Workers’ Compensation FAQs
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 our most commonly asked questions about workers’ compensation:
- What is workers’ compensation?
- What type of workers’ compensation may I be entitled to if I’m injured on the job?
- What are the most commonly reported injuries?
- What are the most dangerous industries?
- Does my employer choose what specialist I visit?
- What is disability and how is disability determined?
- How much of my regular paycheck can I get while I can’t work?
- What is my average weekly wage?
- Is my employer required to have workers’ compensation insurance?
- My workers’ compensation claim was denied, what can I do?
- What if I can still work or had to take a job making less money due to an injury?
- What is the Industrial Commission?
- Can my children or spouse receive benefits?
Have a question about workers’ compensation that you don’t see here? Ask us a question now by filling out the form to the right or by calling (800) 525-7111 and let us review the details of your claim.
J. Christopher Brantley is State Bar Certified in worker’s compensation, and he is always happy to review your case and answer any questions.
Chris also invites you to visit our significant cases pages to review a sampling of the workers’ compensation claims we have handled by clicking here.
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, and permanent scarring or injuries.
In order to recover benefits under the Workers’ Compensation Act, the employee must prove the following:
- That he suffered an injury by accident. An accident is an unusual event or result which is not expected or designed by the injured employee.
- That the injury arose out of the employment. This requires that the employee demonstrate a causal connection between the injury complained of and an accident which occurred in the course of employment.
- That the injury was sustained in the course of employment. In other words, the injury 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.
- That the injury caused a disability. In order to establish disability the employee must prove one of the following:
a. That he is unable to earn the same wages he had earned before with production of medical evidence that he is physically or mentally incapable of work in any employment as a consequence of a work related injury;
b. That he is capable of some work, but that he has been unsuccessful in obtaining employment after reasonable effort;
c. That he is capable of some work but that it would be futile because of pre-existing conditions, i.e. age, inexperience, lack of education, to seek other employment; or
d. That he has obtained other employment at wages less than that earned before the injury.
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.
What type of workers’ compensation may I be entitled to if I’m injured on the job?
Primarily covering medical expenses and lost wages, benefits are also extended for those who suffer from temporary/permanent total or partial disability. 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.
What are the most commonly reported injuries?
According to the Bureau of Labor Statistics, more than 340,000 sprains and strains were reported in 2011, along with more than 180,000 back injuries. These are usually the most commonly reported injuries. Some back injuries heal with no long term issues while others involve surgery and permanent disability and restrictions. We recommend contacting us if your injury is permanent or 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 are construction, health and human services, law enforcement, and the transportation industry. However, workplace accidents can happen in any employment setting.
Does my employer choose what specialist I 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. It is important to read over your state’s rules and regulations, or discuss this issue with an attorney, to determine if you are able to visit your own physician.
What is disability and how is disability determined?
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. The definition of disability is not just a medical term; it primarily refers to the diminished power to earn wages. It 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 his burden of proof to establish disability, the employee may offer evidence in four ways:
- 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;
- 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;
- By producing evidence that the employee is capable of some work but that it would be futile because of preexisting conditions, i.e. age, inexperience, lack of education, to seek other employment; or
- 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: (1) temporary total disability, (2) temporary partial disability, (3) permanent partial disability, and (4) permanent and total disability.
1. 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.
If an employee suffered an injury by accident before June 24, 2011, he may be entitled to a lifetime of temporary total disability benefits. If this is the case, the employee is considered to be permanently and totally disabled pursuant to N.C. Gen. Stat. § 97-29.
If an employee is injured after June 24, 2011, when the workers compensation reform act was instituted, then the employee shall not be entitled to temporary total disability benefits for a period greater than 500 weeks from the date of first disability, unless the employee qualifies for extended compensation under N.C. Gen. Stat. § 97-29(c). N.C. Gen. Stat. § 97-29(c) provides that an employee may qualify for extended compensation in excess of the 500-week limitation on temporary total disability as described in subsection (b) of this section only if (1) at the time the employee makes application to the Commission to exceed the 500-week limitation on temporary total disability as described in subsection (b) of this section, 425 weeks have passed since the date of first disability and (2) pursuant to the provisions of N.C. Gen. Stat. § 97-84, unless agreed to by the parties, the employee shall prove by a preponderance of the evidence that the employee has sustained a total loss of wage-earning capacity. If an employee qualifies for extended compensation benefits, these benefits may be reduced if the employee is receiving full retirement benefits under the disability portion of the Social Security Act, after attainment of retirement age.
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 the preexisting conditions such as age, education, limited work experience, or other legitimate factors that would render him incapable of working, that it would be futile or a waste of time for him to look for it.
It is strongly recommended that, unless an employee has been written out of work completely on a permanent basis, then he must able to demonstrate that he 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 Riddle & Brantley on your side.
2. 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:
- The loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof, as provided by N.C. Gen. Stat. §97-31(17).
- Spinal injury involving severe paralysis of both arms, both legs, or the trunk.
- Severe brain or closed head injury as evidenced by severe and permanent:
- Sensory or motor disturbances;
- Communication disturbances;
- Complex integrated disturbances of cerebral function; or
- Neurological disorders.
- 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 this subsection 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 N.C. Gen. Stat. §97-2(22).
3. Temporary Partial Disability
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 pre injury wages and his post injury wages, as long as the temporary partial disability continues, subject to a 500 week maximum N.C. Gen. Stat. §97-30. Any weeks of payments made pursuant to N.C. Gen. Stat. §97-29 temporary total disability benefits, shall be deducted from the 500 weeks of payments available under this section.
