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Provided, that in the case of disability such
deductions shall be made by shortening the period during which compensation must
be paid, and not by reducing the amount of the weekly payment. Unless otherwise
provided by the plan, when payments are made to an injured employee pursuant to
an employer-funded salary continuation, disability or other income replacement
plan, the deduction shall be calculated from payments made by the employer in
each week during which compensation was due and payable, without any
carry-forward or carry-back of credit for amounts paid in excess of the
compensation rate in any given week. (1929, c. 120, s. 42; 1993 (Reg. Sess.,
1994), c. 679, s. 3.7.)
§97-42.1. Credit for unemployment benefits.
If an injured employee has received
unemployment benefits under the Employment Security Law for any week with
respect to which he is entitled to workers compensation benefits for temporary
total or permanent and total disability, the employment benefits paid for such
weeks may be deducted from the award to be paid as compensation. If an injured
employee has received unemployment benefits for any week with respect to which
he is entitled to workers' compensation benefits for partial disability as
provided in G.S. 97-30, the unemployment benefits paid for such weeks may be
deducted from the award to be paid only to the extent that the sum of the
unemployment benefits and workers' compensation payable for such week exceeds
two-thirds of the injured employee's average weekly wages as determined by the
Commission in accordance with G.S. 97-2(5). Benefits payable under G.S. 97-31
for permanent partial disability or other permanent injury shall not be subject
to reduction because of the receipt of unemployment benefits. (1985, c. 616, s.
1.)
§97-43. Commission may prescribe monthly or
quarterly payments.
The Industrial Commission, upon application of
either party, may, in its discretion, having regard to the welfare of the
employee and the convenience of the employer, authorize compensation to be paid
monthly or quarterly instead of weekly. (1929, c. 120, s. 43.)
§97-44. Lump sums.
Whenever any weekly payment has been continued
for not less than six weeks, the liability therefor may, in unusual cases, where
the Industrial Commission deems it to be to the best interest of the employee or
his dependents, or where it will prevent undue hardships on the employer or his
insurance carrier, without prejudicing the interests of the employee or his
dependents, be redeemed, in whole or in part, by the payment by the employer of
a lump sum which shall be fixed by the Commission, but in no case to exceed the
uncommuted value of the future installments which may be due under this Article.
The Commission, however, in its discretion, may at any time in the case of a
minor who has received permanently disabling injuries either partial or total
provide that he be compensated, in whole or in part, by the payment of a lump
sum, the amount of which shall be fixed by the Commission, but in no case to
exceed the uncommuted value of the future installments which may be due under
this Article. (1929, c. 120, s. 44; 1963, c. 450, s. 4; 1975, c. 255.)
§97-45. Reducing to judgment outstanding
liability of insurance carriers withdrawing from State.
Upon the withdrawal of any insurance carrier
from doing business in the State that has any outstanding liability under the
Workers' Compensation Act, the Insurance Commissioner shall immediately notify
the North Carolina Industrial Commission, and thereupon the said North Carolina
Industrial Commission shall issue an award against said insurance carrier and
commute the installments due the injured employee or employees, and immediately
have said award docketed in the superior court of the county in which the
claimant resides, and the said North Carolina Industrial Commission shall then
cause suit to be brought on said judgment in the state of the residence of any
such insurance carrier, and the proceeds from said judgment after deducting the
cost, if any, of the proceeding shall be turned over to the injured employee, or
employees, taking from such employee, or employees, the proper receipt in
satisfaction of his claim. (1933, c. 474; 1979, c. 714, s. 2.)
§97-46. Lump sum payments to trustee;
receipt to discharge employer.
Whenever the Industrial Commission deems it
expedient any lump sum, subject to the provisions of G.S. 97-44, shall be paid
by the employer to some suitable person or corporation appointed by the superior
court in the county wherein the accident occurred, as trustee, to administer the
same for the benefit of the person entitled thereto, in the manner provided by
the Commission. The receipt of such trustee for the amount as paid shall
discharge the employer or anyone else who is liable therefor. (1929 c. 120, s.
45.)
§97-47. Change of condition; modification of
award.
