The Clincher Agreement: A Final Resolution of Your Workers’ Compensation Case
How do you achieve closure after a worker’s compensation claim? Chances are, you’ve been involved in filing and following through with all of the necessary steps of a claim for months. A clincher agreement is there to provide final resolution. This agreement states that all parties have reached a final agreement, and it is only allowed by the North Carolina Industrial Commission when it meets all of the requirements of Rule 502. So rest assured that there are legal steps that your employer must take to ensure that you have been treated fairly.
There are a few things of which you should be aware if you are in the process of formulating a clincher agreement with your employer.
Whether or not it seems fair, it’s a fact that many employers seek to obtain a resignation and release of all employment claims at the same time they get a clincher of the workers’ compensation claim. Why? A previously injured employee is a future liability. In their view, and it makes good economic sense to secure an employment resignation and release at the end of the workers’ compensation claim. To ensure things go smoothly, there are a few things to consider before you discuss a resignation and release.
- A resignation and release of employment and employment-related claims should be discussed and negotiated with an employment lawyer to avoid any mistakes that could ultimately cost you.
- The money paid for an employment resignation and release must be separate from the money paid for the workers’ compensation clincher. Make sure the check for the employment resignation and release comes directly from your employer, not the insurance company. Keep in mind that payment from a resignation and release will most likely be considered taxable income. Again, have an employment lawyer negotiate this issue to be certain expectations of both parties are clear.
- Consider mediation, which creates an excellent opportunity to discuss both clinchers and resignation and releases. Typically a mediation make sure that both parties have useful and productive discussions with one another.
It is important to know that you cannot be forced to resign from your employment. If you are not willing to voluntarily and willfully resign your position, make that clear to your employer.
Getting a Second Opinion in a Workers’ Compensation Case
Dealing with workers’ compensation often means a whole lot of headaches and jumping through hoops to get the benefits you need. It can be frustrating when dealing with insurance companies to have to go to the hospital or doctor that they prescribe. Of course, the reason they can choose the hospital or doctor is because it is your employer’s insurance that is covering you, not your own insurance. However, if you feel that your diagnosis is inaccurate, is it okay to ask for a second opinion?
The answer is yes! If you feel that your diagnosis is inaccurate or that you are not healing as quickly as you should, then definitely ask for a second opinion. However, you cannot just go to a different doctor and expect it to be covered. The first step is to get written permission from your employer to see another physician. This should include the name and address of the physician you wish to see. If your employer gives written permission, then you can schedule your appointment.
So what if your employer doesn’t respond or give permission for you to see another doctor? Well there is another option. If this first step fails, then you can appeal to the North Carolina Industrial Commission for a second opinion. If the Commission agrees to a second opinion, then your employer must follow through and allow a second opinion. Generally you will need to prove that a second opinion will increase your recovery time or will improve your wellbeing.
If you have any questions about how to obtain a second opinion be sure to contact an experienced attorney. It’s always good to have someone on your side who is willing to fight for your rights and dedicated to ensuring that you get the best care in order to make the fastest recovery.
Who are Nurse Case Managers and Are They on My Side?
If you sustain an injury at work, you may have a nurse case manager appointed to your case. Many of my clients are unaware of the role of a nurse case manager, and many of them have never even heard of one until they begin their workers’ compensation case. A nurse case manager is a neutral third party in your case. They don’t work for the insurance company, nor are they a part of your medical team. It is their job to report information on your condition to the insurance carrier, the hope being that doing so will speed up your case.
It’s important to understand that a nurse case manager is supposed to be objective. Everything you say to them will be reported to your insurance provider. Therefore, be careful: Don’t say anything that could be misconstrued or harmful to your case. We recommend looking over all of the notes that your nurse case manager passes along, and make sure to dispute any discrepancies. You should be receiving copies of these notes. Moreover, your nurse case manager should not be speaking to your doctor if you are not present.
If you feel that your nurse case manager is acting in a way that is harmful to your case, or representing you in an unfair light, be sure to contact an experienced attorney to help you negotiate with them. You should always tell your attorney if you feel that your nurse case manager is not protecting your rights (for example, if they are not providing you with copies of their correspondences or attempting to speak with your doctor without your presence).
If you have any questions about working with a nurse case manager, or if you are concerned that your nurse case manager is not representing you fairly, don’t hesitate to contact one of our experienced attorneys for a free consultation.
What is Permanent Partial Disability and How Do I Qualify for It?
Recently, I had a client who inquired about permanent partial disability. They were curious about what it was and whether not they would qualify for it. I thought I’d pass along that information, as it might be relevant to you as well and others who are unfamiliar with permanent partial disability.
Essentially, permanent partial disability is used to compensate for permanent physical damage sustained during a work injury. Here, “partial” refers to the fact that you still have some use of the injured body part. In other words, you still have some functionality, but the benefits cover the injuries that have prevented your body from returning to the functionality it once had.
A doctor will determine the amount of disability using a scale of 0 percent to 100 percent. 0 percent means that there is no permanent injury at all. 100 percent would mean you have a permanent and total disability. Injuries that range from 1 percent to 99 percent are eligible for benefits.
You are eligible for permanent partial disability regardless of whether or not your injury prevents you from performing your old job. The reasoning is this: With permanent partial disability, you are being compensated for your loss of ability in your injured body part rather than for your ability to work.
Compensation is calculated at 2/3 of your regular weekly salary, based on your last 12 months of employment with your current employer. However, it’s worth noting that compensation is capped at $816 per week.
Permanent partial disability is there to compensate you for loss in functionality due to your injury. It’s based on your body’s ability rather than your ability to work. If you have any questions about permanent partial disability, don’t hesitate to speak with an attorney.
Can I Be Fired for Filing A Workers’ Comp Claim in South Carolina?
This question seems to come up more frequently than most. Often, I hear clients expressing concern about whether or not they can be fired for filing a workers’ compensation claim. And unfortunately it’s kind of a good news, bad news situation. The good news is that you cannot be fired for filing a workman’s compensation claim. The bad news is that you can be fired for just about anything else.
This is because South Carolina is a “Right to Work” State. This means that in South Carolina, an employer has the right to fire you for just about anything. Of course some things are protected. For instance, an employer is not allowed to fire you based on your age, sex, race, disability, or any other federally protected reason. However, they can fire you for leaving work five minutes early or not performing your job satisfactorily.
Your employer has the right to fire you even while you are receiving workman’s compensation benefits just so long as the cited reason is not because you filed for workers’ compensation. They can also terminate you if your injury causes you to no longer be able to perform your job. If you were terminated not long after filing workers’ compensation, or have any questions about your rights surrounding filing for workman’s compensation, feel free to contact an attorney at Oxner + Permar for a free consultation.