Our Workers' Comp Guide

work. First of all, you are not entitled to

receive any compensation until you are out of work for 7 days. However,

if the injury causes you to be out of work for more than 21 days, then

compensation will be allowed to cover those original 7 days of disability

as well. You are also allowed to used your sick time for the first seven

days of disability if you desire.

When trying to determine the amount of benefits you are entitled

to, you are trying to arrive at what is called your average weekly wage.

There are 4 methods of doing this.

1. The primary method is to take your pay over the 52 weeks prior

to the enjury, and come up with the average.

2. If you have not been employed 52 weeks, you take the amount of

time you have worked and use that average.

3. Where there is extremely short employment, and it is impractical

to compute the average weekly wage, the finder of fact is

allowed to consider what other employees of similar grade and

character made during that time period, with consideration given

to the community or locality it occurred in as well during the 52

weeks prior to the injury.

4. Where these other 3 methods are unjust to the employer or the

employee, where it would violate basic ideas of fairness and

equity, then parties are allowed to argue for the average weekly

wage which would most likely reflect what the employee would

have made but for the injury. This method may not be used

unless there is a specific finding that using the other methods

would result in an unjust result.

Once you have your average weekly wage, you can compute your

compensation rate, which is two thirds of your average weekly wage

(but tax free). Once again, there are many many issues and factors that

have been developed by the case law that impact your average weekly

wage and which method should be used. This guide is a good starting

point, but do not rely on it in the final analysis. Consult an experienced

workers comp attorney.

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VI. WHAT BUSINESSES HAVE TO CARRY

WORKERS COMPENSATION COVERAGE?

(This information is from the North Carolina

Industrial Commission Website)

The North Carolina Workers' Compensation Act requires that

all businesses which employ three or more employees, including

those operating as corporations, sole proprietorships, limited liability

companies and partnerships, obtain workers' compensation insurance

or qualify as self-insured employers for purposes of paying workers'

compensation benefits to their employees. The only exceptions to this

requirement are (a) employees of certain railroads; (b) casual employees,

i.e., individuals who do not perform "work pertaining to the regular

course of defendant's business"; (c) domestic servants directly employed

by the household; (d) farm laborers when fewer than 10 full-time, nonseasonal

farm laborers are regularly employed by the same employer;

(e) federal government employees in North Carolina; and (f) "sellers

of agricultural products for the producers thereof on commission or

for other compensation, paid by the producers, provided the product is

prepared for sale by the producer."

Businesses with just one employee, whose work involves the

presence of radiation, are required to have workers' compensation

coverage.

Individuals who are sole proprietors, members of LLCs, and

partners are not counted automatically as employees. Corporate

officers may elect to be excluded from coverage but are still counted in

determining whether a business has three or more employees.

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 in fact 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.

If you subcontract work to a subcontractor who does not have

workers' compensation insurance, you may be liable for the work-related

injuries of the subcontractor's employees, regardless of the number of

employees you or the subcontractor employs. Different laws apply to

trucking companies.

If You Fail to Carry Workers' Compensation

Insurance, You May:

1) Face stiff financial penalties;

2) Be charged with a misdemeanor;

3) Be charged with a felony; and

4) Be imprisoned.

VII. PARTIAL PERMANENT DISABILITY UNDER

THE NORTH CAROLINA WORKERS

COMPENSATION ACT

Permanent Partial Disability is payable at the employee's

compensation rate based on the following schedule, which sets forth the

number of weeks of compensation paid for a total 100 percent loss of the

affected body part:

Thumb . . . . . . . . . . . . . . . . . 75 weeks

First Finger . . . . . . . . . . . . . . 45 weeks

Second Finger . . . . . . . . . . . . . 40 weeks

Third Finger . . . . . . . . . . . . . . 25 weeks

Fourth Finger . . . . . . . . . . . . . 20 weeks

Great Toe . . . . . . . . . . . . . . . 35 weeks

Any Other Toe . . . . . . . . . . . . . 10 weeks

Hand . . . . . . . . . . . . . . . . . . 200 weeks

Arm . . . . . . . . . . . . . . . . . . 240 weeks

Foot . . . . . . . . . . . . . . . . . . 144 weeks

Leg . . . . . . . . . . . . . . . . . . 200 weeks

Eye . . . . . . . . . . . . . . . . . . 120 weeks

Back . . . . . . . . . . . . . . . . . 300 weeks

Typically the treating physicians give ratings once the employee

has reached maximum medical improvement, which is another way of

saying you are as well as you are going to get in your recovery. These

ratings are typically not 100 percent. Attorneys that practice in the area

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of workers compensation extensively are familiar with what ratings

