Should you hire a work injury attorney?
A detailed overview of the workers’ compensation claims appeals process in North Carolina—from calling an attorney to taking your claim to court
Following a work-related accident or occupational illness diagnosis, one of the biggest sources of stress and anxiety for many injured workers is not knowing what happens next. It’s perfectly natural to feel worried when facing an uncertain future, but this added stress can negatively impact your recovery at a time when all you want to do is recover so that you can return to work and start earning income again for you and your family.
If your employer recently denied your workers’ compensation claim, then you may be considering whether or not it’s in your best interest to fight back and appeal your claim. In making this decision, it can help to better understand the overall workers’ compensation appeal process and the role of a work injury attorney.
While we can’t say for sure how other law firms handle their workers’ compensation cases, we can give you a general overview of how most cases play out based on what happens after an injured worker reaches out to our experienced North Carolina workers’ compensation attorneys.
Phase I: Investigating and evaluating the claim
Step 1: The intake telephone interview
Typically, the first step that will happen if you decide to reach out to one of our knowledgeable workers’ compensation attorneys for help is the intake telephone interview.
During this phone call, an attorney or a legal assistant may ask you what events led to the workplace accident or injury (i.e. “what happened”). While you tell your story, we may ask key questions to identify important legal issues.
From this phone call, we will be able to determine:
- If you have a claim
- If we can help, or
- If we can refer you to another specialist better suited to your situation.
Step 2: The face-to-face interview
After the intake phone call, we will work with you to schedule an in-person consultation with an attorney to find out more about your specific case. We will ask you to bring all relevant paperwork to the meeting. These documents will help our team prepare your case for trial from the beginning, if a trial is necessary.
Once again, you will be asked—this time by the attorney in-person—to describe what happened and how you were injured. During the in-person consultation, we will assess the credibility of your claim, evaluate your traits as a possible witness, and interject with questions when necessary.
The purpose of the face-to-face interview is to identify key issues in your claim and answer questions such as:
- Did your claim arise out of an injury by accident, specific traumatic incident or is it considered an occupational disease?
- When did the injury arise or occur ( the date and the time of day)?
- Has your claim been accepted, denied, or is it being paid without prejudice to deny?
- If your claim was denied, what was the reason for the denial?
- In the case involving an occupational disease that is denied or not yet accepted, how long have you been employed with this employer?
- What is your current employment status? (Are you currently employed, terminated from employment or waiting for another employer?)
- Are you receiving temporary total disability benefits? If not, have you received it in the past and if so, when and why did the benefits stop?
- Has action been taken by the carrier which could lead to termination of benefits, such as Form 24, Motion to Compel Treatment, Form 90?
- What is your proper average weekly wage?
- Have you been paid overtime, bonuses, pay based on production, or per diem pay?
- What is your current medical status?
- Are you progressing with medical treatment and/or in agreement with the course of treatment being provided?
- Are there medical bills that remain unpaid and/or sent to collections?
- Do you have pre-existing conditions which have been aggravated by the injury or which form the basis for the denial?
- Do you have physical restrictions or an out-of-work note?
- Does your employer have suitable work within your capacity?
- Are there any rehabilitation professionals assigned to your case?
- Have you previously hired representation, or does the workers’ compensation carrier have representation?
- Are there any accrued or ongoing temporary total disability or temporary partial disability benefits owed pursuant?
- Are there any liens (i.e., subrogation liens asserted by the employer and insurance carrier; liens asserted by group health or disability insurance carriers; and/or liens asserted by the Center of Medicare and Medicaid Services, the federal and state governments)?
- Are there ongoing tort claims against any third party(ies) or coworkers who caused the damage?
- Was your employer intentionally or grossly negligent, which led to your injury or loved one’s death?
