Most people who get hurt at work assume that it will be covered by workers’ compensation. However, no matter how much you trust and like your employer, ultimately the insurance adjusters that actually administer the claims will always look for ways to deny coverage. These adjusters will often set up recorded statements and ask questions in a way to make it seem as if there was no “accident.”

The word “accident” in workers’ compensation cases is a potential pitfall for many employees that are injured on the job in North Carolina. In many other states, the injury itself is the accident. However, in North Carolina, an injury, in and of itself, is not considered an accident.

In North Carolina workers’ compensation law, an “accident” is an interruption of the normal work routine by an unexpected and untoward event. Therefore, an injury while doing normal work in a normal manner does not qualify as an accident. An accident is a deviation from the normal work routine, such as a fall, some assaults, increased volume or pace of work and literally hundreds of other events.

For example, let’s say a Charlotte airport baggage claim handler injures their shoulder while loading a bag into an airplane. Under these circumstances, the adjuster might ask: “You weren’t doing anything wrong or different than normal, were you? You were just doing your job the normal way that you have always done it, weren’t you?” Most people would answer, “No, I wasn’t doing anything different. Yes, I was doing my normal job in the way I was trained to.”

The injured airline employee wouldn’t think to mention the many things that could be unusual about why he or she was injured, such as the bag being too heavy and awkward, the bag falling backward, not having the correct number of people to help with the baggage, or something in the bag that shifted and caused it to slip. Any of these small factors could be considered an accident that caused the injury, but the claim could be denied or reduced simply because the injured worker failed to mention them in a recorded statement.

There are also exceptions to the general “accident” rule. For example, if a worker has an immediate onset of pain in their spine while performing work-related duties, this is considered an accident. This exception is called a specific traumatic incident.

These complicated rules and exceptions are exactly why injured workers in North Carolina should consult with an experienced attorney in their area before agreeing to give a recorded statement or accepting a settlement offer.

In North Carolina, the fee a workers’ compensation attorney can charge is regulated by the state and must be approved by the Industrial Commission. The standard fee is 25 percent, which typically comes out of your final settlement or award.

All of our workers’ compensation cases are taken on a “contingency fee” basis. This means that you pay no money upfront and there is no fee for the initial consultation. Instead, your lawyer will take their fee as a percentage of your final settlement. If we don’t win your case, then you owe us nothing. It’s that simple.

In addition, all initial consultations with our attorneys regarding workers’ compensation cases are free of charge. During your first meeting with our knowledgeable work injury lawyers, we will listen to your story and discuss important liability issues as well as what compensatory damages you may be entitled to.

In N.C.G.S. § 97-22, North Carolina’s Workers’ Compensation Act clearly states that injured workers are to notify their employer of an injury or illness immediately; however, 30 days is the maximum time allowed:

Every injured employee or his representative shall immediately on the occurrence of a written notice of the accident, … unless it can be shown that the employer, his agent or representative, had knowledge of the accident, …; but no compensation shall be payable unless such written notice is given within 30 days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby.

Not necessarily, though this is generally recommended.

In one relevant case (Richardson v. Maxim Healthcare), the plaintiff was injured in an auto accident but did not give written notice of the accident to her employer until she filed Form 18 over a year later. However, the Industrial Commission noted that the plaintiff did notify her employer by telephone within 30 minutes after the collision, providing the employer with actual “knowledge of the accident.” The employer was also aware of the plaintiff’s injuries and medical treatments based on her regular communications between May 2001 and May 2002.

In turn, these findings support the Commission’s conclusion that in light of the employer’s immediate actual knowledge of the plaintiff’s injury by accident, “defendants were not prejudiced by her failure to immediately file a written notice.” Thus, the Commission concluded that the injured worker complied with the requirements of Section 97-22 in providing immediate actual notice to her employer, which was a reasonable excuse for not giving timely written notice, and by satisfying the Commission “that the employer has not been prejudiced thereby.”

The plain language of Section 97-22 requires an injured employee to give written notice of an accident “unless it can be shown that the employer, his agent or representative, had knowledge of the accident.”

When an employer has actual notice of the accident, the employee doesn’t need to give written notice, and therefore, the Commission need not make any findings about prejudice.

The second clause of N.C.G.S. § 97-22 applies to those cases in which written notice is required because the employer has no actual notice of the accident. It explains that an employee may be excused from even that requirement by providing a reasonable excuse for failing to give notice and by showing that the employer has not been prejudiced.

