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Workers’ Compensation FAQs

Riddle & Brantley   |  June 20, 2019   |  

Common Questions About Workers’ Comp

Questions about workers’ compensation? Our North Carolina workers’ comp lawyers can help. In this FAQ page, we’ll answer some of the most commonly asked questions about workers’ comp.

Workers’ Comp at a Glance

Established in the early 1900s, workers’ compensation laws were formed to protect employees who are injured on-the-job. Although most individuals will never experience a workplace accident, others work in dangerous occupations where accidents and injuries are common. Nonetheless, even those in the least dangerous occupations are still susceptible to an injury at work.

Below are a few of the most commonly asked questions about workers’ compensation:

We know the system inside and out.

At Riddle & Brantley, attorneys Chris Brantley and Adam Smith are North Carolina Board-Certified Specialists in Workers’ Compensation, and are always happy to review your case and answer any questions.

For a FREE consultation with an experienced North Carolina workers’ comp lawyer, please call 1-800-525-7111.

There is no upfront cost and you won’t pay any attorney fees unless we win your case and you receive compensation through workers’ comp.

Since 1985, we’ve recovered millions of dollars in compensation for injured North Carolina workers (see disclaimer below). We invite you to review our recent case results.

If you or a loved one have been injured in a workplace accident, call 1-800-525-7111 today and let’s review your claim.

What is Workers’ Compensation?

Considered a type of insurance, workers’ compensation provides benefits to an injured worker in the form of compensation for:

  • Medical expenses
  • Lost wages
  • Future lost earning potential
  • Permanent scarring or injuries

In order to recover benefits under the Workers’ Compensation Act in North Carolina, the employee must typically prove the following:

  1. That he or she suffered an injury by accident. An accident is an unusual event or result which is not expected or designed by the injured employee. North Carolina’s workers’ compensation system is no-fault, so it typically does not matter if the injured worker was at fault for the accident.
  2. That the injury arose out of employment. This requires that the employee demonstrate a causal connection between the injury and an accident which occurred in the course of employment.
  3. That the injury was sustained in the course of employment. In other words, the injury must have occurred during the period of employment at a place where the job was calculated to take the employee and where the activity is within the scope of that employment.
  4. That the injury caused a disability. In order to establish disability, the employee must prove one of the following:
    1. That he or she is unable to earn the same wages he had earned before production of medical evidence that he or she is physically or mentally incapable of work in any employment as a consequence of a work related injury;
    2. That he or she is capable of some work, but that he or she has been unsuccessful in obtaining employment after reasonable effort;
    3. That he or she is capable of some work but that it would be futile because of pre-existing conditions, e.g. age, inexperience, lack of education, to seek other employment; or
    4. That he or she has obtained other employment at wages less than that earned before the injury.

It is important to note that there are always exceptions to the rules.

For example, back injuries only require a “specific traumatic event” and not an “injury by accident.” Also, occupational diseases due to repetitive strenuous work over a long period of time or exposure to hazardous conditions or chemicals may be covered injuries, as well.

If you’ve been injured on the job in North Carolina, call our workers’ compensation attorneys for a FREE, no-obligation consultation at 1-800-525-7111.

We will review your claim and advise you on your best legal options, at no cost to you. If you decide to hire us, we don’t get paid unless you do — if we don’t recover workers’ comp benefits for you, you won’t pay any attorney fees.

What Form of Workers’ Compensation Are There?

Primarily covering medical expenses and lost wages, benefits are also extended for those who suffer from temporary total disability (meaning you are totally out of work, but probably won’t be out of work forever), permanent total disability (e.g., out of work for the rest of your life), or partial disability (meaning you can work, but not do all the things you could before your injury).

Death benefits may also be extended to family members who lost a loved one due to a fatal workplace accident or occupational illness. The benefits provided to injured workers are vast and comprehensive and should be discussed with an experienced workers’ compensation attorney or a Specialist like Chris Brantley or Adam Smith at Riddle & Brantley.

In cases in which a workplace injury results in permanent disability, our Social Security disability lawyers can assist with those claims and appeals, as well.

What Are the Most Common Workplace Injuries?

According to the Bureau of Labor Statistics, more than 2.8 million nonfatal workplace injuries and illnesses were reported in 2019. This includes:

  • 308,630 sprains and strains
  • 92,840 cuts/lacerations
  • 79,470 fractures

These are usually the most commonly reported injuries. Some of the injuries reported as sprains/strains turn into something more serious. In particular, back injuries heal with no long-term issues while others involve surgery and permanent disability and restrictions.

We recommend contacting us at 1-800-525-7111 if your injury is permanent or if you think you will have to have a surgery.

What Are the Most Dangerous Industries?

