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No agreement by an employee to pay any
portion of premium paid by his employer to a carrier or to contribute to a
benefit fund or department maintained by such employer for the purpose of
providing compensation or medical services and supplies as required by this
Article shall be valid, and any employer who makes a deduction for such purpose
from the pay of any employee entitled to the benefits of this Article shall be
guilty of a Class 3 misdemeanor and upon conviction thereof shall be punished
only by a fine of not more than five hundred dollars ($500.00). No agreement by
an employee to waive his right to compensation under this Chapter shall be
valid. (1929, c. 120, s. 21; 1993, c. 539, s. 677; 1994, Ex. Sess., c. 24, s.
14(c).)
§97-22. Notice of accident to employer.
Every injured employee or his representative
shall immediately on the occurrence of an accident, or as soon thereafter as
practicable, give or cause to be given to the employer a written notice of the
accident, and the employee shall not be entitled to physician's fees nor to any
compensation which may have accrued under the terms of this Article prior to the
giving of such notice, unless it can be shown that the employer, his agent or
representative, had knowledge of the accident, or that the party required to
give such notice had been prevented from doing so by reason of physical or
mental incapacity, or the fraud or deceit of some third person; 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.
(1929, c. 120, s. 22.)
§97-23. What notice is to contain; defects
no bar; notice personally or by registered letter or certified mail.
The notice provided in the foregoing section [G.S.
97-22] shall state in ordinary language the name and address of the employee,
the time, place, nature, and cause of the accident, and of the resulting injury
or death; and shall be signed by the employee or by a person on his behalf, or,
in the event of his death, by any one or more of his dependents, or by a person
in their behalf.
No defect or inaccuracy in the notice shall be
a bar to compensation unless the employer shall prove that his interest was
prejudiced thereby, and then only to such extent as the prejudice.
Said notice shall be given personally to the
employer or any of his agents upon whom a summons in civil action may be served
under the laws of the State, or may be sent by registered letter or certified
mail addressed to the employer at his last known residence or place of business.
(1929, c. 120, s. 23; 1959, c. 863 s. 1.)
§97-24. Right to compensation barred after
two years; destruction of records.
(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. The provisions
of this subsection shall not limit the time otherwise allowed for the filing of
a claim for compensation for occupational disease in G.S. 97-58, but in no event
shall the time for filing a claim for compensation for occupational disease be
less than the times provided herein for filing a claim for an injury by
accident.
(b) If any claim for compensation is hereafter
made upon the theory that such claim or the injury upon which said claim is
based is within the jurisdiction of the Industrial Commission under the
provisions of this Article, and if the Commission, or the appellate courts on
appeal, shall adjudge that such claim is not within the Article, the claimant,
or if he dies, his personal representative, shall have one year after the
rendition of a final judgment in the case within which to commence an action at
law.
(c) When all claims and reports required by
this Article have been filed, and the cases and records of which they are a part
have been closed by proper reports, receipts, awards or orders, these records,
may after five years in the discretion of the Commission, with and by the
authorization and approval of the Department of Cultural Resources, be destroyed
by burning or otherwise. (1929, c. 120, s. 24; 1933, c. 449, s. 2; 1945, c. 766;
1955, c. 1026, s. 12; 1973, c. 476, s. 48; c. 1060, s. 1; 1991, c. 703, s. 8;
1993 (Reg. Sess., 1994), c. 679, s. 3.4.)
§97-25. Medical treatment and supplies.
Medical compensation shall be provided by the
employer. In case of a controversy arising between the employer and employee
relative to the continuance of medical, surgical, hospital, or other treatment,
the Industrial Commission may order such further treatments as may in the
discretion of the Commission be necessary.
The Commission may at any time upon the request
of an employee order a change of treatment and designate other treatment
suggested by the injured employee subject to the approval of the Commission, and
in such a case the expense thereof shall be borne by the employer upon the same
terms and conditions as hereinbefore provided in this section for medical and
surgical treatment and attendance.
The refusal of the employee to accept any
medical, hospital, surgical or other treatment or rehabilitative procedure when
ordered by the Industrial Commission shall bar said employee from further
compensation until such refusal ceases, and no compensation shall at any time be
paid for the period of suspension unless in the opinion of the Industrial
Commission the circumstances justified the refusal, in which case, the
Industrial Commission may order a change in the medical or hospital service.
If in an emergency on account of the employer's
failure to provide the medical or other care as herein specified a physician
other than provided by the employer is called to treat the injured employee, the
reasonable cost of such service shall be paid by the employer if so ordered by
the Industrial Commission.
Provided, however, if he so desires, an injured
employee may select a physician of his own choosing to attend, prescribe and
assume the care and charge of his case, subject to the approval of the
Industrial Commission. (1929, c. 120, s. 25; 1931, c. 274, s. 4; 1933, c. 506;
1955, c. 1026, s. 2; 1973, c. 520, s. 1; 1991, c. 703, s. 3; 1997-308, s. 1;
1999-150, s. 1; 2005.)
§97-25.1. Limitation of duration of medical
compensation.
The right to medical compensation shall
terminate two years after the employer's last payment of medical or indemnity
compensation unless, prior to the expiration of this period, either: (i) the
employee files with the Commission an application for additional medical
compensation which is thereafter approved by the Commission, or (ii) the
Commission on its own motion orders additional medical compensation. If the
Commission determines that there is a substantial risk of the necessity of
future medical compensation, the Commission shall provide by order for payment
of future necessary medical compensation. (1993 (Reg. Sess., 1994), c. 679, s.
2.5.)
§97-25.2. Managed care organizations.
The requirements of G.S. 97-25 may be satisfied
by contracting with a managed care organization. Notwithstanding any other
provision of this Article, if an employer or carrier contracts with a managed
care organization for medical services pursuant to this Article, those employees
who are covered by the contract with the managed care organization shall receive
medical services for a condition for which the employer has accepted liability
or authorized treatment under this Article in the manner prescribed by the
contract and in accordance with the managed care organization's certificate of
authority; provided that the contract complies with rules adopted by the
Commission, consistent with this Article, governing managed care organizations.
