Category Archives: Worker’s Compensation

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

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.

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