According to data on fatal workplace accidents and on-the-job injuries, some of the most dangerous industries include:

However, workplace accidents can happen in any employment setting.

“Does My Employer Choose What Specialists I Can Visit?”

Yes, employers and/or their insurance carriers will have a list of approved physicians and medical facilities, and they will have the right to authorize and approve your treatment with them unless it is an emergency situation.

However, this rule requires the employer or insurance company to offer you a qualified physician. Sending you to an urgent care doctor for a back injury might not be appropriate if your injury warrants an orthopedist or a neurosurgeon.

You also have rights to seek a second opinion. 

It is important to discuss this issue with an experienced workers’ compensation attorney, to determine if you are able to visit your own physician.

What is Disability and How Is Disability Determined in Workers’ Comp Claims?

The term “disability” means the incapacity to earn the wages which an employee was receiving at the time of injury in the same or any other employment. Disability is a legal term and there are hundreds of pages of laws that try to define it — but the bottom line is that in the legal sense, disability primarily refers to the diminished power to earn wages.

Disability includes an assessment of other vocational factors, including age, education and training.

In order to be disabled, an employee must show that he is incapable after his injury of earning the same wages he had earned before the injury in the same employment, that he is incapable after his injury of earning the same wages he had earned before at any other employment, and that this incapacity to earn was caused by the workplace injury.

To meet the burden of proof to establish disability, an injured employee may offer evidence in four ways:

  1. By producing medical evidence that the employee is physically or mentally — as a consequence of the work related injury — incapable of work in any employment
  2. By producing evidence that the employee is capable of some work, but after reasonable effort on the part of the employee, has been unsuccessful in efforts to obtain employment
  3. By producing evidence that the employee is capable of some work but that it would be futile because of preexisting conditions, e.g. age, inexperience, lack of education, to seek other employment
  4. By producing evidence that the employee has obtained other employment at a wage less than that earned prior to the injury

There are basically four types of disability recognized under workers’ compensation:

  • Temporary total disability
  • Temporary partial disability
  • Permanent partial disability
  • Permanent and total disability

Temporary Total Disability

Temporary total disability is when an employee is disabled from employment for a temporary period of time. During this period of disability, the injured employee is entitled to two-thirds (2/3) of his average weekly wage up to statutory maximum. The duration of temporary total disability payments may be limited depending upon the date of an employee’s injury.

In practical terms, an employee who is claiming temporary total disability benefits must either be written out of work completely by an approved treating physician or show substantial evidence that the employee has made good faith efforts to look for work but been able to find work or has gone back to work at a lesser wage. The employee may also show that because of preexisting conditions such as age, education, limited work experience, or other legitimate factors that would render him or her incapable of working, that it would be futile or a waste of time for him or her to look for it.

It is strongly recommended that, unless an employee has been written out of work completely on a permanent basis, he or she demonstrate that he or she has made good faith efforts to look for suitable work within the competitive labor market.

If there is a question regarding the sufficiency of a showing of disability, it is important to have experienced workers compensation attorneys like those at Riddle & Brantley on your side.

Permanent Total Disability

An injured employee may qualify for permanent total disability only if the employee has one or more of the following physical or mental limitations resulting from the injury:

  1. The loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof
  2. Spinal injury involving severe paralysis of both arms, both legs, or the trunk
  3. Severe brain or closed head injury as evidenced by severe and permanent, including: sensory or motor disturbances; communication disturbances; complex integrated disturbances of cerebral function; or neurological disorders
  4. Second-degree or third-degree burns to thirty-three percent (33%) or more of the total body surface

An employee who qualifies for permanent total disability pursuant to NC law shall be entitled to compensation, including medical compensation, during the lifetime of the injured employee, unless the employer shows by a preponderance of the evidence that the employee is capable of returning to suitable employment as defined in the North Carolina statute.

Temporary Partial Disability

In North Carolina, when a worker can return to employment or returns to employment at a reduced wage from his pre-injury average weekly wage, he is entitled to two-thirds (2/3) the difference in wage earning capacity between his or her pre-injury wages and post-injury wages, as long as the temporary partial disability continues, subject to a 500 week maximum. Any weeks of payments for temporary total disability benefits, shall be deducted from the 500 weeks of payments available under this section.

Permanent Partial Disability

In certain cases, an employee may be entitled to permanent partial disability which means a permanent partial percentage of impairment that a physician has assigned to one or more body parts listed under North Carolina law. The employee may be entitled to these benefits in addition to any temporary total or temporary partial disability benefits the employee may have received prior to reaching the end of the healing period or maximum medical improvement. 

