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.
Our workers’ compensation laws entitle you to lifetime medical care if needed. However you need to be realistic and understand that as time goes on the workers’ compensation adjuster is going to be less and less enthused about continuing to pay those medical expenses. You should expect that she will often challenge whether or not your current symptoms are truly related to the workers’ compensation accident a number of years ago. So while the answer is, yes, you have open medicals there is a catch to it. One thing we see quite often is the workers’ compensation adjuster claiming that the need for treatment is due to something other than the original injury. One such example involved a workers’ compensation adjuster who argued that the screw which worked its way loose in a injured man’s back did so when and because that man twisted his knee. Really?! The fact that the orthopedic surgeon who did the fusion insisted that this was nonsense didn’t prevent the adjuster from sticking to her position. Only after a workers’ compensation lawyer took the case to a hearing did the the adjuster authorize the medical treatment. And it took a hearing and an order from the Industrial Commission to accomplish this.
In terms of your paychecks the current workers’ compensation laws say the adjuster is limited to paying for only 500 weeks from the date of the injury. We think this change to the workers’ compensation law is quite unfair – if you are still experiencing a financial disability – the inability to earn as much as you did before you were injured – we think that you should receive treatment or weekly workers’ compensation checks for that. In our minds this is no different than saying your medicine will be cut off after 500 weeks just because most people would be better by then. It doesn’t really matter if we are right… the workers’ compensation law is clear on this. The legislators in Raleigh deliberately intended to make this change. There is a very limited exception in the workers’ compensation law for people who can establish that they are capable of no work at all — not even part-time, minimum wage jobs like being an attendant at a parking lot. But this exception applies to a pretty small number of people.
As long as you are receiving either weekly checks or medical treatment the workers’ compensation adjuster cannot close your file. Under our workers’ compensation laws a file isn’t closed until the North Carolina Industrial Commission says it is closed. Yet you may very well have an adjuster who will tell you that your file is closed. While it is improper to do so many workers’ adjusters will close files on a whim. Far too often the injured worker doesn’t know better, doesn’t call an experienced workers’ compensation lawyer for advice, and goes away… letting the adjuster get away with this.
Well… we all live with our choices of elected officials. The history of workers’ compensation law shows that the slant of the law has shifted dramatically over time. In the early days, workers’ compensation was a system designed “to provide swift and sure compensation to injured workers.” This was true since the early 1900s. Over the last ten years we’ve seen a concerted effort by business lobbying groups and the insurance industry to make the workers’ compensation laws more employer-oriented. This resulted in new laws quickly put into place in 2011.
The new laws are discussed in detail in our book, Seven Devastating Changes. This new set of workers’ compensation laws undid decades of law and court decisions and stripped injured workers of much of their rights. Three key changes: First, your employer and the workers’ compensation adjuster can talk or write to the doctor they chose to treat you without copying you on the letter or being in on the conversation. Second, you can be required to perform “make-work” or basically get paid to sit around and do nothing at work. Workers’ compensation adjusters love this because it gets injured workers off of weekly checks funded by the insurance company. Employers dislike it because they have to pay you full wages to do nothing of value. Rarely do employers take out their frustration on the adjuster though – the injured worker is a more likely target. Third, and the worst, is that the legal workers’ compensation definition of “suitable employment” was gutted of its single most important element: that the pay was comparable to what you used to make.
Consider a 35-year-old, skilled mechanic who might be making $45,000.00 per year. Under the old workers’ compensation law he could be asked to take a job paying $38,000.00 or so and the adjuster would have to pay two-thirds of his wage loss for 300 weeks from the date of the injury. Under the old workers compensation laws the injured worker had a cushion to help him get back up to speed. That injured worker could not be required to take a part-time, minimum wage job because that would not be “suitable” to him. This was because when the 300 weeks were up he’d likely still be far from where he was before his employer injured him.
Mind you workers’ compensation defendants tried of course! We represented a flight attendant one time that earned about $50,000.00 per year. Her vocational rehabilitation professional (someone hired by the workers’ compensation adjuster to find her a job) from CorVel instructed her to apply for jobs at fast-food restaurants because she “had experience handing out food and beverages.” She hired us and we put a stop to that nonsense. Under the new workers’ compensation laws, however, she would have no recourse. It doesn’t matter how well trained or well paid you are or were.
Under the 2011 workers’ compensation law you can be required to accept a part-time, minimum-wage job or risk having your benefits terminated. The workers’ compensation adjusters must be laughing all the way to the bank. What to do? As workers’ compensation attorneys we’ve had a lot of success turning this system on it’s head. Call us and let us explain how.
We’ll give credit where credit is due: some workers’ compensation adjusters tell injured workers about this. But in our experience the majority of them don’t. If you go to see your workers’ compensation doctor, have therapy, or go to any medical appointment that is ten or more miles away from your home (or business if you are going from work) then you are entitled, by law, to be reimbursed for that trip. The exact amount varies but currently it is $.565 per mile. Don’t bother trying to round up on this! Seventeen miles isn’t close enough, unfortunately. In our experience most workers’ compensation adjusters check the mileage with an online map system like Google Maps or Mapquest.
Unfortunately we’ve seen numerous instances where workers’ compensation adjusters use inaccurate addresses to “prove” the trip is just less than ten miles. This happens most often if you live in a rural area. If your actual residential address doesn’t register on, say, Mapquest then an onlie request for directions will likely show the directions — and the mileage — from the center of your town. That obviously makes a big difference. Does the workers’ compensation adjuster know this is inaccurate? Of course, but it is your obligation to prove it to her.
We’ve also heard of workers’ compensation adjusters telling injured workers that the request for reimbursement must be done within a certain time frame – once as short as two business days – but that’s not true. As a practical matter if you wait and submit a year’s worth of mileage reimbursements at one time the workers’ compensation adjuster might squawk about it but there’s nothing she an do to legally object to it under North Carolina workers’ compensation law. As attorneys we take care of all of this for our clients of course.
If you have a workers’ compensation claim which is open and you are drawing weekly checks — either temporary total disability if you are completely out of work or temporary partial disability if you are able to work but making less money than before — you should continue to draw your weekly checks without any interruption. The only thing that changes is that you are no longer considered under a temporary disability and now you are under a permanent disability. Other than a change in the notation on your check stub there shouldn’t be a difference.
Under our workers’ compensation laws there will be an assumption that you have elected to take a permanent workers’ compensation award in the form of ongoing checks for temporary total disability or temporary partial as opposed to checks for a permanent partial impairment. Sound confusing? This is a good time to take advantage of that free consultation with a workers’ compensation attorney! This is the kind of situation which we can explain pretty easily with just a few facts about your case. With that information in hand we can make recommendations about which way you ought to go with your workers’ compensation claim and whether or not you need a workers’ compensation lawyer. Many people do not!
