handling a workers comp claim can be an additional problem added to your stress. It helps to consult with a workers’ compensation attorney about your case – we offer free consultations if you have questions about your situation.
Workers’ Comp Attorney – The Basics
Worker Compensation is an insurance held by an employer to compensate employees with work related injuries by providing treatment related
expenses and payments for lost wages. Under North Carolina law, only certain business are required to maintain workers’ compensation insurance, including those businesses that employ three or more employees. If your employee fits into this category, but fails to carry workers’ compensation insurance, you can report the situation to the state for further actions.
Hiring a Workers’ Compensation Lawyer
Once you experience a work related injury, there are several steps you need to take in order to file your claim. Your first priority is to seek medical attention for your injuries. If you can, notify your employer about your injuries to learn where you should go for medical assistance. If your employer directs you to see a specific physician, follow that direction. Under the law, you are required to use your employer’s doctor unless you are first given permission to utilize another physician.
If your employer is available to you, visit your own doctor or go to the nearest emergency room for treatment. but inform your employer of the situation as soon as you can. North Carolina requires employees to provide the employer with written notification of the injury within 30 days of the causing accident. You can do this in a variety of ways. You or a family member can deliver a letter to your supervisor, or can submit North Carolina Industrial Commission Form 13 to the commission. The commission will inform your employer, which the law treats as adequate notification to the employer.
Once notified of your injuries, your employer should provide you with Form 13. If you have not previously completed it, fill it out completely and submit it to the Industrial Commission. when completing this form, include all of your work related injuries and illnesses. Don’t assume that you will have an opportunity to amend the form later. If you fail to include a condition, you will be unable to collect insurance benefits on it later.
Filing a Workers Compensation Claim
After your claim is filed, the employer’s insurance company will contact you about your injuries. The adjuster will refer you to a specific doctor for an initial examination. If you do not trust the insurance company doctor, file a request with the Commission for permission to see another physician. Don’t refuse to see the employer’s doctor or go to another physician without prior permission. If you do this, you can jeopardize your workers’ compensation payment of medical expenses.
Based in your initial doctor’s evaluation, the insurance company will deny your claim or accept it and create a treatment plan. if they choose to deny it, they must give a detailed explanation to you and the Commission.
If your claim is denied, you possess the option of filing an appeal with the Industrial Commission. The agency will investigate the situation and make a decision to side with you or the employer.
Common Types of Workers’ Compensation Injuries
There are various types of work related injuries that are typically covered under workers’ compensation insurance. These include:
- Amputations that commonly occur in factories and industrial settings;
- Slip and fall injuries;
- Hearing loss and eye injuries;
- Exacerbated pulmonary conditions, like asthma;
- Work induced conditions, like heart attacks, strokes or hypertension;
- Work induced psychiatric and emotional problems, brought on by physical injury;
- Mesothelioma from asbestos exposure and other occupational related diseases;
- Burns and electrocutions;
- Back, knee and shoulder injuries;
- Traumatic brain injuries; and
- Injury from dangerous or defective tools and machines.
Statute of Limitations on Workers’ Compensation
There is a statute of limitations on the amount of time you have to file a workers’ compensation claim. These time limits are generally in place preserve the availability of evidence and witnesses. Under North Carolina, a worker must file a claim within two years of the initial injury date. You can accomplish this by submitting Form 18 to the North Carolina Industrial Commission. Your employer should send you the form upon notification of your injury, but if he doesn’t, you can obtain the form directly from the commission.
Failure to file your claim before the statute of limitations expires will bar you from ever filing a workers’ compensation claim. Submitting the form soon after your injury is the best way to avoid a late filing. If the relevant injury is an occupational disease, time starts on the two year statute of limitations when the illness interferes with your ability to work.
The other statute of limitations under North Carolina law relates to retaliation lawsuits. If your employer retaliated against you after filing a workers’ compensation claim, the state gives you three years from the date of the retaliatory action to file a lawsuit.
An available alternative is to complete a complaint through the North Carolina Employee Discrimination Bureau. With this option, you are allowed 180 days from the date of retaliation to file your complaint. The agency will determine if the discharge was lawful after investigating the circumstances of the case. If the agency sides with the employer, the Commission will issue a right to sue letter, which allows you to independently file suit in court. Conversely, if the findings are in favor of the employee, the Commission will attempt to negotiate the matter.
Who is Eligible for Workers’ Comp Coverage?
Workers’ compensation insurance is available to a variety of workers. Under North Carolina law, generally all employees are eligible for coverage. Some employees excepted from this requirement include:
- employees of certain railroads;
- casual employees, i.e., individuals who do not perform “work pertaining to the regular course of defendant’s business”; and
- federal government employees in North Carolina.
Contrary to common belief, part time workers that do not fall into an exception are eligible to file for workers’ compensation coverage.
Many other factors can affect workers’ compensation eligibility. When the injury occurs, you must be performing duties that are within the scope of your employment. Scope of employment means actions completed in relation to the job. it’s important to note that determining scope of employment can sometimes prove challenging. When making these determinations, the courts generally look at whether the incident occurred at the place of employment or within the time frame of employment; whether the incident occurred when the employee was performing tasks he was hired to perform; and whether the employee’s actions were motivated by the interests of the employer. Questions over this designation can also apply when injuries occur within the employer’s physical location if issues of alcohol use, reckless behavior, or commission of a crime are at issue.