are appropriate for specific types of injuries, treatments, and outcomes

based on the ratings guidelines and also practically representing

hundreds of employees over the years. It is often advisable to seek a

second opinion on rating, but not always. A second opinion can result

in a lower rating. Also, in some cases where it is unlikely the employee

can return to work the rating is really not that significant an issue. Once

again, consulting an experienced attorney early in the process is very

important.

VIII. GETTING REIMBURSED FOR MILAGE IN

WORKERS COMPENSATION CLAIMS

One question often covered is whether you can get milage paid for

doctors visits for treatment of injuries covered by the workers comp

act. The answer is yes, if your doctor visit is more than 20 miles from

your home round trip, the Defendant Carrier is required to pay 56 cents

a mile for milage. In certain situations, if the employee does not have

transportation, the employer will provide transportation. These milage

reimburements should be paid regularly as they are incurred, they are

not an expense that the employee should have to wait for until the case

is resolved

IX. CAN I BE FIRED FOR FILING A WORKERS

COMPENSATION CLAIM?

A frequent question that comes up in workers compensation cases

is whether the employer can fire and employee during a workers

compensation claim. The answer to this is it depends on the reason for

firing. If the employer is firing the employee to punish him or her for

filing a claim, this is illegal. It is called retaliatory discharge and can

be pursued by a separate lawsuit against the employer. This would be

a totally separate action from the workers compensation claim, and

would be best handled by an employment law attorney. These are hard

cases to win unless you have direct evidence of the employers intent.

As a side note, it is also a Class H felony for an employer to threaten or

coerce an employee into agreeing to compensation or agreeing to forego

compensation under the North Carolina Workers Comp Act. (NCGS 97-

88.2(a)).

The main situation, however, that comes into play is whether the

employer has to keep the employees job open while he or she is out of

work. First of all, the job must at a minimum be kept open for twelve

weeks. That is prescribed by federal law in the Family Medical Leave

Act. After that the employer can fire the employee or let him go for any

reason except a reason against public policy, because North Carolina is

a Right To Work State. Here are some examples of firings that would be

against public policy

1. Retaliatory Discharge

2. Race

3. Sex

4. Age

5. Religion

This seems harsh, but the public policy argument that is made

in favor of being a right to work state is that employers, particularly

small employers, can only do without key employees for so long, and

it is hard to stay in business. Larger employers that deal with labor

unions often have more protection for employees through negotiated

contracts with the employee labor unions. North Carolina law in this

area, though, is significantly slanted to favor the rights of employers. If

the employer does fire the employee while they are out of work because

of physical limitations, it is not all bad news for the injured worker

though. Quite often the injured worker's who has significant permanent

physical restrictions really has the best chance to go back to work for

his employer at the time of the injury. He is usually experienced at that

job, the employer has alot invested in training the employee, and can

make allowances that are helpful to both employee and employer. When

the employee is fired, or let go, then the employer is faced with paying

ongoing Temporary Permanent Disability Payments until the plaintiff

finds a job, or the employer through a vocational rehabilitation specialist

helps the employee find a job. This typically drives up the settlement

value of the plaintiff's claim significantly. So an employer letting a good

employee go during a workers comp claim can significantly affect the

amount of money that employer pays on the claim.

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X. FALLS IN WORKERS

COMPENSATION CLAIMS

North Carolina has adopted a rule known as the unexplained fall

rule, which states that if an injured worker falls at work and there is no

evidence that it was caused by something other than the employment,

then compensation should be allowed. There is no necessity to show

that an unusual or unexpected event occured because the fall itself is

held under this rule to be a compensable accident under North Carolina

Workers Compensation Law. For example, if a grocery store clerk is

putting up stock and when reaching up to do so falls, that worker's fall

is a compensable accident. So this is another exception to the injury by

accident provisions of the law.

