The Workers' Compensation Act of North Carolina is found at Chapter 97 of the North Carolina General Statutes. The Act is a comprehensive means by which all employees, save for several minor exceptions, of every employer doing business within the State of North Carolina are covered for accidents and incidents which occur in the course and scope of the employee's work resulting in medical needs and time away from work. The act is very specific as to one's entitlement to benefits, however, it was intended by our Legislature for the Act to be interpreted liberally in favor of the injured employee. Businesses covered by the Act are required by law to obtain insurance or qualify as self-insured's. All businesses employing three (3) or more employees on a regular basis are covered except agriculture employment with fewer than ten (10) regular employees, certain saw mill and logging operators and all domestic employees are exempt. Businesses with any employee whose work involves the use of or the presence of radiation are required to have coverage. Corporate officers, partners and owners who are employed in the business may be exempted from coverage, however, corporate officer/employees are counted in determining whether the business has three (3) or more employees. Sole proprietors and partnerships that have three (3) or more employees must purchase coverage for those employees and may elect to include coverage for themselves.

Events Covered - Employees are entitled to benefits if while engaged in activities for the benefit of their employer they suffer an injury by accident, a specific traumatic incident resulting in a hernia or back injury or an occupational disease. An accident is defined as an interruption of the regular work routine and the introduction of unusual circumstances such as a fall, trip, slip or other unusual event or activity likely to result in unexpected results or consequences. A specific traumatic incident as defined by our Appellate Courts includes injuries that occur during normal work activities. The claimant need not show an instantaneous occurrence or an external cause or unusual conditions. However, injuries that occur gradually over long periods of time are not specific traumatic incidents. If the work relatedness of a hernia is disputed an employee must show that the hernia appeared suddenly following an accident and did not exist prior to the accident or incident. In addition, all injuries must arise out of and in the course and scope of the covered employment to be compensated. In other words, you as an employee must be about the business of the employer at the time of the incident in question.

Employers complying with the Act and their employees may not be sued in the Courts by injured employees for work related incidents except for intentional assaults and conditions so grossly unsafe as to make injuries substantially certain. This is an extremely high hurdle to meet and our Courts have within the last several years greatly restricted the opportunity for an employee to sue ones employer. The concept of an occupational disease can be an interesting and troubling issue to evaluate. An employee is entitled to benefits for disability due to such a condition to which employment significantly contributed or if the employment was a significant factor in causing the disease's development and if the employment exposed the worker to a greater risk of contracting the condition or disease than the public in general. In a situation where an employee is exposed to the same injurious agent or condition at the place of business of more than one employer the claim should be filed with the employer or business on whose premises he was last injuriously exposed.

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Giving Notice and Filing Claims - To be eligible and/or to obtain benefits, an employee or his representative must give the employer written notice of the accident within thirty (30) days or in certain instances of occupational disease, within thirty (30) days of being advised by competent medical authority that one has the disease, unless reasonable excuse can be made for not giving notice and no prejudice results to the employer and/or insurance carrier. The notice required by law is the completion of an Industrial Commission Form 18 copied to both the Employer and the Commission. In most cases an employee loses the right to claim compensation unless the claim is filed with the Industrial Commission within two (2) years after the accident or within two (2) years after death, disability or disablement in the event of an occupational disease after having been advised by competent medical authority that the employee has such an occupational related condition. Provided however that if the injury is due to exposure to radiation the two (2) year period runs from the time the employee suffers incapacity or knew or should have known that the disease or condition was caused by his employment. The claim should be filed by sending the Form 18 to the employer, insurance carrier and Industrial Commission. The employer is obligated by law to report all work-related injuries requiring medical attention other than on-site first aid to its insurance company and ultimately to the Industrial Commission on Form 19. A copy of the Form 19 should be provided to the employee or his/her supervisors.

