Yearly Archives: 2016

Can I retire and be on workers’ compensation?

Workers' Compensation

Yes, you can. Some adjusters and vocational rehabilitation professionals will tell you otherwise. But the law is clear: you may be retired and still have workers’ compensation benefits.

There are three things to pay attention to:

  1. You can draw workers’ compensation checks and Social Security retirement checks at the same time. With only a rare exception (when a claimant draws benefits beyond 500 weeks and if the date of injury is covered by the new law) workers’ compensation does not get a credit for Social Security retirement and Social Security retirement is not offset or reduced by workers’ compensation.
  2. Your right to weekly checks is based on your capacity to earn. Thus you cannot simply elect to retire and stop looking for work and expect to get workers’ compensation. You can retire, draw your retirement, keep looking for work, and draw workers’ compensation checks.
  3. If you decide you don’t want to hassle with looking for work and are just going to take a retirement it’s likely the Industrial Commission will grant a defense request to stop your weekly workers’ compensation checks. But the adjuster will still have to provide medical treatment for your injury.

Can I get Social Security Disability and be on workers’ comp?

Workers' Compensation

Absolutely. Nothing stops you from applying for and receiving Social Security Disability and also receiving worker’s compensation. Pay attention to these:

  1. Workers’ compensation checks will not be reduced if you receive Social Security Disability checks.
  2. Your Social Security Disability checks may be reduced while you are on workers’ compensation.
  3. Your eligibility for Medicare will accrue while you are workers’ compensation.
  4. While workers’ compensation payments are not directly taxable in a small number of cases there is a tax implication on the amount of Social Security Disability payments that are offset. This is technical. You should speak with your attorney and/or whoever does your taxes.
  5. If you are in the Social Security Disability process the adjuster is usually required to set aside a portion of your settlement for future medical treatment. Again, this is technical and you need to speak with an attorney about it.
  6. If you settle your workers’ compensation claim your Social Security Disability checks will likely go up dramatically. This requires proper language being inserted into your settlement paperwork. The Social Security Administration is very strict about this and it is next to impossible to get them to permit a retroactive change to your settlement paperwork.

Differences in workers’ compensation settlements.

Workers' Compensation

At the end of your workers’ compensation claim you will likely be entitled to an award of some type. Technically there is a difference in workers’ compensation law between an award and a settlement. You are automatically entitled to an award once you reach maximum medical improvement. Your workers’ compensation claim is open even after you get an award. A settlement — usally called a clincher, but properly known as Compromise Settlement Agreement — closes your claim at least in part. An award occurs, or is supposed to occur, automatically. Usually a workers’ compensation lawyer will be involved in a settlement. A workers’ compensation attorney can often increase the amount of an award as well.

An award of your rating is pretty much the least amount a workers’ compensation insurance company can give you to bring any kind of closure to your case. You only take a rating if you’re able to return to work making as much or more money as you did prior to your workers’ comp injury (or at least enough so that the rating is greater than your wage loss). You still have the right to future medical care and can reopen your workers’ compensation claim for a change in your condition.

A clincher usually, but not always, involves giving up all future rights under your worker’s compensation claims. Occasionally a clincher only requires you to give up the right to either the rating or to ongoing weekly  workers’ compensation checks and leaves medical benefits open. This is true in some medically complex cases where it would just take too much money to close out the medical side of things. In those cases the workers’ compensation insurance company simply cannot or will not pay out the money necessary to settle out the medical side of a claim.

A huge difference between a rating and a clincher is that the latter has no set figures at all. Whatever you and the workers’ compensation adjuster negotiate is what the clincher amount will be. If there is ever a point where a workers’ compensation attorney can prove their worth it is at this point. Unless you know the ins-and-outs of workers’ compensation law and how that would apply to the facts of your case you really cannot calculate what the value of your claim is for settlement negotiations. Clearly the workers’ compensation adjsuter is not going to volunteer information which would cost her money. The rating is what the treating physician says it will be. If you think the rating is too low you are entitled to select your own physician to give you a second opinion. The workers’ compensation adjuster has to pay for this visit. The adjuster is entitled to a second opinion as well. The North Carolina Industrial Commission usually averages the ratings from the different doctors.

A rating is usually paid out over a number of weeks. If you’re taking your rating it’s most likely that you are working. Your current income will make no impact on the payment of your rating. The parties will sign an Industrial Commission form, this and your medical records are sent to the Industrial Commission for review, and the Industrial Commission will order payment. You should begin getting your checks in two to three weeks. Because a rating is payment for a physical impairment rather than for wage loss payments for a rating should have zero effect on Social Security Disability payments, or any payments under a short-term or long-term disability plan.

