Workers' Compensation

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Frequently Asked Questions

Will the money from my settlement come directly to me?

Not usually. If your personal injury case is settled with the insurance company of the person who caused your injuries, there are often a number of post-settlement issues that will need to be resolved before proceeds can be distributed. For example, you may have unpaid medical bills, or, if you have health insurance, your health insurance company may have a lien on the settlement proceeds for reimbursement of the money paid for your medical bills for treatment from the accident. Another lien comes up when your injury was a result of an"on the job" accident. In that case, if you also have a workers' compensation insurer paying you benefits, that insurer will have a lien on your personal injury settlement for the benefits they paid. If you cannot resolve this issue with the workers' compensation insurer,a petition may need to be filed to have the matter resolved by a superior court judge. And yet another lien can occur when medicaid or medicare pays your medical bills from the injury case. The bottom line is that almost every case has one or more of these types of post-settlement issues. Your attorney should spend plenty of time investigating each of these possibilities, exploring whether the lien or claim is valid and explaining the options to you. Many times your attorney can negotiate a reduced payment on these liens or claims. We do this work on behalf of our clients as part of our overall representation of your case.

Will my attorney keep our conversations confidential?

Yes. Absolutely. A lawyer can never repeat what has been said to him or her. That's true whether or not we agree to represent you. Being confidential is one of the most important aspects of being a lawyer. You never have to worry about your personal business getting out.

Will I be required to pay taxes on my Workers' Compensation settlement money?

Workers Comp money is tax free. Weekly checks, reimbursements and settlements require no state or federal tax payments.

Why can’t I pick my own doctor?

Under North Carolina Workers' Compensation Act, the employer or its workers' compensation insurance carrier gets to select the treating physicians if the claim is properly accepted. However, if the insurance carrier does not accept the claim properly, they lose this right and you may go to a doctor of your choosing.In certain cases, you can petition the Industrial Commission to allow you to change doctors. You may be allowed to change doctors if you can show that you have been with their doctors for a reasonable period and made little or no progress. It has been our experience that workers' compensation insurance carriers do not readily agree to second opinions by doctors that you choose. If you want to pick your own doctor, you usually have to involve the Industrial Commission.However, you are allowed to pick your own doctor if you have been given a permanent partial impairment rating and you want a second opinion to that rating.

Who must carry Workers’ Comp Insurance?

Any employer who has three or more employees must carry workers’ comp insurance. The owner/employer may exclude himself from being one of those three.

Who must carry Workers' Comp Insurance?

Any employer who has three or more employees MUST carry workers' comp insurance. The owner/employer may exclude himself from being one of those three.

When will my Workers Comp checks come in the mail?

Weekly at the rate of 66.6% of your average weekly wage, with maximums based on the year of your injury. ($816 weekly in 2009, $786 weekly in 2008, $754 weekly in 2007).

When do you settle a workers' compensation claim?

We'll assume for a minute that you have an accepted claim. If that's true, the decision to settle and how to do so comes after the doctor has stated you are at maximum medical improvement (MMI). That's the point where the doctor gives you a permanent partial disability rating. At that juncture, you weigh your ability to return to work and balance that against the rating. This isn't rocket science but there are a few pitfalls. It takes a little more time and space than we have right here -- but there is an entire chapter on this in our book Ten Ways to Wreck Your Claim. Click on the icon for that, and we'll rush you a copy of it free of charge.If your claim is a denied claim, then you should file a Form 33 Request for Hearing. The Industrial Commission will order your case into mediation. The mediation is an informal conference where a neutral attorney will act as a go between with both sides to see if they can broker a compromise. We're fortunate in that Amy Berry, and Tom Clare are all certified as mediators -- as such they've seen thousands of mediations and have learned what works and what doesn't. They've educated the rest of us along the way.

What's the definition of Average Weekly Wage?

