Workers Comp FAQ

Question 1

Can I be fired or demoted if I file a workers’ compensation claim?

Accepted Answer

The short answer: No. It is against the law for an employer to terminate or demote an employee for filing a workers’ compensation claim. This is covered by both state and federal laws. However, these cases require careful handling.  For example, the N.C. Retaliatory Employment Discrimination Act prohibits employers from firing or discriminating against employees for filing a worker’s compensation claim or exercising other rights such as filing a complaint about workplace safety violations.  You may have the right to pursue legal action if this occurs to you. However, you must first file a written complaint with the N.C. Department of Labor’s Employment Discrimination Bureau within 180 days of your employer’s retaliatory act. Only after you get a response from this agency can you pursue other relief, including the filing of a lawsuit.  If you believe that you have been retaliated against due to exercising your rights under the N.C. Workers’ Compensation Act, please contact Hardison & Cochran without delay.

Question 2

Can I get Workers’ Compensation if I have a heart attack at work?

Accepted Answer

It depends. The North Carolina Workers’ Compensation Act states that an employee’s injury is compensable only when it arises out of and in the course of’ the employment. Whether or not a heart attack is compensable will typically depend on whether or not it was an “injury by accident” and whether or not it “arose out of” the employment.  In Dillingham v. Yeargin Construction Company, the North Carolina Court of Appeals wrote that when the employee suffers a heart attack, he or she must show that it was caused by some unusual or extraordinary exertion. Dillingham v. Yeargin Constr. Co., 82 N.C. App. 684, 348 S.E.2d 143 (1986), rev’d on other grounds, 320 N.C. 499, 258 S.E.2d 380 (1987). For example, in King v. Forsyth County, the North Carolina Court of Appeals held that when a sheriff suffered a heart attack immediately after he engaged in a vigorous foot chase of a fleeing suspect caused by the overexertion experienced during the foot chase was an “injury by accident.”  Whether or not a heart attack arises out of the employment is a question of what caused the heart attack. For example, were you pre-disposed to having a heart attack and this just happened to be when you had it or was something at work the reason for it? Take the previous police chase example. The Court would probably consider the chase to have caused the heart attack since it involved overexertion and it occurred immediately after the chase. If so, then the heart attack arose out of the employment.  This question of what caused the heart attack is always up to the medical experts. Therefore, even if you think work caused the heart attack, if the medical experts say otherwise, the court is likely to agree with them.

Question 3

Can I receive workers’ compensation benefits if my work injury causes disfigurement?

Accepted Answer

Yes, under some circumstances, you can be compensated for disfigurement. North Carolina workers’ compensation law allows for compensation for disfigurement if there is no other compensation payable under the statute for that injury.  If the disfigurement is to the face or head, then the law allows up to a maximum amount of $20,000 for the disfigurement. If the disfigurement is to any other body part, then compensation may be payable up to $10,000.  Unfortunately, disfigurement is among Common Workplace Injuries in North Carolina.

Question 4

What if I have to change my line of work because I was injured on the job?

Accepted Answer

This situation often arises among workers whose injuries prevent them from returning to a previous job that requires extensive physical activity. Fortunately, there are benefits available to help the transition to a new career.  If you are unable to return to your previous position due to your work-related injuries, then the N.C. Workers’ Compensation Act allows for you to be placed in vocational rehabilitation to be provided by your employer or its workers’ compensation carrier. These benefits should cover the costs of:  Getting on-the-job-training or education Receiving an analysis of your transferrable skills Searching for a job Getting assistance with your resume, applications and interviews. A vocational rehabilitation counselor should be assigned to help you find suitable employment.  Our section on Types of Workers’ Compensation Benefits explains vocational rehabilitation benefits and other benefits available under North Carolina workers’ compensation law in more detail.

Question 5

If I get injured on the job, what should I do next?

Accepted Answer

First, notify your employer. Second, contact an attorney who will provide helpful guidance and make sure your rights are protected from the beginning.  You can report your injury to your boss, manager, a supervisor or directly to a human resources office. Make sure that an accident report is filed with the proper person or office.  Keep in mind, under North Carolina workers’ compensation law, your injury must be reported to your employer within 30 days of the accident unless it can be shown that the employer had knowledge of the injury. The N.C. Industrial Commission also may, within its discretion, allow the claim to be filed as long as the employer was not prejudiced by the delay.  However, even if you are not sure whether your injury is serious, the best practice is to notify your employer right away in order to avoid any questions about your injury and the date it occurred.  If you contact an attorney after notifying your employer, the attorney can help to make sure that all forms are properly filed and work with your company’s workers’ compensation insurer to secure any benefits that you are entitled to receive.  See our page on Steps to Take When Filing a Workers’ Compensation Claim to learn more details about reporting your injury and related matters.

