Yes! Post traumatic stress disorder (PTSD) is considered an occupational disease which is covered under the North Carolina Workers’ Compensation Act.The North Carolina Supreme Court has required three elements in order to prove that a injury is an “occupational disease” including PTSD. They are as follows:
(1) The disease must be characteristic of and peculiar to the claimant’s particular trade, occupation or employment;
(2) the disease must not be an ordinary disease of life to which the public is equally exposed outside of the employment; and
(3) there must be proof of causation (proof of a causal connection between the disease and the employment). However, the worker must prove that the mental illness or injury was due to stresses or conditions different from those borne by the general public.
A good example of a post traumatic stress disorder (PTSD) claim is as follows. A worker at a factory is working beside their co-worker. An explosion takes place in the factory. A sheet of metal is torn from the ceiling by the explosion and is hurled through the air striking the co-worker in the neck, decapitating the co-worker. The worker watches the head of the co-worker fall to the floor, killing the co-worker. The worker is now terrified from PTSD any time she is in a factory with other co-workers and hears any loud noise similar to an explosion. This psychological trauma has been verified and diagnosed by competent physicians. We would all agree this meets the criteria for PTSD.
Another example of PTSD in the work setting is a bank tellar who is held at gunpoint during a bank robbery and now suffers from PTSD due to her fear of being robbed and held at gunpoint again.
To qualify for workers’ compensation benefits for a post traumatic stress disorder (PTSD) claim the “three elements” listed earlier must be met. In this event, a worker should be entitled to workers’ compensation benefits in North Carolina.
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In many cases when a client walks in our office to seek bankruptcy advice it is because they are at the end of their rope and under severe financial distress. Often times, many clients have already lost or are at risk of losing nearly everything they have.
When someone has been injured at work they are no longer able to receive their full compensation if they are unable to work due to their injury. Instead, they get workers’ compensation benefits which are typically 66.6% of their regular income. Workers? compensation benefits may be the only asset or source of income a person has. In these situations, one of the first questions a client will ask is whether or not their workers compensation benefits will be protected, and will they be able to continue to receive the benefits if they file bankruptcy. Well, in most cases the answer is ?yes?.
Workers compensation benefits may include payments you receive from your employer after being injured in an accident at work. These benefits/payments are usually based upon a percentage of your wages and are considered income and will not be affected by filing bankruptcy.
Under North Carolina law, workers? compensation benefits are exempt. When you file a bankruptcy, the bankruptcy Trustee does not have the legal right to seize any benefits that you are receiving at the time. Although the Trustee cannot take your benefits, your benefits are considered income and will be used for the Means Test to determine whether or not you can qualify for a Chapter 7 bankruptcy and/or the amount that you will need to pay back to the court in the event that you file a Chapter 13 bankruptcy.
If you are expecting a large workers compensation settlement, it is very important that you discuss the pending settlement with your attorney ahead of time. Once a settlement is reached, it is necessary in some districts of North Carolina that you obtain the Court’?s approval to settle the claim and the exemptions in your bankruptcy are amended.
In a North Carolina workers’ compensation case a “clincher agreement” is a compromised agreement or settlement between an injured employee or worker and an employer or their insurance company. When the worker and the employer’s insurance company agree on a settled amount the insurance company’s attorney will draft a clincher, or agreement, stating that the parties have reached a final resolution of the case.
Writing on White Paper with PenThe clincher agreement usually states the employee will receive a lump sum cash settlement in return for releasing all future liability against an employer. In order for a clincher to be allowed, it must be approved by the North Carolina Industrial Commission. A clincher must meet the requirements of Rule 502 of the North Carolina Industrial Commission and, if it does, the Industrial Commission will typically approve the clincher agreement. The main purpose of this approval by the Commission to make sure the employee is treated fairly.
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Most employers’ employees are covered by workers’ compensation insurance. This workers’ compensation insurance is provided by a third party insurance company, not the employer themselves. Insurance companies are required by the state to keep a reserve of money on hand to cover the cost to pay out benefits to the injured worker. Therefore, if your employer files bankruptcy and they had workers’ compensation insurance at the time you were injured, the insurance company will be required to pay you your benefits.