One defense insurance companies try to use in these situations,

as well as others, is ideopathic conditions. An ideopathic condition

is basically a pre-existing condition the employee had prior to and

unrelated to an incident causing injury. If a fall is caused solely from

an idiopathic condition, and there are no other factors at play in causing

the injury, then the injury would not be compensable. For example, a

pre-existing back or knee condition causing the incident, or a seizure.

When the injury is caused by both a special hazard peculiar to the

employment, and an ideopathic condition, the claim may still be

compensable. When this is the case, it is typical for the employer to

deny the claim and make you litigate the issue and sustain your burden

of proof.

XI. INJURIES WHEN TRAVELLING

TO AND FROM WORK

Under the North Carolina Workers Compensation Laws, generally

speaking, injuries that occur when travelling to and from work are not

compensable. (Not covered by the Workers Comp Act). The main reason

for this is that the general risks or hazards associated with commuting

to work are the same as they are for the general public. However there

are some notable exceptions. We have been successful in many different

cases in helping our clients recover under these exceptions.

The first exception is that the plaintiff may recover when going to or

leaving from work if he or she is on the premises of the employer when

the injury occurs. The reasoning behind this is that if an injury occurs

that close to the place of employment it is held to be incidental to the

employment. However, if the injured worker is responsible in some way

for a delay prior to the injury, then courts have held that the injury is not

compensable.

Another exception is when an employer has a duty that he has

contracted with the worker for to transport the injured worker or furnish

the means of transportation as part of his contract of employment; then

the injury can be covered by the Workers Comp Act even when the

injured worker is travelling to or from work. If the transportation is not

part of the employment contract with the injured worker, however, and

is just given as a favor or for any other gratutious reason, then the claim

may not be compensable. One case, for example, did not allow recovery

when the employer picked up the plaintiff to give him a ride to work

because he had a problem getting transportation that day.

There is also an exception called "The Special Errand Rule." This

applies when the worker is injured when performing a special errand or

mission for the employer beyond or outside his normal duties. The main

question in these situations is whether the employee was acting for the

benefit of the employer.

Finally, there is a travelling salesman exception. There are many

nuances to this exception. Some of the key factors are whether the

injured worker kept a home office and whether his car is provided

for him as part of his employment contract, as stated above. If this

exception applies, the workers comp act applies even in situations

where the employee is on a slight deviation from employment when

the incident occurs. There are many cases that have developed over the

years to clarify this exception.

As you can see, the Workers Comp Act is very nuanced and fact

specific. If you are injured, consult with an experienced local attorney

who concentrates his practice in the area of representing injured

workers.

XII. CAN I SUE MY EMPLOYER?

The short answer to this is no, you generally cannot sue your

employer if you are injured on the job by his negligence. There was a

case called Woodson several years ago that allowed you to sue your

- 14 - - 15 -

employer if he was grossly negligent, but the subsequent cases from the

Court of Appeals and Supreme Court have severely limited this cause of

action. In fact, they have almost eliminated it. Suffice it to say it must be

extremely reckless and intentional conduct that would allow this.

The legistlative rationale between not allowing you to sue your

employer for negligence is part of the compromise that the workers

compensation system is. It was decided that having employees having to

sue their employers was generally not good as a matter of public policy.

So the system is an attempt to limit liability of employers, while also

allowing employees to recover without the burden and stress of having

to prove the negligence of their employer.

There may be a lawsuit, however, that you can pursue for negligence

when you are hurt on the job. That would involve when a third party

other than your employer is negligent. It could be an independent

contractor, a machine manufacturer, or any other third party whose

negligence caused your injury on the job. In these situations you need

to pursue a workers comp action against your employer and also a tort

action against the negligent third party.

XIII. INJURIES OCCURRING ON

EMPLOYER'S PREMISES

Injuries occurring on the premises of the employer , even in

situations where the work shift has not begun, very often are still

recoverable. That means that even though you may not have clocked

in yet and are injured, the workers comp act may still define this as a

compensable claim. This includes injuries in parking lots owned by

employers. We have recovered in many cases where the injury occurred

in the parking lot.