During this initial face-to-face consultation, an attorney will also explain the basics of compensability and benefits for work-related accidents, traumatic injuries and occupational diseases. We will discuss important legal issues and concepts like:
- Causation
- Compensability/liability
- Medical treatment
- Average weekly wage/compensation rate
- Temporary total disability
- Return to work
- Suitable employment
- Temporary partial disability
- Permanent partial disability
- Wage loss claims
- Termination
- Bankruptcy
- Bill payment
- Surveillance
In addition, we will take time to answer your questions and explain the process—including the time it takes to go pursue a claim. We’ll go over the various steps, including filing, response, discovery, mediation, hearing before the Deputy Commissioner, post-hearing medical depositions, written contentions, opinion and award, appeal to the full Commission, Court of Appeals and Supreme Court.
It’s important to consider that some defendants/insurers deny, delay and defend to maximize their profits. As such, we can get started immediately in moving your case along as quickly as possible. But know that the process can still take some time.
During the consultation, we’ll also explain attorney fees and the cost of hiring a lawyer. We’ll discuss the difference between attorney fees and costs to prosecute your case, and tell you how the North Carolina Industrial Commission requires plaintiff’s attorneys to get approval of their fees. Also, we’ll make it clear to you what benefits are payable under the law if we win your case.
Another important discussion we’ll have during the consultation is what you can expect when you hire us. This conversation is important to head off any misunderstandings before we accept your case. We’ll explain the role of our staff, our policy on returning phone calls, drop-ins, appointments, and the scope of our legal representation.
We’ll also explain how even though we are not health care providers and therefore cannot fix your medical problems, we can help you get the medical treatment you need.
Lastly, if all goes well and both parties are ready to take the next step, we’ll get the following documents signed to make our representation official and begin working on your case:
- Employment and Fee Agreement
- Medical Release Authorizations
- Release of Social Security Earning History
- Release for Educational Records
As soon as we receive these signed documents, we will immediately begin working on your case—starting with sending letters of representation to the Industrial Commission and your employer’s insurance carrier.
Phase III: Investigating and evaluating the claim
Step 3: Discovery (formal and informal)
Once we get all documents you have related to your claim, we’ll obtain all forms needed from the North Carolina Industrial Commission, rehabilitation professionals, your employer and their workers’ compensation insurance carrier. These documents can include:
- Rule 607: Records and Reports
- Rule 608: Witness Statements
- Form 22 request
- A description of all employee benefits
- Copy of job descriptions of employee’s normal job
Next, we will conduct a complete and thorough investigation—starting by obtaining all witness statements, police reports, medical reports and anything else related to your accident. We leverage our experience and knowledge to streamline this process that is often purposely delayed and obstructed by insurers.
Insurance companies are not in a hurry to settle cases unless they can settle for far less than your case is worth, or unless they feel the pressure of an approaching court date.
Rule 605 of North Carolina workers’ compensation law permits the use of up to 30 written interrogatories, which may be served upon the opposing party after a Form 18, Form 18B or Form 33 is filed—or after the approval of Form 21 or Form 26, but before the initial hearing on the merits of your case. Most parties also may make formal requests for the production of documents needed to evaluate the claim. The parties may also conduct discovery as allowed by the Industrial Commission upon motion.
During this discovery process, we may ask you to give a recorded statement. We find that the more you share about what happened, the more fruitful the impeachment on cross-examination.
Step 4: Other investigations
In addition to reviewing witness statements—either written or recorded—which have already been taken, we will interview any potential witnesses.
During this time, we’ll closely follow your medical treatment and work status. We’ll also ask that you keep us informed regarding doctor visits, return to work status and copies of paperwork you receive.
It’s also important to note that your employer (or their insurance carrier paying medical compensation) is entitled to receive reports from your medical providers documenting your treatment throughout the claims process.
Salaam v. NC Dept. of Transp. (122 NC App. 83, 468 S.E. 2d 536 (1996)) prohibits non-consensual, ex-parte communications between employers, insurers or defense attorneys and an injured worker’s medical providers. Prohibited communications do not include communications for the purposes of obtaining medical records, billing, scheduling or other, strictly administrative matters. Improper communication with an injured worker’s medical provider can result in that provider’s testimony being stricken from the record.
