Frequently Asked Questions About North Carolina Workers’ Compensation

If you or a loved one were hurt at work or diagnosed with an occupational illness, you are likely experiencing stress, worry and concern about the uncertainty of what comes next. The good news is that North Carolina has a system in place to help you during this challenging and turbulent time—physically, emotionally and financially. This system is called workers’ compensation.

Unfortunately, securing your workers’ compensation benefits isn’t always as straightforward and easy as it should be. There are many factors, technicalities and exceptions that can quickly complicate your claim and leave you financially high and dry.

We highly recommend you consult with our Charlotte, NC Workers’ Compensation Specialists to understand your rights and responsibilities when it comes to workers’ compensation eligibility. At the Wilder Pantazis Law Group, your first consultation is free and we’re always available to answer any questions.

In the meantime, here are some brief answers to the most common questions we receive about workers’ compensation in North Carolina.

North Carolina workers’ comp faqs

What if my company doesn’t want me to file a claim?

In some cases, an employer may offer to pay for you to go to the doctor and even compensate you for a couple of days of missed work in return for you not filing a formal workers’ compensation claim. This is not a good idea because you are entitled to certain benefits under North Carolina’s Workers’ Compensation Act in addition to medical care and wage replacement.

For example, if you break your leg at work and file a work injury claim, you may get paid for your medical treatment, time out of work, AND a cash payment for the disability rating you may receive at the end of your case (sometimes called “PPD” or “permanent partial disability“).

It is a bad idea not to report your claim to the insurance company because you never know how severe your injury is until you receive proper medical treatment. Also, your employer may not know (or admit to knowing) that they are supposed to pay for PPD, mileage to and from doctor’s appointments, and prescriptions.

Can I be fired or laid off for filing a workers’ comp claim?

Your employer cannot fire you, demote you, or take any adverse employment action against you for filing a workers’ compensation claim. This is a violation of the Retaliatory Employment Discharge Act (REDA). Any attempts to do this should be reported to the North Carolina Department of Labor.

What if I can’t do my job after my injury?

If there is no work available at your job within your restrictions, the insurance company must help you find a job that fits within your physical limitations. An attorney can make sure that the insurance company doesn’t try to send you back to a job that is unsuitable for your age, physical limitations, education, and experience.

Does my immigration status matter?

You are entitled to workers’ compensation benefits even if you are an undocumented worker. The insurance company is not allowed to ask you about your immigration status. Although your boss can fire you if they discover that you are undocumented, the workers’ compensation carrier cannot deny your claim based on your immigration status if you get hurt at work. If you are medically unable to work, the insurance company must continue to pay your time out of work even if you are undocumented.

What injuries are covered by workers’ compensation?

If your company has 3 or more employees, you may be eligible for workers’ compensation benefits. This is true regardless of your immigration status. North Carolina’s workers’ compensation laws cover injuries that result from an accident arising out of and in the course of employment. The law also covers “occupational diseases,” which include some lung conditions such as asbestosis and some repetitive-motion conditions, such as carpal tunnel syndrome.

State law is very specific and insurance carriers are skilled at applying these rules to limit or deny claims. For this reason, it’s wise to consult with a skilled work injury lawyer if you are filing a claim.

What if I was fully or partially responsible for my workplace injury?

The issue of “fault” or “negligence” does not matter in workers’ compensation. You can recover compensation even if you are at fault in the accident.

Can I sue my employer for my accident or injury?

In most cases, you cannot sue your employer outside of the workers’ compensation system for your injuries. Workers’ compensation benefits are considered an “exclusive remedy” against your employer.

What benefits are available under workers’ compensation?

Workers’ compensation benefits fall into 3 basic categories:

1. Payment for your medical treatment and related medical expenses
2. Compensation for lost wages (at 2/3 your average weekly earnings), including overtime and bonuses (often called “TTD”)
3. Compensation for permanent disability (often called a “rating” or “PPD”)

Pain and suffering is not recoverable under workers’ compensation law. Workers’ compensation benefits are not taxed.

How long can I receive medical treatment?