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Wage Benefits - If an employee remains unable to work and earn wages for seven (7) days due to his/her disability he/she is entitled to weekly on-going benefits equal to 2/3 of his/her average weekly wage up to the maximum allowed by law. If disability continues beyond twenty-one (21) days the employee is entitled to receive compensation retroactively for the first seven (7) days of disability. The days do not have to be consecutive. Partial workdays count as a full day of disability as long as the reason for the departure from full income is a result of a disability. This benefit is termed temporary total disability (TTD).

If an injured employee obtains employment after an injury and is unable to earn wages as great as those earned pre-injury the employee is entitled to compensation equal to 2/3 of the difference between the post injury and pre-injury average weekly wages up to the maximum allowed by law. These benefits may not continue beyond three hundred weeks from the date of injury and any number of weeks wherein temporary total disability benefits were paid will be deducted from the three hundred week maximum. These benefits are known as temporary partial disability (TPD).

If at the conclusion of an employee's medical treatment there is determined to be a permanent impairment to one or more of the parts of the body listed in the schedule below the employee may receive a set period of benefits without regard to his/her ability to earn wages. The payments hereunder are based upon the maximum amounts listed for total loss of use of the applicable body part or a percentage thereof. This benefit sometimes may overlap with the temporary partial disability outlined above however, one can only choose between the two and not receive both at the same time. The percentage of disability is determined based on a physician's numerical rating of the percentage of physical impairment. If a dispute exists between physicians and cannot be reconciled between the claimant and insurer the Commission will determine the amount of disability. If either party is dissatisfied with the treating physician's original rating they may obtain the second opinion of another doctor and the employee can obtain this second opinion from a doctor of his/her choice in these circumstances. This benefit is known as permanent partial disability (PPD).

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The loss of both hands, both arms, both feet, both legs or both eyes or any two thereof constitutes total and permanent disability entitling the worker to weekly benefits and medical compensation during his/her lifetime. This is known as total and permanent disability. The concept of total and permanent disability can also exist in other circumstances where severe injuries combined with one's age, educational, cultural and societal levels create the impossibility of an individual ever again working.

If the injury in question leaves facial or head scars which seriously disfigure the person or causes loss or permanent injury to an important organ of the body not otherwise specified, the employee may be awarded additional compensation not to exceed twenty thousand dollars ($20,000.00). The maximum payable for serious bodily disfigurement is ten thousand dollars. However, compensation isn't allowable for scarring where the employee is paid for the personal loss of use of the same body part under the aforementioned specified schedule. An employee is further entitled to payment in circumstances resulting in disfigurement due to the loss or crowning of permanent teeth.

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Figuring the Compensation Rate - A very important part of one's benefits under the Workers' Compensation Act is the weekly rate of compensation also known as temporary total disability. This sum cannot be less than $30.00 and no more than $560.00 per week for injuries occurring after January 1, 1999. The maximum weekly benefit is adjusted annually based on a formula under North Carolina law. This rate of compensation remains the same during the life of the claim regardless of inflation or the raising of the maximum rate by operation of law. The maximum weekly compensation rate has been adjusted upward each year for the last four years. The average weekly wage is usually computed by averaging all wages earned by the employee in the employment he/she was injured during the 52 weeks prior to the injury. If the employee has lost more than seven (7) consecutive calendar days at one or more times these days are excluded from the calculation. In certain circumstances this formula does not fairly reflect earnings and in those circumstances the Industrial Commission will compute a fair average weekly wage as by law provided. These situations can sometimes arise in a job which someone has held for a short time or in circumstances where ones wages have drastically changed over the recent past prior to the date of injury. If the employee is under 18 years of age a different rate may apply.