The NC Industrial Commission defines average weekly wage as your earnings at the time of your injury and one year prior. That's 52 weeks of your income until the day you were injured. If you're paid monthly, to get the weekly rate, divide the amount by 52 (weeks) or bring in your pay stubs and ask your attorney or the paralegal for assistance.

What's medical compensation?

That's the amount of expenses for medical, surgical, nursing, hospital, rehabilitation services, travel to appointments, medicines and medical supplies, according to the NC Industrial Commission.

What should I do if my employer tries to get me to take sick days instead of making a workers comp claim?

It is imperative that the Workers Comp claim is filed but once that is done, you can also take sick days. Because you are not eligible for workers compensation for the first seven days of missed work for a short-term leave (less than 21 days), you may want to take those initial days as sick days so you still receive income from the company. However (and this is very important!) be sure to document your injury with a doctor right away and be certain that your employer files the paperwork for a worker's comp claim (and you get a copy). It is absolutely imperative that your employer reports your Workers Comp claim because unless you have a crystal ball to predict the future, no one knows for sure how long you will be out of work or if your injury will reoccur.

What should I do if I am injured on the job?

Depending on the severity of your injury, the first thing you should do is report the injury to your employer. If your employer does not offer you one, ask if they have accident report forms on hand. Always remember to keep a copy for your records. Next, you should ask your employer if they have certain doctors that they would prefer you to go to. If they have no preference, then seek medical attention as soon as possible from a doctor of your choosing.You will also need to file official notice of your injury with the North Carolina Industrial Commission. You do this by submitting a Form 18 to the North Carolina Industrial Commission. The simple document will also need to be given to your employer or its workers' compensation insurance carrier. Your employer is supposed to give you one of these, but we can do so or you can obtain it from the North Carolina Industrial Commission’s website.

What questions should I ask a workers' compensation attorney in North Carolina?

1. Are you any good?

2. Are your fees fair?

Taking these out of order, fees should never be no more than 25% for a workers' compensation case. No attorney should ever charge a fee on weekly benefits just because he or she is handling the case. If they go to a hearing to get you benefits, or to preserve your benefits, that's fine. But this idea that an attorney should automatically get 10-15% just for being there is a lot of baloney. If you come to the attorney late in a claim and just need help settling the case, the attorney ought to be willing to cut the fees or set certain thresholds that he won't take a full fee if you don't get a certain amount of money.

Are you any good? That may sound like a really offensive question -- but it's not. Listen, you get one crack at your workers' compensation case. If it's a serious injury that is going to leave you with a permanent disability or affect your career you don't want some beginner who is learning the ropes on your case. Let someone else be their training wheels.

How do you know if the attorney is any good? Here are three ways:

1. Martindale Hubbell, at www.martindale.com,is the oldest and most independent evaluator of attorneys. They interview other attorneys, judges, etc., and compile these comments into an evaluation of an attorney's skills and ethics. We don't get to pick who reviews us nor do we ever know who did. It's my understanding that MH tries to get 10-12 evaluations before they assign a rating. The lowest rating is CV, then BV, then AV. Not all lawyers are rated -- you have to ask to have it done. You're always better off with a higher rated attorney assuming that they do a lot of workers' comp. Todd Oxner and Tom Clare are both AV rated because of their workers' comp skills but you would be insane to hire either of them to do a bankruptcy or a tax case.

2. http://www.nclawspecialists.gov/results.asp?SpecialtyID=1111 is the link to the North Carolina State Bar's list of legal specialists. In order to get Board Certified you have to have several years of experience, submit a number of your cases for review, undergo another anonymous review session, and sit for a pretty tough examination.If you search by city the site only lists one address per attorney. Thus Todd Oxner is listed only in Greensboro (where his official N.C.State Bar address is) but not in Winston-Salem or Charlotte. Amy Berry shows up in Burlington but not in Asheboro.Obviously hiring a specialist is generally better than hiring someone who isn't.

