Category: Workers’ Compensation

I’m not sure my employer has workers’ compensation insurance. How do I find out?

Workers' Compensation

Call us. We can help track this down. Every employer is required to advise the Industrial Commission of this although many do not. Smaller companies are prone to skipping this and certain business types like construction, home health agencies, and small trucking companies seem to neglect this as well. By law they are all required to keep that information posted where all employees can see it regularly. Any employer who has three or more employees regularly working is required to carry workers compensation insurance.

If you’re employer is making it difficult to find out who their carrier is you may well have a problem on your hands. It certainly suggests that they aren’t keen on complying with North Carolina law. And that makes your situation all the more precarious.

Uh oh. My employer is uninsured. Am I in trouble?

Workers' Compensation

It’s all a bit more complicated when your employer is uninsured, that’s true. And a lot of attorneys refuse to handle those claims. We take a different approach and have a long track record of pursuing these claims. It’s not easy but it can pay off in the end.

By law any company with three or more employees has to carry workers’ compensation insurance. Sometimes there is a legitimate confusion over this – if the owner workers regularly in the business he or she is an employee for this number in many cases. Sometimes uneducated insurance agents tell employers they don’t need workers’ compensation insurance if they aren’t three full-time employees. Other times these agents suggest that the company designate many people as “independent contractors” in order to avoid requiring workers’ compensation insurance or to limit the number of employees on the coverage (premiums are set as a percentage of payroll. Fewer employees or lower payroll means lower insurance premiums.)

This is particularly true in fields like construction and truck driving where employers are prone to labeling everyone an “independent contractor” to avoid carrying workers’ compensation insurance.

My boss just said I’m an independent contractor. Can I still get workers’ comp?

Workers' Compensation

Absolutely. There are several things which go into determining who is an employee and who is an independent contractor. But the one thing the court says we can ignore is what your boss says about it. Employers in certain business fields are notorious for calling employees independent contractors. And many employees go along with it to avoid having taxes withheld. It really comes down to an issue of control. The more control your boss has over you and how, when, and where you do your work the more likely it is that you are a legally an employee, even if you have a contract saying you an independent contractor.

Certain industries are more likely than not to have this come up. Sales representatives, construction workers, and truck drivers seem to encounter this more than most other people. Occasionally we see health care facilities claim that employees working PRN are independent contractors but that’s so laughable that it doesn’t come up often.

I just started working here last month. How do they figure my average weekly wage?

Workers' Compensation

Normally the adjuster determines how much you made in each of the 52 weeks preceding the date of injury. This includes bonuses, per diems, etc. If you missed more than a week we exclude that period of time from the calculation. If you didn’t work there a full year we look at only the period you were there. If that period is extremely short, like a few days or a couple of weeks, we look at a comparable employee. That’s always interesting. It’s amazing how often we get a new client who was hired making $15.00 an hour but when the employer sends over the pay data of the “comparable employee” it is someone who was making $13.50 and refused every opportunity for overtime. If you’re a recent hire by all means give us a call and let us talk this through with you.

On a semi-related topic, if you work a lot of overtime there’s a great likelihood that you are going to be underpaid. When the adjuster asks your employer how much you made a lot of times the employer simply gives your 40-hour work rate. It’s not that they are intentionally cheating you (although sometimes they are) but that they aren’t volunteering information. And the adjuster will not often go out of her way to find a reason to pay you more money.

Why is my employer having me come to work and just sit there?

Workers' Compensation

Short answer: because they can.

Long answer: many employers and insurance adjusters are obsessed with the idea that injured workers are slackers who want to sit home and watch daytime television. We’ve met about three such workers and thousands who just wanted to get better and back to work they could safely do without further injuring themselves or their co-workers.

Prior to 2011 an injured worker could only be required to perform a real job – one which could be offered to anyone – while they were recovering from an injury. With a little lobbying from the big business and insurance companies, Gov. Pat McCrory initiated a massive overhaul of the workers compensation system, which, among other things, required that injured workers remain on their company’s premises if so requested.

Honestly we have a hard time seeing the point of this… if you’re employer is paying workers’ compensation insurance premiums in order to compensate you while you cannot do your job why should they want to bring you to the office or plant, plop you in a chair, and pay you full pay for sitting around doing nothing. Nevertheless it’s the new law.