What is Workers’ Compensation?

Workers’ Compensation is a compromise program set up in each state where an employee gives up his or her right to sue his employer when he or she is injured at work and where an employer agrees to take care of an employee who is injured at work and is protected from being sued in civil court for negligence.

How do I know if I suffered a compensable workers’ compensation injury?

In order to suffer a compensable work related injury, an employee must suffer an injury by accident that arises out of and in the course of employment.

An employee can suffer a compensable work related injury to his or her back if an employee suffers a specific traumatic incident that results in a back injury that arises out of and in the course of employment.

An employee suffers an occupational disease if his or her employment is a significant contributing factor in the development of the occupational disease and if his or her employment places the employee at an increased risk of developing the occupational disease than the general public.

How do I know if the North Carolina Industrial Commission has jurisdiction over my workers’ compensation injury?

Any employee who works in North Carolina, or who lives in North Carolina and works elsewhere, or whose contract of employment occurred in North Carolina, and who is injured while working comes under the jurisdiction of the North Carolina Industrial Commission.

If I get injured at work, what must I do to preserve my claim?

The employee must tell the employer that he or she was injured and then file a Form 18 with the employer and with the Industrial Commission. Even if the employer pays compensation, with or without an agreement, and regardless as to whether the Industrial Commission opens a file on your claim.

Are there time limits by which I must act?

It is always best to act immediately when you have a work related injury. Tell your employer immediately and follow the employer’s company policy regarding workers’ compensation claims. Make sure that a Form 18 is filed no later than two (2) years from the date of injury.

What is a “medical only” claim?

This type claim means that there is no more than one day of lost time, no disfigurement or impairment, and no more than $2000.00 in medical expenses. The North Carolina Industrial Commission does not require the employer/carrier to submit the Form 19 for these claims, so there is no Industrial Commission file number created. Sometimes the Medical Fee Section is able to work out small issues on these claims. However, the employee must file a Form 18 if a case file number is to be created. In order to settle a dispute that arises, a Form 33, Request for Hearing must be filed with the Industrial Commission.

Can a medical provider ever bill an employee for medical services?

N.C. Gen. Stat. § 97-90 (e) provides: “A health care provider shall not pursue a private claim against an employee for all or part of the costs of medical treatment provided to the employee by the provider unless the employee’s claim or the treatment is finally adjudicated not to be compensable or the employee fails to request a hearing after denial of liability by the employer.”

Employers/carriers are responsible for paying for authorized services up and to the point of the denial of a medical only claim.

If a claim is denied by the workers’ compensation carrier and the employee appeals to the Commission, the medical provider must wait to collect payment for medical services over the amount covered by insurance, until a final decision is reached. If the Commission agrees that the claim is not compensable, then the medical provider can bill the employee unless the employee appeals the denial. However, during an appeal, a medical provider may not try to collect money for medical treatment from the employee.

If I get injured at work, what are my rights?

If you get injured at work, and your employer accepts your claim, you must (1) immediately report your injury to your employer; (2) file a Form 18; (3) comply with all medical treatment offered by the employer; (4) comply with all the medical treatment ordered by the treating physician; (5) have private medical examinations; and (6) return to work within your medical restrictions as soon as practicable.

If I get injured at work, what must my employer do?

The employer is required by law to file a Form 19, but the filing of the Form 19 does not satisfy the employee’s obligation to file a claim.

The employer must provide and pay for medical treatment for the employee. Generally the employer has a recommendation for a physician to treat the employee, however, the Industrial Commission may be asked to change the treating physician in the event there is a conflict or a problem with the physician selected by the employer.

The employer is required to accept or deny the claim within 14 days of the employer’s actual or written notice of the claim. If the employer accepts the claim, following the initial seven (7) day waiting period, the employee will receive non-taxable indemnity benefits weekly. After 21 days of absence due to the injury, the employer must pay the employee for the first seven days missed from work.

If I get injured at work, what happens if I miss work?

If your claim is accepted and you miss work for any reason related to your compensable injury, then the employer/carrier must pay you weekly indemnity compensation.