Question 6

Should I give my employer or its workers’ compensation insurance company a recorded statement?

Accepted Answer

While it is customary for employers or workers’ compensation insurers to ask for a recorded statement, you may want to consult with an attorney before you do so.  It is usually permissible for an injured employee to give a recorded statement. However, if for any reason you have reason to believe that the insurance carrier questions the circumstances surrounding the events of your case, an attorney can give you proper advice and representation.  Keep in mind: Insurance companies typically want to avoid paying any benefits or as little as possible. It protects the companies’ profits. Your lawyer’s primary goal will be to protect you.  An attorney ultimately will help you to avoid making a mistake that could cost you your rights to benefits you need and deserve. See our page on Common Mistakes Made in Workers’ Compensation Cases for more information.

Question 7

Where do I go for medical treatment after I get hurt at work?

Accepted Answer

Your employer has the right to direct you to a doctor for treatment. However, you have a right to get a second opinion if you are dissatisfied with your treatment.  You must find out from either your employer or your employer’s workers’ compensation insurance carrier where you need to go to seek treatment. If they will not provide you with treatment, then you can seek treatment on your own and request that the N.C. Industrial Commission name this physician as your treating physician.  If you become dissatisfied with your treatment, and that medical provider releases you, then you may be entitled to a second opinion. If, after that second opinion, there are other treatments recommended, you can ask the Industrial Commission to order your employer’s workers’ compensation carrier to provide the recommended treatment.  These matters can often lead to disputes between injured employees, employers and insurance companies. It is important to get help from a lawyer who will help you to be covered for the medical care and treatment that you need to address your injury or illness.

Question 8

If I was hurt because of a defective forklift, can I file a “third-party claim?”

Accepted Answer

Even though you cannot sue your employer if suffer an injury that entitles you to workers’ compensation benefits, you may be able to sue any “third party” who caused the harm. This would appear to be an example of a case where a “third-party claim” may be warranted.  If your injury was caused by a defect in the forklift, you may have a product liability claim against the manufacturer, distributor and seller of the equipment.  Other common “third-party claims” involve automobile accidents or accidents at construction sites that are caused by negligent site owners and supervisors or negligent subcontractors. In some cases, you may be injured at work because of the negligence of a vendor hired by your employer such as a security service or cleaning company.  Keep in mind: Your employer’s workers’ compensation carrier may also have a lien in this matter. The amount of the carrier’s lien is limited to medical treatment and disability benefits that they have provided for you by way of your workers’ compensation claim. In order to resolve the third-party action, you will need to address this lien. It may be possible to have the lien waived by the carrier or extinguished by a court.  An attorney can help you to pursue a “third-party claim” and carefully handle all lien issues.

Question 9

I was injured while on break, can I still receive Workers’ Compensation benefits?

