Workers’ Compensation: No benefits If Impaired

Typically, if a worker suffers an injury at work and the employer regularly employs three or more employees, the injured worker is entitled to benefits provided in the North Carolina Workers’ Compensation Act.  However, there are some exceptions to what would otherwise be a compensable injury.

If an injured worker was injured due to his own intoxication, he or she may not be entitled to benefits.  This exception may be nullified in the event the injured worker was provided the intoxicating substance (alcohol or drugs) by the employer or the injured worker’s supervisor.  The mere fact that an injured employee was intoxicated may not be enough for the employer to escape liability.  The injury to the worker must be proximately caused by (as a result of) the worker’s intoxication.

Another exception to what might otherwise be a compensable injury is when the injured worker intentionally injures or kills himself or another employee.

Under certain circumstances, if an employer fails to comply with any statutory requirement or order of the Industrial Commission, the payments due to an injured worker with a compensable injury who was injured as a result of the willful failure of the employer to follow such regulations may be increased by 10%.

Likewise, if an injured worker has been injured as a result of not following prescribed safety procedures, the benefits due to that worker may be decreased by 10%.

Blood or other medically accepted tests may be used to determine impairment of an injured worker.

Basics of Workers’ Compensation

In North Carolina, with a few exceptions, any employer who regularly employs three or more employees must have workers’ compensation coverage for the employees.  There are exceptions for agriculture, domestic services and certain logging employers.  If an employee is injured at work and suffers a compensable injury, the employer or the employer’s workers’ compensation insurance carrier is typically obligated to pay for all medical costs which are authorized by the carrier, as well as all prescriptions and mileage to and from the medical provider, when the round trip exceeds 20 miles.  In addition, the injured employee, if excused from work by an authorized treating physician as a result of the compensable injury, is entitled to be paid 2/3 of his or her average weekly wage for the weeks the injured employee is excused from work.  The injured worker is not entitled to pay for the first seven days out of work unless he or she is out of work for more than 21 days.

Agricultural employers may be exempt from providing coverage and being subject to the North Carolina Workers’ Compensation Act unless they regularly employ 10 or more nonseasonal workers.  Sawmill and logging employers may be exempt from providing coverage and being subject to the North Carolina Workers’ Compensation Act if that operator employs less than 10 employees and saws and logs less than 60 days in any six consecutive months and whose principal business is unrelated to sawmilling or logging.

The medical and weekly pay benefits for an injured worker who suffers a compensable injury are no different for an undocumented worker or for a worker who is not legally employed.

Why is your Average Weekly Wage So Important in Your Workers’ Compensation Claim?

Workers Compensation is an insurance policy provided by North Carolina General Statutes.  Because these are benefits created by statute, the statute provides specific formulas to calculate the amounts due to an injured worker when he or she suffers any permanent injury or when in injured worker is entitled to weekly benefits when not able to work due to a compensable injury.  All of these benefits are calculated by using the Average Weekly Wage of the injured worker.  In many cases this may seem like an inaccurate method of determining what an injured worker should be paid.  For example, a 25 year old worker who is injured making $15.00 per hour will be paid the same amount for the same injury as a 61 year old worker.  Obviously the 25 year old worker has many more years for which he cannot earn as much money due to an injury, but the statute does not always account for this.

In any event, there must be a formula to calculate the amount due to an injured worker.  The first element of this equation is the Average Weekly Wage of that worker.  Chapter 97-2(5) provides several methods of determining this Average Weekly Wage (AWW).  The typical method for calculating the AWW is to total the wages earned during the previous 52 weeks of employment and divide that amount by 52.  There are provisions for adjusting this calculation if the injured worker missed seven or more consecutive days during that previous 52 weeks.  Also, if the employment prior tot he injury was for less than 52 weeks, the calculation can average the weekly pay for the period less than 52 weeks, providing doing so would be fair to both the injured employee and the employer.  In certain circumstances, it is appropriate to use the AWW of a comparable employee.