An employee must exhaust all dispute resolution procedures of a managed care
organization before applying to the Commission for review of any issue related
to medical services compensable under this Article. Once application to the
Commission has been made, the employee shall be entitled to an examination by a
duly qualified physician or surgeon in the same manner as provided by G.S.
97-27.
If an employee's medical services are provided
through a managed care organization pursuant to this section, subject to the
rules of the managed care organization, the employee shall select the attending
physician from those physicians who are members of the managed care
organization's panel, and may subsequently change attending physicians once
within the group of physicians who are members of the managed care
organization's panel without approval from the employer or insurer. Additional
changes in the attending physician or any change to a physician or examination
by a physician not a member of the insurer's managed care organization's panel
shall only be made pursuant to the organization's contract or upon reasonable
grounds by order of the Commission. (1993 (Reg. Sess., 1994), c. 679, s. 2.1.)
§97-25.3. Preauthorization.
(a) An insurer may require preauthorization for
inpatient admission to a hospital, inpatient admission to a treatment center,
and inpatient or outpatient surgery. The insurer's preauthorization requirement
must adhere to the following standards:
- The insurer may require no more than 10
days advance notice of the inpatient admission or surgery.
- The insurer must respond to a request for
preauthorization within two business days of the request.
- The insurer shall review the need for the
inpatient admission or surgery and may require the employee to submit to an
independent medical examination as provided in G.S. 97-27(a). This
examination must be completed and the insurer must make its determination on
the request for preauthorization within seven days of the date of the
request unless this time is extended by the Commission for good cause.
- The insurer shall document its review
findings and determination in writing and shall provide a copy of the
findings and determination to the employee and the employee's attending
physician, and, if applicable, to the hospital or treatment center.
- The insurer shall authorize the inpatient
admission or surgery when it requires the employee to submit to a medical
examination as provided in G.S. 97-27(a) and the examining physician concurs
with the original recommendation for the inpatient admission or surgery. The
insurer shall also authorize the inpatient admission or surgery when the
employee obtains a second opinion from a physician approved by the insurer
or the Commission, and the second physician concurs with the original
recommendation for the inpatient admission or surgery. However, the insurer
shall not be required by this subdivision to authorize the inpatient
admission or surgery if it denies liability under this Article for the
particular medical condition for which the services are sought.
- Except as provided in subsection (c) of
this section, the insurer may reduce its reimbursement of the provider's
eligible charges under this Article by up to fifty percent (50%) if the
insurer has notified the provider in writing of its preauthorization
requirement and the provider failed to timely obtain preauthorization. The
employee shall not be liable for the balance of the charges
- The insurer shall adhere to all other
procedures for preauthorization prescribed by the Commission.
(b) An insurer may not impose a
preauthorization requirement for the following:
- Emergency services;
- Services rendered in the diagnosis or
treatment of an injury or illness for which the insurer has not admitted
liability or authorized payment for treatment pursuant to this Article; and
- Services rendered in the diagnosis and
treatment of a specific medical condition for which the insurer has not
admitted liability or authorized payment for treatment although the insurer
admits the employee has suffered a compensable injury or illness.
(c) The Commission may, upon reasonable
grounds, upon the request of the employee or provider, authorize treatment for
which preauthorization is otherwise required by this section but was not
obtained if the Commission determines that the treatment is or was reasonably
required to effect a cure or give relief.
(d) The Commission may adopt procedures
governing the use of preauthorization requirements and expeditious review of
preauthorization denials.
(e) A managed care organization may impose
preauthorization requirements consistent with the provisions of Chapter 58 of
the General Statutes.
(f) A provider that refuses to treat an
employee for other than an emergency medical condition because preauthorization
has not been obtained shall be immune from liability in any civil action for the
refusal to treat the employee because of lack of preauthorization. (1993 (Reg.
Sess., 1994), c. 679, s. 2.2.)
§97-25.4. Utilization guidelines for medical
treatment.
(a) The Commission may adopt utilization rules
and guidelines, consistent with this Article, for medical care and medical
rehabilitation services, other than those services provided by managed care
organizations pursuant to G.S. 97-25.2, including, but not limited to, necessary
palliative care, physical therapy treatment, psychological therapy, chiropractic
services, medical rehabilitation services, and attendant care. The Commission's
rules and guidelines shall ensure that injured employees are provided the
services and care intended by this Article and that medical costs are adequately
contained. In developing the rules and guidelines, the Commission may consider,
among other factors, the practice guidelines adopted by the boards and
associations representing medical and rehabilitation professionals.
(b) Palliative care rules or guidelines adopted
by the Commission may require that the provider (i) supply to the employer a
treatment plan, including a schedule of measurable objectives, a projected
termination date for treatment, and an estimated cost of services, and (ii)
obtain preauthorization from the employer, not inconsistent with the provisions
of G.S. 97-25.3. (1993 (Reg. Sess., 1994), c. 679, s. 2.4.)
§97-25.5. Utilization guidelines for
vocational and other rehabilitation.
The Commission may adopt utilization rules and
guidelines, consistent with this Article, for vocational rehabilitation services
and other types of rehabilitation services. In developing the rules and
guidelines, the Commission may consider, among other factors, the practice and
treatment guidelines adopted by professional rehabilitation associations and
organizations. (1993 (Reg. Sess., 1994), c. 679, s. 2.4.)
§97‑25.6. Reasonable access to medical
information.
Notwithstanding the provisions of G.S. 8‑53, any law relating to the privacy of
medical records or information, and the prohibition against ex parte
communications at common law, an employer or insurer paying medical compensation
to a provider rendering treatment under this Article may obtain records of the
treatment without the express authorization of the employee. In addition, with
written notice to the employee, the employer or insurer may obtain directly from
a medical provider medical records of evaluation or treatment restricted to a
current injury or current condition for which an employee is claiming
compensation from that employer under this Article.
Any medical records or reports, restricted to conditions related to the injury
or illness for which the employee is seeking compensation, in the possession of
the employee shall be furnished by the employee to the employer when requested
in writing by the employer.