Generally, you have 2 years after the insurance company pays your rating or your last medical bill (whichever is later) to see the doctor for your injury. For example, if you see the doctor 6 months after you receive payment for your rating, the 2-year clock starts again from the date of your last medical appointment. As long as you are seeing the doctor at least once every 2 years, you should be entitled to medical benefits for as long as you need to see a doctor for your work-related injury.

Am I allowed to choose my own doctor?

If the insurance company accepts your claim, it gets to direct your medical treatment. However, if you are unhappy with the treatment you are receiving, you can request a change of physician to your own doctor.

At the end of your treatment period when you have reached “maximum medical improvement” (or MMI), the doctor may issue a permanent partial disability (PPD) rating to the part of your body that was injured. The higher the rating, the more money your injury is worth. If the insurance company’s doctor gives you a low rating, you are always entitled to a second opinion from a doctor of your choice.

Do I get reimbursed for travel to medical appointments?

If your doctor’s appointment is more than 10 miles one way (20 miles round-trip) from your home, then you are entitled to mileage reimbursement. The reimbursement rate is modified each year, but it is currently at 56¢ per mile.

If you do not have transportation or a way to get to your appointment, then the insurance company must arrange for a car to come to get you and take you to the doctor.

Why is North Carolina’s “accident” rule a potential problem for injured workers?

Most people who get hurt at work assume that it will be covered by workers’ compensation. However, no matter how much you trust and like your employer, ultimately the insurance adjusters that actually administer the claims will always look for ways to deny coverage. These adjusters will often set up recorded statements and ask questions in a way to make it seem as if there was no “accident.”

In North Carolina workers’ compensation law, an “accident” is an interruption of the normal work routine by an unexpected and untoward event. Therefore, an injury while doing normal work in a normal manner does not qualify as an accident. An accident is a deviation from the normal work routine, such as a fall, some assaults, increased volume or pace of work and literally hundreds of other events.

For example, let’s say a Charlotte airport baggage claim handler injures their shoulder while loading a bag into an airplane. Under these circumstances, the adjuster might ask: “You weren’t doing anything wrong or different than normal, were you? You were just doing your job the normal way that you have always done it, weren’t you?” Most people would answer, “No, I wasn’t doing anything different. Yes, I was doing my normal job in the way I was trained to.”

The injured airline employee wouldn’t think to mention the many things that could be unusual about why he or she was injured, such as the bag being too heavy and awkward, the bag falling backward, not having the correct number of people to help with the baggage or something in the bag that shuffled and caused it to slip. Any of these small factors could be considered an accident that caused the injury, but the claim could be denied or reduced simply because the injured worker failed to mention them in a recorded statement.

There are also exceptions to the general “accident” rule. For example, if a worker has an immediate onset of pain in their spine while performing work-related duties, this is considered an accident. This exception is called a specific traumatic incident.

These complicated rules and exceptions are exactly why injured workers in North Carolina should consult with an experienced attorney in their area before agreeing to give a recorded statement or accepting a settlement offer.

What does a workers’ comp attorney do?

While we can’t speak for other law firms, when you bring your case to the Wilder Pantazis Law Group, you can take comfort in knowing that we are aggressive advocates for injured workers from start to finish. We assist clients in the early stages of filing Form 18 all the way to a trial in front of Deputy Commissioners and appeals in front of the Full Commission.

If you decide to hire us to represent you, we will:

• Fight tooth and nail to secure all benefits owed to you
• Communicate effectively with the insurance company and the adjuster assigned to your claim
• Assist with authorization for medical treatment
• File your travel reimbursement requests
• Order your medical records
• Discuss your treatment with you and your doctor
• File the correct forms with the Industrial Commission
• Recommend physicians for second opinions
• Negotiate a full and fair settlement to your claim
• If necessary, take your case before the Industrial Commission

Our firm will also explain how other available benefits might affect your workers’ compensation claim, such as Medicare, Medicaid, Social Security disability, short-term disability, long-term disability, your health insurance policy and any third-party claims.

How much does a workers’ comp lawyer cost?

In North Carolina, the fee a workers’ compensation attorney can charge is regulated by the state and must be approved by the Industrial Commission. The standard fee is 25 percent, which typically comes out of your final settlement or award.