However, there are a few exceptions to this rule, especially if your employer is a large company that is “self insured”. In the event your employer is self insured, they must usually have a bond through an insurance company that will “guarantee” injured workers receive their benefits in the event the employer files bankruptcy or cannot provide benefits to the injured worker.
Sadly, if your employer does not have workers’ compensation insurance and they file bankruptcy, it may be difficult to collect money from them if you were injured on the job because they are “broke” and you “can’t get water from a dry well.”
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To review a possible medical malpractice case or nursing home injury or neglect case at Duncan Law we must have the injured person’s medical records reviewed by an expert witness. These are usually an expert nurse and/or a physician. For a medical expert to give a thorough review of your case it is important they have the opportunity to review the medical records.
To obtain a copy of the medical records you must request the records from the medical care provider. To provide these medical records to you, your health care provider must follow government privacy laws called HIPAA. HIPAA is the Health Insurance Portability and Accountability Act of 1996.
First, you must qualify to receive the medical records. If you are the patient requesting your medical records, you can sign a HIPAA release and receive your medical records. If you are not the patient, you must have a formal release signed by the patient or have the legal authority to obtain these records. The legal authority is usually granted by a power of attorney document properly executed by the patient (not just a hand written note signed by the patient). If the patient is incapacitated, you may have to obtain a legal guardianship or a court order to acquire the records. If the patient has died you must be the executor of their will or be appointed administrator of their estate by the clerk of the court or a judge.
Second, after qualifying to receive the medical records you should make a written request to the medical care provider to provide the medical records. The medical provider may have these records stored electronically offsite away from their physical location, so it may take several days to obtain these records. If the records are stored offsite, the medical care provider should provide the records to you within 10 calendar days.
If the records are available at the facility, they should be able to have a copy made for you within 24 hours of your request. Do not expect to walk into the medical facility and they make you copies while you wait.
When you request the records, the staff may ask you why do you want a copy of your medical records? First, you are not required to answer that question. It is your medical records and you do not have to answer that question. However, any time you ask for medical records, especially from a doctor’s office, it raises flags and alerts the doctor to a possible problem. The staff will usually inform the doctor or nursing home administrator of the request and they go into “defensive mode”. In the past, some medical providers have been known to illegally change the medical records to “cover up” a mistake they have made. Be aware this could happen. If the medical records are on site, you may ask the person in charge of medical records to pull the records so that you may look at the records on site before they are copied. Once you have reviewed the records, you may then ask for copies. After receiving the records, review the records and determine if any changes were made. If changes were made, notify your attorney immediately and dispute this with the medical facility.
Many medical providers will “discourage” you from obtaining the medicals by charging you an outrageous price per page to “copy” these medical records. Some providers will attempt to charge you a $1.00 per page. If you have 600 pages due to an extended hospital or nursing home stay that could become very expensive. Fortunately, in North Carolina, there is a state law that prohibits excessive copy fees. It is North Carolina General Statute 90?411, which states:
“A health care provider may charge a reasonable fee to cover the costs incurred in searching, handling, copying, and mailing medical records to the patient or the patient’s designated representative. The maximum fee for each request shall be seventy?five cents (75 cents) per page for the first 25 pages, fifty cents (50 cents) per page for pages 26 through 100, and twenty?five cents (25 cents) for each page in excess of 100 pages, provided that the health care provider may impose a minimum fee of up to ten dollars ($10.00), inclusive of copying costs.”
Once you’ve received your medical records contact your medical malpractice attorney or nursing home injury lawyer and provide them with the records so they can be appropriately reviewed.
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Your employer must attempt to find alternate work for you if you are injured on the job. In the event your injury is to an extent you cannot perform a job position offered by your employer, you are usually sent home with restrictions and you will receive a weekly workers’ compensation benefit check from your employer’s insurance company until your employer can find a job in which you can perform within the restrictions set by your doctor.
Your employer cannot terminate or fire you from the job due to your inability to perform the job due to your injury. However, be aware that some employers will try to force you to resign from a job. For example, your doctor may have ordered that you cannot stand on your feet for over ten minutes at any given time. Your employer, in an attempt to get you to quit, may place you sitting on a stool all day long and have you count the number of people that walk through the office door. Eventually you will become so bored with sitting on the stool every day for many days you will get up and walk out the door and quit the job. Don’t do this because it could affect your benefits. Many employers may try to play these psychological “games” with you.
