9 Common Mistakes
That Can Destroy
Your Workers’ Comp
Claim
ank you for downloading this book. We believe you will nd it helpful. We would
appreciate any all comments you might have.
If you have recently been injured on the job or if someone you care about has been
injured, chances are you’re worrying about what you should do next. You may also
feel angry or frustrated. You might just wonder if there is a simple way to handle your
unfortunate situation.
You may be asking these questions: “Can I trust this insurance company to take care of
me? How do I deal with my employer? Should I get a lawyer? Will I lose any benets
because I didn’t see a doctor right aer the accident? Will I lose my job if I le a claim?
How do I le a claim?”
If you have asked yourself any of these questions, then keep reading. Our hope is that
this book will answer many of your questions and that it will ease some of your stress
and frustration.
In the State of North Carolina, if you are injured by accident on the job, then you
might be entitled to compensation for those injuries. ese benets are available to
North Carolina residents pursuant to the North Carolina Workers’ Compensation Act.
e law makes it clear that you are entitled to medical compensation and monetary
compensation for being unable to earn wages as a result of those injuries. e question
then becomes “If I am injured on the job, how do I make sure that I receive every
benet to which I am entitled?”
Our names are Ben Cochran and Jack Hardison. We are board-certied specialists in
workers’ compensation law. is certication comes from the North Carolina State
Bar and applies to only a small number of attorneys. We protect the rights of injured
workers. Over the years, we have found that most people do not know much about
workers’ compensation. Unfortunately, this lack of knowledge oen impairs the
injured workers’ ability to receive the necessary medical treatment and benets that
they so desperately need and deserve. It is for this reason that we have written this
book to oer North Carolina residents at least an insight into the complex nature of
workers’ compensation. We have entitled it 9 Costly Mistakes at Can Destroy Your
Workers’ Compensation Claim.
roughout this book, we will be focusing on what we have found to be the most
important pitfalls faced by injured employees in the State of North Carolina when
dealing with their workers’ compensation claims. But it is very important to
understand that this document should not replace competent legal representation.
is is not a complete “need to know” guide but is intended to be information about a
very complex legal system.
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With recent changes to the workers’ compensation laws and with the way insurance
companies and employers are handling claims; we are worried that you may not get
the help you really need. e last thing you need is to be taken advantage of during
this dicult time in your life.
Again, we want to thank you for requesting this book. We think the information
provided will help you obtain fair compensation and adequate medical treatment for
your on-the-job injury claim.
We have written this book so that injured workers have access to good, solid
information before hiring an attorney or dealing with the insurance company. As we
will point out later, not every case needs a lawyer! We truly believe that you should
have this valuable information right now, for free, before you are pressured by an
insurance adjuster to answer questions or to settle your case.
OK, are you worried about dealing with your employer’s insurance company? Are
you still wondering why we wrote this book and why our law rm gives it to North
Carolina residents for free? We will give you some information that you need.
We are tired of insurance companies taking advantage of people before they have a
chance to talk to an attorney. You may not even need an attorney to represent you in
your case. But you should have this important information at the beginning of your
claim. We wrote this book so that you, the injured employee, can be informed today
and throughout the life of your claim.
Most attorneys require you to make an appointment. Some of the information that
we are providing in this book will be provided to you during such an appointment
but most of it will not. We believe that you should have this information right now so
that you can read it yourself without any pressure to hire an attorney. e hiring of
an attorney to represent you is an extremely important step that should not be taken
lightly. It should be done without pressure being placed on you.
Also, this method of talking to you saves us time. We have packed a lot of information
into this book. is saves us and our employees the hours of time that it would take
just to talk to all of the new potential clients that contact us. We cannot accept every
case. Each day we turn down injury cases that simply do not meet our case selection
criteria. We oen turn down cases where we could obtain fees because we do not
believe it is in that person’s best interests to hire a lawyer. So, rather than cutting you
short on the phone, writing this book gives us a chance to tell you what you need to
know so that you can make an informed decision about what steps to take with your
case. Even if we do not accept your case, we still want you to be better educated about
the workers’ compensation system so that you don’t fall victim to the big insurance
companies or self-insured employers.
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We are Not Allowed to Give Legal Advice in this Book!
Even though we might know most of the arguments the big insurance companies
are going to make in your claim, we are not allowed to give legal advice in this book.
We can oer suggestions and identify certain pitfalls and traps. Please do NOT take
anything in this book to be legal advice unless you have agreed to hire us and we have
agreed in writing to accept your case.
Important Notice:
We do not want to interfere with any legal relationship you might have now. If you are
already represented by a lawyer, this book may raise certain questions. Please discuss
these questions with your current lawyer. Each law rm does things a little dierent.
Small dierences don’t mean that we are right and your lawyer is wrong. If you are
having some problems with your lawyer, please sit down with him or her and try to
work things out. It is usually better to work out problems and stay with your original
lawyer than switching to a dierent lawyer when already involved with an injury
claim. Our rm normally does not accept cases in which another attorney has been
involved. Please do NOT ask us to take your case away from another lawyer unless you
have already asked that lawyer to withdraw from your case when you contact us.
North Carolina Workers’ Compensation 3
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What is Workers’ Compensation?
e State Legislature adopted the North Carolina Workers’ Compensation Act to
protect an injured worker from loss of income from a workplace injury and for
payment of medical
bills. e purpose of the Act is to make employers responsible for accidental injuries
to their employees. is Act provides workers with full compensation for medical bills
and partial compensation for lost wages if they have been injured on the job. e Act
also compensates injured workers for any permanent disability or lasting inability to
earn the same wages due to a compensable injury.
