Deputy Commissioners are like judges for workers’ compensation. They have most of the powers of an elected judge. Their decisions are in writing and are called Opinions and Awards. A key difference between judges and deputy commissioners comes in how they get their jobs and how long they keep their jobs. Judges are elected and keep their jobs until there is a new election. Short of extreme situations when they are impeached a judge is certain to continue their term until the next election. That allows the judges to make decisions that they believe are consistent with the facts and the Constitution. Sometimes those decisions are unpopular. However only the public can remove a judge for making unpopular decisions – by voting the judge out.
Gov. McCrory and the new legislature recently passed a law which strips the deputy commissioners of this vital protection. Beginning in 2014 the Chairman of the Industrial Commission may terminate deputy commissioners at his sole discretion. We haven’t seen the effects of this highly controversial law. But it is quite plausible that deputy commissioners may be more cautious in their decisions. This is particularly true while the current political climate seems, at least to us who have been doing workers compensation for many years, to be favoring employers and insurance companies.
There are some limits to it but the Industrial Commission has a process for an expedited medical hearing. We’re surprised that more lawyers do not take advantage of this. A traditional hearing can easily take a year before there is a decision in the case – when measured from the request for a hearing to when an Opinion and Award is filed by the deputy commissioner. The expedited medical hearings cut that time down to four to six weeks.
An extra benefit of this process is that you are not required to have a mediation before the hearing can take place. Don’t get us wrong. Mediations are an excellent way for a client to better understand what his or her options are. But the scheduling and coordinating calendars can easily take three months. An adjuster shouldn’t be allowed to hold off providing the medication the doctor prescribed for surgery for an extra three months. The Industrial Commission has referred to “adjusters practicing medicine” when the insurance company refuses to go along with the doctor they chose. We don’t believe that your health is like a salad bar where an adjuster should be permitted to pick and choose what treatments fancy her that day.
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.