An employer or insurer paying compensation for an admitted claim or paying
without prejudice pursuant to G.S. 97‑18(d) may communicate with an employee's
medical provider in writing, limited to specific questions promulgated by the
Commission, to determine, among other information, the diagnosis for the
employee's condition, the reasonable and necessary treatment, the anticipated
time that the employee will be out of work, the relationship, if any, of the
employee's condition to the employment, the restrictions from the condition, the
kind of work for which the employee may be eligible, the anticipated time the
employee will be restricted, and the permanent impairment, if any, as a result
of the condition. When these questions are used, a copy of the written
communication shall be provided to the employee at the same time and by the same
means as the communication is provided to the provider.
Other forms of communication with a medical provider may be authorized by (i) a
valid written authorization voluntarily given and signed by the employee, (ii)
by agreement of the parties, or (iii) by order of the Commission issued upon a
showing that the information sought is necessary for the administration of the
employee's claim and is not otherwise reasonably obtainable under this section
or through other provisions for discovery authorized by the Commission's rules.
In adopting rules or authorizing employer communications with medical providers,
the Commission shall protect the employee's right to a confidential
physician‑patient relationship while facilitating the release of information
necessary to the administration of the employee's claim.
Upon motion by an employee or provider from whom medical records or reports are
sought or upon its own motion, for good cause shown, the Commission may make any
order which justice requires to protect an employee or other person from
unreasonable annoyance, embarrassment, oppression, or undue burden or expense.
(2005.)
§97-26. Fees allowed for medical treatment;
malpractice of physician.
(a) Fee Schedule. - The Commission shall adopt
a schedule of maximum fees for medical compensation, except as provided in
subsection (b) of this section, and shall periodically review the schedule and
make revisions pursuant to the provisions of this Article.
The fees adopted by the Commission in its
schedule shall be adequate to ensure that (i) injured workers are provided the
standard of services and care intended by this Chapter, (ii) providers are
reimbursed reasonable fees for providing these services, and (iii) medical costs
are adequately contained.
Prior to adoption of a fee schedule, the
Commission shall publish notice of its intent to adopt the schedule in the North
Carolina Register and hold a public hearing. The published notice shall include
the location, date and time of the public hearing, the proposed effective date
of the fee schedule, the period of time during which the Commission will receive
written comments on the proposed schedule, and the person to whom comments and
questions should be directed. In addition to publication in the North Carolina
Register, the notice may be mailed to parties who have requested notice of the
fee schedule hearing. The public hearing shall be held no earlier than 15 days
after the publication of the notice. The Commission shall receive written
comments for at least 30 days or until the date of the public hearing, whichever
is later, after which the Commission may adopt the fee schedule.
The Commission may consider any and all
reimbursement systems and plans in establishing its fee schedule, including, but
not limited to, the Teachers' and State Employees' Comprehensive Major Medical
Plan (hereinafter, "State Plan"), Blue Cross and Blue Shield, and any other
private or governmental plans. The Commission may also consider any and all
reimbursement methodologies, including, but not limited to, the use of current
procedural terminology ("CPT") codes, diagnostic-related groupings ("DRGs"), per
diem rates, capitated payments, and resource-based relative-value system
("RBRVS") payments. The Commission may consider statewide fee averages,
geographical and community variations in provider costs, and any other factors
affecting provider costs.
An appeal from a decision of the Commission
establishing a fee schedule, by any party aggrieved thereby, shall be to the
North Carolina Court of Appeals. The decision of the Commission shall be
affirmed if supported by substantial evidence. For the purposes of the appeal,
the Commission is a party.
(b) Hospital Fees. - Each hospital subject to
the provisions of this subsection shall be reimbursed the amount provided for in
this subsection unless it has agreed under contract with the insurer, managed
care organization, employer (or other payor obligated to reimburse for inpatient
hospital services rendered under this Chapter) to accept a different amount or
reimbursement methodology.
Except as otherwise provided herein, payment
for medical treatment and services rendered to workers' compensation patients by
a hospital shall be a reasonable fee determined by the Commission. Effective
September 16, 2001, through June 30, 2002, the fee shall be the following amount
unless the Commission adopts a different fee schedule in accordance with the
provisions of this section:
- For inpatient hospital services, the
amount that the hospital would have received for those services as of June
30, 2001. The payment shall not be more than a maximum of one hundred
percent (100%) of the hospital's itemized charges as shown on the UB-92
claim form nor less than the minimum percentage for payment of inpatient DRG
claims that was in effect as of June 30, 2001.
- For outpatient hospital services and any
other services that were reimbursed as a discount off of charges under the
State Plan as of June 30, 2001, the amount calculated by the Commission as a
percentage of the hospital charges for such services. The percentage
applicable to each hospital shall be the percentage used by the Commission
to determine outpatient rates for each hospital as of June 30, 2001.
- For any other services, a reasonable fee
as determined by the Industrial Commission.
Notwithstanding any other provisions of law,
the Commission's determination of payment rates under this subsection shall:
- Comply with the procedures for adoption of
a fee schedule established in
G.S.
§97-26(a);
- Include publication of the proposed
payment rate, and a summary of the data and calculations on which the rate
is based at least 90 days before the proposed effective date;
- Be subject to the declaratory ruling
provisions of G.S. 150B-4; and
- Be deemed to constitute a final permanent
rule under Article 2A of Chapter 150B for purposes of judicial review under
Article 4 of that Chapter.
A hospital's itemized charges on the UB-92
claim form for workers' compensation services shall be the same as itemized
charges for like services for all other payers.
(c) Maximum Reimbursement for Providers Under
Subsection (a). - Each health care provider subject to the provisions of
subsection (a) of this section shall be reimbursed the amount specified under
the fee schedule unless the provider has agreed under contract with the insurer
or managed care organization to accept a different amount or reimbursement
methodology. In any instance in which neither the fee schedule nor a contractual
fee applies, the maximum reimbursement to which a provider under subsection (a)
is entitled under this Article is the usual, customary, and reasonable charge
for the service or treatment rendered. In no event shall a provider under
subsection (a) charge more than its usual fee for the service or treatment
rendered.
(d) Information to Commission. - Each health
care provider seeking reimbursement for medical compensation under this Article
shall provide the Commission information requested by the Commission for the
development of fee schedules and the determination of appropriate reimbursement.