Under North Carolina law, preexisting injury is not an automatic bar for workers’ compensation coverage. The general requirement is that a new work-related accident must have aggravated the preexisting injury. Determining whether the work related accident was a direct cause of the present injury can prove challenging. Compensation depends on whether the current injury actually resulted from a job related incident, so you must show that a work related accident caused complication with your back injury or the duties of your job aggravated your injury to the point where you cannot continue working. If neither of these conditions apply, your claim is likely denied.
Often, insurance companies automatically deny a workers’ compensation claim based on a preexisting condition, but it is not lawful for an insurance company to automatically issue a denial based solely on these grounds. If you feel that your claim was unfairly denied because of your preexisting condition, you can request an appeal through the North Carolina Industrial Commission. Maintain a record of problems with your preexisting condition to best support your case.
Taking Time Off
You are not required to take time off of work in order to collect workers’ compensation insurance. even if you continue working, you are still able to receive medical benefits. Your treating physician is the best party to decide about your ability to work through your job related injury. Upon reviewing the extent of your injuries, she will decide whether it’s appropriate for you to keep working. She may allow you to continue working with certain limitations, like only working on certain machines or only working from a seated position.
Workers who continue working on the same schedule as before their injury can receive medical expenses, but not lost time weekly benefits. Alternatively, you and your physician may determine that is is appropriate for you to only continue working on a part time basis. In these situations,you may receive lost time weekly benefits only for the time that you are away from work.
While it may appear more attractive to continue working and collect your regular pay, instead of filing a workers’ compensation, this decision may result in some negative consequences.
- You may exceed the statute of limitations for filing even if your condition worsens; and/or
- If your employer takes retaliatory actions against you, there is no proof of your work related injuries to demonstrate that your employer acted in bad faith.
Third Party Liability
Any individual or entity other than the employer who may have contributed to the employee’s injuries is considered a third party. The employee seeks third party liability when he makes a claim against a third party to seek compensation for work related injuries.
Workers’ compensation insurance is in place to provide employees with financial compensation and medical coverage in exchange for an agreement to not to file suit against the employer. It solely covers current medical expenses and income loss, but does not cover long term losses of income. To make up for these limitations, the employee may choose to file a lawsuit against a third party, which differs from the workers’ compensation claim. The process to pursue a third party liability claim begins with the institution of a lawsuit in the appropriate court, and proceeds as if there was no pending workers’ compensation claim.
Proving negligence on the part of the third party requires proof that:
- The third party owed you a duty;
- He or she breached that duty;
- The breach proximately caused your injuries; and
- You suffered damages.
When employers who are receiving workers’ compensation benefits also seek compensation from a third party, the state of North Carolina allows the employer’s insurance company to seek a subrogation claim. The purpose of this action is to recoup money paid for the employee’s medical treatment and lost wages. In order to reach a settlement agreement, both the employee and the employer must agree to the settlement amount. Once third party payment is made, the employer receives compensation first, before the employee receives any of the award.
When Employers Don’t Cooperate
After you report an injury to your employer, the correct course of action is for the company to file a report with the workers’ compensation insurance provider. If this task is not completed, the treatment and compensation cannot commence. Unfortunately, employers may refuse to act and cooperate in the process.
Some ways that this may manifest itself are as follows:
- Forcing an employee’s return to work prematurely;
- Forcing an employee to use health insurance instead of workers’ compensation insurance;
- The employer paying the employee a regular salary instead of allowing payment through workers’ compensation;
- Delaying the claim with the hopes of having the statute of limitations expire;
- The employer pressuring the company doctor to downplay the employee’s injuries; or
- Threatening retaliation against the employee for filing a claim.
In North Carolina, employees possess options when an employer refuses to file the claim. You can obtain a claim form directly from the North Carolina Industrial Commission and file it on your own.
Under North Carolina law, the Retaliatory Employment Discrimination Act (REDA) protects employees against employer retaliation for filing a workers’ compensation claim. The state of North Carolina also offers protection under common law, which also prohibits employers from retaliating against employees who engage in protected actions.
Employees who believe that they were retaliated against can file a formal complaint with the North Carolina Department of Labor, Employment Discrimination Bureau (EDB). The complaint must be filed within 180 days of the retaliatory action. EDB conducts an investigation to decide whether reasonable cause exists to believe that the discharge was unlawful. There are two possible outcomes from the investigation: The EDB may find against the employer and issue a right to sue letter, or the EDB may find for the employee and attempt to resolve the issue through mediation.
Retaliation can present itself in various ways, including lower pay, demotions, or unreasonable disciplinary actions.
To prove that retaliation occurred, you must prove the following elements:
- You are an employee entitled to workers’ compensation benefits;
- You filed a workers’ compensation claim;
- You suffered from an adverse employment action, including discharge from employment or some other type of punishment; and
- Your employer imposed the adverse action because of your filing.
There is a statute of limitations in place, which limits the amount of time you have to file suit regarding retaliation. Failure to file within the allotted time can result in your losing the right to ever bring the case to court. Under North Carolina law, the statute of limitations is three years from the date of the retaliatory action.