If I get injured at work and my employer denies my claim, what happens?

If an employer denies your claim, you can treat with any physician of your choice. However, you need to file a Form 33, Request for Hearing. You can still get medical treatment under your regular health insurance for your work related injury. However, do not pay any money out of pocket which exceeds the amount your insurance company paid while your claim is pending.

If I get injured at work, and my employer accepts my claim, what happens?

The employer/carrier can select the physician that you see for your work related injury. The employer/carrier can assign a rehabilitation nurse to coordinate your medical treatment for your work related injury. The employer/carrier must approve and pay for all related medical treatment for your work related injury. Related medical treatment is all medical treatment ordered by the approved treating physician.

What can a lawyer do to help me if I get injured at work?

If your claim is denied a lawyer can help you obtain the benefits to which you are rightly entitled and will represent you before the Industrial Commission.

If your claim is accepted a lawyer can help you change treating physicians, protect your rights when the employer/carrier does not abide by the rules, and protect you if the employer/carrier tries to terminate your benefits.

What if my employer does not have workers’ compensation insurance?

If your employer does not have workers’ compensation insurance, you need to immediately hire a lawyer to secure the benefits due you under the Act.

Does the treating physician have to notate a return to work date?

Yes. The physician is required to report on a HCFA-1500: whether the patient’s treatment is terminated; the date the injured worker is able to return to work; “none” if there is no permanent disability; and if there is permanent partial disability, the nature and extent of such permanent disability. However, prior to any return to work the treating physician must review and approve a written job description.

When does the treating physician need to document the specific disability impairment rating?

At the end of the healing period, which is when there is nothing further that the treating physician can do to make you better and your medical condition is stable, the treating physician should outline your permanent work restrictions, complete a Form 25R, and review and approve a written job description and submit it to you and to the carrier.

Is there a specific form for reporting the impairment rating?

Yes, Form 25R.

Can a medical provider ever charge for copying medical records in a workers’ compensation case?

Medical providers are responsible for providing one free copy of medical records to the first requesting party among the following: employees, employers, carriers, third party adjusting agencies, and rehabilitation nurses. Medical providers may charge a reasonable fee for providing medical records to each subsequent requesting party. The Industrial Commission has established what such reasonable fee shall be. In no event will it be more than 50 cents per page for the first 40 pages and 20 cents per page for each page above 40, submit to a minimum fee of $10. Such fee covers searching handling, copying and mailing.

Who denies my workers’ compensation claim?

The employer or the carrier denies a workers’ compensation claim. Pursuant to N.C. Gen. Stat. §97-18(c) and (d), a Form 61, Denial of Claim, must be filed with the N.C. Industrial Commission and a copy sent to the employee or the employee’s attorney of record, if any. The adjuster should provide a detailed statement describing the grounds for denying compensability or liability either on the Form 61 or on an attached letter.

How long does it take to get benefits if the employer denies my workers’ compensation claim?

If the employer/carrier denies your claim, you must file a Form 33, Request for Hearing. Before a hearing can occur, a mediation is scheduled to determine if the parties can reach an amicable settlement of the issues. If mediation is unsuccessful a hearing is held in the county where the accident occurred to take the lay testimony. The medical testimony is taken subsequent to the hearing by deposition. At the completion of the medical depositions, the parties have an opportunity to write a closing argument and submit it to the deputy commissioner. The deputy commissioner has 180 days to file an Opinion and Award. Following this Opinion and Award the losing party has 15 days to file a Notice of Appeal. It can take as long as six years to proceed through the appeal process to a final decision.

Once workers’ compensation benefits are being paid must the insurance company get permission to suspend or terminate indemnity benefits under workers’ compensation?

Yes, unless there has been a return to work as explained in the paragraph below. A Form 24 must be filed with the North Carolina Industrial Commission and sent to the employee or the employee’s attorney of record, if any, and payments may be stopped only after a telephone hearing and written decision by the Commission.

