This is another of our favorite “it depends” questions. If your health insurance is an ERISA plan then you’ll likely have to pay at least some of the money back. Multi-state employers, through some unions, etc., usually carry ERISA plans. On the other hand, if you have a local health insurance plan then the answer is that you probably will not have to pay them back. This requires an attorney putting the proper language into your settlement documents though.
If your claim is denied and your health insurance is also denying coverage be sure that you send in a copy of your Form 61. Once the health insurance company sees that your claim is denied they are supposed to begin covering your bills. You may receive a letter from your insurance company asking for details about your workers’ compensation claim. If you do, this requires a prompt conversation with a lawyer.
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:
Absolutely. Nothing stops you from applying for and receiving Social Security Disability and also receiving worker’s compensation. Pay attention to these:
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.
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.
