5 Myths of North Carolina Workers' Compensation
Below you will find a Hardison & Cochran Podcast episode about the 5 Myths on North Carolina Workers’ Compensation Cases. The transcript of the episode is also below for those who would simply like to read and not listen. To listen or read transcripts from other podcasts from Hardison & Cochran, please visit our Podcast Page.
Episode #7 5 Myths of North Carolina Workers’ Compensation Cases Transcript
Bill Campbell: [00:01:35] MYTH #1 The first myth is my employer will handle all the paperwork and documents associated with my worker’s comp injury.Why is that a myth?
Ben Cochran: [00:01:57] The reason that’s a myth is because the form that is required by the Industrial Commission to be filed by the employee so that they know that the employees is seeking benefits. It’s called a Form 18. And so it by its own name is a notice of accident by the employee. So the employer is not going to file this. They’re not required to file this. They’re not even going to think about filing.
The form 18 is a particular form that is propounded the Industrial Commission to be utilized by injured employees. That is the paperwork that needs to be filed out the injured employee and. Every case that we sign up we contact the Industrial Commission. We asked them as a form 18 is on file. Ask them to send it to us. We review it. If we don’t think it’s complete inaccurate we will file another one on behalf of our injured employee.
If there is not one filed we obviously file one on every single case because the Form 18 is one of the most important documents to be filed with the Industrial Commission. Additionally, many employers and many insurance companies do not file the admission paperwork with the Industrial Commission even though they’re required to do so. They may begin payment without filing this information even though the statute is clear it says that they shall file forms with the Industrial Commission delineating how they’re making payments. So, you cannot rely on whether or not the employer and or insurance company is going to appropriately file the paperwork.
Once we sign up our folks and once we have reviewed their Industrial Commission files. If it is necessary for additional documentation to be filed, we reach out to the insurance company or self-insured employer and we say we’ve got a copy of the The Industrial Commission file. We are missing some forms that we don’t see that have been filed in this case. Can you tell us whether or not these particular forms have been filed. We come back. We make sure that all the appropriate forms are filed. Because you cannot count on someone else to make sure that your rights are protected.
Bill Campbell: [00:04:17] MYTH #2 Myth number two, if you follow workers compensation claim in North Carolina you’re suing your employer.
Ben Cochran: [00:04:23] Worker’s compensation in North Carolina is governed by the Industrial Commission. Worker’s Compensation is not a court jurisdiction to where you are filing a lawsuit. It is an administrative hearing body within the Industrial Commission. So it is an administrative practice.
You are not going to have to go down to superior court or district court and file a lawsuit. The Industrial Commission is an administration body that oversees the administrative practice of worker’s compensation. So it is not a lawsuit. And you are not suing your employer.
Bill Campbell: [00:05:05] MYTH #3 If I file a North Carolina workers compensation settlement. I will be getting money for my pain and suffering.
Ben Cochran: [00:05:12] In North Carolina, workers compensation benefits are made available for loss of earning capacity meaning your inability to go to work. So you can get lost wages. Compensation is paid for medical treatment. If you have received medical treatment then you are entitled to have a payment for those medical expenses.
You are also entitled to what’s called permanent partial impairment. Those are benefits that are available based upon the nature of your injury and what the overall permanency of the injury has done to your ability to work.
Unfortunately, in North Carolina, there is no pain and suffering allotted for settlement purposes for a worker’s compensation claim. The primary thinking behind this is that worker’s compensation is most notably seen as a strict liability or exclusive remedy meaning that if an individual is injured on the job as a result of an accident, no matter what the cause of it, that person is entitled to benefits. So based upon that theory there is no pain and suffering because it’s not a situation to where necessarily it has to be the fault of any individual.
And so when you remove thought the Industrial Commission and the legislature decided that we will remove pain and suffering. Prior to the Workers Compensation Act, an injured employee had to sue their employer based upon the employer’s negligence. And in that situation the injured employee was entitled to pain and suffering if the employer had been negligent. When the Worker’s Compensation Act was created, we removed the requirement of negligence. And as a tradeoff the legislature also removed any claim for pain and suffering
Bill Campbell: [00:07:15] MYTH #4 My accident happened and my employer said I was negligent. So I’m not allowed to file worker’s compensation claim.
Ben Cochran: [00:07:23] In North Carolina, the accident could even be your fault and you can be entitled to workers compensation benefits. There are very limited exceptions as to where an injured employee is barred due to their own actions.
The limited exceptions revolve around first and foremost an intentional act of course. If an injured employee is injured when they are intentionally doing something to hurt themselves, obviously the law is not going allow them to have a recovery. Second, most common that you see an attempt by an insurance company to bar an injured employee based upon their own actions is they argue an intoxication. So the insurance company can use statutory excerpts to argue that if an injured employee was intoxicated when they were injured, and that’s the reason that it happened, then yes they can attempt to bar the injured employees from benefits.
But it’s very important to know that the intoxication must be determined by legally used means to determine whether or not that person was intoxicated. So what I mean by that is if someone has a breathalyzer they’ve been drinking alcohol and they blow over .08 and they were involved in a car wreck while they were on the job, then the insurance company is going to allege that the intoxication defense because they have a legally recognized standard of the intoxilyzer from the breath test indicating that they are over a legal limit.
This becomes much more difficult when you’re looking at any other substance involved other than alcohol because we really don’t have tests that are able to indicate that someone is in an appreciable condition for say using cocaine, marijuana, methamphetamines and things of that type of grouping in terms of narcotics. So those are much more difficult for the insurance companies to allege, but they do it. They do it every single time. And the reason being is is because it’s an available defense and they’ll do it.
But mostly if an injured employee is injured and he was simply due to their simple negligence they are entitled to workers compensation benefits.
Bill Campbell: [00:10:12] MYTH #5 And the last myth, my employer said I’m not allowed to file for worker’s compensation benefits because I did not report the accident or my injury within 24 hours of it happening.
Ben Cochran: [00:10:25] We receive a lot of calls from individuals who have been told by their supervisor or HR that they are not able to file a claim because they didn’t file within 24 hours. Now individual companies may have that as a policy or procedure that you are to file a worker’s compensation claim within 24 hours. That may be their individual policy, but let’s all be clear that is not the law.
The law requires for the injured employee to give written notice to the employer within 30 days. And then there are exceptions to that. So when you look at it and you’re looking at it 24 hours 48 hours or even a week, those are not timeframes that are acknowledged by the Industrial Commission or Chapter 97 to the North Carolina General statutes. Use 30 days written notice as or go by.
If you are injured, you really do want to report it immediately because the farther you get away the less likely it is that the insurance company is going to accept the claim because the longer you get away from the date of injury the less credible it appears. Because most insurance companies say well if you have really gotten hurt on that day you would have told us on that day. So when we look at it we always tell folks yes report it as quickly as possible.
But if somebody told you it had to be done within 24 hours 48 hours. That’s just not right. The law is 30 days written notice.