The time limit for filing a claim for an injury by accident is clearly set out in N.C.G.S. § 97-24, which says in part:

(a) The right to compensation under this Article shall be forever barred unless (i) a claim or memorandum of agreement as provided in G.S. 97-82 is filed with the Commission or the employee is paid compensation as provided under this Article within two years after the accident or (ii) a claim or memorandum of agreement as provided in G.S. 97-82 is filed with the Commission within two years after the last payment of medical compensation when no other compensation has been paid and when the employer’s liability has not otherwise been established under this Article.

In other words, you generally have 2 years from the date of the accident, injury, or diagnosis (in the case of occupational disease) in which to file a claim.

There are a few exceptions; however, the North Carolina Supreme Court has previously held that the employer’s conduct can waive the time requirement set forth in N.C.G.S. § 97-24 in the case Biddix v. Rex Mills, Inc. (1953).

The 2-year deadline has repeatedly been held to be a condition precedent to the right to compensation and not a “statute of limitations.” A condition precedent, unlike subject matter jurisdiction, may be waived by the beneficiary party by virtue of its conduct.

It’s worth noting that this deadline is shorter than North Carolina personal injury claims, such as auto accidents and slip and falls not related to work, which have a 3-year statute of limitations. This distinction is confusing for many injured workers, and yet another reason why it’s important to consult with an experienced attorney as soon as possible following your work injury.

North Carolina’s laws regarding occupational diseases and the time limit for filing claims can be found in §97-58. Under this law, occupational disease claims must be filed within 2 years after the affected worker’s death, disability, or disablement.

More specifically, this statute says:

… (b) The report and notice to the employer as required by G.S. 97-22 shall apply in all cases of occupational disease except in case of asbestosis, silicosis, or lead poisoning. The time of notice of an occupational disease shall run from the date that the employee has been advised by competent medical authority that he has same.

(c) The right to compensation for occupational disease shall be barred unless a claim be filed with the Industrial Commission within two years after death, disability, or disablement as the case may be. Provided, however, that the right to compensation for radiation injury, disability or death shall be barred unless a claim is filed within two years after the date upon which the employee first suffered incapacity from the exposure to radiation and either knew or in the exercise of reasonable diligence should have known that the occupational disease was caused by his present or prior employment.

If you are unhappy with the ruling from the North Carolina Industrial Commission hearing, you can choose to appeal your case to the Full Commission, the Court of Appeals, and finally the state Supreme Court. For each of these appeals, there are different deadlines you must meet.

• To appeal to the Full Commission, you must submit a File Notice of Appeal to the Full Commission form within 15 days from receipt of the Deputy Commissioner’s ruling.
• Alternatively, you can file a Motion to Reconsider with the Deputy Commissioner who issued the ruling, but you must also do so within 15 days from the initial decision.
• To appeal the Full Commission ruling, you have 30 days from the date of receipt to file a Notice of Appeal to the Court of Appeals.

Employment law in North Carolina clearly states that employers and companies may not retaliate against an employee for filing a workers’ compensation claim. This includes getting a demotion, pay cut, or even being fired. Sadly, this law doesn’t stop many employers from retaliating anyway.

If your employer retaliated against you for filing a workers’ compensation claim, then you have 3 years to file a retaliation claim. That said, you only have 180 days to file a complaint with the North Carolina Employee Discrimination Bureau if you want help from this state agency.

In some cases, an employer may offer to pay for you to go to the doctor and even compensate you for a couple of days of missed work in return for you not filing a formal workers’ compensation claim. This is not a good idea because you are entitled to certain benefits under North Carolina’s Workers’ Compensation Act in addition to medical care and wage replacement.

For example, if you break your leg at work and file a work injury claim, you may get paid for your medical treatment, time out of work, AND a cash payment for the disability rating you may receive at the end of your case (sometimes called “PPD” or “permanent partial disability“).

It is a bad idea not to report your claim to the insurance company because you never know how severe your injury is until you receive proper medical treatment. Also, your employer may not know (or admit to knowing) that they are supposed to pay for PPD, mileage to and from doctor’s appointments, and prescriptions.

Your employer cannot fire you, demote you, or take any adverse employment action against you for filing a workers’ compensation claim. This is a violation of the Retaliatory Employment Discharge Act (REDA). Any attempts to do this should be reported to the North Carolina Department of Labor.

Some employers pay their workers “under the table” and in cash. It’s important to understand that this doesn’t necessarily mean that the company is exempt from having to pay workers’ compensation benefits.

However, it will be your burden to show how much you were earning before your injury. If you are paid cash, it is a good idea to keep a weekly diary of how much you are paid, including overtime.