In addition, N.C.G.S. § 97-25.6 allows employers and insurance carriers paying compensation in an admitted claim (or paying compensation without prejudice) to communicate directly with an injured worker’s medical providers using the form designated by the Industrial Commission. The Medical Status Questionnaire covers the causation of the injury, ability to return to work maximum medical improvement and impairment ratings. This questionnaire can also be accompanied by a job description when appropriate and must always be copied on the injured worker and his or her counsel, if any.
Other communication with an injured worker’s medical providers may also be allowed by agreement of the parties, a valid written authorization or as allowed by order of the Industrial Commission.
As part of investigating your claim, we will also obtain copies of reports or progress notes (as well as emails to and from the carrier and the rehab provider). Rehabilitation professionals are bound by the Rules for Utilization of Rehabilitation Professionals governing their conduct in workers’ compensation cases.
In short, all communications with rehabilitation professionals, including e-mails to an employer/carrier, are discoverable.
Phase III: Administration and claim management
Step 5: Submit the appropriate forms
Workers’ compensation is a type of “administrative law” and therefore is primarily form-driven. The North Carolina Industrial Commission website provides electronic versions of the various forms, along with a brief description of each form here: https://www.ic.nc.gov/forms.html
These forms must be filled out and properly submitted by both the injured worker and their employer (or their employer’s insurance carrier).
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Common North Carolina workers’ compensation forms
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| Forms filed by plaintiffs (injured worker) | Forms filed by defendants (employer/insurance carrier) |
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It’s important to understand that there are strict deadlines and time limits that apply to many forms. For example, any employer or insurance carrier that files a Form 60 (admitting the claim), Form 61 (denying the claim) or Form 63 (initial compensation without prejudice and without admitting liability) must do so within 14 days notice of the injury. Missing this deadline results in a penalty if one of these forms is not filed within 30 days of the plaintiff filing Form 18.
Part of a plaintiff attorney’s job is to keep track of all of these deadlines and ensure that your claim proceeds smoothly. If your employer or their insurance carrier misses any deadlines, we can help use that to strengthen your claim and ensure the proper penalties are given.
Step 6: Mediation and arbitration
Once all the necessary forms have been submitted, we can try to quickly resolve your claim through the processes of mediation and arbitration. Many states, including North Carolina, allow voluntary mediation or arbitration as a tool for resolving workers’ compensation disputes outside of court.
In fact, in order to get a workers’ compensation hearing in North Carolina, most claimants are first required to go through the mediation process. Mediation is a mandatory process in North Carolina.
The only exception is if the injured worker doesn’t have legal representation, in which case mediation is typically bypassed.
Mediation is an informal “private process where a neutral third person called a mediator helps the parties discuss and try to resolve the dispute,” according to the American Bar Association. In short, mediation allows both parties the opportunity to come together to hammer out a resolution and avoid further drawn-out litigation.
Arbitration is another form of “alternative dispute resolution” that differs from mediation in that it is a more structured and formal process involving a hearing, discovery, witness statements and cross-examination (similar to court trial). During the arbitration, a third-party independent middleman (or “arbitrator”) makes a legally binding decision after listening to both sides. While similar to going to court, arbitration offers more flexibility and efficiency, with rulings often being issued much more quickly.
During mediation or arbitration, it’s vital you are represented by experienced legal counsel in order to ensure that your rights are protected. Your attorney can help ensure that the chosen mediator is truly fair and unbiased, and help you prepare for what to expect at this important meeting.
Phase IV: Hearings and case resolution
Step 7: Hearing before the Deputy Commissioner
If mediation is unsuccessful, then the next step is to schedule your hearing before the North Carolina Industrial Commission. A Deputy Commissioner presides over this hearing and ultimately determines the outcome of your claim. This hearing is a formal process that typically takes place 2 or 3 months after the failed mediation.