(e) When Charges Submitted. - Health care
providers shall submit charges to the insurer or managed care organization
within 30 days of treatment, within 30 days after the end of the month during
which multiple treatments were provided, or within such other reasonable period
of time as allowed by the Commission. If an insurer or managed care organization
disputes a portion of a health care provider's bill, it shall pay the
uncontested portion of the bill and shall resolve disputes regarding the balance
of the charges in accordance with this Article or its contractual arrangement.
(f) Repeating Diagnostic Tests. - A health care
provider shall not authorize a diagnostic test previously conducted by another
provider, unless the health care provider has reasonable grounds to believe a
change in patient condition may have occurred or the quality of the prior test
is doubted. The Commission may adopt rules establishing reasonable requirements
for reports and records to be made available to other health care providers to
prevent unnecessary duplication of tests and examinations. A health care
provider that violates this subsection shall not be reimbursed for the costs
associated with administering or analyzing the test.
(g) Direct Reimbursement. - The Commission may
adopt rules to allow insurers and managed care organizations to review and
reimburse charges for medical compensation without submitting the charges to the
Commission for review and approval.
(h) Malpractice. - The employer shall not be
liable in damages for malpractice by a physician or surgeon furnished by him
pursuant to the provisions of this section, but the consequences of any such
malpractice shall be deemed part of the injury resulting from the accident, and
shall be compensated for as such.
(i) Resolution of Dispute. – The employee or
health care provider may apply to the Commission by motion or for a hearing to
resolve any dispute regarding the payment of charges for medical compensation in
accordance with this Article. (1929, c. 120, s. 26; 1955, c. 1026, s. 3; 1993
(Reg. Sess., 1994), c. 679, s. 2.3; 1995 (Reg. Sess., 1996), c. 548, s. 1;
1997-145, s. 1; 2001-410, s. 3; 2001-413, s. 8.2(a); 2005.)
§97-27. Medical examination; facts not
privileged; refusal to be examined suspends compensation; autopsy.
(a) After an injury and so long as he claims
compensation, the employee, if so requested by his employer or ordered by the
Industrial Commission, shall, subject to the provisions of subsection (b),
submit himself to examination, at reasonable times and places, by a duly
qualified physician or surgeon designated and paid by the employer or the
Industrial Commission. The employee shall have the right to have present at such
examination any duly qualified physician or surgeon provided and paid by him.
Notwithstanding the provisions of G.S. 8-53, no fact communicated to or
otherwise learned by any physician or surgeon or hospital or hospital employee
who may have attended or examined the employee, or who may have been present at
any examination, shall be privileged in any workers' compensation case with
respect to a claim pending for hearing before the Industrial Commission. If the
employee refuses to submit himself to or in any way obstructs such examination
requested by and provided for by the employer, his right to compensation and his
right to take or prosecute any proceedings under this Article shall be suspended
until such refusal or objection ceases, and no compensation shall at any time be
payable for the period of obstruction, unless in the opinion of the Industrial
Commission the circumstances justify the refusal or obstruction. The employer,
or the Industrial Commission, shall have the right in any case of death to
require an autopsy at the expense of the party requesting the same.
(b) In those cases arising under this Article
in which there is a question as to the percentage of permanent disability
suffered by an employee, if any employee, required to submit to a physical
examination under the provisions of subsection (a) is dissatisfied with such
examination or the report thereof, he shall be entitled to have another
examination by a duly qualified physician or surgeon licensed and practicing in
North Carolina or by a duly qualified physician or surgeon licensed to practice
in South Carolina, Georgia, Virginia and Tennessee provided said nonresident
physician or surgeon shall have been approved by the North Carolina Industrial
Commission and his name placed on the Commission's list of approved nonresident
physicians and surgeons, designated by him and paid by the employer or the
Industrial Commission in the same manner as physicians designated by the
employer or the Industrial Commission are paid. Provided, however, that all
travel expenses incurred in obtaining said examination shall be paid by said
employee. The employer shall have the right to have present at such examination
a duly qualified physician or surgeon provided and paid by him. No fact
communicated to or otherwise learned by any physician or surgeon who may have
attended or examined the employee, or who may have been present at any
examination, shall be privileged, either in hearings provided for by this
Article or any action at law. (1929, c. 120, s. 27; 1959, c. 732; 1969, c. 135;
1973, c. 520, s. 2; 1977, c. 511; 1991, c. 636, s. 3.)
§97-28. Seven-day waiting period;
exceptions.
No compensation, as defined in G.S. 97-2(11),
shall be allowed for the first seven calendar days of disability resulting from
an injury, except the benefits provided for in G.S. 97-25. Provided however,
that in the case the injury results in disability of more than 21 days, the
compensation shall be allowed from the date of the disability. Nothing in this
section shall prevent an employer from allowing an employee to use paid sick
leave, vacation or annual leave, or disability benefits provided directly by the
employer during the first seven calendar days of disability. (1929, c. 120, s.
28; 1983, c. 599; 1987. c. 729, s. 5.)
§97-29. Compensation rates for total
incapacity.
Except as hereinafter otherwise provided, where
the incapacity for work resulting from the injury is total, the employer shall
pay or cause to be paid, as hereinafter provided, to the injured employee during
such total disability a weekly compensation equal to sixty-six and two-thirds
percent (66 2/3%) of his average weekly wages, but not more than the amount
established annually to be effective October 1 as provided herein, nor less than
thirty dollars ($30.00) per week.
In cases of total and permanent disability,
compensation, including medical compensation, shall be paid for by the employer
during the lifetime of the injured employee. If death results from the injury
then the employer shall pay compensation in accordance with the provisions of
G.S. 97-38.
The weekly compensation payment for members of
the North Carolina national guard and the North Carolina State Defense Militia
shall be the maximum amount established annually in accordance with the last
paragraph of this section per week as fixed herein. The weekly compensation
payment for deputy sheriffs, or those acting in the capacity of deputy sheriffs,
who serve upon a fee basis, shall be thirty dollars ($30.00) a week as fixed
herein.
An officer or member of the State Highway
Patrol shall not be awarded any weekly compensation under the provisions of this
section for the first two years of any incapacity resulting from an injury by
accident arising out of and in the course of the performance by him of his
official duties if, during such incapacity, he continues to be an officer or
member of the State Highway Patrol, but he shall be awarded any other benefits
to which he may be entitled under the provisions of this Article.
