Quick Reference Guide to North Carolina Workers’ Compensation Act - Chapter 97

North Carolina Workers’ Compensation Act -Chapter 97 2024 Quick Reference Guide

First Report of Injury

Within five days after an injury becomes known by employer or carrier, which causes employee’s absence from work for more than one day, the employer or carrier should file a Form 19 with the Industrial Commission (NCIC) and send a copy to employee along with a blank Form 18. The employee has 30 days to file a Form 18 giving notice of injury to the Industrial Commission or the claim can be denied by the carrier for lack of notice. However, the Employee has 2 years from the date of injury to file a Form 18 with the Industrial Commission to preserve the statute of limitations. §§ 97-22; 97-24

Responding to Claims

Within 30 days after the receipt of a Form 18, carrier/employer must file a Form 60, 61, or 63 to admit, deny, or pay the claim without prejudice. If this is not done, the IC can order a $400 sanction against the carrier. If a Form 63 is used to pay without prejudice and the claim is not denied by filing a Form 61 within 90 days of the date of injury, then employer and carrier will be deemed to have waived their right to contest the compensability of and their liability for the claim.

Waiting Period

No indemnity compensation shall be paid for the first seven calendar days of disability resulting from an injury. But if the injury results in a total of permanent partial (PPD) and temporary total (TTD) disability of more than 21 days, then compensation should be paid for the first seven days of disability. § 97-18.

Average Weekly Wage (AWW)

An employee’s AWW is defined as the earnings of employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52. If the employee did not earn wages for more than seven consecutive calendar days at one or more times during the 52 weeks, those weeks should not be included in the calculation. If an employee worked fewer than 52 weeks prior to the injury, other means of calculation of the AWW may be ordered by the IC. § 97-2(5). Fringe benefits are not included in the AWW and it does not increase even if employee would have gotten a raise but for going out on workers’ comp.

Compensation Rate

The compensation rate is 66 2/3% of an employee’s average weekly wage subject to minimum and maximum compensation rates. The minimum rate is $30.00 a week. The maximum rate for the past few years has been as follows:

2024	2023	2022	2021
$1,330	$1,254	$1,184	$1,102

Temporary Total Disability Benefits (TTD)

If the disability resulting from the injury by accident exceeds the seven-day waiting period, employee will be entitled to 66 2/3% of the average weekly wage not to exceed the maximum amount allowed by law. For claims arising on or after June 24, 2011, temporary total disability benefits are capped at 500 weeks from the date of first disability, unless the employee is able to prove that his work-related injury has caused a complete elimination of the capacity to earn any wages. For claims arising before June 24, 2011, there is no cap. § 97-29. This is non-taxable income and no W2 will be provided.

Temporary Partial Disability (TPD)

Except as provided by § 97-31, where the incapacity for work resulting from an injury is partial, employer or carrier shall pay to employee 66 2/3% of the difference between employee’s pre-injury average weekly wage and average weekly wage after the injury (but not more than the maximum rate). These benefits are capped at 500 weeks of payments, with any weeks of TTD payments that have been made credited towards the 500 week cap. § 97-30. This is also non-taxable income.

Permanent Partial Disability (PPD)

For total loss of certain body parts, employee is entitled to permanent partial disability for the number of weeks identified in the schedule outlined in § 97-31. If an employee has a partial loss of that body part, then the applicable percentage loss should be multiplied by the number of weeks of total loss to determine the PPD to be paid. Select scheduled body parts include:

Back / neck	Arm	Leg	Hand	Foot
300 weeks	240 weeks	200 weeks	200 weeks	140 weeks

Thumb	Index finger	Long finger	Ring finger	Small finger
75 weeks	45 weeks	40 weeks	25 weeks	20 weeks

Maximum Medical Improvement (MMI)

Once the doctor indicates that the employee has reached MMI, then the doctor may issue a rating to the injured body part and/or permanent light duty restrictions. The employee has a choice at MMI whether to take the rating (as defined as percentage of the above valued body parts x TTD rate) or to elect ongoing TTD/TPD if the light duty cannot be accommodated. It is important to note that sometimes the best remedy is not to elect the rating, especially if the employee is older and close to retirement age. Consulting with an attorney prior to electing a rating is imperative because once the employee agrees to the rating, it is difficult to change that election. An employee is also entitled to a 2nd opinion with a doctor of his/her choice if he/she disagrees with the rating.

Form 26A Agreements and Clincher Agreements

There are two ways of “settling” a case. The first is to agree to a rating on a Form 26A. Once the rating is paid, the employee has two years to allege a change of condition (meaning there is a change in the rating or work status) and 2 years to return to the doctor. If two years go by without a change of condition or return to the doctor, then the claim administratively closes. However, if the employee returns to the doctor within 2 years, then the two year window resets for medical. However this is just for medical. Going back to the doctor does not reset the 2 year change of condition time frame.

The second way to settle a claim is on a “clincher” or “compromise settlement agreement.” This agreement fully closes the claim, including any claim for change of condition and future medical. Once a claim is “clinchered” it cannot be re-opened. Payments made pursuant to a compromise settlement agreement must be made within 24 days after the date of the IC order approving the agreement. If payments are not made within 24 days, 10% of the lump sum can be ordered as a penalty. § 97-18(e) & (g).