One of the main issues in these cases is whether the injury arose out

of the employment; and is related to the employment. Basically if you

are on the premises of your employer because of issues related to your

job, and you are doing what you are expected to be doing and given

permission, expressly or impliedly to do, then there is a good chance

your injury is arising out of your employment. The variables and factors

that enter into this issue are complex and very fact specific. For example

here is case in fact that held an employee picking up his last paycheck

and who was not on the clock was kept from recovering because the

injury occurred in an area he was not authorized to be in. But for being

in the wrong area it would have been compensable, because he was

doing something related to his employment, picking up his paycheck.

If the employee is in the parking lot, and coming in for work, then the

injury is probably compensable. But once again, there are many factors

at play. If the parking lot is, for example a mall and you work at a store

in the mall, then the injury occurring there is probably not compensable,

because the employer does not control that area.

Another of the issues that will come into play when you are injured

on the premises of the employer is whether the employee is exposed

to any greater danger than the general public. Lunch hour cases are

very fact specific as well. If you are on the premises of your employer

when your are injured while eating lunch, there is a chance the claim is

compensable, depending on several other factors.

It is very difficult to give a one size fits all answer to these scenarios,

because the workers comp act is so fact specific. The law states

principles and the case law tries to apply those principles to various fact

patterns.

XIV. INDEPENDENT MEDICAL EXAMS

This is the applicable statute regarding the duty of a plaintiff to

undergo an independent medical exam.

Workers' Compensation Act.

Section

§97-27. Medical examination; facts not privileged; refusal to

be examined suspends compensation; autopsy.

After an injury, and so long as the employee claims

compensation, the employee, if so requested by his or her

employer or ordered by the Industrial Commission, shall

submit to independent medical examinations, at reasonable

times and places, by a duly qualified physician who is licensed

and practicing in North Carolina and is designated and paid

by the employer or the Industrial Commission, even if the

employee's claim has been denied pursuant to G.S. §97‑18(c).

The independent medical examination shall be subject to the

following provisions:

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(1) The injured employee has the right to have present at

the independent medical examination any physician

provided and paid by the employee.

(2) Notwithstanding the provisions of G.S. §8‑53, no fact

communicated to or otherwise learned by any physician

who may have attended or examined the employee, or

who may have been present at any examination, shall be

privileged with respect to a claim before the Industrial

Commission.

(3) Notwithstanding the provisions of G.S. §97‑25.6 to the

contrary, an employer or its agent shall be allowed to

openly communicate either orally or in writing with an

independent medical examiner chosen by the employer

regardless of whether the examiner physically examined

the employee.

(4) If the examiner physically examined the employee,

the employer must produce the examiner's report to

the employee within 10 business days of receipt by

the employer, along with a copy of all documents and

written communication sent to the independent medical

examiner pertaining to the employee.

(5) If the employee refuses to submit to or in any way

obstructs an independent medical examination requested

and provided by the employer, the employee's right to

compensation and to take or prosecute any proceedings

under this Article shall be suspended pursuant to

G.S. §97‑18.1 until such the refusal or objection ceases,

and no compensation shall at any time be payable for

the period of obstruction, unless in the opinion of the

Industrial Commission the circumstances justify the

refusal or obstruction. When the employer seeks to

suspend compensation under this subdivision, it shall not

be necessary for the employer to have first obtained an

order compelling the employee to submit to the proposed

independent medical examination. Any order issued by

the Commission suspending compensation pursuant to

G.S. §97‑18.1 shall specify what action the employee

should take to end the suspension and reinstate the

compensation.

(b) In any case arising under this Article in which the

employee is dissatisfied with the percentage of

permanent disability as provided by G.S. §97‑31

and determined by the authorized health care

provider, the employee is entitled to have

another examination solely on the percentage

of permanent disability provided by a duly

qualified physician of the employee's choosing

who is licensed to practice in North Carolina,

or licensed in another state if agreed to by the

parties or ordered by the Commission, and

designated by the employee. That physician shall

be paid by the employer in the same manner as

health care providers designated by the employer

or the Industrial Commission are paid. The

Industrial Commission must either disregard

or give less weight to the opinions of the duly

qualified physician chosen by the employee

pursuant to this subsection on issues outside

the scope of the G.S. §97‑27(b) examination.