Notwithstanding any other provision of this
Article, on July 1 of each year, a maximum weekly benefit amount shall be
computed. The amount of this maximum weekly benefit shall be derived by
obtaining the average weekly insured wage in accordance with G.S. 96-8(22), by
multiplying such average weekly insured wage by 1.10, and by rounding such
figure to its nearest multiple of two dollars ($2.00), and this said maximum
weekly benefit shall be applicable to all injuries and claims arising on and
after January 1 following such computation. Such maximum weekly benefit shall
apply to all provisions of this Chapter and shall be adjusted July 1 and
effective January 1 of each year as herein provided. (1929, c. 120, s. 29; 1939,
c. 277, s. 1; 1943, c. 502, s. 3; c. 543; c. 672, s. 2; 1945, c. 766; 1947, c.
823; 1949, c. 1017; 1951, c. 70, s. 1; 1953, c. 1135, s. 1; c. 1195, s. 2; 1955,
c. 1026, s. 5; 1957, c. 1217; 1963, c. 604, s. 1; 1967, c. 84, s. 1; 1969, c.
143, s. 1; 1971, c. 281, s. 1; c. 321, s. 1; 1973, c. 515, s. 1; c. 759, s. 1;
c. 1103, s. 1; c. 1308, ss. 1, 2; 1975, c. 284, s. 4; 1979, c. 244; 1981, c.
276, s. 2; c. 378, s. 1; c. 421, s. 3; c. 521, s. 2; c. 920, s. 1; 1987, c. 729,
s. 6; 1991, c. 703, s. 4; 1999-456, s. 33(d).)
§97-29.1. Increase in payments in cases for
total and permanent disability occurring prior to July 1, 1973.
In all cases of total and permanent disability
occurring prior to July 1, 1973, weekly compensation payments shall be increased
effective July 1, 1977, to an amount computed by multiplying the number of
calendar years prior to July 1, 1973, that the case arose by five percent (5%).
Payments made by the employer or its insurance carrier by reason of such
increase in weekly benefits may be deducted by such employer or insurance
carrier from the tax levied on such employer or carrier pursuant to G.S.
105-228.5 or G.S. 97-100. Every employer or insurance carrier claiming such
deduction or credit shall verify such claim to the Secretary of Revenue or the
Industrial Commission by affidavit or by such other method as may be prescribed
by the Secretary of Revenue or the Industrial Commission. (1977, c. 651.)
§97-30. Partial incapacity.
Except as otherwise provided in G.S. 97-31,
where the incapacity for work resulting from the injury is partial, the employer
shall pay, or cause to be paid, as hereinafter provided, to the injured employee
during such disability, a weekly compensation equal to sixty-six and two-thirds
percent (66 2/3%) of the difference between his average weekly wages before the
injury and the average weekly wages which he is able to earn thereafter, but not
more than the amount established annually to be effective October 1 as provided
in G.S. 97-29 a week, and in no case shall the period covered by such
compensation be greater than 300 weeks from the date of injury. In case the
partial disability begins after a period of total disability, the latter period
shall be deducted from the maximum period herein allowed for partial disability.
An officer or member of the State Highway Patrol shall not be awarded any weekly
compensation under the provisions of this section for the first two years of any
incapacity resulting from an injury by accident arising out of and in the course
of the performance by him of his official duties if, during such incapacity, he
continues to be an officer or member of the State Highway Patrol, but he shall
be awarded any other benefits to which he may be entitled under the provisions
of this Article. (1929, c. 120, s. 30; 1943, c. 502, s. 4; 1947, c. 823; 1951,
c. 70, s. 2; 1953, c. 1195, s. 3; 1955, c. 1026, s. 6; 1957, c. 1217; 1963, c.
604, s. 2; 1967, c. 84, s. 2; 1969, c. 143, s. 2; 1971, c. 281, s. 2; 1973, c.
515, s. 2; c. 759, s. 2; 1981, c. 276, s. 1.)
§97-31. Schedule of injuries; rate and
period of compensation.
In cases included by the following schedule the
compensation in each case shall be paid for disability during the healing period
and in addition the disability shall be deemed to continue for the period
specified, and shall be in lieu of all other compensation, including
disfigurement, to wit:
- For the loss of a thumb, sixty-six and
two-thirds percent (66 2/3%) of the average weekly wages during 75 weeks.
- For the loss of a first finger, commonly
called the index finger, sixty-six and two-thirds percent (66 2/3%) of the
average weekly wages during 45 weeks.
- For the loss of a second finger, sixty-six
and two-thirds percent (66 2/3%) of the average weekly wages during 40
weeks.
- For the loss of a third finger, sixty-six
and two-thirds percent (66 2/3%) of the average weekly wages during 25
weeks.
- For the loss of a fourth finger, commonly
called the little finger, sixty-six and two-thirds percent (66 2/3%) of the
average weekly wages during 20 weeks
- The loss of the first phalange of the
thumb or any finger shall be considered to be equal to the loss of one half
of such thumb or finger, and the compensation shall be for one half of the
periods of time above specified.
- The loss of more than one phalange shall
be considered the loss of the entire finger or thumb: Provided, however,
that in no case shall the amount received for more than one finger exceed
the amount provided in this schedule for the loss of a hand.
- For the loss of a great toe, sixty-six and
two-thirds percent (66 2/3%) of the average weekly wages during 35 weeks.
- For the loss of one of the toes other than
a great toe, sixty-six and two-thirds percent (66 2/3%) of the average
weekly wages during 10 weeks.
- The loss of the first phalange of any toe
shall be considered to be equal to the loss of one half of such toe, and the
compensation shall be for one half of the periods of time above specified.
- The loss of more than one phalange shall
be considered as the loss of the entire toe.
- For the loss of a hand, sixty-six and
two-thirds percent (66 2/3%) of the average weekly wages during 200 weeks.
- For the loss of an arm, sixty-six and
two-thirds percent (66 2/3%) of the average weekly wages during 240 weeks.
- For the loss of a foot, sixty-six and
two-thirds percent (66 2/3%) of the average weekly wages during 144 weeks.
- For the loss of a leg, sixty-six and
two-thirds percent (66 2/3%) of the average weekly wages during 200 weeks.