Death Benefits

Death benefits at 2/3 the AWW are paid for 500 weeks to the deceased employee’s whole dependents, which is typically spouse and minor children. If there are no whole dependents, then it is be paid to partial dependents. If no partial dependents, then it is paid to next of kin. Burial expenses are allowed up to $10,000.00. The death benefits can exceed 500 weeks in certain cases involving minors and disabled spouses. Note that adult children are not considered whole dependents. §97-38

Injury by Accident

For an injury to be compensable to any body part, excluding the back, neck and hernias, the injured employee must experience an “accident.” An accident is defined as an unusual event or an interruption of the normal work routine. Therefore, injuries occurring while the employee is doing their normal job, in their usual and customary manner WILL be denied. It is vitally important to understand that just getting hurt at work does not guarantee workers’ compensation benefits. The injury must result from some unusual activity that is outside of the employee’s normal work routine. However, the unusual activity need not be limited to “trip, slip or fall.” Anything that occurs outside of the normal work routine, such a bag not being tagged “heavy” or a trying to do a one man lift when it requires two people, could be compensable.

HOWEVER, injuries to the back and neck DO NOT require an injury by accident. In those cases, just having a “specific traumatic incident” is enough to have the claim be compensable under workers’ compensation. The employee needs to recall injuring the back or neck at a certain time and in a certain place. Sometimes carriers will deny neck/back claims because there is no injury by accident. This is the incorrect standard. All that is needed is for the employee to recall injuring the neck/back at a specific time and place. Even if the employee cannot remember the specific time, our courts have recognized that if the injury occurred during a “judicially cognizable time frame,” it could be compensable.

Occupational Diseases

Workers’ compensation also covers “occupational diseases.” There are enumerated occupational diseases in the statute such as asbestosis and byssinosis. However, the most used section is the “catch all’ provision which says that workers’ compensation can cover “any disease other than hearing loss, which is proven to be due to the causes and conditions which are characteristic of a particular trade, occupation, or employment, but excluding all ordinary diseases of life to which the general public equally exposed.” 97-53(13).

Basically, if your job causes your condition and you are placed at an increased risk for developing the condition as compared to the general public, then it may be covered. We use this section to prove repetitive motion diseases such as carpal tunnel syndrome, tennis elbow, and chronic rotator cuff tears. In many cases, we allege both injury by accident and occupational diseases in denied shoulder cases.

Hernias

Hernias are treated unquietly under workers’ compensation. To be compensable, the hernia must be 1) the result of an accident or specific traumatic incident; 2) occur suddenly; and 3) there must be no pre-existing hernia. Note that the “suddenly prong” and the requirement of no -preexisting  condition are unique to hernias. 97-2(18)

Pre-Existing Conditions

Many claims are often denied by adjusters citing pre-existing conditions. An aggravation of pre-existing condition is compensable. However, an aggravation is still subject to being the result of a specific traumatic incident or accident depending on the body part. An injury that causes one to have an acceleration of the disease process, such as needing a knee replacement sooner rather than later, is also compensable.

American Airlines Specific

American Airlines currently uses Sedgwick Claims Management to administer its workers’ compensation program. Even though Sedgwick administers the program, it is AA’s money. Sedgwick has created a portal located at www.mysedgwick.com where an injured employee can login and see claims management updates and forms.

The IAM has negotiated 20 OJI days that can be used if an employee suffers a work-related injury. This is in addition to workers’ comp pay and can be used for that waiting period. AA allows for 90 days of light duty if OJI (60 days if not OJI). If the employee cannot do the full range of his/her job after 90 days, then he/she will need to go out on workers’ compensation through Sedgwick.

The IAM offers optional private short-term disability. Everyone should participate in this short-term disability program because it is not guaranteed that Sedgwick will automatically accept an OJI under the workers’ compensation program. Again, this is especially true for injuries where there is a dispute about whether an “accident” occurred. The Airline provides long term disability.

65 Point Plan: The Airline will allow an employee to retire with full flight benefits once the age plus years of service equals 65. Banked employee time must be paid out prior to retirement. Benefits are handled out of Dallas Fort Worth. The number is 1-888-860-6178.

Medical Treatment

In North Carolina, the employer and carrier have the right to direct medical treatment.

Employees are entitled to reimbursement for travel when it is medically necessary, and the mileage is 20 or more miles round-trip. The reimbursement rate in 2024 is $0.67/mile. Travel expenses for an employee’s second opinion on the rating are not reimbursable.

Second Opinions and Independent Medical Examinations (IME)

Employer or carrier can require employee to attend an IME in both accepted and denied claims. If an employee refuses to attend the IME, employer or carrier can file a Form 24 application to suspend employee’s TTD benefits. § 97-27(a).

In cases where an employee questions the percentage of a PPD rating, employee is entitled to a second opinion from a doctor of employee’s choice so long as the second opinion is limited to PPD only. Employer and carrier are responsible for the cost of this second opinion. § 97-27(b).

In cases where an employee seeks a full second opinion as to all medical issues including but not limited to PPD, employee may suggest doctors to employer/carrier. If, within 14 days of the receipt of the written request, the request is denied or the parties cannot agree on a second opinion doctor, then employee can ask the IC to order one of the doctors to conduct the evaluation at employer or carrier’s expense. § 97-25(b).

Commonly Used Forms at NCIC