The schedule of injuries under North Carolina law sets forth the rate and period of compensation for numerous and varied body parts. For example, if a person suffers a total loss of use of his or her spine/back, then that employee is entitled to 300 weeks of compensation. If a person has suffered a ten percent (10%) permanent injury to their spine/back, then they are entitled to ten percent (10%) of the three hundred (300) weeks of compensation or an equivalent of thirty weeks (30) weeks of temporary total disability compensation.

North Carolina laws concerning workers’ compensation can be confusing. Let us help you navigate your claim. For a FREE, no-obligation consultation with an experienced NC workers’ comp lawyer, please call 1-800-525-7111.

We don’t get paid unless you do — if we don’t recover workers’ compensation benefits for you, you won’t pay a dime in attorney fees.

“How Much of a Regular Paycheck Can I Get While I Can’t Work?”

The amount of workers’ compensation benefits received will depend on your disability. The four types of disability are discussed above. Generally, workers’ compensation is required to cover two-thirds (2/3) of your regular wage or average weekly wage from the job in which you were injured.

Determining your correct average weekly wage is essential to receiving full benefits. For example, the rules allow you to remove vacations of over 7 days from the equation, so workers are not punished for taking an annual vacation.  And Christmas or other bonuses should be included in the calculation.

An experienced worker’s compensation attorney can help you calculate your average weekly wage and present to the insurance company and/or Industrial Commission as to what benefits you may be entitled. See below for a more detailed explanation of the average weekly wage and how it is calculated.

“What is My Average Weekly Wage for a Workers’ Comp Claim?”

A proper and accurate calculation of average weekly wage is crucial in a workers’ compensation claim, since all compensation paid to an injured worker derives from this calculation.

The intent of the Workers’ Compensation Act in North Carolina is to determine a wage that would be fair and just to both the employer and the employee. With this in mind, the Workers’ Compensation Act provides five methods which can be used to calculate an injured workers’ average weekly wage.

5 Methods to Calculate Average Weekly Wage

  1. The first method is used if an employee has worked for an employer for 52 weeks before the injury. Under this method, the gross earnings in the 52 weeks prior to the injury are divided by the actual weeks worked. If the employee worked every week, then the total earnings would be divided by 52 to reach an average weekly wage. If, however, during this 52-week period the employee missed more than seven consecutive days on one or more occasions, then the number of days missed for each period is deducted from the 365-day period. Gross wages are then divided by this number of days actually worked to reach a daily rate. Using this daily rate, an average weekly wage can be obtained by simply multiplying the daily rate by 7.
  2. The second method is used where employment is less than 52 weeks prior to the injury. This method is similar in that you divided the earnings during the period worked prior to the injury by the number of weeks or parts thereof where wages were earned. This method will be used so long as it provides a fair and just result to both parties.
  3. The third method is used when it is impractical to compute the average weekly wage using the first or second method due to the shortness of the period of employment or due to the casual nature of the employment. In this situation, the Industrial Commission will consider the average weekly wage of a person of the same grade and character employed in the same class of employment in the same locality or community during the 52 weeks prior to the date of injury.
  4. The fourth method is a catch-all which is only used where exceptional circumstances exist that would make the previous methods of computation unfair, either to the employer or the employee. Under this method, other methods of computing the average weekly wage may be resorted to so long as they more than approximate the amount which the injured employee would be earning were it not for the injury.
  5. The last method only applies to volunteer firemen, members of rescue squads and other civil service members. Under this method, compensation is calculated upon the average weekly wage based on the earnings of their primary employment rather than from the organization which they were working at the time of the injury or death. This section contemplates that these service members will have multiple employments.

There are a few things to keep in mind relative to each of these methods.

First, wages are generally calculated by using the actual gross earnings of the injury worker, rather than net earnings or earning capacity. Gross wages can include things other than salary or hourly compensation. Allowances for room and board, lodging, travel, or an employer-provided vehicle can be calculated into gross earnings as well as many other benefits.

Second, income from other employment is generally not included in determining average weekly wage. As a result, if you work two jobs and are injured at one, then your average weekly wage may only be based on the earnings from the job at which you were injured.

“Is My Employer Required to Have Workers’ Comp Insurance?”

Generally, yes. However, an employer is not required to carry this coverage if they employ less than 3 employees on a regular basis. Also, certain groups of employers are excluded from the requirement to provide workers’ compensation coverage.

Employees excluded from coverage include:

  • Casual employees
  • Railroad workers
  • Certain seasonal farm laborers
  • Prisoners working for the state
  • Ski patrol employees

These exclusions are complicated and complex. We always recommend consulting with an experience workers compensation attorney if your case involves a potential exclusion from workers’ compensation coverage.

For a FREE consultation with an experienced North Carolina workers’ comp lawyer and Board-Certified Specialist, please call 1-800-525-7111.

We can consult with you by phone, email, text and even video conference, and can even come directly to you if it’s more convenient. No in-person meeting is required to get started on your case, however.