- For the loss of an eye, sixty-six and
two-thirds percent (66 2/3%) of the average weekly wages during 120 weeks.
- The loss of both hands, or both arms, or
both feet, or both legs, or both eyes, or any two thereof, shall constitute
total and permanent disability, to be compensated according to the
provisions of G.S. 97-29. The employee shall have a vested right in a
minimum amount of compensation for the total number of weeks of benefits
provided under this section for each member involved. When an employee dies
from any cause other than the injury for which he is entitled to
compensation, payment of the minimum amount of compensation shall be payable
as provided in G.S. 97-37.
- For the complete loss of hearing in one
ear, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages
during 70 weeks; for the complete loss of hearing in both ears, sixty-six
and two-thirds percent (66 2/3%) of the average weekly wages during 150
weeks.
- Total loss of use of a member or loss of
vision of an eye shall be considered as equivalent to the loss of such
member or eye. The compensation for partial loss of or for partial loss of
use of a member or for partial loss of vision of an eye or for partial loss
of hearing shall be such proportion of the periods of payment above provided
for total loss as such partial loss bears to total loss, except that in
cases where there is eighty-five per centum (85%), or more, loss of vision
in any eye, this shall be deemed "industrial blindness" and compensated as
for total loss of vision of such eye.
- The weekly compensation payments referred
to in this section shall all be subject to the same limitations as to
maximum and minimum as set out in G.S. 97-29.
- In case of serious facial or head
disfigurement, the Industrial Commission shall award proper and equitable
compensation not to exceed twenty thousand dollars ($20,000). In case of
enucleation where an artificial eye cannot be fitted and used, the
Industrial Commission may award compensation as for serious facial
disfigurement.
- In case of serious bodily disfigurement
for which no compensation is payable under any other subdivision of this
section, but excluding the disfigurement resulting from permanent loss or
permanent partial loss of use of any member of the body for which
compensation is fixed in the schedule contained in this section, the
Industrial Commission may award proper and equitable compensation not to
exceed ten thousand dollars ($10,000).
- For the total loss of use of the back,
sixty-six and two-thirds percent (66 2/3%) of the average weekly wages
during 300 weeks. The compensation for partial loss of use of the back shall
be such proportion of the periods of payment herein provided for total loss
as such partial loss bears to total loss, except that in cases where there
is seventy-five per centum (75%) or more loss of use of the back, in which
event the injured employee shall be deemed to have suffered "total
industrial disability" and compensated as for total loss of use of the back.
- In case of the loss of or permanent injury
to any important external or internal organ or part of the body for which no
compensation is payable under any other subdivision of this section, the
Industrial Commission may award proper and equitable compensation not to
exceed twenty thousand dollars ($20,000). (1929, c. 120, s. 31; 1931, c.
164; 1943, c. 502, s. 2; 1955, c. 1026, s. 7; 1957, c. 1221; c. 1396, ss. 2,
3; 1963, c. 424, ss. 1, 2; 1967, c. 84, s. 3; 1969, c. 143, s. 3; 1973, c.
515, s. 3; c. 759, s. 3; c. 761, ss. 1, 2; 1975, c. 164, s. 1; 1977, c. 892,
s. 1; 1979, c. 250; 1987, c. 729, ss. 7, 8.)
§97-31.1. [Note: Effective
January 1, 1997, contingent on approval of constitutional amendments.]
Effective date of legislative changes in benefits.
Every act of the General Assembly that changes
the benefits enumerated in this Chapter shall become law no later than June 1
and shall have an effective date of no earlier than January 1 of the year after
which it is ratified. (1981, c. 521, s. 3; 1995, c. 20, s. 11.)
§97-32. Refusal of injured employee to
accept suitable employment as suspending compensation.
If an injured employee refuses employment
procured for him suitable to his capacity he shall not be entitled to any
compensation at any time during the continuance of such refusal, unless in the
opinion of the Industrial Commission such refusal was justified. (1929, c. 120,
s. 32.)
§97-32.1. Trial return to work.
Notwithstanding the provisions of G.S. 97-32,
an employee may attempt a trial return to work for a period not to exceed nine
months. During a trial return to work period, the employee shall be paid any
compensation which may be owed for partial disability pursuant to G.S. 97-30. If
the trial return to work is unsuccessful, the employee's right to continuing
compensation under G.S. 97-29 shall be unimpaired unless terminated or suspended
thereafter pursuant to the provisions of this Article. (1993 (Reg. Sess., 1994),
c. 679, s. 4.1.)
§97-33. Prorating in event of earlier
disability or injury.
If any employee is an epileptic, or has a
permanent disability or has sustained a permanent injury in service in the army
or navy of the United States, or in another employment other than that in which
he received a subsequent permanent injury by accident, such as specified in G.S.
97-31, he shall be entitled to compensation only for the degree of disability
which would have resulted from the later accident if the earlier disability or
injury had not existed. (1929, c. 120, s. 33; 1975 c. 832.)
§97-34. Employee receiving an injury when
being compensated for former injury.
If an employee receives an injury for which
compensation is payable, while he is still receiving or entitled to compensation
for a previous injury in the same employment, he shall not at the same time be
entitled to compensation for both injuries, unless the later injury be a
permanent injury such as specified in G.S. 97-31; but he shall be entitled to
compensation for that injury and from the time of that injury which will cover
the longest period and the largest amount payable under this Article. (1929, c.
120, s. 34.)
§97-35. How compensation paid for two
injuries; employer liable only for subsequent injury.
If any employee receives a permanent injury as
specified in G.S. 97-31 after having sustained another permanent injury in the
same employment, he shall be entitled to compensation for both injuries, but the
total compensation shall be paid by extending the period and not by increasing
the amount of weekly compensation, and in no case exceeding 500 weeks.
If an employee has previously incurred
permanent partial disability through the loss of a hand, arm, foot, leg, or eye,
and by subsequent accident incurs total permanent disability through the loss of
another member, the employer's liability is for the subsequent injury only.
(1929, c. 120, s. 35.)
§97-36. Accidents taking place outside
State; employees receiving compensation from another state.
