The Full Commission acts as the first level of an appeal from a deputy commissioner’s opinion and award. The Full Commission is comprised of six Commissioners. Unlike deputy commissioners, who must be lawyers, the commissioners have often not been lawyers. The governor appoints members of the Full Commission for a specific term of service. Gov. McCrory increased his influence on the current Full Commission by passing a law that reduced the length of service of certain commissioners appointed by previous governors. This will allow him to appoint an unusually large number of commissioners.
Appeals to the Full Commission involve the attorneys writing lengthy arguments and submitting them for review. The attorneys then go to Raleigh and have 20 minutes to make oral arguments to a panel of three commissioners.
While it is possible to appeal a Full Commission Opinion and Award to the North Carolina Court of Appeals, it is important to understand that the Full Commission has the authority to determine facts. The Court of Appeals will not reverse a finding of fact made by the Full Commission unless there is nothing to support that finding. If your boss is an outright liar and goes and commits perjury during the hearing and the Full Commission sides with the employer and insurance company and against you… the Court of Appeals is not going to reverse that. The Court of Appeals’ role is limited to reviewing questions of law. As a result, decisions of the Full Commission are usually the last word even when they are wrong.
A mediation, or a mediated settlement conference, is an informal meeting, usually in our office, where a neutral person (the mediator) hears our side of the story, your employers’ side of the story, and attempts to work out a compromise that everyone can live with. If your claim is denied, the Industrial Commission will likely order your case into mediation before it goes to a hearing. If your claim has gone on for a while the Commission may do the same thing to see if it can be wrapped up.
The important thing to know is that while participation is required if the Industrial Commission orders it any agreement is voluntary. That means that no one can MAKE you do anything at a mediation other than be there. If you do reach an agreement at the mediation, it will be written up and both sides will be asked to sign it. Once that happens there is no backing out.
Mediations sound scary but they aren’t. We’ve done thousands of them and will guide you through it with as few jitters as possible.
The other thing to remember about a mediation is that it isn’t necessarily about settling your case. Yes, that often happens. And it may be what the adjuster wants to see happen. But a lot of the time you and your case aren’t really ready for a settlement. So the agreements we reach are steps in that direction: change of physicians, surgery approved, raising your weekly checks, etc. With that in place and another few months’ time maybe things will be better set for a settlement at fair value.
It’s pretty common for an adjuster to ask you to give a recorded statement. Understand that everything you say can, and will, be used against you. Also understand that many adjusters use the recorded statement as way to deny the claim by asking questions phrased a certain way and having you agree to them. Remember, the adjuster is not here to help you. It is her job to make the insurance company profitable – by not spending any money unnecessarily. If you haven’t given a recorded statement yet we encourage you to talk to an attorney first just to go through what points are likely to be critical to your case.
The other thing to note is that a recorded statement may be only as good as whoever transcribed it. We saw a recorded statement taken by Builders Mutual one time where the claimant “admitted” that he’d been drinking. The transcript showed that he said, “I had been drinking for some time.” This was pretty damaging and the claim was denied. Except for the fact that actual audio recording of the claimant was “I had not been drinking for some time.” It’s amazing the difference one word can make. While this is a particularly spectacular example of bad transcribing the truth is that many recorded statements have significant errors in them.
Interrrogatories are written questions which the Industrial Commission requires parties (injured workers, employers, insurance adjusters) to answer. They are usually written by the attorney representing the other side. The idea is that when there is a dispute it is efficient if both sides trade information and answer questions before getting into a hearing. That’s the theory.
In practice you have to understand that most defense attorneys get paid by the hour. This means unless they are working they are not billing time or getting paid by the insurance company. So they need to find work to do. One of the ways we feel that they find work to do is to send out a lot of unnecessary interrogatories asking questions which are either irrelevant or to which they already know the answer. It’s something we just have to suffer through as the Industrial Commission routinely allows them.
Keep in mind that your attorney will screen your answers and will object where appropriate. We have found, however, that it is often simpler to answer the interrogatories unless they are truly offensive or too personal. Getting into a fight over them simply plays into the defense attorney’s hands. He gets paid to fight plus if he knows it gets under your skin he may do it all the more just to see if you’ll give up your case and settle cheap. It’s not exactly how the system is supposed to work but that’s the way we’ve seen it operate for a long time now.
It is a very normal sentiment. But workers’ compensation is not like the kind of court you see on television or read about in the newspaper. The Industrial Commission has limited authority and one of the key things it cannot do is probably what many people whish they could do: order a lump sum payment to compensate your for future losses. By law, they cannot do it.
Looking at what the Industrial Commission can award it makes sense to divide cases into denied claims and accepted claims. In a denied claim the Industrial Commission has the authority to award you all the past weekly wages and the cost of your medical treatment. Whatever you should have gotten you will receive as a single lump sum. The Industrial Commission then may require the adjuster to continue paying you weekly and continue sending you to the doctor. If your doctor has already given you a rating the Industrial Commission may award you that rating. The Industrial Commission cannot order defendants to pay you for what you expect to lose in the future due to lower wages and they cannot order defendants to give you $10,000.00, $50,000.00, or more even just $1,000.00 for future medical treatment. They can only order defendants to pay for those as they are incurred.
If you have an accepted claim the Industrial Commission’s powers are even more limited: they can required the insurance company to continue paying you weekly or pay you your rating. They can also order ongoing medical treatment. They cannot order a lump sum payment for future losses.
The other thing to keep in mind about your day in court is that it’s not really a day! You will have a hearing before a deputy commissioner on a specific day. The lawyers will then be given 60 days to talk to your treating physicians. After that the lawyers will have another 30 days to submit written arguments to the deputy commissioner. Once the Industrial Commission has received all of the information the deputy commissioner usually takes 90-120 days to issue a decision in the case. Realistically your day in court will not be over for six to seven months.