Despite that, an employer can terminate your job position. For example, business is bad and the employer cannot support your job position – they may eliminate that position if done so for the benefit of the business. However, they would likely need to get rid of all similar positions as well. In other words, if you are an assistant manager, they would likely need to dissolve all assistant manager positions – not just yours.
Again, your employer cannot fire you simply because they do not have a job for you to perform due to your injury. Instead, they would need to find suitable job tasks that fall within the medical recommendations of your doctor.
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Workers’s compensation benefits are determined by a variety of factors. One of the first questions is whether the injured worker is able to return to their job? When a worker is injured on the job they are sent to a physician to determine the extent of their injury. The physician may allow the worker to return to work and they will receive their regular salary as they perform their regular work duties.
On the other hand, the physician may determine the employee cannot work their regular job and may allow the worker to work, for example, only 20 hours per week. If they are seriously injured, the physician may not allow them to return to the job until they reach what is known as “maximum medical improvement” or “M.M.I.”. If the worker is unable to work their full schedule or a partial schedule, the employer’s workers’ compensation insurance company must compensate the injured worker’s benefits, such as salary, the worker would had received if they had not been injured.
Normally, the injured worker receives two-thirds of their average weekly wages lost due to the injury. The worker usually receives a weekly paycheck from their employer’s workers’ compensation insurance company to compensate the worker due to the lost time because of the injury.
You may ask why only two thirds of the average weekly wages? The general consensus is if the worker is receiving “full” benefits or 100% of their usual income, the worker would have no “incentive” to return to work. Also the worker does not have to pay transportation cost or wear and tear on a vehicle if they are at home injured. Therefore, the North Carolina Industrial Commission has ruled that two-thirds of the worker’s salary is fair compensation.
The worker should receive these benefits until they are allowed, by the physician, to return to work or until a settlement is reached with the insurance company of the employer.
Returning to work after suffering an injury at work can be a risky move. If your claim says that you are completely unable to work and then you return to work while you are still able to receive workers compensation benefits, then your employer no longer has to continue paying your workers compensation benefits.
There is an option to have a trial return to work. According to North Carolina Statute §97-32.1, this is where you will return to work for a certain amount of time (up to 9 months), during this period you can still receive partial benefits from your employer. You would have to file certain forms and paperwork to do this. You want to make sure your employer and the Industrial Commission are fully aware that this is simply a trial period and you are not returning to work permanently at the current time. If you make a full return to work then your compensation benefits will be terminated. If during this trial period it is determined that you are still unfit to work then you can continue to receive full benefits that will be unimpaired by your trial return to work. The trial period can only last for a maximum of nine months.
In summary, in most situations if you fully return to work you will no longer receive workers’ compensation payments. However, you have a couple options other than fully returning to work. First, you can go back to work on a limited basis and receive reduced payments. A second option is returning to work for a trial period and, if you then decide you are not ready for a full return, then your full payments will resume and be unaffected. The main point is if you and your doctor both feel you are not ready to return to work then you should consult your workers’ compensation attorney before deciding to return to work. Returning to work prematurely will cause you to lose any future benefits.
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Most attorneys’ fees in a workers’ compensation case are based upon a contingency fee arrangement between the attorney and the injured worker. A contingency fee arrangement is when an attorney agrees to provide legal services to the injured person and is usually only paid in the event the injured worker is successful in their case. If the injured worker is unsuccessful and receives no compensation, then the attorney is usually paid no money for their time and effort on the workers’ compensation case.
In North Carolina, the North Carolina Industrial Commission, sometimes called the worker’s compensation board, determines the attorneys’ fees paid to the attorney. The Commission usually makes this determination based upon the retainer contract between the attorney and the client/injured worker. The Commission must approve all settlements to injured workers and the fees that are paid to the attorney.
Most attorney-client retainer agreements specify a percentage of the total payment of the claim that is to be paid to the attorney. The percentage paid to the attorney in most workers’ compensation cases is somewhere between 25% and 33%. This is usually determined by the complexity of the case. To learn more about how we can help you with your workplace injury contact us today.
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