3. The only downside to the State Bar specialization scheme is that there is not a minimum number of hearings that an attorney must have completed to sit for the exam. This was argued about when they were creating the program back in 2000 but ultimately didn't make the cut. I think it is critical that an attorney has a good number of hearings taken all the way to a final decision (called an opinion and award) under his/her belt or at least be working with an experienced attorney.

http://www.comp.state.nc.us/livelink/livelink.exe?nc=ll&objType=258&objAction=searchprompt is the link to the Industrial Commission's search area. If you get a username/password page the username is "public" and there is no password. Enter the attorney's name in quotations, e.g. "Todd P. Oxner" hit "enterprise" and then search. You may want to check w/ and w/o initials. For instance Todd has 70 published decisions (Opinion and Awards)under "Todd P." and another 15 under "Todd." Tom Clare (Thomas M. Clare, if you're checking)is the firm's king of hearings with over 200 published decisions.It's unbelievable but many attorneys who advertise heavily for workers' comp, call themselves "aggressive" or "heavyweights" or "respected" have just a couple of hearings under their belts.

What items are used in coming up with a workers' compensation settlement?

Here's the quickest answer we can give, which isn't all that quick. It also requires answering a couple of questions. For purposes of this FAQ we're talking about accepted claims. The measuring stick for each of these is your average weekly wage. That's why we are relentless in making sure every bonus, every overtime payment, every per diem, absolutely everything gets into the calculation of your average weekly wage.1. Can you go back to your old job or another paying just as much money? If so you will receive a nominal award based on your rating. You may be able to settle for more money if you give up the right to future medical care for this claim. This is the smallest of the potential settlement types.2. Are you permanently and totally disabled from all suitable employment? If so you are entitled to be paid weekly benefits until you die or actually return to work. You are not entitled to a lump sum settlement, although you may reach an agreement for this with the insurance adjuster. To do so you will almost certainly need to give up the right to future medical care for this claim.

3. Are you incapable of returning to you old job or one of equal pay but still capable of performing suitable employment? If so you are entitled to be paid 2/3 of the difference between what you used to make and what you're now capable of making. You draw this amount in weekly installments for a period of 300 weeks which started on the date of your injury. You are not entitled to a lump sum settlement, although you may reach an agreement for this with the insurance adjuster. To do so you will almost certainly need to give up the right to future medical care for this claim.NOTE: You are NOT ENTITLED to a lump sum settlement. This isn't like a car accident case where the jury gives you a bunch of money at the end of the trial. The Industrial Commission doesn't do that. All they'll do is order the adjuster to keep sending you checks.NOTE 2: Do you need an attorney to settle your case? Not necessarily, particularly if it's under the first scenario. But any credible attorney should be willing to cut his or her fee if they aren't bringing value to the claim. In other words, if you aren't going to get a better settlement with us than you would have without us, then we should cut our fees. We do that.

What is workers' compensation?

Workers’ Compensation is the name of the legal system which controls how injured workers get compensation from their employers. It is completely different than the "lawsuit" system that you think of for an auto accident or something like that. It has its own laws, courts, and judges.

What is workers' compensation fraud?

Depending on who is talking about it, workers' comp fraud is either an epidemic or an overblown rarity which lets insurance companies lobby for changes to the laws. Big business and insurance companies complain that most injured workers aren't really injured, that they could go back to work, and that they just enjoy watching daytime television. We can count on one hand the number of clients who fit that description. We're told that an Industrial Commission study done a few years ago found that about 1% of injured workers' committed fraud, about 1% of insurance companies committed fraud, and about 7% of employers committed fraud. As far as injured workers go, instances of fraud such as working while drawing weekly checks are pretty rare. At least in our firm cases of people staging an accident to make "big bucks" is almost unheard of. Workers' comp just isn't that lucrative an area of the law. Insurance company fraud is most often exhibited in direct lying about what benefits are available to an injured worker. For employers, fraud usually involves telling injured workers to put a claim on health insurance rather than on comp, telling workers that they have to have been an employee for a certain period of time before they are eligible for comp, or similar things.In our opinion, though, workers' comp fraud is fairly rare and is more a scare tactic used by insurance companies to whip support for tort reform.