No fact that is communicated to or otherwise

learned by any physician who attended or

examined the employee, or who was present at

any examination, shall be privileged with respect

to a claim before the Industrial Commission.

Provided, however, that all travel expenses

incurred in obtaining the examination shall be

paid by the employee.

(c) The employer, or the Industrial Commission,

has the right in any case of death to require an

autopsy at its expense. (1929, c. 120, s. 27; 1959,

c. 732; 1969, c. 135; 1973, c. 520, s. 2; 1977, c.

511; 1991, c. 636, s. 3; 2011; 2012.)

- 18 - - 19 -

XV. MOTOR VEHICLE ACCIDENTS AND

WORKERS COMP CLAIMS

(THIRD PARTY CLAIMS)

If you were hurt by the negligence of someone other than your

employer, and you were on the job at the time or doing some things

related to your job; you have two claims. Your first claim is against the

negligent third party, who is known as the tortfeasor. You can recover

all damages allowed by law against the tortfeasor, including pain and

suffering, medical expenses, lost wages and other costs. In certain

situations if it goes to trial you can also recover attorneys fees on top of

the judgement, so that you recover more and put more in your pocket.

Usually these "third party claims" involve motor vehicle accidents,

but not always. You can also be injured on the job by someone else's

negligence; for example the paving contractor at your place of work

does something to cause an injury.

In these situations you also have a workers compensation claim.

It is important to file your form 18 with the North Carolina Industrial

Commission within 30 days. If you don't file within 30 days it does

not automatically mean you have no claim, but your safest bet is to file

within 30 days. The workers compensation carrier will send you to

doctors they choose, and quite often it is necessary to have an attorney

from the beginning to help protect against such issues as the comp

carrier sending you to unqualified doctors or overly biased doctors.

Quite often doctors refer you to specialists and the comp carrier refuses

to approve it. In these situations you need to timely file for a hearing to

get the needed treatment.

One of the biggest issues when you have both a workers

compensation claim and a motor vehicle accident or tort claim is when

to settle. Our position is it depends on the case. There are so many

different factors that come in to play on this issue. What we will say is

that it really depends on the facts of each case; but in many situations

there is a clear answer which should be done first.

The final issue to discuss is the worker compensation lien. If you

settle your workers compensation claim first, the workers compensation

carrier has a lien on the recovery in the third party claim. Many

individuals and even attorneys will work out a negotiated settlement

or waiver of this lien as part of the workers compensation settlement.

My position is you should never do this. If you get the workers

compensation lien reduced or waived, then in all probability you will

not be able to use that element of damages in the third party claim. In

other words, if you get a $ 50,000.00 workers compensation lien reduced

to $30,000.00, then you in all likelyhood reduced the value of your third

party claim by more than $ 20,000.00. The best approach is to settle or

try your third party claim, then work on the lien. The way we handle

this is to negotiate at that point with the workers compensation carrier.

The applicable statute is NCGS 97-10.2. This allows us to reduced the

lien automatically by one third. It also allows for us to file a motion in

the Superior Court of Cumberland County, or the county where the

incident arose, and ask a judge to reduce or waive the lien. We have had

great sucess in reducing and waiving these liens. How much it can be

reduced depends on the facts of each case. We can say that to date we

have never had to pay out more than one third of the total recovery, and

sometimes less than that.

So it is important in these cases to get an attorney in both

trying jury trials in motor vehicle cases and handling workers

compensation claims.

XVI. FUNCTIONAL CAPACITY EXAMS

IN WORKERS COMP

Quite often in workers compensation claims when injured

workers have reached maximum medical improvement, they are

asked to attend a " Functional Capacity Exam". Occasionally the

employee is asked to perform a functional capacity exam prior to

reaching maximum improvement to see if the employee is able to

perform his or her job duties. The purpose of this exam is for a

physical therapist to test the injured workers' ability to perform

specific tasks. For example, they will test your ability to lift up to

shoulder height, your ability to bend, your ability to lift above the

shoulder, your hand strength, and so on. This can be very helpful

in assisting the doctor in setting work restrictions and in also

comparing the results with the injured worker's job description.