While the rules and regulations governing claims under the North Carolina
Workers’ Compensation Act are complex, we believe it is important that you have
a basic understanding of what the term “Workers’ Compensation” means. Workers’
compensation is a “no fault” system. is means you generally do not have to show
that your employer did anything wrong to have caused your injury. You simply have to
prove that you were injured on the job as a result of an accident.
Workers’ Compensation Myths
1. My employer will le all necessary forms to protect my claim.
e employer is required to le a Form 19 report of injury to the Industrial
Commission. Defendants are required to le a report of injury to the Industrial
Commission within ve days of the employer’s knowledge of the injury. is form
does not protect your claim. Defendants do not always le this form. ere is no
real penalty for a failure to le this form. An injured employee must le his or her
own notice to the employer and a Form 18 with the Industrial Commission. We will
discuss this in more detail.
2. Workers’ Compensation claims require that I sue my employer.
is is not true. You le a claim (not a suit) with the North Carolina Industrial
Commission. e Industrial Commission is a state government agency that oversees
workers’ compensation claims in North Carolina. Workers’ compensation is an
administrative hearing process. e Industrial Commission is an administrative court
or tribunal. It is not regular civil litigation. In most cases, an injured worker is really
ling the claim against the employer’s insurance company (unless the employer is
uninsured or self-insured).
e Industrial Commission is the judicial body that hears motions and hearing
requests through appointed judges called Deputy Commissioners. ere is no right
to a jury trial in a workers’ compensation claim. An example of the dierence between
a state superior or district court judge and the Industrial Commission is that the
Industrial Commission judges (deputy commissioners) are dressed in business suits.
ey do not wear black robes. If your case goes to a hearing, there are no sheris or
bailis present.
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3. I can collect for pain and suering.
is is not true. e purpose of the Act is to compensate the employee for lost wages,
medical treatment, diminished future earning capacity, and any permanent disability/
impairment percentage rating. e Act never allows for or provides compensation for
pain and suering.
4. My employer states that since the accident was my fault, I can’t pursue a
workers’ compensation claim.
is is not true. Workers’ compensation is a no-fault system. e accident can be 100%
your fault and you still are entitled to full benets under the North Carolina Workers’
Compensation Act.
Now that you have a general overview of what workers’ compensation means in
the State of North Carolina, you need to have a basic understanding of certain
terms frequently used in a workers’ compensation claim. What follows is a simple,
plain-language description of key words you will oen hear aer ling a workers’
compensation claim.
A Few Workers’ Compensation Legal Terms
Accepted claim: is is when the insurance company accepts or agrees that your injury
or illness will be covered by workers’ compensation insurance.
“Medical-Only” claim: A claim in which the insurance company or employer accepts
or agrees that you have suered an injury but they believe that you are still capable of
working. ey are agreeing to pay for medical treatment only.
Denied claim: A denied claim is one in which the insurance company or employer
does not accept or believe that they have a responsibility to provide compensation for
your injury or condition(s).
Average Weekly Wage: is is the injured employee’s average weekly salary prior to
the injury. In order to determine the average weekly wage, you must look to the 52
weeks of the injured employee’s salary prior to the date of the accident. Generally, you
total the yearly salary or wages and then divide that number by 52 weeks. If there
are not 52 weeks then most times the insurance company or employer simply uses
the average of those weeks that the injured employee worked prior to the date of the
injury. If someone has not worked for the employer for one year, the average weekly
wage is determined by what is fair and reasonable. If the above options are not fair
and reasonable, it can be determined by using the wages of another employee that
performs the same job as the injured employee and who has worked for the employer
for a year or more.
Compensation Rate: e compensation rate is two-thirds of the injured employee’s
average weekly wage.
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Temporary Total Disability: is is the weekly disability compensation provided to the
injured employee for his or her inability to work. e disability payments are provided
at the employee’s compensation rate (two-thirds of average weekly earnings).
Temporary Partial Disability: is is weekly disability compensation provided to the
injured employee for his or her reduced or lowered average weekly wage due to the
compensable injury. e disability payments are two-thirds of the dierence between
the injured employee’s pre-injury wages and those wages aer the date of injury.
Permanent Partial Disability rating: is is the percentage amount assigned to a body
part. is is intended to determine the number of weeks the injured employee is
entitled to compensation for their injury. e permanent partial disability rating is
assigned by the treating doctor.
Maximal Medical Improvement (MMI): Once it is unlikely that the injured employee’s
condition will change or improve with or without further medical treatment, an
employee is declared to be at MMI or maximum medical improvement. Maximum
medical improvement is determined by the authorized treating doctor. Usually when
the injured employee reaches maximum medical improvement (MMI) he or she is
released from that doctor’s care.
Modied or Light-Duty Work: is is temporary employment oered by the
employer to the injured employee while they are on restrictive duty by the treating
doctor. Restrictive duty means that the doctor has assigned work restrictions and the
employee cannot perform the pre-injury job due to those restrictions.
Suitable Employment: Once the employee reaches MMI, the law requires that the
injured employee be returned to suitable employment. Suitable employment is
permanent employment available in the competitive marketplace that is within the
employee’s physical, educational, and vocational abilities. e employment also must
be similar in wages as to the employee’s pre-injury position. Suitable employment must
also be 50 miles or less from the employee’s home.
