The purpose of this article is to give those who are unfamiliar with workers’ compensation a general understanding of the law and how it is applied in North Carolina. It will attempt to address the most common concerns of injured employees. The information provided is intended for informational purposes only and the topics discussed are painted with very broad strokes. If you have been injured on the job, it is strongly recommended that you consult an attorney that is experienced in this unique area of practice.
Not a Traditional Personal Injury Claim
A workers’ compensation claim is a completely different animal than a traditional personal injury claim. To put it in context, if someone slipped and fell at a local supermarket, whether that individual had a valid claim and to what extent he or she may recover could have vastly different answers depending on whether that individual was a customer or an employee. Workers’ compensation uses a different method for analyzing claims.
First off, most personal injury claims are based on a theory of law known as negligence. This is the judicial equivalent of pointing a finger at someone and saying, “His careless actions caused me to get hurt and I want to be compensated for all the harm it caused!" Negligence has long been recognized as a legitimate claim for recovery. As long as you can show that the other guy is at fault and you had nothing to do with it, then you should be entitled to recovery.
Workers’ compensation on the other hand, does not require there to be a negligent party. Workers’ compensation recognizes that sometimes on-the-job accidents just happen and as long as the accident meets the statutory requirement for compensability, the injured worker is entitled to recovery.
There is an interesting compromise in what can be recovered in a workers’ compensation claim. Generally speaking, the recovery for a traditional personal injury claim is capped a by the limits of the negligent party’s insurance policy. For example, if someone was rear-ended while sitting in traffic at a stop light, he can conceivably recover up to the amount that negligent party’s insurance carrier has agreed to pay per the automobile insurance policy. After that, the likelihood of additional recovery depends on a multitude of other factors and could potentially leave the injured party without adequate compensation.
In workers’ compensation however, there is no insurance policy limit. This means that there is no extra-judicial limitation on the amount of recovery an injured worker can receive from an insurance carrier. But there’s a catch; while there may not be an extra-judicial limit on the amount of the recovery, there are limitations for what an injured worker may recover. For example, while" pain and suffering" has long been grounds for additional recovery in a traditional personal injury claim there is no equivalent in workers’ compensation.
Do I Have a Workers’ Compensation Claim?
A workplace injury has to meet certain criteria in order to be deemed compensable, and thereby entitle an injured worker benefits under the Act. While there are several different avenues to pursue recovery in a workers’ compensation claim, this article will focus only on the most commonly used theory, the “injury by accident." In order for an injured employee to recover under this theory, he must show that he sustained “an injury by accident arising out of and within the scope of his employment." When broken down into legal elements, the injured employee must prove three things for the claim to be deemed compensable: 1) injury by accident, 2) arising out of the employment, and 3) within the scope of employment. Only after these three elements have been satisfied will the employee be entitled to workers’ compensation benefits.
Injury by accident: The key to this element is the legal definition of the term “accident." The law makes a distinction between an injury and an accident; and the injury must be the result of an accident. In order for there to be an accident there must be “an interruption of the employee’s normal work routine."
Arising Out of Employment: This is the causal link between the injury and the employment. Think of this as the “but-for" test. The injury would not have occurred but for the employment.
In the Course of Employment: This refers to the time, place and circumstances under which the injury occurs.
There is a fair amount of overlap and interplay between the three elements, and in certain limited circumstances the strengths of one element may overcome weaknesses in another. The law is written in such a way that the compensable nature of an injury may run contrary to our natural reaction to such a scenario. There are also different standards regarding spinal injuries and occupational diseases. Therefore when discussing a work place injury with an attorney, employer, medical provider or insurance adjuster, it is vital that the injured worker be specific and detailed in not only how he was injured, but also what his job duties were and what he was doing when the injury occurred.
What Benefits Does Workers’ Compensation Provide?
If a workers’ compensation claim is deemed compensable (either by admission by the insurance carrier or ruling by the Industrial Commission) the injured worker is entitled to certain specific benefits under the Act. These benefits can be divided into two primary categories: medical and indemnity.
Medical Benefits: Under the Workers’ Compensation Act, an employer and the insurance carrier must pay for all medical treatment that tends to “effect a cure, give relief or otherwise lessen the period of disability." Simply put, the employer and the insurance carrier are responsible for paying for all medical treatment associated with the compensable accident. However, because they are paying for the medical treatment, they also have the right to direct it. That is to say, since the employer is paying for the doctor’s visits, it also gets to decide which doctor you go to. There are certain limited circumstances in which the injured worker can get a change in authorized treating physician, but this is not a guaranteed right and the employee must first show that the change in physician is reasonably necessary to “effect a cure, give relief, or lessen the period of disability."
Indemnity Benefits: This category of benefits is intended to compensate the injured worker for diminished earning capacity and is based on his average weekly wage. These benefits are paid directly to the injured worker and are considered non-taxable income. In a compensable workers’ compensation claim, the employee is entitled to receive two-thirds of his average weekly wage for every consecutive week he is out of work do to the compensable injury. This is known as temporary total disability. However if the employee is capable of performing some work but at lesser wages or hours; he is entitled to two-thirds the difference between the pre and post injury wages. This is called temporary partial disability. Finally, when the employee has reached maximum medical improvement, he will be given a permanent partial disability rating. The amount of money the employee is entitled to receive for the rating depends on his average weekly wage, the body part injured and the percentage of disability. Once the employee reaches maximum medical improvement and is given a rating, the employee has the right to choose between continuing to receive temporary total disability checks on a weekly basis until he is capable of returning to work or a lump sum for the permanent disability rating, whichever is greater.
What to Do if Injured on the Job
The first thing someone should do if injured on the job is to notify his immediate supervisor and request medical treatment as soon as possible. Additionally, the injured worker is required to provide written notice of the accident to the employer and the North Carolina Industrial Commission via a Form 18. Information regarding the filing requirements can be found at the Industrial Commission’s website: www.ic.nc.gov. The injured worker must file the Form 18 within 30 days of the date of injury. Failure to do so can potentially be grounds for a legitimate defense of the claim.
If the employer or insurance carrier refuses to provide medical treatment or payment of indemnity benefits, the injured employee should contact a workers’ compensation attorney immediately. Navigating this area of law without a road map or guide can be very difficult and an unrepresented employee may unknowingly give up benefits or settle his claim for a fraction of what he is entitled. Most if not all attorneys that represent injured workers, do so on a contingency fee basis. That is to say that they collect a percentage of the final settlement. That way, the injured worker does not have to worry about paying his attorney while the claim is pending.
Note of Caution
This guide only addresses a few of the numerous issues that can arise in a workers’ compensation claim and the information provided barely scratches the surface of the topics discussed. This article is not intended to provide legal advice but rather to give someone who is unfamiliar with workers’ compensation an understanding of the basic framework of this area of law in the abstract. Remember that with every rule there is an exception and given the massive body of law and the infinite ways someone could end up hurt on the job; all, some or none of the information provided may be applicable to any one scenario. If you have been injured on the job, it is strongly recommended that you discuss your claim with an experienced workers’ compensation attorney.
Employment / Labor Attorney