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Medical Compensation - Employers by and through their respective insurance carriers must provide and an injured employee must accept all reasonable medical, surgical, hospital, nursing and rehabilitative services, medicines, sick travel and other treatment including medical and surgical supplies as may reasonably be required to effect a cure or give relief and which tend to lessen the period of disability. In addition, any artificial members as may reasonably be necessary at the end of the healing period are covered. These costs of medical compensation are in addition to cash benefits and do not offset or reduce them. If the employer or carrier denies liability an employee may obtain treatment from a physician or hospital but must request a hearing before the Industrial Commission to determine whether the claim is compensable and the employer owes medical compensation. In the case of an emergency, the employee may obtain treatment from a physician or hospital but must request Industrial Commission approval within a reasonable time. The employer and/or its insurance carrier may select the treating physician and other providers of medical compensation subject to the Industrial Commission's orders and rulings. If the employee is dissatisfied with the services rendered by the providers selected by the employer and/or insurance carrier the employee may request the Commission order a change of treatment or approve treatment by providers of employee's own selection. Such requests should be reasonable and include any and all opinions and records which support the request and be submitted in writing to the Industrial Commission as well as the employer and its insurance carrier. If an employee fails to cooperate with a provider selected by the employer after being ordered to do so by the Commission compensation may be suspended while such refusal continues.

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Death Benefits - Death benefits are payable when an employee dies due to an occupational disease, due to an accident if the death occurs within six (6) years thereafter or within two (2) years of the final determination of disability, whichever is later. The claim must be filed within two (2) years of the date of death in the name of the dependents or next of kin of the deceased employee. It should not be filed for the Estate by the Executor or personal representative of the deceased. The death of an employee is compensated by payment of 2/3 of the decedent employee's average weekly wage or the maximum compensation rate for a minimum period of four hundred weeks; $2,000.00 for actual funeral expenses payable to the person or firm actually entitled to it and any medical expenses incurred due to the mortal injury or disease. A minor child or disabled spouse may receive more than four hundred weeks of benefits due to the child's age and/or the spouse's continuing disability.

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Minors and Incompetence - An employee under the age of 18 is entitled to receive the same benefits as other employees if injured. The calculation of average weekly wage can in some circumstances be different. In addition, there are other specific rules including the appointment of a guardian and/or trustees to represent the interests of minors and incompetents through the Clerk of Courts office in the county in which the employee resides. These cases are in many situations more complicated than those involving adults and require additional investigation.

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Denial of a Claim - In a situation where an employee submits a written notice where no payment of compensation has been initiated by the employer, the employee is entitled to a detailed statement from the employer's insurance carrier of the grounds for denial of the claim within forty-five (45) days. If the employee disputes such a denial a hearing can be held before the Industrial Commission once a request is made on I.C. Form 33. There are certain time limits within which such a claim must be filed and the appropriate forms from the Industrial Commission must be utilized. The hearing process before the Industrial Commission is similar in form to a Court proceeding however is less formal. In most circumstances the rules and regulations governing the conduct of hearings make it advantageous for an individual to seek out the advice and/or the services of an attorney in preparation for such an undertaking.

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Agreements to Pay Compensation - All agreements to pay compensation must be approved by the Industrial Commission. The most common forms of agreement are the Industrial Commission Form 21 for the initial period of disability and the Industrial Commission Form 26 for subsequent periods of disability. In addition, a document known as a Compromise Settlement Agreement or "Clincher" under which the employee receives a lump sum of money which is intended to compensate the employee for the rest of his life is commonplace and acts as a termination of one's claim. In other words, it acts as a full and final settlement from which one cannot then further ask for any additional benefits. The "Clincher" is a common device which insurance companies pursue and in most circumstances the evaluation of fairness for settlements of that nature would require the assistance of an attorney. Under certain circumstances an employee even after concluding his case has a two (2) year window within which to re-open it should there be any further problems as a result of the compensable injury. This opportunity, however, is not available should one agree upon the full and final settlement known as a "Clincher".

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Summary - The North Carolina Workers' Compensation Act provides great benefits and security to those employees covered there under. The level of benefits it provides is greater than many other States' laws. The current attitude, however, of many employers and insurers is unfortunately, one of suspicion towards the filing of any but the most obvious and serious of incidents. The opportunity to personally discuss the intricacies of the law in a specific set of circumstances is what we offer. Collins & Maready provides the benefit of a no cost/no obligation consultation on your concerns. Please contact us.