Top 10 Workers’ Compensation Questions

1. What are the main workers' compensation benefits provided by North Carolina law?

1. • Medical Benefits – reasonable and necessary medical treatment of various kinds that tends to effect a cure, provide relief, and lessen the period of disability for the injured worker.
   • Ongoing Weekly Disability (Indemnity) Benefits
     • Temporary Total Disability (TTD) – temporary, ongoing weekly disability payments equal to 2/3s of an employee's pre-injury average weekly wage (AWW).  Applies to employees written out of work or completely unable to work in any job.  See G.S. § 97-29.
     • Temporary Partial Disability (TPD) – applies to employees earning less than their pre-injury wage in a new job.  Temporary, ongoing weekly disability payments equal to 2/3s of the difference between the pre-injury higher wage and the lower wage in the new job.  See G.S. § 97-30.
   • Permanent Partial Disability / Impairment (PPD or PPI) – a final award based on a set schedule under G.S. § 97-31 as further determined by a healthcare provider's Disability Rating.  Only relevant once an injured worker reaches maximum medical improvement (MMI) and if a rating is assigned.  See G.S. § 97-31.
   • Other Benefits and Features of Workers' Compensation
     • Transitional Employment (Light or Sedentary Duty) – modified job duties while an injured worker recovers from a work injury and/or continues to receive medical treatment prior to reaching maximum medical improvement (MMI).
     • Temporary Work Restrictions – formal work restrictions in place while an injured worker treats and receives medical benefits, as assigned by the authorized treating physician (ATP).
     • Permanent Work Restrictions – formal, final and permanent work restrictions at the end of the healing period once an injured worker reaches maximum medical improvement (MMI), as assigned by the authorized treating physician (ATP).
       • Note – An injured worker must be able to perform his pre-injury job duties according to the permanent work restrictions assigned by the ATP; otherwise, the Commission is likely to deem that person disabled from his pre-injury employment and eligible for ongoing indemnity benefits until their work capacity is restored.

Loutit Law is highly experienced with all available workers' compensation benefits and helps clients receive the maximum benefits provided by North Carolina law.

2. When do I need to report my work injury to receive workers' compensation benefits?  Does it need to be in writing?

Employees injured on the job should immediately report their work injury to their supervisor, or to another employee if they cannot reach their supervisor immediately.  Written notice (note, letter, email, text) must be given to the employer within thirty (30) days or benefits can be barred.  The sooner the better for both.

3. What is my Compensation Rate (“Comp Rate” or “CR”)?

Your “comp rate” is a weekly payment benefit equal to two-thirds of your average weekly wage for the past year (52 weeks).  For example, if you made $1,000 per week on average over the last 52 weeks, your comp rate is $666.67.  If you made $18.00 per hour on average, your average weekly wage is $720.00.  This results in a comp rate of $479.52.  You may see these figures calculated on a Form 22.

Often, clients are not receiving maximum weekly benefits by miscalculating their average weekly wage and comp rate.  Loutit Law helps clients correctly calculate their maximum average weekly wage and receive the maximum appropriate compensation rate provided by North Carolina law.

4. How long can I expect to receive disability payments?

Depending on your ability to work, you can expect to receive ongoing weekly benefits so long as your authorized treating physician (ATP) continues to write you out of work.  Workers' compensation ends by statute at 500 weeks (just under 10 years).  Thereafter, injured workers may apply for extended benefits if they present sufficient evidence of their continued similar inability to work.  However, having your physician write you out of work is the preferred way to receive ongoing benefits.

5. Do I have to pay my attorney by the hour or pay a retainer?

No, not on the plaintiff's side.  The Industrial Commission approves fees, which equal 25% of all indemnity benefits received.  The attorney is paid at the conclusion of the case, meaning his or her interests are usually aligned with your interests in receiving the maximum benefits possible.

6. Does my employer have to carry Workers' Compensation Insurance?

The North Carolina Workers' Compensation Act requires all businesses that employ three or more employees, including those operating as corporations, sole proprietorships, limited liability companies and partnerships, carry workers' compensation insurance or qualify as self-insured employers for purposes of paying workers' compensation benefits to their employees.  Officers of a business may “opt out” of the requirement of being covered by insurance, but the Commission will likely still count them in calculating the number of relevant employees.

Businesses in which one or more employees are employed in activities which involve the use or presence of radiation are required to carry workers' compensation coverage.

7. My employer says I'm an Independent Contractor, not an Employee.  Is this true?

Workers' compensation benefits are reserved for “employees” only.  An employer is not relieved of its liability under the Act by calling its employees "independent contractors."  Even if the employer refers to its workers as independent contractors and issues a Form 1099 for tax purposes, the Industrial Commission may still find that the workers were “employees” based upon its analysis of several factors, including but not limited to the degree of control exercised by the employer over the details of the work.

8. I work for a trucking company.  Am I covered by workers' compensation?

North Carolina law requires that workers' compensation coverage be in place to cover certain trucking owner/operators, even if the operator is deemed to be an independent contractor.  If the owner-operator does not have workers' compensation insurance coverage, the motor carrier must provide workers' compensation coverage.  The workers' compensation coverage must be in place regardless of whether the principal contractor, intermediate contractor, or subcontractor regularly employs three or more employees. A motor carrier employer is not liable for the workplace injuries suffered by an independent contractor who is: 1) individually licensed by the U.S. Department of Transportation and 2) personally operates the vehicle.  (N.C. Gen. Stat. § 97-19.1).

9. I work for a subcontractor most of the time who works for a large prime contractor with insurance.  I am not sure if my employer carries insurance.  Am I covered by workers' compensation?

If an initial contractor subcontracts work out to a subcontractor who does not carry workers' compensation insurance, the initial contractor may still be liable for the work-related injuries of the subcontractor's employees, regardless of the number of employees the initial contractor or subcontractor employs.

10. My employer routinely fails to carry Workers' Compensation Insurance.  Will anything happen?

As outlined above, North Carolina law requires certain businesses to carry and maintain workers' compensation insurance for the benefit of their employees.  Businesses who fail to comply with the law may:  1) Face stiff financial penalties; 2) Be charged with a misdemeanor; 3) Be charged with a felony; and 4) Be imprisoned.

Source:  NC Industrial Commission website.  https://www.ic.nc.gov/wcinsrqmt.html#:~:text=The%20North%20Carolina%20Workers'%20Compensation,employers%20for%20purposes%20of%20paying .

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