LEGAL GUIDE
Written by attorney Jeffrey Allen Howard | Mar 9, 2011

NC Workers' Compensation 101: An Overview of NC Workers' Compensation Law

To me, Workers’ Compensation Law in North Carolina is just about as wacky as law gets. I think it’s especially difficult to understand for non-lawyers and even more difficult when that non-lawyer has to deal with an injury that’s keeping him/her out of work. It’s just not simple.

Despite that fact, I’ve created this little guide in note form to help people understand NC Workers’ Compensation Law just a little better.

First, let’s consider WHY it is we have Workers’ Compensation law in North Carolina. Remember, in the good old days of English Common Law, if you got hurt at work, that was your problem. Just because you got hurt doing the boss’ work didn’t mean he owed you anything. He just hired the next guy and you either got back to work or you didn’t. As things became slightly fairer, if your boss did something negligent that led to your injury, then you might be able to go after him civilly (like our current tort claims). However, with the ancient defense of contributory negligence available (as it still is in our sad state), your employer might be able to escape liability if you were found to have been even 1% at fault for your own accident.

Of course, this led to a lot of bad things. Eventually, the legislature saw fit (in virtually all states of the Union) to enact statutory protection for injured workers. I like to joke that when people use the phrase “worker’s comp" the “comp" stands for compromise, because that’s what the statute is: it attempts to balance the health and welfare of our workers against the financial interests of our employers. This was an attempt to take care of injured workers and try to get them back to work but at the same time not cause employers to go bankrupt every time someone got hurt at their work place.

As I wrote, it’s a compromise. An injured party might not get everything they would in a tort claim (like a car accident case, for example) but they do get some benefit. But I’m getting ahead of myself. First, what creates a Workers’ Comp claim?

I.Jurisdiction

· In order for the NC Industrial Commission to have jurisdiction over an alleged workers’ comp claim, the employer must have three or more employees to be covered by the Act.

· If the employer purchases insurance, they are covered by the Act regardless of employees.

· Employer/Employee relationship must exist (independent contractors do not get these benefits, so you have to watch tricky employers who call you this even if you aren’t).

· Accident must take place in the state,

· …..OR out of the state …AND K of employment was in state

AND principal place of business is NC

AND principal place of employment is NC

· Claim must be filed within two years of accident or last date of compensation

OK, so that’s part of what you need before you have a valid North Carolina Worker’s Comp claim. But what really constitutes a claim?

ELEMENTS – you need these three things.

  1. injury by accident
  2. arising out of employment
  3. sustained in the course of employment

II.Accident

· = unforeseen/unusual event not expected or designed by employee

· Negligence of employer/employee is irrelevant

· Normal wackiness NOT covered; in other words, if your work didn’t put you at increased risk for this sort of injury, then it may not be covered.

· Back injury exception = No accident necessary here, but you do need a “specific traumatic incident," which means there was a specific moment in time during a specific event where the injury occurred.

· Assault exception – some workplace assaults count.

III.“Arising out of"

· At the time of the accident, was the employee doing what he was hired to do?

· As long as authorized, intended to benefit business = OK

· Personal benefit = pure motivation = NOT covered

· Commute = NOT covered

IV.Sustained in course of

· …pretty much same as above…

· during period of employment at a place where the job was calculated to take employee and activity was in the scope of employment

Great, so if you have these things, you have a valid North Carolina Worker’s Comp claim. But how might your employer avoid responsibility for it?

V.Defenses

A. Notice! You have to give the employer notice within 30 days of the accident. But this is rarely an effective bar to recovery.

B. You have to make the claim within two years – file a Form 18 and/or Form 33 with the NCIC or this one will get ya.

C. Intoxication – hard to establish, but a complete bar to recovery. If you’re wasted and it was a proximate cause of your injury, you don’t get coverage.

So, if you’re able to avoid those defenses, what are you going to get from a North Carolina Worker’s Comp claim?

VI.What it provides…

A. Medical Coverage

B. Temporary Total Disability – You get paid 66 2/3% of your average weekly wage while you’re out of work due to your injury.

C. Temporary Partial Disability – If you’re missing some hours, but not all work, due to your injury, you are entitled to 66 2/3% of the difference between what you are making and your average weekly wage.

D. Permanent Partial Disability (rating payment – see 97-31) – The doctor may tell you you have a certain percentage of impairment to your injured body part. Lawyers can figure out what that is worth financially. Weird, but true.

E. Permanent Total Disability – If you just can’t work anymore, then you get paid your TTD rate for eternity, unless the insurance companies get their way and put a limit on this. Call your congressman!

F. Hopefully, you’ll just be able to go back to work…

G. Vocational Rehabilitation – But if you can’t, then maybe the employer will have to put you through retraining to do a different kind of work.

So is there any way to resolve or settle a worker’s comp claim? You betcha.

VII.Settlements

A. Form 21 – Rating calculation, lump sum, two years to come back with “change in condition." This gets you paid the amount I referred to in VI D above, but keeps your claim open for two years in case you need more treatment.

B. Form 22 - … after coming back with change in condition, re-settling, starts two years over again.

C. Clincher – Form 21 amount PLUS a premium to allow employer to buy out remaining two years of liability (usually accompanied by a resignation). You only do this in situations where you are very certain you don’t need anymore treatment for this injury and you don’t mind parting ways with the employer. Before clinchering any claim, you should consult an attorney.

That’s North Carolina Workers’ Compensation Law in a very small nutshell (maybe pistachio-size). It’s by no means exhaustive, but I hope it gives you a better idea of what you’ve got. It’s normally a good idea to have some professional guidance in these claims; insurance companies are adept at avoiding their responsibilities, so you have to be on your toes. As you can tell, there are lots of nooks and crannies in this stuff and if you’ve got a claim, there’s a darn good chance you’ll need to at least talk to a lawyer about it.

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