What is the right way to resolve an appeal of Workers' Compensation with my employer?

One way is for the employer or their insurance company to simply accept the claim. They can do that on a Form 60 or a Form 21. The other way is to enter into a compromise settlement agreement (commonly called a clincher). Under any of these options the Industrial Commission MUST approve the settlement. Any attempt by your employer to slide you some money in exchange for not formally bringing a Workers' Compensation claim is completely invalid.

What is the proper name for Workers’ Compensation?

In North Carolina we call it “Workers’ Compensation” or “Workers’ Comp” for short. In many states it is known as “Workmans’ Compensation.” 

What is the North Carolina Industrial Commission?

It is the governmental agency that has jurisdiction over workplace accidents.

What is Martindale Hubbell?

Martindale Hubbell is the oldest, and certainly the most reliable, rating and evaluation service for lawyers. Not all lawyers have been ranked by Martindale Hubbell as it is a purely voluntary process.

Once a lawyer agrees to be evaluated by Martindale Hubbell they have no further input into it.Martindale goes to other lawyers, judges, deputy commissioners, etc., and asks them to anonymously rank the attorney's ethics and skill level.

If a lawyer is given a "V" for "Very High Ethics" Martindale goes on to give an "A, B, or C" ranking for skill level as follows:

CV Peer Review Rating — The CV certification mark is a good first rating for lawyers and a definitive statement of their above-average ability and unquestionable ethics. This is the maximum rating a lawyer can receive who has been admitted to the bar from 3-4 years.

BV Peer Review Rating — The BV certification mark is an excellent rating for a lawyer with more experience. This is the maximum rating a lawyer can receive who has been admitted to the bar from 5-9 years.

AV Peer Review Rating — An AV certification mark is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence. A lawyer must be admitted to the bar for 10 years or more to receive an AV® rating.

What is Board Certification? Does it matter?

All lawyers in North Carolina are required to graduate from law school (usually taking three years to do so), pass a half-day ethics examination, and then pass a two-day bar examination. After that you can call yourself a lawyer and practice any area of the law you like. Ethically we're required to seek assistance in a case if we aren't really competent in that area of the law. Less than 2% of all attorneys who attempt a much more difficult examination, the Board Certification exams, actually pass.

To even sit for the exam a lawyer must have several years of experience in the particular field, have undergone extensive additional training in that area of the law, have many of their cases reviewed to see how well they performed, undergo a secret evaluation by your competitors, and then take a one-day examination. Then, and only then, may you use the term "specialist" to describe yourself.

Does this matter for your case? There are good attorneys who have not taken the specialization exam. However when you have the opportunity to go with a firm with multiple specialists ora firm with none it may not make sense to go with the firm which has no specialists.

What is an expert and will I need one to help with the presentation of my case?

It is the Plaintiff's responsibility to bring forward enough evidence to satisfy a jury or judge who is deciding issues in the case. As part of that process, we sometimes hire experts to give opinions about particular issues. An expert is an independent evaluator with advanced technical knowledge who reviews the facts and circumstances of your case to formulate opinions to assist the judge and jury with decisions in the case. Examples can include doctors (who can state an opinion on the cause of an injury, physical pain and limitations), economists (who analyze lost wages, benefits and vocational prospects when you're out of work or if there's a death) and accident reconstructionists (who re-create a construction or traffic accident). Often, the expert will be counted on to provide his or her opinion in a deposition or at trial or both.

The decision to hire an expert is on a case by case basis. Sometimes an expert can assist with case preparation because their expertise can help the attorney ask for the right documents in discovery, etc. Additionally, experts are used to support a part of your case that is being challenged by the defendant (or that you expect will be challenged). In a medical malpractice case, you cannot even begin to pursue your case without an expert opinion from another doctor that malpractice has occurred. One thing is almost always certain, you can expect to be challenged by the defendant on one or more issues in your case. When that occurs, it is important to have as much support for your position as possible. And when that contested issue involves technical knowledge beyond your knowledge, you will need experienced, trained professionals to help explain your position. Defendants hire experts and so should you, when recommended by your attorney.