When an injured worker with a compensable injury is excused from work by his or her treating physician, he or she may be entitled to weekly benefits, typically referred to as Temporary Total Disability benefits (TTD). TTD is defined by the statute as 2/3 of the injured worker’s AWW.  This calculation can involve multiplying the AWW by as much as 500 weeks. This is one reason why the proper calculation is so critical.  Similarly, if an injured worker returns to work, but because of compensable injuries that worker cannot earn as much as he or she earned pre-injury, then that injured worker may be entitled to Temporary Partial Disability (TPD) for the weeks he or she is not able to earn the pre-injury wage, up to 500 weeks.

Additionally, when an injured worker is assigned a Permanent Partial Disability rating by a treating physician, the calculation of the value of that rating is determined by starting with the AWW.  This calculation can involve multiplying the AWW by up to 300 weeks.  This is another reason that the calculation of the AWW is so critical.

An injured worker is entitled to payroll records which indicate all wages earned during the 52 weeks prior to injury, and sometimes back even further.  There is even an Industrial Commission (the Industrial Commission is the court system in North Carolina for hearing Workers’ Compensation claims) Form 22 which should be completed by the Employer to assist in determining the correct AWW.  However, there can be mistakes on these forms and all calculations should be checked.  It is best to compare the earnings reported by the employer with tax returns and paycheck stubs.  As you can see, even a $1.00 difference in the AWW can means hundreds of dollars less than an injured worker should be receiving.  A $10.00 difference can mean thousands of dollars.

If I am injured at work, can I choose my own doctor?

This is a good, and well argued question. The short answer is that it depends.

First, if you are injured at work and you make a claim for Workers’ Compensation benefits, and that claim is denied, then you may seek treatment from any doctor you wish. The caveat is, in such a case, that you will be responsible for paying for that treatment, at least if and until you settle or win your Workers’ Compensation claim.

In the event you are injured at work and you make a claim for Workers’ Compensation benefits and your claim is accepted by the employer/carrier, then the employer/carrier will usually have the right to select a treating physician. This is not always the end of your opportunity to select your own treating physician. In some emergency situations, treatment may have begun before the employer/carrier has a chance to select a doctor of their own. In these cases, if treatment has already begun and is proceeding with a doctor you have selected, then a change may be only available if the employer/carrier makes a motion to change treating physician in front of the Industrial Commission, which is the court system for Workers’ Compensation claims in North Carolina.

Also, you may have an opportunity to make a motion to the Industrial Commission to change your treating physician if the employer/carrier had selected one for you and the treatment is not progressing properly. Your legislators in Raleigh have decided that in order to have your treating physician changed to a doctor of your own choosing, then you must prove beyond a preponderance of the evidence (more than halfway) that the change is reasonably necessary to effect a cure, provide relief, or lessen the period of disability. Your North Carolina legislators have also decided that when you are seeking to choose the doctor who will treat you, the Commission may disregard or give less weight to the opinion of a health care provider from whom the employee sought evaluation, diagnosis, or treatment before the employee first requested authorization in writing from the employer, insurer, or Commission. (N.C.G.S Section 97-25) You can find more information on the North Carolina Industrial Commission website at www.ic.nc.gov.

So, while it is not easy to change your treating physician in an accepted claim, the law provides for a process in which to do this. It has been the experience in our office that most carriers want injured employees to return to work as soon as possible, and this usually means providing the best and most efficient medical care. Of course, insurance carriers have a natural interest in paying less for medical care and not paying for excessive tests and procedures.

Carriers appear to seek a balance struck between the expense of medical treatment and the quick return of a worker to gainful employment. This is not always something that feels like it is in the best interest of the injured worker.

When you have been injured at work and you face these issues, look for the help of an attorney who practices in this field and has dealt with these questions before.

Should I hire an Attorney for my Traffic Ticket?

It is a common question that we hear in our office, or when someone approaches us at lunch.  Traffic tickets do not always appear to be serious criminal charges that will change our lives, so many people think that it may not be necessary to hire an attorney for this type of representation. 

