|
Workers
Compensation
At one time or the other, everyone has either been
injured or has known someone who has been injured on-the-job. This
bulletin provides concrete steps that one can take to protect
themselves, friends, or family members who have been injured in an
on-the-job accident.
FACTS OF LIFE
Insurance companies profit and injured workers
suffer to the tune of millions of dollars each year because injured
workers do not know their rights. Workers rely on the wrong people to
give them advice. Most people who have an on-the-job injury rely on
their employer or their employer’s personnel department to fill out
necessary reports, make sure vital information is saved, and to secure
workers’ compensation benefits. Next, they rely on their employer’s
worker’s compensation carrier to give them advice about their rights.
Nothing could be more disastrous. Only slightly less dangerous is
listening to your friends, drinking buddies, or neighbors, no matter how
well meaning, for legal advice. The safest source of information is
your Wilmington W.C. Attorney.
When a worker is injured, the employer’s usual
concerns are (a) replacing the employee or the lost man-hours; (b)
possible litigation; (c) increased employee complaints about safety; (d)
possible OSHA inspections or safety violations; (e) the costs on their
workers’ compensation insurance; and lastly, if at all, (e) the injured
worker. Not every employer views these items in this order, however,
most employees would be shocked to find that their well-being,
treatment, recovery, and care are significantly further down the list
than they ever imagined. The sad and simple truth is that once an
employee is injured, they become a liability and an adversary to their
employer in most cases. Also, once an on-the-job injury occurs, the
employer and employee become adversaries in the workers’ compensation
process. It is not always in the employer’s best interest to timely
file claims, to inform the employee of all their benefits, or to
preserve evidence, including witness statements, attendance or personnel
records. Relying on your employer to provide workers’ compensation
advice is like asking a terrorist to safeguard a bomb. It is foolhardy
and normally has disastrous results.
12 STEPS EVERY INJURED WORKER SHOULD FOLLOW:
1.
REPORT THE ACCIDENT IN WRITING TO YOUR EMPLOYER AS SOON AS
POSSIBLE. Every accident, no matter how trivial it may seem at the
time, should be reported, in writing, to your immediate supervisor.
This should be done right away. The employee should retain a copy of
the written report. If there is no report completed or the employee
does not get a copy of the report, the employee should write a letter to
the employer and maintain a copy for his or her own records. Throughout
my years of practice, I have seen numerous cases where the employee
says, “Well the employer knew I was hurt because I told them.” or “They
saw me get hurt.” Then at a hearing to determine the employee’s
benefits, the employer says, “Well the first we heard about this injury
was when the employee has his worker’s compensation attorney file this
claim against me and nobody at my company knows anything about them ever
being hurt and we don’t believe he was hurt on the job, we believe he
was hurt somewhere else.”
2.
FILE A FORM 18 WITH THE NORTH CAROLINA INDUSTRIAL COMMISSION.
Even if your employer fills out paperwork and promises to file it,
report the accident to their insurance company, the government and
everybody else on the planet, DO NOT be misled. You have the burden to
comply with the North Carolina Workers’ Compensation Act.
N.C.G.S.§97-1, et seq. The Rules of the North Carolina
Industrial Commission provide that a Form 18 shall be filed within
thirty (30) days of the date of the accident and in no event later than
two (2) years after the date of the accident. If this notice is not
filed with the Industrial Commission and given to the employer, you
could lose your claim totally. Do you think your employer’s workman
compensation insurance company is going to tell you this?
3.
GET THE NAMES AND ADDRESSES OF ALL WITNESSES TO YOUR ACCIDENT.
Write down the name, address and phone number for every witness as soon
as you are able. Also record the names of all who provide care or first
aid to any of your injuries. Yes, they may work with you at the current
time and your employer may know where to find them, but people
disappear, quit jobs, and/or move. You would be surprised how an
accident that you thought everybody in your company saw suddenly has no
witnesses. You can be sure that your employer will not help you find
witnesses.
4.
SEEK MEDICAL CARE IMMEDIATELY. If you suspect you have
any injuries, be sure to seek medical care immediately. Inform the
medical provider how you were injured. Nothing can be more devastating
to a claim than delayed medical care. For example:
Ernie Employee hurts his back at work on
Wednesday afternoon. He tries hard, works in pain, and finishes the
week. Some time over the weekend Ernie Employee goes to the emergency
room and says his back hurts. The doctor examines his back and
determines Ernie Employee has what he believes to be a strain. The
doctor prescribes him muscle relaxers and takes Ernie out of work.
Ernie Employee goes back to the doctor three or four times, and three
weeks later tells his doctor that he hurt his back while lifting a motor
at Muscle Motors. The insurance company and the employer’s attorney
will point out repeatedly that there is no mention of how the accident
occurred in Ernie Employee’s medical records until quite a while after
the “alleged” date of accident. Furthermore, they will come up with
every possible excuse as to how Ernie Employee could have hurt his back,
i.e., playing golf on Saturday, changing his oil, cutting his grass, or
a bad back from when he was in the third grade. Therefore, it is
critically important that each and every time you see your doctor, you
communicate with him fully, both as to the cause of your injury, pain or
symptoms, and the full extent of same. Another common pitfall is
failure to tell the emergency room or treating personnel about your
injured back when you also have a broken arm. Obviously the broken arm
is the most important and painful injury at the time, however, if you do
not make a full disclosure of all your injuries, they will come under
question later in your workers comp case.
5.