All of our workers’ compensation cases are taken on a “contingency fee” basis. This means that you pay no money upfront and there is no fee for the initial consultation. Instead, your lawyer will take their fee as a percentage of your final settlement. If we don’t win your case, then you owe us nothing. It’s that simple.

In addition, all initial consultations with our attorneys regarding workers’ compensation cases are free of charge. During your first meeting with our knowledgeable work injury lawyers, we will listen to your story and discuss important liability issues as well as what compensatory damages you may be entitled to.

How long do I have to file my work injury claim?

In North Carolina, the statute of limitations for workers’ compensation claims is 2 years from the date of the injury (or discovery of the condition). After this period expires, you will no longer be able to file a claim and will lose your right to compensation forever. The sooner you discuss your case with a work injury lawyer near you, the more options will be on the table to secure the best possible settlement. Don’t delay!

Are you an employee or an independent contractor?

To qualify for workers’ compensation benefits in North Carolina, there must be an injury or accident arising out of and in the course of employment. Therefore, the injured worker has to be an actual employee.

A common issue we confront is when an employer claims that their worker is an independent contractor. We can’t tell you how many times we’ve heard an employer say, “He (or she) wasn’t my employee. We 1099’d them. They’re an independent contractor and signed a contract saying so.”

The factors in determining an employee’s work status do not take into consideration the employer’s preference of classification; rather, there is a specific list of factors (known as the Hayes factors) that must be considered. However, in examining the factors, the biggest consideration is the employer’s control over the employee.

The Hayes test for determining whether a worker is an independent contractor or employee involves asking the following questions:

• Is the worker engaged in an independent business or calling?
• Does the worker have independent use of a special skill, knowledge, or training in the execution of the work?
• Is the worker doing a specific piece of work at a fixed price, or are they paid by the hour?
• May the worker choose a preferred method of completing the work without being discharged?
• Is the worker not regularly employed by the employer?
• Is the worker free to hire assistants?
• Does the worker have full control over assistants?
• Is the worker free to select his own time?

Quite simply, most workers are employees. Most workers are paid by the hour, and are told where to be and when to be there. Many workers are told what to wear, such as uniforms, and most employers have control over their workers.

If your employer is attempting to classify you as an independent contractor to get out of paying for workers’ compensation, give our North Carolina Board Certified Workers’ Compensation Specialists at Wilder Pantazis a call.

Is my employer required to have workers’ compensation insurance?

If your employer regularly employs 3 or more employees, then the North Carolina Workers’ Compensation Act requires that they obtain workers’ compensation insurance or else qualify as self-insured for the purposes of paying workers’ compensation benefits to their employees.

But what exactly is an “employee”?

An employee is someone performing the work of the employer that has the right to demand wages. An employee does not include “casual employment,” which is defined as irregular work for an employer that is not the employer’s normal business.

There are many other specific rules on employment in North Carolina, such as:

• A prospective employee is not an employee
• Volunteer firemen are employees
• Jurors are not employees
• National Guard members are employees (but only if under orders by the governor to be on duty)
• Sole proprietors or business partners of an LLC are not employees (unless they opt-in for coverage)
• Directors and executives of corporations are employees (unless the corporation excludes them)

An employer is not relieved of its workers’ compensation liability simply by calling its employees independent contractors. Additionally, if an employer subcontracts to a contractor who does not have workers’ compensation insurance, then the employer is liable for work injuries of the subcontractor’s employee, regardless of the number of employees.

Additionally, employers face penalties and criminal charges for failing to carry workers’ compensation insurance.

What do I need to know about work-related back or neck injuries and North Carolina workers’ compensation?

Specific traumatic incidents are an exception to the normal rule that a work injury must be caused by an unlooked for or untoward event in order to be covered by workers’ compensation. In other words, if you injure your back or neck (such as a hernia), you must prove that there was an injury by accident OR that there was a specific traumatic incident that was a direct result of the work assigned.

According to North Carolina law (Section 97-2(6)), the specific traumatic incident must occur within a “judicially cognizable period of time.” That means that the worker must not have had a gradual deterioration and must be able to identify the approximate time that the incident occurred.