Vocational rehabilitation: If you are unable to do your regular job and your employer
does not or cannot oer other suitable employment, you will qualify for this benet.
It may include job placement counseling, re-training and a vocational rehabilitation
maintenance allowance. e insurance companies for the employers almost always
pay for this. Vocational rehabilitation is usually only oered to employees that are
receiving temporary total disability benets (a weekly workers’ compensation check)
aer they have been declared at MMI (maximum medical improvement).
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Now that we have a general knowledge of the intent of the North Carolina Workers’
Compensation Act along with an overview of some very key terms, it is time to discuss
those common mistakes made by injured employees.
COMMON MISTAKE #1
FAILING TO PROPERLY REPORT YOUR ACCIDENT
Without a doubt the most important step if you are injured on the job is to report
the injury to your employer. Many employers have an accident policy in place that
is found in an employee manual. If this is the case with your employer, follow the
guidelines set out in the manual. If there is no policy, we nd that it is most helpful to
let everyone know of the injury. is would include your supervisors, co-workers and
any human resource people that your employer may have.
Many employers and insurance companies tell injured employees that they cannot
le the claim because they were not notied of the accident in a timely manner. Some
employers tell the injured worker that they had to have notice within 24 hours of the
accident. THIS IS NOT THE LAW. Some employers tell injured employees that were
recently hired or that are injured during a probationary period of early employment
that they are not yet entitled to worker’ compensation benets. THIS IS NOT THE
L AW.
e law generally requires written notice of the injury by accident within 30 days. But
there are exceptions to this rule. If the employer or an agent or representative of the
employer had actual knowledge of the accident, the employer is also deemed to have
notice of the injury.
is is why it is so important to report your injury to everyone at your place of
employment.
ere are other exceptions that may apply to your case. erefore, we recommend
contacting an attorney immediately if your claim has been denied by the insurance
company or employer for failure to timely report the claim. An attorney can determine
if the appropriate time limits have been applied and can determine if your claim meets
one of the exceptions. If the Industrial Commission thinks an employee is telling the
truth, it is rare that it will deny a claim due to a delay in reporting an injury. If an
employer tells you that you are not entitled to workers’ compensation because of a
delay in reporting the injury, this is not likely to be true and you should immediately
call an attorney.
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COMMON MISTAKE #2
FAILING TO GIVE A FULL AND ACCURATE HISTORY TO MEDICAL
PROVIDERS
We cannot stress this enough. If you fail to tell the medical providers how your
injury occurred and that it occurred while you were at work, you could be harming
your claim from a legal standpoint. is could prevent you from getting the medical
treatment that you need.
We all know that it is very important to advise the medical providers of all our
complaints and symptoms so that the doctor can give us the proper treatment. But it
is just as important to provide as much detail about your injury and the fact that it is
work-related to protect your claim for benets.
When the insurance company or its attorney is investigating a claim, they take
statements from the injured party and witnesses. ey also look at and inspect the
medical records. ey are looking to see what information is in the medical records,
including the employee’s reports of how and where the injury occurred. ey will also
read and review the records to determine which body parts the employee reported to
the doctor as being injured.
For this reason, when you talk to any doctor or medical provider be clear and detailed
when describing the nature of your injuries and how they occurred. Always identify
where you were hurt, how the injury occurred and if there was anything unusual that
caused your injury. Provide information to the doctor about anything unusual about
the incident, such as a trip, slip, fall, or an injury performing a task that was not a
usual, normal duty of the job. Do this every time you see a new doctor or medical
provider. is is particularly important when you are rst seen aer your injury
and during the appointments in the rst days, weeks, and months aer the injury.
However, it continues to remain important throughout the life of your claim.
Sometimes an injured employee comes to our oce and the insurance company has
either denied their claim completely or they do not wish to provide medical treatment
to a specic body part. One of the biggest hurdles we nd is that the accident or injury
was not reported in the medical records until several weeks or months aer the initial
date of injury and was not reported at the rst date of treatment. Insurance companies
read these records. If the injury, body part or the fact that it occurred at work is not
in the medical records, they will oen use that as a reason to deny the claim or fail to
compensate the employee.
If it becomes necessary for your case to go to trial, the medical records are oen the
most important evidence that will be entered in at trial. When medical records are
being evaluated by a deputy commissioner, they are given a great amount of weight as
they are written by a third party (a doctor) that has no stake or interest in the claim.
It is a common belief that patients are most honest when they are reporting their
physical complaints to doctors as they want to get better and they know that the
doctor needs all the information to make a proper diagnosis. Remember that the
practice of reporting how the injury occurred and the fact that it occurred at work is
recommended not only for your rst visit.
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to the doctor on or around the date of injury. Continue to repeat this information for
every appointment and every time you see a dierent or new doctor.
is advice also applies to intake forms at doctor oces. Every time you see a new
medical provider or doctor, they will provide intake forms for you to ll out or
complete. When the insurance companies and their lawyers request medical records
from these doctors, they also usually receive the intake forms. Sometimes the intake
forms ask the employee where or how they were injured and sometimes they do not.
Any time you see a new doctor or medical provider; make sure to put on the intake
forms that the injury occurred at work. Provide all body parts injured and explain how
the injury occurred. As noted above, describe anything unusual about the incident,
such as a trip, slip, fall, or task that was not a usual, normal part of the job. Provide this
information somewhere on the intake form regardless of whether the form asks about
it or has a specic question asking for that information.