A clincher is usually paid out as a lump sum. Unlike the simple forms used for ratings a clincher requires a lengthy statement about the case, remarks about the opposing views of the injured worker and the employer and workers’ compensation insurance company, and a recitation of the course of medical treatment. If health insurance or Medicaid/Medicare has paid any of the medical treatment there will be specific language about that. Most importantly if you are on, or may be on, Social Security Disability there needs to be some technical parts about how the settlement is structured and allocated. Once the workers’ compensation clincher is signed it is submitted along with all relevant medical records to the Industrial Commission where it will be reviewed and approved. As with the rating you should be paid in two to three weeks after the clincher is approved.

Can I draw workers’ compensation and unemployment at the same time?

Workers' Compensation

As a general rule the answer is no you cannot. Technically the workers’ compensation law isn’t that clear. North Carolina General Statute 97-42.1 says “If an injured employee has received unemployment benefits under the Employment Security Law for any week with respect to which he is entitled to workers compensation benefits for temporary total or permanent and total disability, the employment benefits paid for such weeks may be deducted from the award to be paid as compensation.” Because the statute says “may” rather than “shall” the North Carolina Industrial Commission has discretion in whether or not they give the workers’ compensation insurance company credit for the unemployment benefits.

If you have a choice you almost certainly want to take workers compensation checks instead of unemployment benefits. Workers’ compensation checks are tax-free and you may receive them, or portions of them, for up to 500 weeks. Unemployment benefits may be easier to receive but they are taxable and only good for a few months. Having said that if your workers’ compensation claim is denied and you have been terminated you should definitely collect the unemployment benefits. Even though your employer and their insurance company get a credit for anything you draw under unemployment it will help may your bills while the claim proceeds with the North Carolina Industrial Commission. So while you may have started drawing unemployment you need to have that stopped as soon as you begin to receive workers’ compensation checks.

We have not seen instances where the North Carolina Industrial Commission exercises its discretion and does not award defendants a credit for unemployment benefits paid to an injured worker. The general notion is that an employee should not receive a “double recovery” by collecting unemployment and workers’ compensation checks at the same time. In most instances that would result in an injured worker collecting more money than he or she would have if they were working. Thus it makes sense that a worker shouldn’t collect both. What do you do in the case of a highly paid employee? Because the workers’ compensation laws limit how much an injured worker can receive in weekly benefits there are some claimants who receive less than 66.6% of their pre-injury wages. Currently that threshold kicks in around $71,000.00 per year. If a person makes more than that their weekly compensation check will be less, on a percentage basis, than other workers receive. In these situations we believe it is fair for an injured worker to receive a combination of unemployment and weekly workers’ compensation checks as long as the total does not exceed 66.6% of the pre-injury wage. However, the North Carolina Industrial Commission has not consistently agreed with us in this point. Thus we caution any injured worker against attempting to draw weekly workers’ compensation checks an unemployment at the same time.

I’m on workers’ compensation — can I get short-term or long-term disability, too?

Workers' Compensation

So… can you get worker’s compensation weekly checks and also monthly payments from short-term or long-term disability? The answer is… it depends. Note that we are not talking about Social Security Disability. The answer to that is an easy “yes.” You can always draw Social Security Disability (or retirement) checks at the same time as you get workers’ compensation weekly checks. But what about the private disability policies like AFLAC or Unum?

Most of these policies have exclusions in them which specifically say they do not pay for a disability which was caused by a workers’ compensation injury. So in these instances the workers’ compensation laws do not prevent you from getting both checks — the North Carolina Industrial Commission doesn’t care — but the company which provides the disability insurance will care.

If you are uncertain if you can draw both benefits you should ask a workers’ compensation lawyer to look at your disability policy for you. With us, at least, it doesn’t matter if we represent you in your workers’ compensation claim. We’re happy to take a few minutes with you to go over your options.

There are a couple of situations which we want to highlight. The first applies to truck drivers, particularly over-the-road drivers. If you drive for a trucking company which is NOT based in North Carolina this applies to you. Many out-of-state companies require their drivers to carry an Occupational Accident Disability policy. These are an attempt at getting around workers’ compensation insurance. In most of these you cannot get both benefits and there may even be language that if you apply for workers’ compensation you cannot get the benefits of that policy. We’ve had a lot of success in getting around these restrictions against worker’s compensation. Call us and let us walk you through the process.

Another situation arises with some unions. For instance in the collective bargaining agreement in place with UPS drivers have disability insurance in addition to their workers’ compensation benefits. Even when the injured driver is drawing workers’ compensation checks they would be entitled to at least the $200.00 per month minimum payment. Other unions have similar provisions. Neither your employer nor your workers’ compensation adjuster will likely bring this to your attention.

What happens if the adjuster denies your workers compensation claim but you want to apply for disability insurance? Call us. This is tricky and cannot be answered easily because it is not a “one size fits all” answer. But do call us — we aggressively go after workers’ compensation adjusters for denying good claims. And the disability insurance can play a big role in this fight.