Your attorney will find experts who are best equipped to help with your case and who are familiar with industry standards. Unfortunately, expert opinions are not free. Nor will experts often work on a "contingency basis" as many plaintiff's attorneys do. Experts typically bill by the hour and expect to be paid regardless of the outcome of your case. In addition, they often require up-front retainers. So, the decision to hire an expert is one that should be considered early on in your case. Although things happen in the course of litigation that may change a decision about hiring experts, usually attorneys will know that they need certain experts prior to filing a lawsuit.

Therefore, if you cannot afford to hire an expert you may be limited in your ability to pursue your case. This is one of those "costs" that make litigating cases difficult for most people. Be sure to have an open discussion about experts, expert fees and all costs at the beginning of your case. And if you don't understand the need for an expert in your case or who will pay for it, ask your attorney.

What is a Workers’ Compensation Insurance Certificate?

Your employer’s insurance agent can prepare a certificate which shows your employer had workers’ compensation insurance as of that date. This often comes into play if your employer is a subcontractor to another company. In those cases if your employer didn’t produce a certificate of insurance next company up may be liable if you are hurt on the job.

What is a workers' compensation trial like?

They aren't as exciting as you might hope for. The trial is called a hearing. It may be in a court room but is often in a meeting room at a community college or library. The judge is called a deputy commissioner and he or she will be wearing a suit rather than a black robe. The hearing is technically open to the public although it is pretty rare for anyone to be watching one. At the beginning of the hearing the deputy commissioner will review a Pre-Trial Agreement where the lawyers have agreed to certain facts not in dispute, agreed on what the issues to be decided by the deputy commissioner will be, and agreed on what may come into evidence. The deputy commissioner will then ask whichever side requested the hearing to proceed.Whichever side is going first will call witnesses who will be sworn in on a Bible (you may affirm to tell the truth if you prefer). Whoever calls the witness asks questions first in what is called a direct examination. Then the other attorney has a cross-examination. There may be brief follow-up questions as a redirect and recross but this is pretty limited. After the first side is done with witnesses they "rest their case." The defending side may then put on evidence in a similar manner.At the end of the hearing the deputy commissioner will usually give the lawyers 60 days to go to your doctors' offices and take testimony, known as depositions, from the doctors. The lawyers then have 30 days to submit written arguments, known as contentions or proposed opinion and awards, to the deputy commissioner. The deputy commissioner will take two to four months to issue a decision called an opinion and award.The losing party has 15 days to appeal the case to the Full Commission. If that happens the entire question and answering from the hearing is reduced to a written transcript. Once the transcript is prepared the attorneys prepare written arguments as to why the deputy commissioner got it right or wrong. The lawyers then appear before a panel of three commissioners in Raleigh and give a 20-minute presentation about your side of the case. The Full Commission then issues its own opinion and award in another two to four months.The losing party can theoretically take the case to the North Carolina Court of Appeals, however this is not often done. The Court of Appeals will not review findings of fact -- that is to say if the Full Commission decides that you have green hair, even if there is some evidence that you may have blue hair, the Court of Appeals will not second guess what the Full Commission has found as fact. The Court of Appeals is limited to assessing whether or no the Full Commission properly applied North Carolina law to those facts.

What is a permanent partial impairment rating?

The North Carolina Workers' Compensation Act provides that an injured worker is entitled to compensation for permanent injuries to particular body parts. Only certain body parts apply. A doctor will assign a permanent partial impairment rating when he or she believes that the injured worker “is as good as he’s going to get.” The rating is based on the percentage of disability for that particular body part. For example a 15% rating to the hand entitles an individual to 30 weeks of benefits.However, it may not be in your best interest to resolve a claim based on the rating. In North Carolina you have the option to elect between being paid based on your rating or based on wage loss. Quite often it is more advantageous to resolve your claim based on wage loss.