COMMON MISTAKE #3
FAILURE TO FILE A FORM 18
In the State of North Carolina there are certain time limitations that govern when
an injured employee can pursue a workers’ compensation claim. In order to be clear,
we are not speaking about notice to your employer of the accident. at was already
discussed. ese are two separate concepts. We are speaking about the actual request
for compensation under the North Carolina Workers’ Compensation Act.
In order to help protect your right to compensation, you need to le a Form 18
with the Industrial Commission. If you fail to immediately le a Form 18 with the
Industrial Commission, your claim may be barred aer a period of time. e time
or tolling of a workers’ compensation claim may be dierent for dierent injured
employees depending on the circumstances.
ere is no denite statute of limitations as can be found in other areas of law. You may
have heard that you have two years to pursue benets in the State of North Carolina.
While this may be true in most instances, it is not true under all circumstances. It
depends on the type of benets that are being requested (such as medical treatment or
disability benets).
e rule to remember is that if you want to get workers’ compensation benets, le a
Form 18. If a Form 18 has not been led in a case where we have been retained, we le
a Form 18 every time. e Form 18 lets the Industrial Commission and the employer
know that the injured party is asking for workers’ compensation benets.
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COMMON MISTAKE #4
FAILURE TO COMPLY WITH MEDICAL TREATMENT
In the State of North Carolina, the workers’ compensation insurance company or
employer generally has the right to direct the medical treatment of the injured worker.
If you have been injured and you are out of work receiving weekly benets from an
insurance company, it is very important that you comply with the recommendations of
the treating doctor and that you attend all medical and therapy appointments.
If you fail to attend medical appointments, you might lose your benets. Medical
appointments are appointments for any type of treatment that is reasonably necessary
to “eect a cure, provide relief, or tend to lessen the period of disability.” If the injured
employee fails to attend medical appointments on purpose and that have been
scheduled by the insurance company, employer, or the doctor, the insurance company
or the employer will usually request that the injured employee be ordered by the
Industrial Commission to attend these appointments.
Of course you may be asking yourself why the insurance company or the employer
would want to order the injured employee to attend medical appointments. Wouldn’t
this cost them more money? A request for an order to cooperate with medical
treatment is done by the insurance company or employer when the injured employee
is out of work and receiving disability benets. If an employee is ordered to attend
medical appointments and the injured employee fails to comply with this order and
continues to miss appointments, the insurance company or its lawyer will le an
application to stop or suspend your benets. If your benets are suspended, it can be a
very lengthy process to reinstate your benets. It can take months or even years to get
them reinstated.
e workers’ compensation laws include vocational rehabilitation in the denition
of medical treatment. If an injured employee is receiving vocational rehabilitation,
cooperating with that process is important in order to keep receiving your weekly
benet check. is means that it is important to apply for jobs, nd job leads, and to
follow the instructions of the vocational rehabilitation counselor. Most of the time, if
an employee is receiving vocational rehabilitation the employer could not oer suitable
employment and the employee’s injury prevented him or her from returning to the job
they were doing at the time of the injury. Many times, the only reason that employers
and insurance companies provide vocational rehabilitation is because they hope that
the injured employee will not cooperate. If any injured employee does not do what the
vocational counselor is asking him or her to do, is missing meetings, or fails to comply,
the insurance company or its lawyer will request that the Industrial Commission
suspend the employee’s benets. It is best to comply with the vocational rehabilitation
process to avoid this.
Once again, it is very important to cooperate with medical treatment. It in your best
interest to help your injury heal and it keeps the insurance company from having a
reason to stop your benets.
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COMMON MISTAKE #5
NOT KNOWING WHEN TO RETURN TO WORK
Most employers, at the request of the workers’ compensation insurance company will
provide light duty to injured workers. Either the employer or the insurance adjuster
may then request or require that the injured worker return to work.
But what type of light duty is being oered? Prior to returning to work, it is necessary
to know what you will be doing for the employer. Some employers simply say, “we will
nd you something.” Unfortunately this might cause a hostile environment that could
cause problems for your claim, your settlement recovery, and your employment.
If you return to work without an established job position, the employer will be forced
to nd or come up with tasks over and over again. e employer may be required to
make other employees assist you with tasks that you could do yourself prior to your
injury. e employer might make other employees do more of the heavy, more dicult
tasks to make up for the fact that you cannot perform those tasks. Other employees
oen dislike having to do this. ose employees and the immediate supervisor oen
begin to “make fun of ” the injured employee without even realizing it. Many times,
the injured employee is asked to do specic tasks without regard to the employee’s
restrictions.
Too oen employers return injured employees to work at jobs that are not suitable to
their work restrictions. Other times they tell employees that they will be doing a light
duty job and then return them to their regular, normal job.
In order to avoid this situation, ask for a specic job description prior to returning to
work. en ask or require that it be submitted to your treating doctor for review before
you agree to return to work. If your doctor does not approve the job as something you
should be doing, do not return to work. If the treating physician is condent that you
will be able to perform the position, you may return to work.
Remember; perform only those tasks within your work restrictions. If an employer
asks that you perform duties outside of your restrictions, show them the doctor’s note.
Take the note with you to work and keep it with you. If the doctor fails to approve the
job description or the employer asks you to work outside of your restrictions, you do
not have to return to work.
If the employer fails to provide a job description or if the doctor fails to approve the
job description and the insurance company or employer refuse to provide weekly
benets, contact an attorney immediately.