Accepted Answer

An employee may be entitled to benefits under the Workers’ Compensation Act if he or she sustains (1) an injury by accident (2) arising out of and (3) in the course of employment. N.C. Gen. Stat. § 97–2(6).  The phrase, “arising out of” refers to the origin of the injury while the phrase “in the course of” refers to the time, place and circumstances under which the injury occurred. Freeman v. Triangle Grading & Paving, Inc., 160 N.C. App. 415, 587 S.E.2d 100 (2003) (internal citations omitted).  The North Carolina Supreme Court has held that if the employee’s injury is “fairly traceable to the employment … or any reasonable relationship to employment exists,” it arises out of the employment. Id. (internal citations omitted). For an injury to be “in the course of his employment” it must be “‘under circumstances in which the employee is engaged in an activity which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer’s business.’” Id. (quoting Powers v. Lady’s Funeral Home, 306 N.C. 728, 730, 295 S.E.2d 473, 475 (1982). Activities undertaken for the employee’s personal comfort are considered part of the aforementioned “circumstances” element of the course of employment. Id.  North Carolina Supreme Court has thus recognized the “personal comfort doctrine.” Freeman, 160 N.C. App. 415, 587 S.E.2d 100 (internal citations omitted). The court stated “‘[a]n employee, while about his employer’s business, may do those things which are necessary to his own health and comfort, even though personal to himself, and such acts are regarded as incidental to the employment.’” Id. (quoting Rewis v. Insurance Co., 226 N.C. 325, 328, 38 S.E.2d 97, 99 (1946). The North Carolina Court of Appeals has added “[T]he fact that the employee is not engaged in the actual performance of the duties of his job does not preclude an accident from being one within the course of employment….” Id.  The North Carolina Court of Appeals further wrote that “‘[I]n tending to his personal physical needs, an employee is indirectly [benefitting] his employer.’” Id. As a result, the course of employment continues when the employee goes to the washroom, takes a smoke break, [or] takes a break to partake of refreshment….” Id. (citing Harless v. Flynn, 1 N.C.App. 448, 456–57, 162 S.E.2d 47, 53 (1968) (citations omitted)).  Because off-premises breaks have increasingly become a regular part of many employees’ daily routine, the Court has addressed them as well. In order for injuries sustained during an off-premises break to be compensable, there are a number of factors to consider. These factors revolve around the underlying notion of whether the employer, considering all the circumstances, is deemed to have retained authority over the employee. Freeman, 160 N.C. App. 415, 587 S.E.2d 100 (internal citations omitted). The factors are:  (1)the duration of the break period; (2) whether the employee is paid during the break period; (3) whether the employer provides a place for employees to take breaks, including vending facilities; (4) whether the employer permits off-premises breaks, or has acquiesced in such despite policies against such breaks; and, (5) the proximity of the off-premises location where the employee was injured to the employment site.  Shaw v. Smith & Jennings, Inc., 130 N.C. App. 442, 447, 503 S.E.2d 113, 117 (1998) (internal citations omitted).  Therefore, whether or not an employee is entitled to benefits for an off premises break will depend on the circumstances of that employee’s individual case. Some things to note, however, are that injuries by accident sustained during on-premises breaks for your personal benefit are typically compensable so long as the remainder of the workers’ compensation act is satisfied. The factors laid out by the North Carolina Court of Appeals in Shaw and subsequent cases provide the framework for determining the compensability of an injury by accident sustained by an employee during an off-premises break.

Question 10

What does it mean to receive temporary total disability benefits?

Accepted Answer

If your injury prevents you from working – but only for what is expected to be a short period of time – you may be entitled to receive temporary total disability benefits.  You should be eligible to start receiving these benefits after a seven-day waiting period. Temporary total disability (TTD) benefits usually come in a weekly check and represent two-thirds of your average weekly wage. Your average weekly wage is the average wage you earned over the 52 weeks prior to your injury.  Ultimately, a doctor will determine when you are able to return to work. If you disagree with the doctor’s conclusion, it may be time to get a second opinion and / or to consult with an attorney.

Question 11

Do I need an attorney to handle my workers’ compensation claim?

Accepted Answer

Even though you can pursue workers’ compensation benefits without the help of an attorney, it is not recommended that you do so.  An attorney can help you to overcome several problems that may arise in your case, including:  You are not receiving the proper medical treatment Your benefits checks are not coming properly The insurance adjuster will not call you back You are not capable of returning back to work and you are concerned about your future. Contact Hardison & Cochran today to discuss your case in more detail and learn more about how we can specifically help you. You can also read our page on How We Work to get a better idea of how we approach cases.

Question 12

What should I do if I am not receiving my workers’ compensation benefits check?

Accepted Answer

It can be frustrating and potentially devastating if you do not receive workers’ compensation benefits that you are entitled to receive. It is important to contact an attorney right away.  North Carolina worker’s compensation law provides that, if any payment of compensation is not paid within 14 days of the date the payment was due, you are entitled to a 10 percent late payment penalty for any amount you have not received.  In order to receive this amount, you must file a request for this penalty with the N.C. Industrial Commission. An attorney can help you file all required paperwork, seek these penalty payments and get your workers’ compensation benefits checks back on track.

Question 13

Do I have to use my vacation time or sick leave when injured and out of work?

Accepted Answer

No. You do not have to use up your vacation time or sick leave when you get hurt. In fact, if your case is accepted and you do use your vacation time or sick leave, you may still be entitled to temporary total disability benefits for those days. In other words, you can collect temporary total disability on top of your vacation time or sick leave. This is because that time is earned and, unlike workers’ compensation benefits, “vacation . . . [or sick leave] can be taken to renew physical and mental capabilities, for personal reasons, for absences due to adverse weather conditions, and for personal illness or illness in the immediate family.” Estes v. N. Carolina State Univ., 102 N.C. App. 52, 58, 401 S.E.2d 384, 387 (1991) (citing N.C.Admin.Code tit. 25, r. 01E.0201 (1984)). “Workers’ compensation, however, is available only for a work-related injury.” Id. In other words, vacation time and sick leave are separate and distinct from workers’ compensation benefits.

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