4. 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 N.C. Gen. Stat. §97-31. The employee may be entitled to these benefits in addition to 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 N.C. Gen. Stat. §97-31 sets forth the rate and period of compensation for numerous and varied body parts as listed under 24 subsections. For example, if a person suffers a total loss of use of his spine/back, then he 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. N.C. Gen. Stat. §97-31(23).
How much of my regular paycheck can I get while I can’t work?
The amount of these benefits received will depend on your disability. The four types of disability are discussed above. Generally, workers’ compensation is required to cover 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. 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?
A proper and accurate calculation of average weekly wage is crucial in a worker’s compensation claim, since all compensation paid to an injured worker derives from this calculation. The intent of the Workers’ Compensation Act 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.
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 deduced 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.
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.
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.
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 most nearly approximate the amount which the injured employee would be earning were it not for the injury.
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.
It is important to note that under all of these methods there are some general considerations. 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’ compensation insurance?
Generally, Yes. However, an employer is not required to carry this coverage if he employs less than 3 employees on a regular basis. Also, certain groups of employers are excluded from the requirement to provide workers’ compensation coverage. Some employees excluded from coverage are casual employees, railroad workers, certain seasonal farm laborers and prisoners working for the state, and ski patrol. These exclusions are complicated and complex. We always recommend consulting with an experience workers compensation attorney or a specialist if your case involves a potential exclusion from workers’ compensation coverage.
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. The 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 doesn’t 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 timely filed. 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 had to take a job making less money due to an injury?
You may still have a claim for partial disability benefits under the Workers’ Compensation Act.
Partial disability benefits are 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; therefore, we recommend speaking with an experienced workers’ compensation attorney if you think you may qualify to receive these benefits.
What is the 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 six Commissioners click here http://www.ic.nc.gov/aboutcomm.html. The Industrial Commission is located in the Dobbs Building, 430 North Salisbury Street, in Raleigh North Carolina, 27611. For contact information click here http://www.ic.nc.gov/contact.html.
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 help arm yourself with questions which are important to ask an attorney. To visit the North Carolina Industrial Commission’s website click here http://www.ic.nc.gov/.
On its website, the Industrial Commission has a list of five first steps that you should take if you have been injured on the job. First, you should report your injury to your Employer and seek out appropriate medical treatment. Second, tell your health care provider that your injury is related to your work and the name of your employer. Third, inform the appropriate person at your employment that you have experienced a work related accident. Fourth, as soon as practical after the accident, and within thirty days, give written notice to your employer. There is an Industrial Commission Form that accomplishes this notice requirement. Fifth, follow your physician’s instructions for medical treatment. To read these steps in greater detail click here http://www.ic.nc.gov/claimants.html. 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 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 which must be used when reporting information to the Industrial Commission. A Form 18 is the form that is used to begin a claim. This form must be filled out completely and submitted to the Industrial Commission when you have been injured on the job. To view a Form 18, click here http://www.ic.nc.gov/forms/form18a.pdf. The Form 18 can be downloaded, printed, filled out and mailed into the North Carolina Industrial Commission. The Form 18 is modeled to comply with the provisions of N.C. Gen. Stat. § 97-22 through 24. Other versions of the Form 18 may be required if you have a claim for Lung Disease, including Asbestosis, Silcosis, and Byssinosis, or if you wish to apply for Additional Medical Compensation. As a Workers’ Compensation claim progresses, and as certain situations arise, different forms may be required to be submitted to the Industrial Commission. For a complete list of Workers Compensation Forms click here http://www.ic.nc.gov/forms.html. These Forms have been created in an effort to provide the information required by with the Workers’ Compensation Act to the Industrial Commission in a uniform manner. The Industrial Commission explains these forms and when they are applicable, however, legal counsel will be able to assist you in making sure the appropriate forms are used and contain the necessary information.
The Industrial Commission is also the Fact Finding court which will decide the outcome of your case. You are not entitled to a hearing before a jury because the industrial commission has exclusive jurisdiction to hear your case and determine all issues regarding your workers’ compensation claim. If a Form 33 is filed to request a hearing your case will probably be mediated prior to a hearing. If your case proceeds to hearing, a Deputy Commissioner will hear your case and make findings of fact and apply the Workers’ Compensation Laws to decide your case. After this decision, either party may appeal the case to the Full Industrial Commission where your case may be heard by three Commissioners. After the Full Industrial Commission makes findings of fact and applies the applicable laws to your case, your case could be appealed to the North Carolina Court of Appeals if there is an issue as to the interpretation and application of the Workers’ Compensation Act. To view a Form 33 click here http://www.ic.nc.gov/forms/form33.pdf.
In administering Worker’s 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. These statutes have been enacted by the North Carolina General Assembly over the years and continue to be changed. To view the Workers’ Compensation Act click here http://www.ncga.state.nc.us/gascripts/statutes/StatutesTOC.pl?Chapter=0097.
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. Lastly, the Industrial Commission has set forth a list of rules to help guide claimants and attorneys. These rules may be found by clicking here http://www.ic.nc.gov/ncic/pages/comprule.htm.
Can my children or spouse receive benefits?
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.
Have More Questions? Contact Our Workers’ Compensation Lawyers 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 more information about Workers’ Compensation or if you would like to talk about a claim you may have, please contact us today by calling (800) 525-7111.
You can also contact us online by competing our free case review form—it’s 100% FREE to send and we will contact you shortly after we receive your inquiry.
Be sure to visit our significant cases page to see a sampling of cases we have handled for injured workers by clicking here.