If there is no work available at your job within your restrictions, the insurance company must help you find a job that fits within your physical limitations. An attorney can make sure that the insurance company doesn’t try to send you back to a job that is unsuitable for your age, physical limitations, education, and experience.

You are entitled to workers’ compensation benefits even if you are an undocumented worker. The insurance company is not allowed to ask you about your immigration status. Although your boss can fire you if they discover that you are undocumented, the workers’ compensation carrier cannot deny your claim based on your immigration status if you get hurt at work. If you are medically unable to work, the insurance company must continue to pay your time out of work even if you are undocumented.

The insurance company must provide an interpreter if the doctor’s office does not have someone on staff who speaks your language.

Si en el consultorio médico no cuenta con alguien que hable su idioma, la compañía de seguros debe proveer un intérprete.

If your company has 3 or more employees, you may be eligible for workers’ compensation benefits. This is true regardless of your immigration status. North Carolina’s workers’ compensation laws cover injuries that result from an accident arising out of and in the course of employment. The law also covers “occupational diseases,” which include some lung conditions such as asbestosis and some repetitive-motion conditions, such as carpal tunnel syndrome.

State law is very specific and insurance carriers are skilled at applying these rules to limit or deny claims. For this reason, it’s wise to consult with a skilled work injury lawyer if you are filing a claim.

The issue of “fault” or “negligence” does not matter in workers’ compensation. You can recover compensation even if you are at fault in the accident.

In most cases, you cannot sue your employer outside of the workers’ compensation system for your injuries. Workers’ compensation benefits are considered an “exclusive remedy” against your employer.

Your weekly benefits are calculated by averaging your wages in the 1 year before your injury. You receive two-thirds of this amount for any week that you miss work due to your injury. Most workers should receive time and a half for every hour worked over 40 hours per week. The insurance company must take into account overtime when calculating your weekly benefits.

Workers’ compensation benefits are not taxed, so the 2/3 wages are roughly your after-tax weekly earnings. This is called your “compensation rate” and must be paid to you for the time you miss work due to your injury. The adjuster may refer to this check as “TTD” which stands for “temporary total disability.”

The first week you miss work due to your injury is considered to be a waiting period. You do not get reimbursed for that week unless you are out of work for more than 21 days. If you are out of work for more than 21 days, then you get reimbursed for the first week. If you are only out of work for 2 weeks, then you don’t get paid for the first week, but will get paid for the second week.

Generally, you have 2 years after the insurance company pays your rating or your last medical bill (whichever is later) to see the doctor for your injury. For example, if you see the doctor 6 months after you receive payment for your rating, the 2-year clock starts again from the date of your last medical appointment. As long as you are seeing the doctor at least once every 2 years, you should be entitled to medical benefits for as long as you need to see a doctor for your work-related injury.

If the insurance company accepts your claim, it gets to direct your medical treatment. However, if you are unhappy with the treatment you are receiving, you can request a change of physician to your own doctor.

At the end of your treatment period, when you have reached “maximum medical improvement” (or MMI), the doctor may issue a permanent partial disability (PPD) rating to the part of your body that was injured. The higher the rating, the more money your injury is worth. If the insurance company’s doctor gives you a low rating, you are always entitled to a second opinion from a doctor of your choice.

If your doctor’s appointment is more than 10 miles one way (20 miles round-trip) from your home, then you are entitled to mileage reimbursement. The reimbursement rate is modified each year, but it is currently at 56¢ per mile.

If you do not have transportation or a way to get to your appointment, then the insurance company must arrange for a car to come to get you and take you to the doctor.

To qualify for workers’ compensation benefits in North Carolina, there must be an injury or accident arising out of and in the course of employment. Therefore, the injured worker has to be an actual employee.

A common issue we confront is when an employer claims that their worker is an independent contractor. We can’t tell you how many times we’ve heard an employer say, “He (or she) wasn’t my employee. We 1099’d them. They’re an independent contractor and signed a contract saying so.”

However, most of the time, the employer is wrong, and the attempt to classify an employee as an independent contractor fails.

The factors in determining an employee’s work status do not take into consideration the employer’s preference of classification; rather, there is a specific list of factors (known as the Hayes factors) that must be considered. However, in examining the factors, the biggest consideration is the employer’s control over the employee.