Upon its own motion or upon the application of
any party in interest on the grounds of a change in condition, the Industrial
Commission may review any award, and on such review may make an award ending,
diminishing, or increasing the compensation previously awarded, subject to the
maximum or minimum provided in this Article, and shall immediately send to the
parties a copy of the award. No such review shall affect such award as regards
any moneys paid but no such review shall be made after two years from the date
of the last payment of compensation pursuant to an award under this Article,
except that in cases in which only medical or other treatment bills are paid, no
such review shall be made after 12 months from the date of the last payment of
bills for medical or other treatment, paid pursuant to this Article. (1929, c.
120, s. 46; 1931, c. 274, s. 6; 1947, c. 823; 1973, c. 1060, s. 2.)
§97-47.1. Payment without prejudice;
limitations period.
When the employer has paid compensation without
prejudice but timely contested liability as provided in G.S. 97-18(d), the
right, if any, to further indemnity compensation and medical compensation shall
terminate two years after the employer's last payment of medical or indemnity
compensation, whichever last occurs, unless the employee files with the
Commission a claim for further compensation prior to the expiration of this
period. (1993 (Reg. Sess., 1994), c. 679, s. 3.5.)
§97-48. Receipts relieving employer; payment
to minors; when payment of claims to dependents subsequent in right discharges
employer.
(a) Whenever payment of compensation is made to
a widow or widower for her or his use, or for her or his use and the use of the
child or children, the written receipt thereof of such widow or widower shall
acquit the employer: Provided, however, that in order to protect the interests
of minors or incompetents the Industrial Commission may at its discretion change
the terms of any award with respect to whom compensation for the benefit of such
minors or incompetents shall be paid.
(b) Whenever payment is made to any person 18
years of age or over, the written receipt of such person shall acquit the
employer.
(c) Payment of death benefits by an employer in
good faith to a dependent subsequent in right to another or other dependents
shall protect and discharge the employer, unless and until such dependent or
dependents prior in right shall have given notice of his or their claims. In
case the employer is in doubt as to the respective rights of rival claimants, he
may apply to the Industrial Commission to decide between them.
(d) A minor employee under the age of 18 years
may sign agreements and receipts for payments of compensation for temporary
total disability, and such agreements and receipts executed by such minor shall
acquit the employer. Where the injury results in a permanent disability and the
sum to be paid does not exceed five hundred dollars ($500.00) the minor employee
may execute agreements and sign receipts and such agreements and receipts shall
acquit the employer; provided, that when deemed necessary the Commission may
require the signature of a parent or person standing in place of a parent.
(1929, c. 120, s. 47; 1931, c. 274, s. 7; 1945, c. 766.)
§97-49. Benefits of mentally incompetent or
minor employees under 18 may be paid to a trustee, etc.
If an injured employee is mentally incompetent
or is under 18 years of age at the time when any right or privilege accrues to
him under this Article, his guardian, trustee or committee may in his behalf
claim and exercise such right or privilege. (1929, c. 120, s. 48.)
§97-50. Limitation as against minors or
mentally incompetent.
No limitation of time provided in this Article
for the giving of notice or making claim under this Article shall run against
any person who is mentally incompetent, or a minor dependent, as long as he has
no guardian, trustee, or committee. (1929, c. 120, s. 49.)
§97-51. Joint employment; liabilities.
Whenever an employee, for whose injury or death
compensation is payable under this Article, shall at the time of the injury be
in joint service of two or more employers subject to this Article, such
employers shall contribute to the payment of such compensation in proportion to
their wages liability to such employee; provided, however, that nothing in this
section shall prevent any reasonable arrangement between such employers for a
different distribution as between themselves of the ultimate burden of
compensation. (1929, 120, s. 50.)
§97-52. Occupational disease made
compensable; "accident" defined.