These tests are well accepted by The North Carolina Industrial

Commission and cannot be avoided if sought by the treating doctor

- 20 - - 21 -

or even by the employer in most cases. There are some concerns,

however, that should be considered with functional capacity exams.

1. Tester Bias - It is just a fact of life that workers comp carriers

have their interests and agenda's, and are going to choose

doctors and medical providers quite often that are more likely

to see things as the defendant does. (the defendants are the

employer and the employers insurance company). The same

problem exists with physical therapists that are often chosen

to do functional capacity exams. Some, probably most, are

objective and fair. However, there are a few that are so biased

in favor of the employer that they will not give an opinion that

can be trusted. The attorneys who have large workers comp

practices know who these biased physical therapists are, as well

as the biased doctors. We network through the North Carolina

Advocates for Justice to make sure we stay on top of these

issues. The Industrial Commission and Court of Appeals have

actually given little weight to some of these physical therapists

that do functional capacity exams because of their well

documented bias. Whether to avoid these biased exams depends

on the facts of each case.

2. Endurance - These tests are conducted on one day, and

injured workers who participate are asked to and should give

their maximum effort. However, quite often endurance is not

measured. For example, an injured worker with chronic back

pain may be able to perform well for one day, but wake up the

next morning and not be able to get out of bed. A better test

would be taken over several days. After all, employees typically

work 40 hour work weeks. So a functional capacity exam is not

always a fair representation of what the employee can do 40

hours a week. A good doctor might take this into account, and

interacting with the doctor on this issue is one way of dealing

with the limitations of functional capacity exams.

3. Validity Profile - The physical therapist in a functional capacity

exam have what they term "validty profiles" which are supposed

to test whether the employee is giving full effort. It is very

important to give maximal effort because of this. This test is to

test if someone is malinguering or faking. However, many of

the biased functional capacity exam givers find malingering a

majority of the time, based on my experience; which makes their

findings suspect. Another problem related to this is an employee

may be limiting his or her effort because they are limited by

pain; which is not so easily quantified by validity profile tests.

We also see clients fail validity profile and it not be that relevent

because the basic findings still find that the employee cannot

work. It is important to have an attorney experienced in workers

comp and dealing with all these issues.

XVII. WHEN TO SETTLE YOUR WORKERS

COMPENSATION CLAIM

As an attorney who concentrates on litigating workers compensation

and personal injury claims, and having done so for over 25 years, I

have a perspective on when to settle a case that is seasoned with alot of

experience. Having also over ten years experience in mediating case as

a certified mediator also gives me a great deal of insight on this issue.

In fact, my main objective in mediating cases (it is a small part of my

practice), was to gain perspective through the mediation process of how

plaintiffs and defendants tend to think, as well as to know what factors

affect the value of cases. It has also been helpful to help in determining

what cases are settling for, although I have other means of doing that.

Most of my experience, however, comes from the hundreds of cases I

have mediated and litigated and handled.

Knowing when to settle your workers compensation claim is a

wisdom issue mainly, based on the law, and strategic planning and

foresight of what may ahead in the process. I have always said that

workers compensation is a frustrating area of practice to me. What I

mean by that is when I have a tort or negligence case, if I don't like the

conduct of the defendant I just file a lawsuit and in ten or twelve months

I am picking a jury and they will tell us what the case is worth and we

are done for the most part. Not so with workers comp. It is a process

that you have to play out in order protect the rights of the employee and

maximize your recovery. It may sound a bit lame but you have to know

when to hold them and know when to fold them. (that great philospher

Kenny Rogers).

