Can I Collect Workers’ Compensation Benefits If I’m Injured On the Way To Or From Work?

/in , /by

Arriving to North Carolina on RoadwayGenerally, injuries sustained going to and from work are not compensable as a workers’ compensation injury.  However, there are a few exceptions to this general rule. The following is a list of injuries that may be compensable under workers’ compensation.

First, if the injury occurred on the premises of the employer as the employee is arriving or leaving work, the injury may be compensable. A common example would be a person slipping on an icy spot as they step onto the employer’s parking lot as they arrive for work.

Next, if the employee is performing a “special errand” for the benefit of the employer.  For example, the employer may ask the employee to stop by a paper goods store to pick up a case of copy paper on his way home after the employee has “clocked out,” and the employee is injured in an accident before they get to the store, but after they leave the employer’s premises, the injury will probably be compensable.

Another example is when the employee leaves their home, but instead of going directly to work, the employee must go by and see a customer of the employer.  If an injury occurs driving directly to visit the customer, the injury is usually compensable.  In the alternative, if the employee is a salesperson and in route to visit a customer and the employee decides to stop by a bar and have a few drinks and falls and injures himself in the bar, this injury is usually not compensable. This is commonly known as a “frolic and detour”.

A final example of a compensable injury is when an employer is responsible for carrying the employee to and from work as part of the employment contract.  For example, the employer has agreed to pick up construction workers at their home and carry them to the construction site.  Along the way to the construction site, the employee is injured in an automobile accident, this injury is usually compensable.

The workers’ compensation rules surrounding injuries that occur going to or from work are complicated; you should speak with a workers’ compensation attorney regarding the specifics of your situation to determine whether you may be able to file a workers’ compensation claim due to your injuries.

Must I Get the Court’s Permission To Settle A Workers’ Comp or Personal Injury Claim While In Bankruptcy?

/in , , , , , , , , /by

If you have filed or will be filing a workers’ compensation or personal injury claim, be sure to tell your bankruptcy attorney so your potential settlement can be listed and protected in the bankruptcy.  If it is not listed and protected in your bankruptcy, you could lose the money received in the settlement.

Workers' Compensation Doctor looking at x-ray

If you have lived in North Carolina for at least two consecutive years, North Carolina General Statutes allow the settlement, regardless of the dollar amount received, to be protected in bankruptcy.  If you are required to use exemptions from another state or federal exemptions because you have not met the residency requirement as outlined in the bankruptcy code, you may not be able to fully protect the settlement in bankruptcy.  The exemptions vary by state, therefore, it is very important to discuss the potential settlement with your bankruptcy attorney before filing bankruptcy.

If you are in a Chapter 13 bankruptcy, it is necessary for you to work with your bankruptcy attorney to obtain the bankruptcy court’s permission to settle your workers’ compensation or personal injury case.  This is necessary even when you listed the potential settlement on your original bankruptcy filing.  By filing the motion and obtaining an order from the bankruptcy court to settle the claim, the total settlement is protected from the bankruptcy Trustee and your creditors assuming you are able to use North Carolina exemptions.  Therefore, the settlement is yours to assist you and your family with living expenses or to cover future medical expenses you may incur due to your injury.

If you file a Chapter 7 bankruptcy, you may or may not be required to file a motion to settle the injury claim.  If the settlement is offered while you are in an active Chapter 7, you should contact your bankruptcy attorney to determine if it will be necessary to file a motion with the court.  If the settlement occurs after your Chapter 7 bankruptcy is discharged and final decree is issued, it is not necessary to obtain the bankruptcy court’s permission to settle the claim.

As previously mentioned, it is extremely important to speak with your bankruptcy attorney about your potential workers’ compensation or personal injury settlement prior to filing your bankruptcy.  If the settlement is not protected correctly in the bankruptcy, you could lose your settlement.

Are Workers’ Compensation Benefits Protected in Bankruptcy?

/in , , , , , , , /by

 

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.

What is a Clincher Agreement in a Workers’ Compensation Case?

/in , , , /by

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.

Read more

Can I Collect Workers’ Compensation Benefits If My Employer Files For Bankruptcy?

/in , , , , , /by

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.

Doctor looking at an x-ray

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.”

How Do I Request Medical Records?

/in , , , , , , , , , , , , , /by

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.

Filling Out A Document

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.

Can My Employer Fire Me If I Can't Work After Being Injured?

/in , , /by

[youtube]https://www.youtube.com/watch?v=AR_S5rlmais&feature=youtu.be[/youtube]

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.

StethoscopeYour 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.

Do Workers' Comp Laws Protect Independent Contractors in North Carolina?

/in , /by

The short answer is no, an independent contractor is not covered by Workers’ Compensation laws in North Carolina.  However, the answer really depends on the situation.  If the independent contractor is:

performing the functions of an employee,

taking guidance and direction from the employer,

has his or her hours set by the employer,

working for no other employer, and

basically acting as an employee

then the North Carolina Industrial Commission may view this person as an employee rather than an independent contractor.  As a result, this person may be covered by the Workers’ Compensation Act in North Carolina.

North Carolina Flag

An independent contractor who has multiple “employers” or clients, sets his/her own hours for work, and performs the job independent of the client employer will most likely not be covered by the Workers’ Compensation Act in North Carolina.

Examples are often the most helpful.

Probably “employee” – A person is hired as an independent contractor to enter data.  This person is given specific hours to work, takes direction from a supervisor within the company, and attends training classes for the company.  This person will most likely be considered an employee by the North Carolina Industrial Commission.

Independent Contractor – A person is hired to enter data.  The person decides the hours of the day they work.  The person provides the services from their home and/or the employer’s office.   The person takes limited or no direction from the employer as long as the job gets completed.  This person will most likely be considered an independent contractor by the North Carolina Industrial Commission.

Independent contractors are not specifically defined by the North Carolina Industrial Commission, however, employees are defined by North Carolina General Statute, Section 97-2 of the Workers’ Compensation Act.   The term “employee” means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer.”

Obviously each case must be reviewed carefully to determine if the employer-employee relationship exists for purposes of determining whether there is a Workers’ Compensation claim.

Do All Employers Need to Provide Workers' Compensation Insurance?

/3 Comments/in , /by

In short, it depends. According to North Carolina General Statute §§ 97-2(1), 97-2(3), 97-93 an employer must carry workers’ compensation insurance if:

Three or more employees regularly employed in the same business or establishment, or

One or more employees employed in activities which involve the use or presence of radiation, or

If providing agriculture or domestic services, 10 or more full?time nonseasonal agricultural workers regularly employed by the employer

Laptop Computer

This is to ensure that if an employee were to be injured on the job then the insurance company could handle the cost, therefore limiting the risk of the employer being insolvent and not being able to pay for treatment.  This also ensures that the employee will receive compensation for their treatment sooner.

However, there are some exceptions to this rule.  One of these exceptions is when there is an independent contractor working for an employer.

Since an independent contractor is not an employee, the employer does not have to provide workers’ compensation insurance for them.  Since, technically, they are not an employee, the North Carolina Industrial Commission does not have jurisdiction over this relationship.  The definition for employee is defined by North Carolina statute §97-2, but there are some easy ways to determine if you are an employee or an independent contractor.  The first of these would be to look at the kind of tax form you receive.  If you are receiving a W2 then you are most likely an employee, if you are receiving a 1099 then you are probably an independent contractor.  Also do you get paid overtime or certain hourly wages? Do you wear a uniform that the owner of the business has required you to wear? These are all helpful ways to determine if your “employer” must have workers’ compensation insurance  in case you are injured on the job.