Also, if your benet checks ever stop without you returning to work and without you
having ever received in the mail an application for the employer to terminate or stop
your benets, contact an attorney immediately.
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COMMON MISTAKE #6
FAILING TO REQUEST A SECOND OPINION
Although the insurance adjuster may be correct in telling you that he or she can tell
you where to treat, he or she cannot keep you from having a second opinion. In the
State of North Carolina if you are directed to treat with a particular doctor and that
doctor releases you aer treatment at maximum medical improvement, the law allows
you to have a second opinion with a duly qualied licensed doctor of your choosing. It
is all too common that injured employees contact our oce and tell us that they were
told that they could not have a second opinion.
THIS IS NOT THE LAW!
One law states that if you want a second opinion on work restrictions, treatment
recommendations or any other medical opinion besides your permanent partial
disability rating, you can suggest a doctor or doctors for a second-opinion or
“independent medical examination.”
If you and the insurance company are unable to agree on a second opinion doctor
within 14 days of your request, you can ask the Industrial Commission to award a
second opinion with a doctor that you choose.
Under this rst law, if you have been released and you are still in pain you should
seek a second opinion or “independent medical examination.” If the second
opinion doctor recommends additional medical treatment, you may apply to the
Industrial Commission to have a change in treating doctors. en you can request
the recommended medical treatment. e insurance company or the employer is
not going to freely allow this. It might be necessary for you to obtain a lawyer to be
successful in this request. Remember, you are not simply required to stay and remain
in pain and having ongoing symptoms. ere are options.
Another law states that if you receive a permanent partial disability rating as a result
of your injuries (this is discussed in more detail in the next section) and you are not
satised with this rating then you may also get a second opinion. Do not allow the
insurance company to mislead you. You do not have to agree with the insurance
company on the doctor for this type of second opinion. You are entitled to a second
opinion on a disability/impairment rating with any doctor you request that will agree
to see you. is law only allows the second opinion to be used for the disability rating.
It cannot be used to show dierent work restrictions, medical recommendations, or
medical opinions.
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COMMON MISTAKE #7
SETTLING FOR THE RATING ONLY
We have been discussing many dierent mistakes that can be made during your
workers’ compensation claim. But what happens when the doctor releases you and
says that you are as good as you are going to get? As noted previously, this is called
maximum medical improvement. It is at this point in time that you may be entitled to
a settlement.
e Industrial Commission has set out guidelines that assist the treating doctor with
how to assign a permanent partial disability rating. It is called the North Carolina
Ratings Guide. It takes into account several dierent considerations including, but
not limited to, the range of motion, the tendency to form arthritis, and the structural
damage caused by the injury or any surgeries that were necessary. Once the doctor
has assigned a permanent partial disability rating, the insurance company can create
a Form 26A utilizing this information. is establishes the settlement amount of your
case.
In workers’ compensation there is no payment for pain and suering. e amount
of the settlement is guided by the law. e settlement amount is calculated by using
a math formula that includes your compensation rate multiplied by your rating then
multiplied by the number of weeks assigned to your injured body part. is type of
settlement should only be used if you have returned back to work with your employer
and you are still earning the same or greater wages. By this we mean that you are
making the same or greater wages then you were before you were injured. If you are
not back to work at a real job or you are making signicantly less money, do not settle
on the rating alone!
COMMON MISTAKE #8
SETTLING YOUR CLAIM WITHOUT A JOB
If you have been released by the treating physician at maximum medical improvement
and you have been assigned a permanent partial disability rating, the insurance
company or the employer is going to be ready to settle. But what happens if you can no
longer perform your previous position and the employer does not have another job for
you within your restrictions?
As previously stated, you should not settle for the rating. Workers’ compensation in
the State of North Carolina is intended to compensate the injured employee for the
loss in wage earning ability. If you can no longer perform your position, a scheduled
injury settlement will not compensate you for your injuries. e insurance company
or employer will have to assist you with nding another job in the job/labor market
that oers you similar wages and that is within the work restrictions assigned by your
doctor.
e insurance company or the employer will do anything within their power to
convince you to resolve your claim without truly attempting to oer you compensation
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for your inability to return to your position. e insurance company and the employer
do not wish to put the injured employee into vocational rehabilitation because it is
expensive. When an injured employee is in vocational rehabilitation, the insurance
company must continue to provide temporary total disability benets to the injured
employee. But they also have to pay a trained specialist to assist the employee in
nding a suitable job. ese claims are all about money and cost saving to the
insurance company or the self-insured employer. But to the injured employee it is
about your future, your well being and the ability to return to work and earn wages. If
you cannot return to work with your previous employer due to your restrictions, do
not settle in a hurry. Do not accept the insurance company’s rst oer. Make sure that
the compensation that you receive is fair and reasonable. Aer the case is settled it is
business as usual for the insurance company.
Remember, an attorney can better help you analyze and determine the value of your
claim. You know more about doing your job than an adjuster or insurance company
lawyer does. ey know better than you how to determine the value of your workers’
compensation claim or settlement. It is common for insurance companies to make
settlement oers to an unrepresented employee that are much, much less than would
be oered to an employee that has a lawyer. Do know that insurance companies oen
take advantage of employees that do not hire lawyers.
COMMON MISTAKE #9
NOT HIRING A LAWYER, OR HIRING THE WRONG LAWYER
We mentioned this in passing several times in the previous sections. While it seems
that most people should know it is important to seek advice when they are injured,
statistics show that many people do not hire a lawyer. Here are ve main reasons why
people don’t hire a lawyer immediately aer an injury:
1. ey don’t know if they really need a lawyer so they do not talk to one.