Disablement or death of an employee resulting
from an occupational disease described in G.S. 97-53 shall be treated as the
happening of an injury by accident within the meaning of the North Carolina
Workers' Compensation Act and the procedure and practice and compensation and
other benefits provided by said act shall apply in all such cases except as
hereinafter otherwise provided. The word "accident," as used in the Workers'
Compensation Act, shall not be construed to mean a series of events in
employment, of a similar or like nature, occurring regularly, continuously or at
frequent intervals in the course of such employment, over extended periods of
time, whether such events may or may not be attributable to fault of the
employer and disease attributable to such causes shall be compensable only if
culminating in an occupational disease mentioned in and compensable under this
Article: Provided, however, no compensation shall be payable for asbestosis
and/or silicosis as hereinafter defined if the employee, at the time of entering
into the employment of the employer by whom compensation would otherwise be
payable, falsely represented himself in writing as not having previously been
disabled or laid off because of asbestosis or silicosis. (1935, c. 123; 1979, c.
714, s. 2.)
§97-53. Occupational diseases enumerated;
when due to exposure to chemicals.
The following diseases and conditions only
shall be deemed to be occupational diseases within the meaning of this Article:
- Anthrax.
- Arsenic poisoning.
- Brass poisoning.
- Zinc poisoning.
- Manganese poisoning.
- Lead poisoning. Provided the employee
shall have been exposed to the hazard of lead poisoning for at least 30 days
in the preceding 12 months' period; and, provided further, only the employer
in whose employment such employee was last injuriously exposed shall be
liable.
- Mercury poisoning.
- Phosphorus poisoning.
- Poisoning by carbon bisulphide, menthanol,
naphtha or volatile halogenated hydrocarbons.
- Chrome ulceration.
- Compressed-air illness.
- Poisoning by benzol, or by nitro and amido
derivatives of benzol (dinitrolbenzol, anilin, and others).
- Any disease other than hearing loss
covered in another subdivision of this section, which is proven to be due to
causes and conditions which are characteristic of and peculiar to a
particular trade, occupation or employment, but excluding all ordinary
diseases of life to which the general public is equally exposed outside of
the employment.
- Epitheliomatous cancer or ulceration of
the skin or of the corneal surface of the eve due to tar, pitch, bitumen,
mineral oil, or paraffin, or any compound, product, or residue of any of
these substances.
- Radium poisoning or disability or death
due to radioactive properties of substances or to roentgen rays, X rays or
exposure to any other source of radiation; provided, however, that the
disease under this subdivision shall be deemed to have occurred on the date
that disability or death shall occur by reason of such disease.
- Blisters due to use of tools or appliances
in the employment.
- Bursitis due to intermittent pressure in
the employment.
- Miner's nystagmus.
- Bone felon due to constant or intermittent
pressure in employment.
- Synovitis, caused by trauma in employment.
- Tenosynovitis, caused by trauma in
employment.
- Carbon monoxide poisoning.
- Poisoning by sulphuric, hydrochloric or
hydrofluoric acid.
- Asbestosis.
- Silicosis.
- Psittacosis.
- Undulant fever.
- Loss of hearing caused by harmful noise in
the employment. The following rules shall be applicable in determining
eligibility for compensation and the period during which compensation shall
be payable:
- The term "harmful noise" means sound
in employment capable of producing occupational loss of hearing as
hereinafter defined. Sound of an intensity of less than 90 decibels, A
scale, shall be deemed incapable of producing occupational loss of
hearing as defined in this section.
- "Occupational loss of hearing" shall
mean a permanent sensorineural loss of hearing in both ears caused by
prolonged exposure to harmful noise in employment. Except in instances
of preexisting loss of hearing due to disease, trauma, or congenital
deafness in one ear no compensation shall be payable under this
subdivision unless prolonged exposure to harmful noise in employment has
caused loss of hearing in both ears as hereinafter provided.
- No compensation benefits shall be
payable for temporary total or temporary partial disability under this
subdivision and there shall be no award for tinnitus or a psychogenic
hearing loss.
- An employer shall become liable for
the entire occupational hearing loss to which his employment has
contributed, but if previous deafness is established by a hearing test
or other competent evidence, whether or not the employee was exposed to
harmful noise within six months preceding such test, the employer shall
not he liable for previous loss so established, nor shall he be liable
for any loss for which compensation has previously been paid or awarded
and the employer shall be liable only for the difference between the
percent of occupational hearing loss determined as of the date of
disability as herein defined and the percentage of loss established by
the preemployment and audiometric examination excluding, in any event,
hearing losses arising from nonoccupational causes.
