Posts By: Oxner

After a Work Injury, Do I Have to Use My Vacation and Sick Time?

I recently spoke with a client who suffered a workplace injury, and they asked me a question that comes up frequently. “My human resources person said that I have to use my vacation and sick time before they will pay me anything. Is that true?” I’m always shocked at how often I hear this question, especially from state and local employees.

The answer to whether or not you’re required to use your vacation time or sick time is a definitive no. According to North Carolina law, you do not get paid for missing the first week of work after your injury. Instead you begin receiving payments the second week. If you are unable to work a third week — or if you get a disability rating due to an injured body part— then they have to go back and pay you for the first week.

Even if you use vacation days or sick days for your first week, the insurance company is still required to pay you for that first week. While your employer might try to claim that this is great for you because you get paid twice, that’s not how the law sees it. You are using a limited resource that you’ve earned — your vacation time, sick time, or personal time off — so you didn’t really get it for free.

You are in no way obligated to take your vacation or sick time in order to cover your first week off. Don’t let your employer force you to use what is yours. Work with an experienced attorney who will help you stand up for your rights.

My Doctor Has Released Me to Return to Work, but I’m Not Ready!

Oftentimes, when you’ve been off work due to a workplace injury,  getting the go-ahead from your doctor to return to work is a huge relief. It can be a sign that things are starting to return to normalcy. But what happens if you feel your doctor has made a mistake? What if you don’t feel ready to return to work?

There are several reasons why your doctor may have cleared you despite the fact that you’re not yet feeling 100%.  First, your doctor may have a standing agreement with your adjuster or your employer that he won’t keep you from work as long as your employer can find something for you to do. In this case, you may not be returning to your regular job, but at least it will start easing you back into work.

That brings us to the second reason your doctor may have cleared you. Many doctors believe that there is a healing power in being active and out of the house. While this definitely isn’t true in every case, there are plenty of instances of clients who were worse off sitting in the house than getting back into shape.

However, it is also possible that your doctor may not have a good idea of what your job entails. While that could be down to the fact that your doctor just isn’t familiar with your line of work, it’s also possible that your Rehabilitation Professional gave your doctor an edited job description. Sometimes this happens by choice of the RP; sometimes the employer makes the edits. However, if the doctor doesn’t have a clear picture of what you do, they might clear you for a job you’re not actually ready to do yet.

If you have concerns, be sure to take them up with your doctor. Communication is key for making sure that they have a clear idea of your injury and your ability to work.

If you believe your doctor has cleared you for work that you’re not ready to do, it’s a good idea to speak with your attorney. They can help you take the next steps and speak to the right people so that you can focus on your recovery.

What is the North Carolina Industrial Commission and How Does It Affect My Case?

When it comes to workman’s comp cases, it’s important to know who all of the players are. If you’ve been injured at work, then there’s no doubt that you’ve probably heard of the North Carolina Industrial Commission (often abbreviated to NCIC or sometimes just IC). The NCIC is the government agency that’s in charge of handling all workers’ comp claims — and they’ll be playing a big role in your case.

A lot of people don’t realize this, but workers’ comp claims do not go to court. If you’re dealing with a workman’s comp case you will never see a judge or jury. So what happens if there is a dispute about your claim?

In this instance, your case will be heard by a Deputy Commissioner employed by the NCIC. The Deputy Commissioner is like a judge. They will listen to both sides of the story, consider all of the evidence such as doctors’ testimonies, and will ultimately file a final decision. This decision is called an Opinion and Award.

Whoever doesn’t win the Opinion and Award has the option to file an appeal to the Full Commission. The Full Commission is made up of a panel of three Commissioners. They will reconsider all of the evidence which will be presented to them by the Deputy Commissioner who originally heard your case.

During this time the attorney for each side gets 20 minutes to tell the Full Commission what they should be looking at. The Full Commission also has the opportunity to ask questions. Once they come to a clear decision, they can determine the outcome of the case.

If you’re injured at work, don’t hesitate to reach out to an attorney. With more than $275 million in awards and settlements, Oxner + Permar has the experience to help you navigate your workers’ comp claim.

If I Settle My Case, Do I Have to Quit My Job?

This is a question that often comes up when clients are dealing with a workers’ compensation case. Many are concerned that they’ll have to add searching for employment to their list of things to worry about while recovering from their injury. While there is no requirement that says you have to quit your job if you settle, it’s still possible you may find yourself unemployed after your settlement.

Quite often an employer will ask you to resign as part of a certain type of settlement. These settlements are usually for significantly more money than what would cover your disability rating. If you take a settlement that matches your rating, it is extremely unlikely that your employer will ask you to resign.

The reason this could happen is that when you’re offered a bigger settlement, the insurance company is paying to give up their obligation for your future medical care. So for example, let’s say you were allowed to return to work after being awarded $50,000 for your shoulder injury. If six weeks later you returned to work and re-injured your shoulder, not only would you have the $50,000 from your first claim, you’d also be able to start a new claim.

By asking you to resign as part of the settlement, the insurance company can ensure that they won’t have to pay you twice. In fact, if you hear about someone who was fired after a workers’ comp claim, it’s more likely that they were offered money in order to resign. But their boss would have encouraged the rumor that they were fired…or at least, they won’t do anything to correct the rumor.

This is because if employees think that the claim caused a coworker to be fired, it will prevent other employees from filing a claim themselves — which means that the employer will save money. You shouldn’t let these rumors prevent you from submitting your workers’ compensation claim. While you can be asked to resign, it is illegal for an employer to fire you for filing for workers’ comp.

If you’ve been injured at work don’t hesitate to contact an attorney to help guide you through the process. With more than $275 million in awards and settlements, Oxner + Permar has the experience to get you the benefits you deserve.

Can I Sue My Employer for Negligence?

We understand that after you’ve been injured on the job, you’ll want to do everything in your power to make that wrong right. And sometimes, simply receiving workers’ compensation for your injury doesn’t feel like enough. However, according to workman’s comp law, you are not allowed to sue your employer for negligence. The only avenue is through workers’ compensation.

As a follow up question, I frequently have clients ask, “But what if I can prove that my employer was negligent?” Even if they were somehow negligent, you still cannot sue.

It IS possible to get an additional 10% penalty against your employer if you can prove that they willfully failed to comply with any statutory requirement; however, cases of the Industrial Commission enforcing this penalty are very rare. “Willful Failure” is a very high standard to meet. Generally the employer would have to be at fault for something far more serious.

The only exception to being able to sue your employer in the case of an injury is if your employer was required by law to carry workers’ compensation and failed to do so. In this case, your employer cannot claim the Workers’ Compensation Act as a defense in a lawsuit. In this case, you would be able to sue.

In the vast majority of cases, you may not sue your employer for negligence. When it comes to workers’ comp cases, it’s always a good idea to work with an experienced attorney who has a good understanding of what you can or can’t do with your case.