2. ey don’t know a lawyer personally, so they don’t bother to look for one.
3. ey aren’t sure if they can trust a lawyer, so they don’t want to use one.
4. ey believe it when the insurance companies tell them that they will end up
with less money if they hire an attorney. (By the way, that is absolutely NOT true.)
5. ey believe that the employer will retaliate against them, treat them poorly,
or that the employer and insurance company will not run the claim as smoothly to
punish the employee for hiring a lawyer.
North Carolina Workers’ Compensation 14
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ese reasons are not good ones. In spite of all the lawyer jokes you might have heard,
there are many honest, hard working, and ethical lawyers who can help you deal with
an insurance company or workers’ compensation claim. While it is true that a lawyer
will usually get a portion of the money you collect from the insurance company, it
is also true that a good lawyer can dramatically increase your chances of getting all
the benets to which you are entitled. In addition, represented employees typically
receive more money even aer the attorney fee is paid than they would settling the
claim without an attorney and without the insurance company paying a portion of the
settlement to the employee’s attorney.
Why do you need an attorney in a workers’ compensation claim? Immediately aer
being injured at work, you are thrown into a complicated, adversarial legal system. In
other words, the insurance company or the employer has in place a team of adjusters,
investigators, and attorneys who are working against you. ese people are seeking to
pay as little as possible and to get you back to work as quickly as possible. ey are not
too concerned about whether you are able to perform the job, whether it is suitable, or
whether you are forfeiting benets or decreasing the value of your claim by returning
to work.
Many job injury victims are already in distressed physical, mental, and nancial
circumstances. ey sometimes choose to delay what they consider to be the hassles
involved in retaining a workers’ compensation attorney. Some may have had a bad
experience with an attorney (in a divorce, for example), or they simply do not like or
trust attorneys.
Some injured workers, in an attempt to avoid paying legal fees, try to represent
themselves. We oen get calls from these employees seeking legal representation or
advice only aer they realize that “they are in over their head.” Unfortunately, there
are many mistakes (such as providing damaging statements to adjusters) that cannot
be “undone” by even the most experienced workers’ compensation attorney. Plus, if
you wait too long to get legal help it gets harder to nd evidence and witnesses. You
also risk losing your claim because of the deadline for ling a Form 18. Many times,
injured employees do not call an attorney until the insurance company has led with
the Industrial Commission to stop paying benets. You are in
a better position to retain and keep your benets if you have an attorney that
is familiar with your case and already has all the records, medical reports, and
information about the case before the insurance company tries to stop your benets.
e bottom line is…considering the legalities and complexities of the established
system for compensating job injury victims, hiring an attorney is usually necessary to
“level the playing eld,” and to ensure that you receive maximum benets and proper
medical treatment for your work injury.
is general rule almost always applies in any work accident that involves serious
injuries. BUT, if you have been involved in a work accident involving small or minimal
injuries, you might not even need a lawyer.
North Carolina Workers’ Compensation 15
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If you didn’t contact a lawyer immediately, as we have recommended, time has passed.
If you only had a couple of doctor visits and you only lost a few days from work, then
you probably don’t need to hire a lawyer. But you certainly should at least contact
a lawyer and get some free advice. Many law rms won’t even talk to people in this
situation – as soon as they determine there’s no “good case” for them, they just want
to get you o the phone and move on. Our law rm isn’t like that. If you call us with
a problem or a question, even if we know we can’t represent you, we will still try to
answer your questions or we will refer you to another lawyer or to a government
agency that can help you.
OK, now you’ve decided either to hire a lawyer or not. If you do want to hire a lawyer,
how do you choose the best one for you? Hiring a lawyer is easy. Hiring the RIGHT
lawyer takes a little extra time and work. You see, there is as much dierence between
individual lawyers as there is between doctors, accountants, or other professionals.
Choose carefully!
Some law rms are personal injury “factories.” ey simply settle all their cases for
much less than they might have, in order to get rid of the case as quickly as possible
with doing as little work and spending as little time as possible on the case. ey just
want to make room for the next one. If they can’t settle a case quickly, they refer it to
another law rm to take the case to court.
Let us suggest that you stay clear and avoid such a situation. You need a law rm
that will handle your case from start to nish, will pay personal attention to you, will
be available when you need them, will keep you informed about your case, and will
return your phone calls promptly. THERE IS A DIFFERENCE!
We think a lawyer should give a personal commitment to ALL of his or her clients.
Just look at our Client’s Bill of Rights near the end of this book. We commit to every
client we have that they will be treated fairly. en we GUARANTEE to treat every
single client with the respect, attention, and dignity that person deserves. We can’t
stress enough to you how important this is!
e best way to learn about a specic law rm is to ask your friends and neighbors
about them. If someone you know has used that rm in the past and has been satised
with them, you are most likely getting a good recommendation. Another way to learn
is to ask the lawyers in the rm to send you some free information about them and
the rm, and then set up an appointment to meet with them and ask a lawyer any
questions that you may have. We want clients to ask us questions. is is because we
want the clients to be condent that they have chosen the best rm for them.
North Carolina Workers’ Compensation 16
Questions? www.lawyernc.com
Here are 9 questions you might consider asking a law rm before hiring them:
1. Are you a Board Certied Specialist in Workers’ Compensation Law by the
North Carolina State Bar?