- In the evaluation of occupational
hearing loss, only the hearing levels at the frequencies of 500, 1,000,
2,000, and 3,000 cycles per second shall be considered. Hearing losses
for frequencies below 500 and above 3,000 cycles per second are not to
be considered as constituting compensable hearing disability.
- The employer liable for the
compensation in this section shall be the employer in whose employment
the employee was last exposed to harmful noise in North Carolina during
a period of 90 working days or parts thereof, and an exposure during a
period of less than 90 working days or parts thereof shall held not to
be an injurious exposure; provided, however, that in the event an
insurance carrier has been on the risk for a period to time during which
an employee has been injuriously exposed to harmful noise, and if after
insurance carrier goes off the risk said employee has been further
exposed to harmful noise, although not exposed for 90 working days or
parts thereof so as to constitute an injurious exposure, such carrier
shall, nevertheless, be liable.
- The percentage of hearing loss shall
be calculated as the average, in decibels, of the thresholds of hearing
for the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second.
Pure tone air conduction audiometric instruments, properly calibrated
according to accepted national standards such as American Standards
Association, Inc., (ASA), International Standards Organization (ISO), or
American National Standards Institute, Inc., (ANSI), shall be used for
measuring hearing loss. If more than one audiogram is taken, the
audiogram having the lowest threshold will be used to calculate
occupational hearing loss. If the losses of hearing average 15 decibels
(26 db if ANSI or ISO) or less in the four frequencies, such losses of
hearing shall not constitute any compensable hearing disability. If the
losses of hearing average 82 decibels (93 db if ANSI or ISO) or more in
the four frequencies, then the same shall constitute and be total or one
hundred percent (100%) compensable hearing loss. In measuring hearing
impairment, the lowest measured losses in each of the four frequencies
shall be added together and divided by four to determine the average
decibel loss. For each decibel of loss exceeding 15 decibels (26 db if
ANSI or ISO) an allowance of one and one-half percent (1 1/2%) shall be
made up to the maximum of one hundred percent (100%) which is reached at
82 decibels (93 db if ANSI or ISO). In determining the binaural
percentage of loss, the percentage of impairment in the better ear shall
be multiplied by five. The resulting figure shall be added to the
percentage of impairment in the poorer ear, and the sum of the two
divided by six. The final percentage shall represent the binaural
hearing impairment.
- There shall be payable for total
occupational loss of hearing in both ears 150 weeks of compensation, and
for partial occupational loss of hearing in both ears such proportion of
these periods of payment as such partial loss bears to total loss.
- No claim for compensation for
occupational hearing loss shall be filed until after six months have
elapsed since exposure to harmful noise with the last employer. The last
day of such exposure shall be the date of disability. The regular use of
employer-provided protective devices capable of presenting loss of
hearing from the particular harmful noise where the employee works shall
constitute removal from exposure to such particular harmful noise.
- No consideration shall be given to the
question of whether or not the ability of an employee to understand
speech is improved by the use of a hearing aid. The North Carolina
Industrial Commission may order the employer to provide the employee
with an original hearing aid if it will materially improve the
employee's ability to hear.
- No compensation benefits shall be
payable for the loss of hearing caused by harmful noise after October 1,
1971, if employee fails to regularly utilize employer-provided
protection device or devices, capable of preventing loss of hearing from
the particular harmful noise where the employee works.
- Infection with smallpox, infection with
vaccinia, or any adverse medical reaction when the infection or adverse
reaction is due to the employee receiving in employment vaccination against
smallpox incident to the Administration of Smallpox Countermeasures by
Health Professionals, section 304 of the Homeland Security Act, Pub. L. No.
107-296 (Nov. 25, 2002)(to be codified at 42 U.S.C. § 233(p)), or when the
infection or adverse medical reaction is due to the employee being exposed
to another employee vaccinated as described in this subdivision.