The timing of when to settle depends on many things; how much

medical treatment has been completed, how much is needed in the

- 22 - - 23 -

future, have you received a disability rating from the doctor, are you

back to work; if you are not back to work, what is the likelyhood you

will be able to back to work, or how long will it take you to find a new

job if your restrictions don't let you return to your old job. Another

concern is what type of settlement to get, a form 26A settlement which

is based on your disability rating and keeps the insurance company on

the hook for medical expenses for at least two more years, or a clincher

which settle the entire case including future medicals. Another factor

to consider is how much medical treatment in the future you may

need and whether you have any insurance to pay for future medical

treatment. Because there are so many variables, there is no easy answer

to these questions. Another key issue is whether you are likely to be

on Social Security Disability in the near future. This affects whether

you will need what is called a medicare set aside, which is required in

certain cases, and which may be avoided in other cases by the timing

of the settlement. (a medicare set aside basically adds money that the

defendant has to put in the settlement in a seperate account to take into

account future medical bills related to the injury that medicare would

have to pay). This quite often affects negatively what the plaintiff can

recover or can make the case one that cannot settle because of the

amount of the medicare set aside amount.

Our approach is to be aggressive in seeking treatment that is needed.

If the insurance company stonewalls on needed medical treatment, we

file a motion with the North Carolina Industrial Commission to get that

treatment. We also are engaged with the issue of employees returning to

work and not being pressured or forced to work beyond the restrictions

the doctor has set in place. So in a sense workers comp practice involves

plaintiffs being reactionary. We go through each step of the process,

protecting our clients rights and interacting when needed. We also

interact constantly with adjusters and nurse case managers regarding

the medical care and what is next. Part of this is reacting when the

insurance companies try to send plaintiffs to doctors that are not fair in

their evaluations and treatment. So reactionary does not mean passive.

And of course, if the employer is denying the claim we ask for a hearing

immediately, which takes some time to get to.

Some law firms are in a hurry to settle, to close their file and move

on. Some plaintiffs have this perspective as well. While in personal

injury cases you are able to do this a bit more, it is generally not a good

idea in workers compensation. There is typically a time in the case

when it is a good time to consider settlement. That time is typically

after the plaintiff has reached maximum medical improvement and

been rated. If the employee is still out of work, it is a good time as well,

as insurance companies settle cases based on exposure they have, and

if they are weekly paying the plaintiff his indemnity payments, they

have more exposure and the case typically settles for more. If you wait

too long or are too aggressive in your settlement demands, and the

defendant voc rehabs you and finds you a job, your case could be worth

half or a third of what it would have been otherwise, depending on your

specific facts.

We believe that waiting on the correct time to settle is extremely

important to maximize our clients' recoveries. We want to make sure

all medical issues have been taken care of and plaintiff has gotten the

medical treatment they need. In some cases the plaintiff is back to

work but we are not sure physically the plaintiff can continue to do the

job much long. In those situations we believe in waiting it out to once

again make sure we are maximizing our client's recovery. Wisdom,

experience, knowledge, agressiveness, and patience; these are all key

elements in navigating the complicated waters of workers compensation

practice and knowing when to settle claims.

XVIII. THE LAST CHAPTER

Naming this section the last chapter is somewhat obvious for a name

for a last chapter, but I have more reasons that than for the name. In

workers compensation it is often hard to get to the last chapter, or end

of your case. Because it is a system and a process it can be frustrating

to go through, as with any bureacratic systems. I want this guide to

be a help to you in going through this process. It is stressful as your

job is an important part of your life. Putting food on the table for your

family is important, and the possibility of your means of a living being

impacted or taken away is a big deal. That is why we want your last

chapter in your workers comp claim to be the right one; the best ending

to a hard story. Don't end it the wrong way; know your rights and seek

experienced legal advice from an attorney you can trust. This booklet

is helpful, but it will not replace the advice and representation of a

good workers comp attorney. This booklet gives a broad outline on

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many issues, but it is not exhaustive in its content nor meant to be. It

is not meant to be relied on as the final word, as the courts have gone

into greater detail in addressing the nuances of some of these issues. I

hope you will consider giving me a call for good, honest, experienced

and aggressive legal representation. I will sit down and give you a free

consultation on the issues in your case and whether you could benefit

from legal representation.

Allen Smith

Smith, Dickey & Dempster, PA

Attorneys at Law

309 & 315 Person Street,

Fayetteville, NC 28301

(910)484-8195

[email protected]

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