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Are you Eligible For Workers Compensation?
Workers’ compensation insurance is available to a variety of workers. Under North Carolina law, generally, all employees are eligible for coverage. Some employees excepted from this requirement include:
- Almost all employees are eligible for workers' compensation coverage, with very few exceptions. Exceptions that do exist include:
- Certain railroad employees
- Casual employees (e.g. if you do not perform work that pertains to the defendant's business)
- Federal government employees
Contrary to common belief, part-time workers that do not fall into an exception are eligible to file for workers’ compensation coverage.
There are also other factors to take into consideration when considering your eligibility for workers' compensation. For example, you must be performing duties within the scope of your employment when the injury occurs. This means that you must be doing something that is related to your job at the time of injury. This can create a challenge. Important factors that will be considered by the courts include whether or not the incident occurred at work, during the time frame of work, when performing work-related tasks, or when completing tasks in the interest of your employer. It will also be considered whether or not your behavior was reckless, influenced by alcohol, or criminal in nature.
Do PreExisting Injuries Bar Coverage?
Many people think that having a preexisting injury or condition will bar them from receiving workers compensation coverage. In reality, North Carolina law does not allow for preexisting injuries to bar you from coverage. However, the new work-related incident must aggravate the preexisting injury to qualify. This can also be challenging to determine. If your current injury or complication of a preexisting condition can be shown to be caused by a job-related incident and that you cannot continue to work because of this. Your workers' compensation claim may be denied if you cannot demonstrate this.
It is very common for workers' compensation claims to be denied because of a preexisting condition. However, it is not legal for the insurance company to deny your claim automatically because of this. If this happens to you, then you can request an appeal from the North Carolina Industrial Commission. The best way to support your case to maintain a thorough record of problems with your preexisting condition.
Do You Have To Take Time Off of Work?
It is not necessary for you to take time off of work to collect workers compensation insurance. You should still receive medical benefits if you continue working, though it is up to your treating physician to determine whether or not you are still able to work. This will require a thorough examination of the extent of your injuries. You may be able to continue working with some limitations, such working from a seated position or avoiding certain machinery.
Workers who continue working on the same schedule as before their injury can receive medical expenses, but not lost time weekly benefits. Alternatively, you and your physician may determine that it is appropriate for you to only continue working on a part time basis. In these situations, you may receive lost time weekly benefits only for the time that you are away from work.
Many people would rather continue working and receiving their usual pay, as opposed to filing a workers compensation claim. This is understandable, but there are potential negative consequences of making the decision to keep working and not filing a claim:
Your condition may worsen, and you may exceed the statute of limitations to file a claim.
Your employer may take retaliatory action against you, but you will not be able to prove this based on your work related injury.
What is Third Party Liability?
Whenever you make a claim against a third party for work related injury compensation, this indicates third party liability. The third party can be any individual or entity that is not your employer but that may have contributed to your injuries.
The aim of workers compensation insurance to protect the employer from lawsuit while ensuring that injured employees receive financial compensation and medical coverage for injuries. This will address your medical expenses and lost income, but will not address long term loss of income. Thus, workers compensation is limited in some ways. However, you do have the option of filing a lawsuit against a third party, which can address long term income loss and other losses. Any pending workers compensation claim will not affect this process. You must, however, prove the negligence of the third party with the proof of the following:
- The third party owed a duty of care to you
- That duty was breached by the third party
- The breach of duty caused your injuries
- You suffered damages from the breach of duty.
What is SUBROGATION?
If you are receiving workers compensation benefits and also seek compensation from a third party, the employer's insurance company has the right, under North Carolina law, to seek a subrogation claim. This is a claim where the employer can attempt to recover damages paid for the employee's medical treatment and lost wages from the third party. In this situation, you will come to a settlement agreement with the employer, and the employer will receive compensation from the third party before you receive any of that award.
What Happens If the EMPLOYER WON’T COOPERATE?
It is the responsibility of your employer to file a report with their workers compensation insurance provider when you report an injury. If your employer does not do this, then you cannot begin to receive treatment and compensation. While it is unlawful for the employer to refuse to cooperate, this does occur, typically in the following ways:
- Employee forced to return to work before being cleared to do so
- Employee forced to use health insurance instead of workers comp
- Employer paying regular salary instead of using workers comp
- Employer delaying the claim to press the statute of limitations
- Employer pressuring company doctor to minimize injuries
- Employer threatening retaliation against employee
It is important to be aware that these things can occur and that employees do have options when they do. North Carolina allows for employees to obtain claim forms directly from the North Carolina Industrial Commission, so that you can file the claim on your own.
You should also be aware of the Retaliatory Employment Discrimination Act (REDA) which protects you against employer retaliation due to filing a workers compensation claim. Common law also prohibits employers from retaliating against you when you file a claim.
Thus, if you believe that you have been retaliated against, you have the option of filing a formal complaint with the North Carolina Department of Labor, Employment Discrimination Bureau (EDB). You must file the complaint within 180 days of the retaliatory action, and the EDB will conduct an investigation to determine if retaliatory action was taken. If they determine that the action was not illegal, you will receive a right to sue letter. If they determine that the action was illegal, then they will attempt to mediate and negotiate to resolve the matter.
How Can You Prove RETALIATION?
There are many forms of employer retaliation, such as demotions, disciplinary actions, and reduced pay. However, to prove that retaliation has actually occurred, certain things must be proven:
- You are an employee
- You are entitled to workers compensation benefits
- You filed a workers compensation claim
- An adverse action has been taken against you
- The adverse action was taken because of you filing for workers comp
There is a statute of limitations regarding how long you have to file a suit when you employer has taken retaliating action against you. If you do not file your suit within the statute of limitations, then you will lose the right to do so. For retaliation cases, the statute of limitations is three years from the date that the retaliating action occurred.