Occupational diseases caused by chemicals shall
be deemed to be due to exposure of an employee to the chemicals herein mentioned
only when as a part of the employment such employee is exposed to such chemicals
in such form and quantity, and used with such frequency as to cause the
occupational disease mentioned in connection with such chemicals. (1935, c. 123;
1949, c. 1078; 1953, c. 1112; 1955, c. 1026, s. 10; 1957, c. 1396, s. 6; 1963,
c. 553, s. 1; c. 965; 1971, c. 547, s. 1; c. 1108, s. 1; 1973, c. 760, ss. 1, 2;
1975, c. 718, s. 4; 1987, c. 729, ss. 11, 12; 1991, c. 703, s. 10; 2003.)
§97-54. "Disablement" defined.
The term "disablement" as used in this Article
as applied to cases of asbestosis and silicosis means the event of becoming
actually incapacitated because of asbestosis or silicosis to earn, in the same
or any other employment, the wages which the employee was receiving at the time
of his last injurious exposure to asbestosis or silicosis; but in all other
cases of occupational disease "disablement" shall be equivalent to "disability"
as defined in G.S. 97-2(9). (1935, c. 123; 1955, c. 525, s. 1.)
§97-55. "Disability" defined.
The term "disability" as used in this Article
means the state of being incapacitated as the term is used in defining
"disablement" in G.S. 97-54. (1935, c. 123.)
§97-56. Limitation on compensable diseases.
The provisions of this Article shall apply only
to cases of occupational disease in which the last exposure in an occupation
subject to the hazards of such diseases occurred on or after March 26, 1935.
(1935, c. 123.)
§97-57. Employer liable.
In any case where compensation is payable for
an occupational disease, the employer in whose employment the employee was last
injuriously exposed to the hazards of such disease, and the insurance carrier,
if any, which was on the risk when the employee was so last exposed under such
employer, shall be liable.
For the purpose of this section when an
employee has been exposed to the hazards of asbestosis or silicosis for as much
as 30 working days, or parts thereof, within seven consecutive calendar months,
such exposure shall be deemed injurious but any less exposure shall not be
deemed injurious; provided, however, that in the event an insurance carrier has
been on the risk for a period of time during which an employee has been
injuriously exposed to the hazards of asbestosis or silicosis, and if after
insurance carrier goes off the risk said employee is further exposed to the
hazards of asbestosis or silicosis, although not so exposed for a period of 30
days or parts thereof so as to constitute a further injurious exposure, such
carrier shall, nevertheless, be liable. (1935, c. 123; 1945, c. 762; 1957, c.
1396, s. 7.)
§97-58. Time limit for filing claims.
(a) Repealed by Session Laws 1987, c. 729, s.
13.
(b) The report and notice to the employer as
required by G.S. 97-22 shall apply in all cases of occupational disease except
in case of asbestosis, silicosis, or lead poisoning. The time of notice of an
occupational disease shall run from the date that the employee has been advised
by competent medical authority that he has same.
(c) The right to compensation for occupational
disease shall be barred unless a claim be filed with the Industrial Commission
within two years after death, disability, or disablement as the case may be.
Provided, however, that the right to compensation for radiation injury,
disability or death shall be barred unless a claim is filed within two years
after the date upon which the employee first suffered incapacity from the
exposure to radiation and either knew or in the exercise of reasonable diligence
should have known that the occupational disease was caused by his present or
prior employment. (1935, c. 123; 1945, c. 762; 1955, c. 525, s. 6; 1963, c. 553,
s. 2; 1973, c. 1060, s. 3; 1981, c. 734, s. 1; 1987, c. 729. s. 13.)
§97-59. Employer to pay for treatment.
Medical compensation shall be paid by the
employer in cases in which awards are made for disability or damage to organs as
a result of an occupational disease after bills for same have been approved by
the Industrial Commission.
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. (1935, c. 123; 1945, c.
762; 1973, c. 1061; 1981, c. 339; 1991, c. 703, s. 5.)
§97-60. [Repealed.]
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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
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settle, we move it along to obtain a maximum settlement for the client
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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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