Where an accident happens while the employee is
employed elsewhere than in this State and the accident is one which would
entitle him or his dependents or next of kin to compensation if it had happened
in this State, then the employee or his dependents or next of kin shall be
entitled to compensation (i) if the contract of employment was made in this
State, (ii) if the employer's principal place of business is in this State, or
(iii) if the employee's principal place of employment is within this State;
provided, however, that if an employee or his dependents or next of kin shall
receive compensation or damages under the laws of any other state nothing herein
contained shall be construed so as to permit a total compensation for the same
injury greater than is provided for in this Article. (1929, c. 120, s. 36; 1963,
c. 450, s. 2; 1967, c. 1229, s. 3; 1973, c. 1059; 1991, c. 284, s. 1.)
§97-37. Where injured employee dies before
total compensation is paid.
When an employee receives or is entitled to
compensation under this Article for an injury covered by G.S. 97-31 and dies
from any other cause than the injury for which he was entitled to compensation,
payment of the unpaid balance of compensation shall be made: First, to the
surviving whole dependents; second, to partial dependents, and, if no
dependents, to the next of kin as defined in the Article; if there are no whole
or partial dependents or next of kin as defined in the Article, then to the
personal representative, in lieu of the compensation the employee would have
been entitled to had he lived.
Provided, however, that if the death is due to
a cause that is compensable under this Article, and the dependents of such
employee are awarded compensation therefor, all right to unpaid compensation
provided by this section shall cease and determine. (1929 c. 120, s. 37; 1947,
823; 1971, c. 322.)
§97-38. Where death results proximately from
compensable injury or occupational disease; dependents; burial expenses;
compensation to aliens; election by partial dependents.
If death results proximately from a compensable
injury or occupational disease and within six years thereafter, or within two
years of the final determination of disability, whichever is later, the employer
shall pay or cause to be paid, subject to the provisions of other sections of
this Article, weekly payments of compensation equal to sixty-six and two-thirds
percent (66 2/3%) of the average weekly wages of the deceased employee at the
time of the accident, but not more than the amount established annually to be
effective October 1 as provided in
G.S. 97-29,
nor less than thirty dollars ($30.00), per week, and burial expenses not
exceeding three thousand five hundred dollars ($3,500), to the person or persons
entitled thereto as follows:
- Persons wholly dependent for support upon
the earnings of the deceased employee at the time of the accident shall be
entitled to receive the entire compensation payable share and share alike to
the exclusion of all other persons. If there be only one person wholly
dependent, then that person shall receive the entire compensation payable.
- If there is no person wholly dependent,
then any person partially dependent for support upon the earnings of the
deceased employee at the time of the accident shall be entitled to receive a
weekly payment of compensation computed as hereinabove provided, but such
weekly payment shall be the same proportion of the weekly compensation
provided for a whole dependent as the amount annually contributed by the
deceased employee to the support of such partial dependent bears to the
annual earnings of the deceased at the time of the accident.
- If there is no person wholly dependent,
and the person or all persons partially dependent is or are within the
classes of persons defined as "next of kin" in
G.S.
97-40, whether or not such persons or such classes of persons are of kin
to the deceased employee in equal degree, and all so elect, he or they may
take, share and share alike, the commuted value of the amount provided for
whole dependents in (1) above instead of the proportional payment provided
for partial dependents in (2) above; provided, that the election herein
provided may be exercised on behalf of any infant partial dependent by a
duly qualified guardian; provided, further, that the Industrial Commission
may, in its discretion, permit a parent or person standing in loco parentis
to such infant to exercise such option in its behalf, the award to be
payable only to a duly qualified guardian except as in this Article
otherwise provided; and provided, further, that if such election is
exercised by or on behalf of more than one person, then they shall take the
commuted amount in equal shares.
When weekly payments have been made to an
injured employee before his death, the compensation to dependents shall begin
from the date of the last of such payments. Compensation payments due on account
of death shall be paid for a period of 400 weeks from the date of the death of
the employee; provided, however, after said 400-week period in case of a widow
or widower who is unable to support herself or himself because of physical or
mental disability as of the date of death of the employee, compensation payments
shall continue during her or his lifetime or until remarriage and compensation
payments due a dependent child shall be continued until such child reaches the
age of 18.
Compensation payable under this Article to
aliens not residents (or about to become nonresidents) of the United States or
Canada, shall be the same in amounts as provided for residents, except that
dependents in any foreign country except Canada shall be limited to surviving
spouse and child or children, or if there be no surviving spouse or child or
children, to the surviving father or mother. (1929 c. 120, s. 38; 1943, c. 163;
c. 502, s. 5; 1947, c. 823; 1951, c. 70, s. 3, 1953, c. 53, s. 1; 1955, c. 1026,
s. 8; 1957, c. 1217; 1963, c. 604, s. 3; 1967, c. 84, s. 4; 1969, c. 143, s. 4;
1971, c. 281, s. 3; 1973, c. 515, s. 4; c. 759, s. 4; c. 1308, ss. 3, 4; c.
1357, ss. 1, 2; 1977, c. 409; 1981, c 276, s. 1; c. 378, s. 1; c. 379; 1983, c.
772, s. 1; 1987, c. 729, s. 9; 1997-301, s. 1; 2001-232, s. 1.)
§97-39. Widow, widower, or child to be
conclusively presumed to be dependent; other cases determined upon facts;
division of death benefits among those wholly dependent; when division among
partially dependent.
A widow, a widower and/or a child shall be
conclusively presumed to be wholly dependent for support upon the deceased
employee. In all other cases questions of dependency, in whole or in part shall
be determined in accordance with the facts as the facts may be at the time of
the accident, but no allowance shall be made for any payment made in lieu of
board and lodging or services, and no compensation shall be allowed unless the
dependency existed for a period of three months or more prior to the accident.
If there is more than one person wholly dependent, the death benefit shall be
divided among them, the persons partly dependent, if any, shall receive no part
thereof. If there is no one wholly dependent, and more than one person partially
dependent, the death benefit shall be divided among them according to the
relative extent of their dependency.
The widow, or widower and all children of
deceased employees shall be conclusively presumed to be dependents of deceased
and shall be entitled to receive the benefits of this Article for the full
periods specified herein. (1929, c. 120, s. 39.)