GET A WRITTEN EXCUSE FROM A MEDICAL PROFESSIONAL BEFORE
MISSING WORK. North Carolina law clearly provides that it is
illegal for an employer to fire an employee who is injured on-the-job or
who has to be out of work for any period of time due to an on-the-job
injury. However, without a doctor’s excuse, employers routinely get rid
of their “problem employees” (read: workers’ comp claims) when they are
hurt and fail to show up for work without a doctor’s excuse. Therefore,
if the emergency room or the physician on your initial visit authorizes
you to stay out of work, GET IT IN WRITING!! Provide the excuse
to your employer before your scheduled time to show up for work. On a
related note, if you have been sent back to work and then suffer a
relapse and are unable to work, call your doctor, go see your doctor,
and get a written note from the doctor. With a written excuse employers
and workers compensation insurance adjusters cannot use your absence
against you.
6.
LIGHT DUTY. If your doctor releases you to return to work
with restrictions or to work light duty, be sure your employer,
including your shift supervisor, has a written copy of your
restrictions. It is your responsibility not to work outside the
restrictions the doctor has assigned. Routinely employees injure
themselves or do damage to the legitimacy of their case by knuckling
under to pressure from their supervisors to “do their job”. The
employee often proves the employer’s allegation that they are not hurt
by working outside the doctor’s restrictions. Many times this work does
permanent damage to the employee’s health and their case. If a
restriction is not to lift over ten (10) pounds, then do not lift
anything over ten (10) pounds regardless of what your supervisor says or
threatens.
7.
STATEMENTS TO THE WORKER’S COMPENSATION INSURANCE COMPANY.
Do not give a statement to the insurance carrier unless you have a
worker’s compensation attorney. The simple fact of the matter is that
ten times out of ten the purpose of the insurance adjuster taking a
statement is to obtain information to use against you. Any
representation that they cannot honor your claim without taking your
statement right now is merely an internal procedure or fake. You would
be much better served by consulting with your Wilmington Worker’s Comp
Attorney Todd McCurry before giving any statement. Things as seemingly
innocent as explaining how your injury occurred could result in losing
your benefits if not stated correctly, i.e., with an eye towards the
legal implications involved.
8.
“I SPY”. Insurance companies would rather spend money on
private investigators than on employees. Due to occasional workers
compensation fraud, most insurance carriers treat or suspect every
claimant as a cheat and a faker. Behave at all times as if you are
being watched. Many otherwise valid claims have been destroyed because
persons with legitimate on-the-job injuries do something in the privacy
of their own home or yard that apparently shows they are not injured.
For instance, a former injury client who could
walk only with a cane or walker due to a knee injury purchased his wife
a self-propelled lawn mower. She was, after all, stuck cutting the
grass. Just to try it out, he put his cane down and used the
self-propelled lawn mower to hold himself upright and did one slow,
painful lap around the yard. This was filmed by a private investigator
hired by the worker’s compensation carrier. The video introduced at
trial made it appear as if my client cut the whole yard and even
included a shot of the yard after it was cut. This gave the appearance
that my client was faking when he said he could not perform work
activity on his injured leg. By the way, his case was lost and this
“faker” had to have a total knee replacement.
At the annual
Worker’s Compensation convention in Raleigh held by the North Carolina
Industrial Commission about one-third of the booths are private
investigation firms hawking their services to insurance carriers. The
purpose of hiring these private investigators is an effort to portray
employees as frauds. While some fraud does occur, persons should
protect their legitimate claims by acting as if they are always being
watched. The real fraud is when an insurance company cheats an
uninformed employee out of his/her workman compensation benefits.
9.
DOCTOR’S APPOINTMENTS. Attend all doctors’ appointments,
physical therapy appointments, and get all prescriptions filled. In a
surprisingly large number of cases, people injured on the job do not
even bother to go back to the doctor. Later, they have serious health
problems and the doctor cannot legally connect the problems to their
worker’s compensation injury. The client says, “Well I know my back was
fine before I got hurt on the job.” There is no record of the employee
receiving treatment for six months following the accident. This is a
sure way to damage or end your worker’s compensation case. Likewise, if
you miss your physical therapy appointments, the insurance company will
portray this as evidence that you are not really hurt or do not have a
legitimate claim.
10.
KEEP COPIES. Maintain copies of your appointment slips,
doctor bills, work excuses, and keep track of your medical bills and
mileage. Often times people are not aware that they are entitled for
mileage more than twenty (20) miles to and from a doctor’s appointment.
One must maintain exact records in order to get the necessary
compensation.
11.
DO NOT LOSE YOUR TEMPER AT THE DOCTOR. On most occasions,
the doctor you will be seeing will be one selected by the insurance
carrier. The doctor naturally tends to see things in favor of the
employer and insurance company. If this medical provider does not give
you adequate treatment or take your claim seriously, you are
automatically entitled to a second opinion. Do not lose your temper and
get labeled a malingerer or troublemaker. This is a label that only
makes your case more difficult. Arguing with a doctor will not help
you.
12.
FINALLY, IF YOU ARE INJURED ON-THE-JOB ALWAYS CONTACT THE LAW
OFFICE OF TODD E. McCURRY, P.A., Your Workers’ Compensation Attorney in
Wilmington, North Carolina. I have been a practicing attorney for
nineteen (19) years and have tons of experience handling workers’
compensation claims. I also study and read the new laws and case
decisions as they come out. This study assures I am on top of all the
breaking trends. Each year I attend many hours of continuing legal
education and I attend selected seminars devoted solely to workers’
compensation. Tough times call for a tough attorney.
TODD E. McCURRY
Attorney at Law, P.A.
207½ Princess Street
Post Office Box 1443
Wilmington, NC 28402
Office:
910-772-1254
Fax:
910-772-1274
Email:
lawyertm@bellsouth.net
Email2:
todd@toddemccurry.com
This website and its contents are for informational
purposes only and are not to be construed as legal advice or as creating
an attorney-client relationship. For more information or to contact
Attorney McCurry, call 910-772-1254 or email at
todd@toddemccurry.com or
lawyertm@bellsouth.net.
|