“My Workers’ Compensation Claim Was Denied. What Can I Do?”

If your claim was denied by the employer or insurance carrier, you should contact an attorney that handles workers’ compensation claims.

Your workers’ comp attorney may be able to file motions or other actions to persuade the employer or carrier to reconsider and accept your claim.

Remember, the Industrial Commission operates as the finder of fact in your case and it will determine the outcome. Just because your claim has been denied by your employer or its insurance company does NOT necessarily mean that the Industrial Commission will agree with its denial.

There are many forms that can be filed with the Industrial Commission and an experienced workers’ compensation attorney can help make sure that the appropriate forms are filed in a timely manner. If you and your employer cannot reach an agreement, then a hearing can be requested and the Industrial Commission will appoint a Deputy Commissioner to hear your case and render an opinion and award.

“What If I Can Still Work or Have to Take a Job Making Less Money After a Workplace Accident?”

In this situation, you may still have a claim for temporary partial disability benefits under the Workers’ Compensation Act.

Partial disability benefits are two-thirds (2/3) of the difference in your average weekly wage before the accident and after the accident. Therefore, if you are injured and unable to make as much as you did before the accident, you may be entitled to 2/3 the difference for a certain period of time. Partial disability benefits and the time you are allowed these benefits can be difficult to calculate, so we recommend speaking with an experienced workers’ compensation attorney if you think you may qualify to receive these benefits.

What is the North Carolina Industrial Commission?”

The North Carolina Industrial Commission was created by the General Assembly in 1929 to administer the North Carolina Workers’ Compensation Act. Since then, the Industrial Commission has also been given authority by the General Assembly to administer the Tort Claims Act, the Law Enforcement Officers’, Firemen’s, Rescue Squad Workers’ and Civil Air Patrol Members’ Death Benefits Act, the Childhood Vaccine-Related Injury Compensation Program, and Compensation to Persons Erroneously Convicted of Felonies.

The Industrial Commission is comprised of a Commission Chair and six Commissioners, as well as several Deputy Commissioners and numerous staff personnel.

To learn about the Commissioner Chair and the other members of the six-person Full Commission visit the Industrial Commission online.

If you have been injured on the job, the Industrial Commission’s website has several resources to help you understand Workers’ Compensation. While it is best to seek help and guidance from an experienced attorney, the information on the website can help you understand the overall process and arm yourself with questions that are important to ask an attorney.

On its website, the Industrial Commission has a list of five initial steps you should take if you have been injured on the job:

  1. Report your injury to your Employer and seek out appropriate medical treatment.
  2. Tell your health care provider that your injury is related to your work and the name of your employer.
  3. Iinform the appropriate person at your employment that you have experienced a work-related accident.
  4. As soon as practical after the accident, and within 30 days, give written notice to your employer. There is an Industrial Commission form that accomplishes this notice requirement.
  5. Follow your physician’s instructions for medical treatment.

These five steps are a great starting point. Of course, depending on your specific situation, additional steps may need to be taken. It is always best to consult with an experienced North Carolina work injury attorney to make sure you are handling your workers’ compensation claim in the most appropriate manner.

If your injury is permanent, we recommend hiring an attorney.

The North Carolina Industrial Commission’s website also provides the forms needed to file a workers’ compensation claim.

The Workers’ Compensation Act

In administering workers’ compensation claims, the Industrial Commission is bound by the North Carolina Workers’ Compensation Act. The Workers’ Compensation Act of North Carolina can be found in Chapter 97 of the North Carolina General Statutes.

As cases have been decided under the Workers’ Compensation Act, these statutes have been interpreted by the Industrial Commission and the North Carolina Court of Appeals and Supreme Court over the years. In advocating your claim, it is important to understand how these statutes are interpreted and applied by the Industrial Commission.

Our experienced North Carolina workers’ comp lawyers can help. Please call 1-800-525-7111 for a free consultation and let’s review your claim.

“Can My Children or Spouse Receive Benefits Under Workers’ Compensation?”

Depending on the circumstances, yes. If you have lost a loved one due to a fatal workplace accident or an occupational illness, your spouse and/or dependent children may be entitled to benefits for lost wages and medical expenses.

Determining and qualifying for these benefits can be complicated. We recommend consulting with an experienced worker’s compensation attorney to discuss these issues.

Talk with An Experienced Workers’ Comp Lawyer Today

We hope this information and these links will answer some of your questions if you have been injured at work.

However, if you would like to explore a potential workers’ compensation claim in North Carolina, please call 1-800-525-7111.

We serve clients from our offices across North Carolina, and would love to help you and your loved ones if we can.

Justice Counts for injured North Carolina workers and we are here for you. Please call 1-800-525-7111 and let’s discuss your case.