§97-40. Commutation and payment of
compensation in absence of dependents; "next of kin" defined; commutation and
distribution of compensation to partially dependent next of kin; payment in
absence of both dependents and next of kin.
Subject to the provisions of G.S. 97-38, if the
deceased employee leave neither whole nor partial dependents, then the
compensation which would be payable under G.S. 97-38 to whole dependents shall
be commuted to its present value and paid in a lump sum to the next of kin as
herein defined. For purposes of this section and G.S. 97-38, "next of kin" shall
include only child, father, mother, brother or sister of the deceased employee,
including adult children or adult brothers or adult sisters of the deceased, but
excluding a parent who has willfully abandoned the care and maintenance of his
or her child and who has not resumed its care and maintenance at least one year
prior to the first occurring of the majority or death of the child and continued
its care and maintenance until its death or majority. For all such next of kin
who are neither wholly nor partially dependent upon the deceased employee and
who take under this section, the order of priority among them shall be governed
by the general law applicable to the distribution of the personal estate of
persons dying intestate. In the event of exclusion of a parent based on
abandonment, the claim for compensation benefits shall be treated as though the
abandoning parent had predeceased the employee. For all such next of kin who
were also partially dependent on the deceased employee but who exercise the
election provided for partial dependents by G.S. 97-38, the general law
applicable to the distribution of the personal estate of persons dying intestate
shall not apply and such person or persons upon the exercise of such election,
shall be entitled, share and share alike, to the compensation provided in G.S.
97-38 for whole dependents commuted to its present value and paid in a lump sum.
If the deceased employee leaves neither whole
dependents, partial dependents, nor next of kin as hereinabove defined, then no
compensation shall be due or payable on account of the death of the deceased
employee, except that the employer shall pay or cause to be paid the burial
expenses of the deceased employee not exceeding three thousand five hundred
dollars ($3,500) to the person or persons entitled thereto. (1929, c. 120, s.
40; 1931, c. 274, s. 5; c. 319; 1945, c. 766; 1953, c. 53, s. 2; c. 1135, s. 2;
1963, c. 604, s. 4; 1965, c. 419; 1967, c. 84, s. 5, 1971, c. 1179; 1981, c.
379; 1987, c. 729, s. 10; 2001-232, s. 3.1.)
§97-40.1. Second Injury Fund.
(a) There is hereby created a fund to be known
as the "Second Injury Fund," to be held and disbursed by the Industrial
Commission as hereinafter provided.
For the purpose of providing money for said
fund the Industrial Commission may assess against the employer or its insurance
carrier the payment of not to exceed two hundred fifty dollars ($250.00) for the
loss, or loss of use, of each minor member in every case of a permanent partial
disability where there is such loss, and shall assess not to exceed seven
hundred fifty dollars ($750.00) for fifty percent (50%) or more loss or loss of
use of each major member, defined as back, foot, leg, hand, arm, eye, or
hearing.
(b) The Industrial Commission shall disburse
moneys from the Second Injury Fund in unusual cases of second injuries as
follows:
- To pay additional compensation in cases of
second injuries referred to in G.S. 97-33; provided, however, that the
original injury and the subsequent injury were each at least twenty percent
(20%) of the entire member; and, provided further, that such additional
compensation, when added to the compensation awarded under said section,
shall not exceed the amount which would have been payable for both injuries
had both been sustained in the subsequent accident.
- To pay additional compensation to an
injured employee who has sustained permanent total disability in the manner
referred to in the second paragraph of G.S. 97-35, which shall be in
addition to the compensation awarded under said section; provided, however,
that such additional compensation, when added to the compensation awarded
under said section, shall not exceed the compensation for permanent total
disability as provided for in G.S. 97-29.
- To pay compensation and medical expense in
cases of permanent and total disability resulting from an injury to the
brain or spinal cord in the manner and to the extent hereinafter provided.
The additional compensation and treatment
expenses herein provided for shall be paid out of the Second Injury Fund
exclusively and only to the extent to which the assets of such fund shall
permit.
(c) In addition to payments for the purposes
hereinabove set forth, the Industrial Commission may, in its discretion, make
payments from said fund for the following purposes and under the following
conditions:
- In any case in which total and permanent
disability due to paralysis or loss of mental capacity has resulted from an
injury to the brain or spinal cord, the Industrial Commission may, in its
discretion enter an award and pay compensation and reasonable and necessary
medical, nursing, hospital, institutional, equipment, and other treatment
expenses from the Second Injury Fund during the life of the injured employee
in cases where the injury giving rise to such disability occurred prior to
July 1, 1953, and the last payment of compensation has been made subsequent
to January 1, 1941. Such compensation and medical expense shall be paid only
from April 4, 1947, and after the employer's liability for compensation and
treatment expense has ended, and in every case in which the injury resulting
in paralysis due to injury to the spinal cord occurred subsequent to April
4, 1947, and prior to July 1, 1953, the liability of the employer and his
insurance carrier to pay compensation and medical expense during the life of
the injured employee shall not be affected by this section.
- When compensation is allowed from the fund
in any case under subdivision (1) of subsection (c), the Commission may in
its discretion authorize payment of medical, nursing, hospital, equipment,
and other treatment expenses incurred prior to the date compensation is
allowed and after the employer's liability has ended if funds are reasonably
available in the Second Injury Fund for such purpose after paying claims in
cases of second injuries as specified in G.S. 97-33 and 97-35. Should the
fund be insufficient to pay both compensation and treatment expenses, then
the said expenses may, in the discretion of the Commission, be paid first
and compensation thereafter according to the reasonable availability of
funds in the fund. (1953, c. 1135, s. 2; 1957, c. 1396, s. 4; 1963, c. 450,
s. 3; 1977, c. 457; 1991, c. 703, s. 11; 1993 (Reg. Sess., 1994), c. 679, s.
6.1.)
Our
firm has total dedication to the injured worker. In order to accomplish that, we
handle your claim with the following attitude:
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benefits in a timely fashion
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aggressively to obtain hearings and present the best possible claim for our
client
- If it is in our client’s best interest to
settle, we move it along to obtain a maximum settlement for the client
- We treat our injured workers with courtesy
and respect, understanding our clients’ frustration with being out of work
Nothing less than a positive, aggressive
approach for our clients is acceptable in this firm!
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