There are many cases interpreting what exactly “judicially cognizable period of time” means. We know that a back or neck injury from a specific traumatic incident is not the same as an instantaneous event, and employees don’t always have to know the exact date.

In one such case, the North Carolina Court of Appeals held that a specific traumatic incident could be a series of events that occur contemporaneously within a time period lasting up to 15 hours. In some cases, it was enough for the worker to identify the approximate day, week, or even the part of the month when the specific onset of pain occurred during work.

For workers who injure their back or neck at work, the most important step is to report the injury as soon as possible. Many workers we’ve represented have felt a pull in their back, a slight pop in their neck, or a sudden pain of some sort. Many times, the workers assumed the injury was minor and attempted to work through the pain, believing or hoping that it would resolve quickly.

However, delaying medical treatment can create problems for your North Carolina workers’ compensation claim because insurance adjusters might argue that you didn’t report your injury in a reasonable time. Many insurance adjusters and defense attorneys will also call the worker’s credibility into question, arguing that there was no incident at all.

In short, your employer or their insurance company may argue that you made the whole thing up. Therefore, the safest action to take is to report the incident to your supervisor. You can send an email or write a note—just be sure to keep a copy.

Am I eligible for workers’ compensation for an injury at a work event, employer-sponsored recreational activity or company party?

There are all sorts of work-sponsored events where people can get hurt. This ranges from work-sponsored happy hours to team building at a ropes course. If an employee is injured at one of these events, this can be covered under North Carolina workers’ compensation if certain factors are present.

The most important question is whether the employee’s attendance was considered part of their employment. Determining whether or not the attendance is part of employment is known as the Frost factors, from the North Carolina Supreme Court case Frost v. Salter Path, 2007. The Frost factors are:

• Did the employer sponsor the event?
• Was attendance voluntary?
• Did the employer encourage attendance by taking attendance, paying for the time spent, requiring employees to work if not attending, or was there a custom of attendance?

If you were injured while attending any sort of work event, give our North Carolina workers’ compensation specialists a call. Work-sponsored recreational activity injuries are complicated issues. We have represented injured clients who were injured at work-related events, such as a man whose shoulder and neck were hurt during a morale-building event. These kinds of workplace accidents happen and can cause serious injuries requiring surgery and significant time out of work.

What is a workplace accident?

It may surprise you to learn that the word “accident” is a potential pitfall for North Carolina employees who are injured at work. In many other states, the injury itself is the accident. However, in North Carolina, an injury, in and of itself, is not an accident.

In North Carolina workers’ compensation law, an accident is an interruption of the normal work routine by “an unlooked for and untoward event.” An injury while doing normal work in a normal manner is not considered an accident.

There are some important exceptions to the general “accident” rule.

For example, if a worker has an immediate onset of pain in their spine while performing work-related duties, this is considered to be an accident. This exception is called a specific traumatic incident.

Here’s why North Carolina’s “accident” rule is such a problem for injured workers:

Most people who get hurt at work assume that it will be covered by workers’ compensation. However, the insurance adjusters that administer the claims are always looking for ways to deny coverage. The adjusters will set up recorded statements and ask questions in a way to make it seem as if there was no “accident.”

For example, a baggage claim handler for an airline could have injured her shoulder while loading a bag into an airplane. Under these circumstances, the adjuster might ask: “You weren’t doing anything wrong or different than normal were you? You were just doing your job in the normal way that you have always done it, right?”

Most employees would understandably answer: “No, I wasn’t doing anything different” or “Yes, I was doing my normal job in the way I was trained to.” The injured airline employee would not think to mention the many things that could be unusual about why she was injured, such as the bag being too heavy and awkward, the bag slipping and falling backward, not having the correct number of people to help with the baggage, or something in the bag that shuffled and caused it to slip.

Any of these small facts could be considered an accident that caused her injury, but failing to mention these in a recorded statement can make the claim difficult or impossible.

There are hundreds of cases interpreting the different circumstances where an injury was an “accident” or not. For this reason, it’s important to seek legal help long before you have given a recorded statement or your claim is denied.

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