The Hayes test for determining whether a worker is an independent contractor or employee involves asking the following questions:

• Is the worker engaged in an independent business or calling?
• Does the worker have independent use of a special skill, knowledge, or training in the execution of the work?
• Is the worker doing a specific piece of work at a fixed price, or are they paid by the hour?
• May the worker choose a preferred method of completing the work without being discharged?
• Is the worker not regularly employed by the employer?
• Is the worker free to hire assistants?
• Does the worker have full control over assistants?
• Is the worker free to select his own time?

Quite simply, most workers are employees. Most workers are paid by the hour and are told where to be and when to be there. Many workers are told what to wear, such as uniforms, and most employers have control over their workers.

If your employer is attempting to classify you as an independent contractor to get out of paying for workers’ compensation, give our North Carolina Board Certified Workers’ Compensation Specialists at Wilder Pantazis Law Group a call.

If your employer regularly employs 3 or more employees, then the North Carolina Workers’ Compensation Act requires that they obtain workers’ compensation insurance or else qualify as self-insured for the purposes of paying workers’ compensation benefits to their employees.

But what exactly is an “employee”?

An employee is someone performing the work of the employer who has the right to demand wages. An employee does not include “casual employment,” which is defined as irregular work for an employer that is not the employer’s normal business.

There are many other specific rules on employment in North Carolina, such as:

• A prospective employee is not an employee
• Volunteer firemen are employees
• Jurors are not employees
• National Guard members are employees (but only if under orders by the governor to be on duty)
• Sole proprietors or business partners of an LLC are not employees (unless they opt-in for coverage)
• Directors and executives of corporations are employees (unless the corporation excludes them)

An employer is not relieved of its workers’ compensation liability simply by calling its employees independent contractors. Additionally, if an employer subcontracts to a contractor who does not have workers’ compensation insurance, then the employer is liable for work injuries of the subcontractor’s employee, regardless of the number of employees.

Additionally, employers face penalties and criminal charges for failing to carry workers’ compensation insurance.

Specific traumatic incidents are an exception to the normal rule that a work injury must be caused by an unlooked for or untoward event in order to be covered by workers’ compensation. In other words, if you injure your back or neck (such as a hernia), you must prove that there was an injury by accident OR that there was a specific traumatic incident that was a direct result of the work assigned.

According to North Carolina law (Section 97-2(6)), the specific traumatic incident must occur within a “judicially cognizable period of time.” That means that the worker must not have had a gradual deterioration and must be able to identify the approximate time that the incident occurred.

There are many cases interpreting what exactly “judicially cognizable period of time” means. We know that a back or neck injury from a specific traumatic incident is not the same as an instantaneous event, and employees don’t always have to know the exact date.

In one such case, the North Carolina Court of Appeals held that a specific traumatic incident could be a series of events that occur contemporaneously within a time period lasting up to 15 hours. In some cases, it was enough for the worker to identify the approximate day, week, or even the part of the month when the specific onset of pain occurred during work.

For workers who injure their back or neck at work, the most important step is to report the injury as soon as possible. Many workers we’ve represented have felt a pull in their back, a slight pop in their neck, or a sudden pain of some sort. Many times, the workers assumed the injury was minor and attempted to work through the pain, believing or hoping that it would resolve quickly.

However, delaying medical treatment can create problems for your North Carolina workers’ compensation claim because insurance adjusters might argue that you didn’t report your injury in a reasonable time. Many insurance adjusters and defense attorneys will also call the worker’s credibility into question, arguing that there was no incident at all.

In short, your employer or their insurance company may argue that you made the whole thing up. Therefore, the safest action to take is to report the incident to your supervisor. You can send an email or write a note—just be sure to keep a copy.

There are all sorts of work-sponsored events where people can get hurt. This ranges from work-sponsored happy hours to team building at a ropes course. If an employee is injured at one of these events, this can be covered under North Carolina workers’ compensation if certain factors are present.

The most important question is whether the employee’s attendance was considered part of their employment. Determining whether or not the attendance is part of employment is known as the Frost factors, from the North Carolina Supreme Court case Frost v. Salter Path, 2007.

The Frost factors are:

• Did the employer sponsor the event?
• Was attendance voluntary?
• Did the employer encourage attendance by taking attendance, paying for the time spent, requiring employees to work if not attending, or was there a custom of attendance?

If you were injured while attending any sort of work event, give our North Carolina workers’ compensation specialists a call. Work-sponsored recreational activity injuries are complicated issues. We have represented injured clients who were injured at work-related events, such as a man whose shoulder and neck were hurt during a morale-building event. These kinds of workplace accidents happen and can cause serious injuries requiring surgery and significant time out of work.