What is a Mediated Settlement Agreement?

This document includes the terms of an agreement which was reached at a mediation as the result of negotiations between the parties. It usually contains a Compromised Settlement Agreement (also known as a Clincher -- see that FAQ for more information.)

What is a compensable workplace injury?

You are entitled to benefits once you have established (1) that you suffered an injury by accident, (2) that the injury arose out of your employment, (3) that the injury was sustained in the course of employment. As a general rule, if you fail to establish any of these, your claim is not compensable under the North Carolina Workers' Compensation Act and you are not entitled to benefits.That’s why it is important to get it right from the beginning. Usually, the workers' compensation insurance carrier will ask you to take a recorded statement. The purpose of this statement is to determine whether your claim is compensable and whether they have to pay benefits. Beware. How you describe your accident matters.The North Carolina Workers' Compensation Act defines an accident as an unusual event or result which is not expected or designed by the injured employee. As a general rule, if your injury occurred from doing your normal job, under normal conditions, the way you normally do it, there is a good chance that your claim will be denied. It is important to report all details that show your injury came from something unusual or unexpected.If you are represented by an attorney, he or she is allowed to be present during the recorded statement. We prefer to be involved at this stage because the statement is so important. We have seen many cases which were denied due to simple mistakes made during the recorded statement.

What is a Clincher?

A clincher is the informal name for a Compromised Settlement Agreement. The clincher is the form of a settlement which gives you a lump sum of money. It is also the type of settlement in which you give up the right to future medical treatment.

What is a Board Certified Specialist? Why does it matter?

In order to call yourself a "lawyer" you have to be licensed by the North Carolina State Bar. Licensing occurs after three years of law school, an interview with the State Bar, passing a half-day ethics examination, and then passing a two-day examination on State and Federal law.

The State Bar has an optional level known as the Board Certified Specialists.Less than 2%of all attorneys have passed this level of certification.To do so you must have practiced law for several years focusing on a particular field, submit a number of completed cases for review, undergo an anonymous evaluation by a number of other attorneys, and complete a one-day written examination in your area of specialty.

Do you need a Board Certified Specialist? In our opinion it's like going to the doctor. If you can have an operation with a neurosurgeon why would you risk having it done by your family doctor? You only get one chance to get your case resolved correctly. Therefore it's important to get an attorney who really knows what he or she is doing.

What is a "Trial Return to Work" in workers' compensation claims?

The Workers' Compensation Act requires that an injured worker be given a "Trial Return to Work" under certain circumstances. Basically, if you've been injured on the job and have been out of work this provision applies to you. If you are released to return work with restrictions then you get nine months for a trial return to work. If you are released to return to work without any restrictions then you get 45 days. Once you return to work the adjuster will legally terminate your weekly checks.Under the nine month scenario the carrier must give you a NCIC Form 28T. They must also give you a Form 28U which you would have a physician sign if he or she deems you incapable of continuing the trial return to work. We think it is critical that you have a return visit already scheduled with your doctor before you begin the trial return to work. This is because it is very common for adjusters to refuse to authorize such a visit -- specifically to prevent you from having the Form 28U signed.If your adjuster won't agree to this before you return to work you should view this as a huge red flag. You should probably talk to an attorney to determine how best to protect your interests.There is dispute about the need for a Form 28T on full-duty returns to work. We believe that it is but the Industrial Commission is lax on enforcing it. A Form 28U should still be utilized to document any inability to work.

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Meet the founders

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Todd Oxner is a founder and managing partner who is known statewide for his success in handling workers' compensation claims. He is a Board-Certified Specialist in Workers' Compensation. Learn more
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Chip Permar is one of the founding and managing partners of Oxner + Permar, PLLC. He is a Board-Certified Specialist in Workers' Compensation. Learn more
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