In preparation for your hearing, your attorney will submit the required documents to the Deputy Commissioner stating who will be testifying as a witness, what documents will be presented as evidence (i.e. your medical records, pay stubs, correspondence with your employer, etc.), and what depositions will be requested following the hearing.
Step 8: Post-hearing medical depositions
In the weeks and months after your hearing before the Deputy Commissioner, your attorney and the defense attorney will each depose key witnesses, such as your doctor, employer and you, to demonstrate whether or not you deserve to be awarded workers’ compensation benefits.
Depositions generally take place in a conference room or office, and individuals who are deposed are sworn in under oath, usually by a court reporter. As such, depositions are legally binding oral testimony that can be used in court. During the deposition, a transcript is created and given to the Deputy Commissioner of your hearing.
Step 9: Written contentions
After depositions are finished, your attorney will write a legal brief to support your claim and dispute the arguments made by the defense. Likewise, the defense attorney will draft a contention arguing their side.
Step 10: Opinion and award
The written legal briefs, along with all evidence and depositions, are then submitted to the Deputy Commissioner for final review. The Commissioner’s ruling can take several weeks.
From start to finish, the entire hearing process can take several months until a decision is issued by the Deputy Commissioner. Any misstep or missed deadline during this process can derail your claim and jeopardize your case for compensation, which is why it’s vital that you are represented by a tried-and-tested attorney who can keep your claim on track.
Phase V: Appealing a decision
Step 11: Appeal to the Full Commission
If the Deputy Commissioner doesn’t rule in your favor and denies your request for workers’ compensation, you and your attorney can appeal the ruling to the Full Commission where a panel of three Full Commissioners will review your case “cold” (meaning without any live testimony). You need at least 2 Full Commissioners to disagree with the Deputy Commissioner’s ruling to reverse the decision.
This appeal process can take anywhere from 6 months to a year to render a decision.
There are a number of important deadlines when appealing an NCIC ruling. For example, you must submit a File Notice of Appeal to the Full Commission form within 15 days from receipt of the Deputy Commissioner’s ruling. There are also strict deadlines for filing Form 44 and the appellant legal brief.
Alternatively, you can file a Motion to Reconsider with the Deputy Commissioner who issued the ruling, but you must do so within 15 days from the initial decision.
Deciding whether or not to appeal your case can be a difficult decision that your attorney is prepared to advise on. Perhaps you feel as though the Commissioner didn’t address all of your concerns, maybe you feel as though you lost on certain issues that you can prove better the next time, or it’s possible that the other side is appealing the ruling.
It’s worth noting that since the Full Commission is not a true appellate court, you or your attorney (or the other side) can present new issues and evidence to the Full Commission.
Step 12: The Court of Appeals and Supreme Court
If you wish to appeal the Full Commission Opinion and Award, you have 30 days from the date of receipt to file a Notice of Appeal to the Court of Appeals. After that, you can appeal all the way up to the state Supreme Court, though only a small fraction of workers’ compensation claims get to this stage. Most claims are settled or resolved in prior appeals rulings.
Our knowledgeable North Carolina attorneys can fight for your rights
Finding the right attorney can make or break your chances of success. It’s important you find a professional who can write an opinion and award that will withstand the scrutiny of appellate review, develop a compelling case strategy, effectively prove your case, and remember the basics and fundamentals.
Your attorney also shouldn’t be afraid to take advantage of the experience of other attorneys. Attorneys in small practices have a wealth of information at their fingertips. They don’t have to reinvent the wheel. This collaboration can benefit you and your case immensely.
With so many steps, it’s vital to plan your case from beginning to end. This extensive and often confusing process is why it’s important to consult with an attorney as soon as possible—that way there’s plenty of time to look into your case and present the best legal strategy.
It all starts with the first step.