2. How much experience does your rm have in representing injured employees?
3. Have you ever been sued for legal malpractice?
4. Are you covered by a legal malpractice insurance policy?
5. Have you ever been disciplined by the State Bar of North Carolina?
6. Will you copy me with everything you do on my case?
7. Do you have licensed adjusters who will assist the lawyers in the day-to-day
handling of my case?
8. Who at your oce (both attorneys and non-attorneys) will be communicating
with the insurance company on my case?
9. If I am not happy with your rm during the rst 30 days aer I hire you, can I
take my case and owe you no fee?
2011 Changes to the Law: ings to Look Out For
In 2011, the state legislature made some changes to the workers’ compensation laws.
Most of those changes did not benets injured employees. e new laws were put in
place to benet employers.
Below are a few of the law changes of which employees should be aware.
1. One of the changes to the law applies to when an injured employee is receiving
workers’ compensation benets. Many times in this situation, the insurance carrier
will attempt to try to nd the injured employee another job with another employer.
is occurs when the employee cannot return to the job he or she was doing prior to
the injury. Any job that the
insurance company tries to obtain for an employee must be within 50 miles, one-way,
from the employee’s home. If the job is over 50 miles from the employee’s home, the
employee will not lose workers’ compensation benets for refusing to take the job.
2. Another change in the law involves failing to provide information or
misrepresenting information to the employer when applying for a job. An employee
will not be entitled to compensation if (a) At the time of hire; (b) e employer relies
on one or more false representation by the employee that was a substantial factor in
the employer’s decision to hire the employee; and (c) ere is a connection between
the employee’s failure to provide information to the employer and the employee’s
injury.
North Carolina Workers’ Compensation 17
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is law would be relevant if an employee had injured a body part prior to working
for the employer or in a previous workers’ compensation injury. For example, pretend
that an employee had previously injured his back while working at a prior job. e
employee lls out an application for the new employer that asks if he sustained any
prior back injuries or injuries at all. e employee tells the employer in the application
that he has never had any back injures. If the employee injures his back while
working for the new employer it is possible that he or she will not be entitled to any
compensation for that injury.
3. Another change in the law involves employer and insurance companies being able to
contact your doctor by sending a typed or written letter. If the employer and insurance
company contact your doctor to ask questions by sending the doctor a letter, you must
be sent the letter at the same time that it is sent to your doctor.
If the letter is being sent to the doctor to ask about something that is not contained
in your medical records, you must be sent a copy of the letter and must be told that
the insurance company intends to send the letter to your doctor. You have 10 days to
agree for them to send the letter or to object to the Industrial Commission and ask the
Commission to not allow the letter to be sent to your doctor.
If you go to a doctor visit and the doctor has a letter from the insurance carrier or
its attorney, make sure the letter was sent to you at the same time. If it was not, the
insurance company did not follow that law. If the doctor provides information that
helps the insurance company’s case, you have an argument that that information
cannot be considered by the Industrial Commission.
ere are limits on what the insurance company or its lawyer can ask your doctor in
a letter. e only information they can request involves (a) Diagnosis; (b) Course of
Treatment; (c) Anticipated time out of work; (d) Relationship of injured employee’s
condition to the employment; (e) Work restrictions; (f) Work to which the employee
might be able to do; (g) Anticipated time the employee will have work restrictions; (h)
Percentage of a permanent impairment rating.
4. Sometimes an insurance company or its lawyer might want to talk to your doctor
in person or on the telephone to ask them questions. If the insurance company
intends to do this, they must tell you in advance and tell you the purpose of the oral
communication. e insurance company must also give you a chance to be present
and participate in the discussion at a time that is convenient for you. If you choose not
to take part in the discussion, the insurance company must provide you a summary of
the communication within 10 days.
5. ere are times when the insurance company wants a second opinion from a
dierent doctor than the one that is treating the injured employee. is is called
an “independent medical examination.” If you are receiving a weekly workers’
compensation check and the insurance company asks you to attend one of these
appointments, you should do it. If you refuse to attend this second opinion or
“independent medical examination,” it could result in the loss of
North Carolina Workers’ Compensation 18
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your weekly check. e new law also provides that an employee must attend an
independent medical examination even if his or her claim is denied.
6. An important change in the law in 2011 involved how long an injured employee can
receive weekly workers’ compensation benets. A “cap” was placed on the number of
weeks that a workers’ compensation check can be received. Workers’ compensation
benets or a weekly check can now be received for only 500 weeks. is is a little more
than nine and a half (9.5) years. If an employee has received a workers’ compensation
check for 500 weeks, that check will stop.
is law does have exceptions. Aer an employee has received benets for 425 weeks,
the employee can continue to receive benets if it shows the Industrial Commission
that the employee has a total loss of the ability to earn wages. If the employee is able to
show that he or she has no ability to earn wages, the benets will be extended. ese
benets might not be continued aer 500 weeks if the employee has reached the age
of retirement and is receiving full retirement benets. is law applies to more serious
injuries that result in the employee being out of work permanently or for a long time.
North Carolina Workers’ Compensation 19
Questions? www.lawyernc.com
is book has only hit some of the highlights of what you need to do to increase your
own NEGOTIATING POWER with the big insurance companies or self-insured
employers. As you can see, it is an information game. One advantage you have during
the beginning stages of your case is that you alone have access to the evidence. e
more of it you can collect, the more of it you can use to your own advantage.
SO WHAT ELSE CAN WE DO TO HELP YOU?
