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!
One of the trade-offs in workers’ compensation is that you receive no direct payment for pain and suffering. You’ve undoubtedly heard this phrase being used in the context of people who bring lawsuits for auto accidents, slip and falls, medical malpractice, etc. Basically, if you bring a claim in District or Superior Court you may make a claim for pain and suffering. But you usually don’t receive anything from the defendants in your claim until the entire claim is settled.
Workers’ Compensation claims do not operate in the court system and they don’t operate under those laws. Rather than going to court your case is under the jurisdiction or control of the North Carolina Industrial Commission. The Industrial Commission is the government agency which handles all workers’ compensation claims in North Carolina. If there is a dispute the workers’ compensation case is heard by a deputy commissioner, not by a jury and a judge. And you cannot bring a claim for pain and suffering. The tradeoff was that in accepted claims you don’t have to wait until the end of your claim to get paid. While that may not seem fair now imagine receiving no weekly checks and no medical treatment. That’s not how it works today. This tradeoff of getting fewer benefits under workers’ compensation but getting them more quickly was part of the politicial deals which lead to the workers’ compensation laws and system we have today.
While you don’t receive direct payment for pain and suffering as a direct part of your workers’ compensation claim, pain is a component that a doctor is supposed to consider when assigning the permanent partial disability rating. While some doctors appear unclear on this the Industrial Commission rating guide does include it. This is where a workers’ compensation attorney can come in. Because we have dealt with many of these doctors on many occasions we can easily show them the workers’ compensation documents from the Industrial Commission which should get the doctor to change the rating as necessary.
Oxner + Permar attorney Casey Turner recently passed the Virginia Bar Exam, marking a first for the firm. Casey will be sworn in to the Virginia Bar Association on June 3rd, and will begin taking Virginia workers’ compensation cases thereafter. Casey currently practices workers’ comp law in North Carolina.
Casey notes that her father, John, was raised in Virginia and she has a special connection with the state, “I have always loved Virginia and hoped to get my license there eventually. I am looking forward to working with Virginians and spending more time in the state”.
Founding partner Todd Oxner notes that Casey’s licensure in Virginia will be valuable for our clients who have claims with jurisdiction in both North Carolina and Virginia. Casey will be able to help them assess the benefits under either system and choose what works best for them.