You have a number of options.  You may:

            1.  just pay the ticket

            2.  go to court and represent yourself

            3.  hire an attorney to represent you

 

If you ‘just pay it off,’ you should know that you will be admitting responsibility or guilt (depending on the offense indicated on the citation) to exactly what you have been charged with, and all parts of that charge.  Many traffic citations have more than one charge, and if you pay off the ticket, you will likely be admitting to all the charges listed.  Each of these charges may have an effect on your Department of Motor Vehicle Driver License points, and also on your insurance points.  As most people know, you will lose your license if you accumulate too many driver license points.  Likewise, your insurance will increase, sometimes very dramatically, when you get insurance points.  So, just paying off your traffic tickets may end up costing you additional insurance, which may last for multiple years, and sometimes points can even cost you your privilege to drive.  In either case, the cost of increased insurance or losing your license can be considerably more expensive than the cost of an attorney who represents clients in court on a daily basis. 

The next choice you have is to go to court and represent yourself.  This is almost always an option.  Our United States and North Carolina Constitutions allow almost anyone to represent himself or herself in most courts.  Attorneys are not necessarily smarter or more talented than non-attorneys, but they represent clients everyday.  When someone does something everyday, they usually become skilled at such work.  Also, with licensed attorneys, we are obligated by law to know the law and know the consequences of representation.  In other words, in most cases, we can advise a client on the ramifications of different  dispositions or how the way a ticket is handled in court will affect your future insurance or driver’s license.  

Some people fix their own cars and plumbing and install new circuits in their electrical junction boxes in their homes.  If a person knows exactly what he or she is doing, and has the proper skills, this can be fine.  Of course, if you do not fix your car properly, or you do not connect your pipes right, or the connection you made in your electric box is faulty, such mistakes can be costly and even dangerous.  So, the money you save on a mechanic, plumber or electrician may be nothing compared to the damage or injury done.  The same can be true when you try to handle a traffic ticket on your own.  You should know that the law prohibits a District Attorney or Assistant District Attorney from giving advice about how a particular result or disposition of your ticket will affect your insurance or your license.  So, do not look to the opposition for help. 

Your final option is to hire an attorney to represent you with your traffic offense.  In most cases, the attorney can appear for you and you will not have to miss a day from work or anything else you would rather do than go to court.  Of course the attorney will develop an understanding of your individual driving record and driving needs and concerns.  From there, he or she will navigate through the most beneficial result to try to prevent an increase in your insurance rates or detrimental points against your license.  Not every representation can result in a dismissal or significant benefit to the client, but an attorney who practices every day will be in an excellent position to seek a disposition that protects you, your money and your driver’s license. 

At DiRusso & DiRusso, most traffic offenses can be handled with one phone call to our office.  And, in most cases, we can appear for you and you will not have to come to court.  When you call our office we will tell you the exact cost of representaing you for your traffic ticket and what steps are necessary to assist you.

Welcome to the DiRusso & DiRusso Blog!

It has been our pleasure to serve the people of Surry County for over 23 years.  Our law office is located near downtown Mount Airy, North Carolina.  We take pride in the service we provide to our clients.  We understand that there are many choices for legal representation and we appreciate the opportunity to help those in our community and surrounding areas with their legal needs.

We believe that hiring local counsel is important in many cases.

At DiRusso and DiRusso, we are familiar with the local economy, the local employers, and the local court officials. Another advantage to hiring local counsel is availability. In larger cities, and in larger firms, the attorneys may not always be available and much of the interaction a client has may be with support staff, such as paralegals and legal assistants. At DiRusso and DiRusso, the attorneys are in regular contact with the clients, available by telephone, and regularly available for appointments.

At DiRusso & DiRusso, we have the legal knowledge and experience to protect you, no matter who or what is on the other side. We also have the compassion to know that you may be experiencing something very unpleasant and we are available to listen to you and seek solutions along the way. We are dedicated to our clients and show no allegiance to any other entity.   We not only counsel our clients on the current law, we provide statutes, rules, cases, and codes so that one may read the current law and have a deeper understanding of the relative law.

If you want to speak with a lawyer about your case, please call us today. There is never a fee for your initial consultation at DiRusso & DiRusso for Workers’ Compensation, Personal Injury or Social Security Disability cases.