In our law practice we have found that many people are FRUSTRATED, SCARED,
INTIMIDATED and UNSURE OF WHAT TO DO. Sometimes people nd it hard
just to ask for help. Others may have already been intimidated by the big insurance
companies or others they’ve been dealing with. Some may even believe that it is wrong
to bring any claim for personal injuries at all.
We have found that once people talk to us or others at our law rm about their claims
and about the legal process, they feel much better and more at ease with the whole
system. Aer talking with us, they understand what’s fair, and they feel good about
doing the right thing.
I think people also appreciate the opportunity to talk with us at no charge, and with no
pressure.
ONE THING YOU DON’T WANT IS TO BE PRESSURED!
We don’t blame you in the least. We certainly don’t like to be pressured either. at’s
why you must be careful and you must take the time to make the best decisions
possible. You can’t make a good decision if you are being PRESSURED!
To be completely honest, one of the reasons we wrote this book is to see if our rm can
help you. We would like to talk with you about your legal rights, and to answer your
questions without any pressure – FREE OF CHARGE!
SO HERE IS WHAT OUR FIRM WOULD LIKE TO OFFER YOU
We oer a free consultation. You can meet with us at our oce, which we prefer, and
that you really should prefer (see my pervious statements about this), or one of our
investigators can come to your home if you just can’t get to our oce. We will talk
about your accident and related injuries and we will discuss your legal rights.
It is our hope that during this discussion we can help you with the following:
• Find a way for you to get the medical help you need and to get compensated
for your injuries.
North Carolina Workers’ Compensation 20
Questions? www.lawyernc.com
• Find out if the big insurance company or employer you are up against is with-
holding benets to which you are entitled or is pressuring you to make a quick settle-
ment.
• See if you might be exposed to risks you might not even know exist that could
spell disaster for you.
• And LOTS MORE!
Remember, you are under no obligation, and no one will pressure you. We are here to
help you! at is our personal guarantee to you.
Our goal is simply to create a situation where you feel comfortable talking with an
expert about your legal options and to answer any questions you may have. We under-
stand that this can be a very dicult time. You may not be feeling well because of the
pain from your injuries. Medication you’re taking for that pain might make you a little
“fuzzy.” Stress can make things even worse.
If this book makes sense to you, then you’ve probably thought of a few more questions.
Feel free to call us while this is still fresh in your mind. Waiting any longer may just
cause more stress or put you at greater risk. We would be happy to get you the infor-
mation that could ease your mind. Remember, the law is lled with tricky time limita-
tions and notice deadlines!
Why are we willing to do all this? We want you to see for yourself that there are law-
yers who are honest, competent, and are willing to work hard for your best interests.
And we do not want you to be taken advantage of or be without knowledge of your
claim.
You may be wondering how we earn our money and whether you will have to pay
an hourly fee. Well, you should understand that we only get compensated when we
collect money for our clients. We only get paid if you get paid. You never really have
to write us a check. When your case is settled, the insurance company will send two
separate checks, one is your settlement amount and the other is our fee.
e more you get, the more we get. And the faster you get your money, the faster we
get our fee. We have every incentive to devote ourselves to your case and ght for your
right to receive the compensation you deserve. We go the extra mile for our clients and
deliver exceptional client service and personal attention to all of our clients. at is
why our law rm’s motto is: Putting YOU rst!
Please allow us to take just a few extra minutes to explain our CLIENT BILL OF
RIGHTS. Lawyers will tell you that it is impossible to oer a guarantee in the legal
business. WRONG! We say that law rm clients should settle for nothing less! Re-
member, your attorney works for you – not the other way around.
North Carolina Workers’ Compensation 21
Questions? www.lawyernc.com
Client’s Bill of Rights:
At Hardison & Cochran we believe we can promise our clients quality service with
personal attention. We believe that as our personal injury client you are entitled to
have the:
1. Right to talk to your attorney the same day you call.
2. Right to be updated regularly and on a timely manner as to the progress of your
case.
3. Right to our respect.
4. Right to expect competence from our rm and all who work here.
5. Right to know the truth about your case.
6. Right to prompt attention from us.
7. Right to have your legal rights and options explained in plain English without legal
mumbo jumbo.
8. Right to a fair written fee agreement with our rm.
9. Right to a fair fee for the work we do.
10. Right to make the ultimate decision on your case.
If you think this approach is fair and you want to take advantage of the free consulta-
tion with no obligation, just give us a call. We will make time for you to talk with us.
Our rm is so committed to quality work and personal attention that we oer a no-
risk guarantee to potential new clients. If during the rst 30 days aer hiring our rm
you are not completely satised with our services, you may ask for your le back and
discharge us with no questions asked. You will not owe us attorney fees.
DO NOT HIRE AN INJURY LAWYER WHO
WON’T MAKE THESE TWO GUARANTEES!
anks again for downloading this book. We hope it has been of some assistance to
you. If you still have questions or need something further explained, call us or go to
lawyernc.com and sbmit your question. ere is no charge!
Remember, trying to do it yourself usually ends up causing more frustration for you
and less money for your settlement. If you call our oce, we will arrange a conference
to discuss your case at no charge. You can ask any questions and we will discuss op-
tions that are available to you.
is free consultation puts you under no obligation to use us as your attorney and we
will not pressure you in any way. Our job is to help and to counsel you. But you are the
one who makes the decisions!
North Carolina Workers’ Compensation 22
Questions? www.lawyernc.com