Indemnity benefits paid under N.C. Gen. Stat. § 97-29 may be terminated when an employee has returned to work for the same or different employer subject to the Trial-Return to Work provisions set forth under N.C. Gen. Stat. § 97-32.1, or when the employer contests a claim pursuant to Payment Without Prejudice under N.C. Gen. Stat. § 97-18(d), within ninety (90) days (unless an extension up to 120 days has been granted by the Industrial Commission).

Otherwise, the insurance company must submit a Form 24 - Application to Terminate or Suspend Payments of Compensation Pursuant to N.C. Gen. Stat. § 97-18.1, to the Industrial Commission. The Industrial Commission shall approve or deny the Form 24. The Insurance company must receive approval from the Industrial Commission prior to the termination of compensation benefits. If payments are suspended prematurely, and the Special Deputy Commissioner disallows the Form 24 request, the insurer must pay full retroactive benefits to the employee plus a 10% penalty.

Are there any penalties if payments of weekly indemnity benefits are not paid within fourteen (14) days after it has become due when the employee is being paid ongoing compensation?

Yes. Pursuant to N.C. Gen. Stat. § 97-18(g), there shall be added to such unpaid installment an amount equal to ten per cent (10%), which shall be paid at the same time as, but in addition to, such installment, unless such nonpayment is excused by the Industrial Commission after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for payment.

If I treat with an out-of-state medical provider, must the out-of-state medical provider accept medical rates as established by the North Carolina Medical Fee Schedule when I am treated for my work related injury?

No. The out-of state medical provider is allowed to bill charges in full or based on a prior agreement if one has been established.

Which forms are sent to the Industrial Commission when an employee has returned to work?

An insurance company must use the Form 28 - Return to Work Report, when the employee has returned to work with no working restrictions, or the Form 28-T - Notice of Termination of Compensation by Reason of Trial-Return to Work Pursuant to N.C. Gen. Stat. § 97-18.1(b) and § 97-32.1, when the employee has work restrictions.

Who provides and directs medical treatment in an accepted workers’ compensation claim?

The employer or its insurance company, subject to any Commission orders, provides and directs medical treatment. The Commission may permit the employee to change physicians or approve a physician of employee’s selection when good grounds are shown. However, payment by the employer or carrier is not guaranteed unless written permission to change physicians is obtained from the employer, carrier, or Commission before the treatment is rendered, or soon thereafter. An employer/carrier cannot direct medical treatment in a denied workers’ compensation claim.

What is the reimbursement for travel?

Currently reimbursement for travel in excess of 20 miles roundtrip is paid at $.31 per mile. For any roundtrip under 20 miles, there is no reimbursement. Travel reimbursement is available under this provision for all medical appointments, physical therapy, and vocational rehabilitation appointments, which meets this 20 mile roundtrip requirement.

What is an independent medical exam?

An independent medical exam is a one time evaluation of the employee at the request of the employer/carrier or the employee. A physician who performs an independent medical exam cannot become the treating physician absent agreement of the parties or by order of the Industrial Commission.

Can the employer make me treat with any doctor of their choice?

Subject to certain limitations, the employer can make you treat with any doctor of their choice. However, the employer/carrier cannot keep changing your treating physician unless (1) you agree or (2) the Industrial Commission orders a change of treating physician.

What is mediation in a workers’ compensation case?

Every time a Form 33, Request for Hearing, is filed the claim is ordered to mediation.

What happens at mediation in a workers’ compensation case?

Mediation is a meeting between the employer, carrier, and employee with an independent mediator who facilitates discussion among the parties, which ultimately may resolve the issues raised in the Form 33, Request for Hearing.

What is a rehabilitation nurse in a workers’ compensation case?

Many employers/carriers assign a rehabilitation nurse to an accepted claim. The rehabilitation nurse should be acting independently and should assist you in obtaining approval for all medical treatment. An employer/carrier cannot assign a rehabilitation nurse if the claim is denied.

Am I entitled to a private physical exam with my treating physician?

An employee’s right to a private physical exam with the treating physician is guaranteed in an accepted claim. If the claim is denied no employer, carrier, or rehabilitation nurse may attend the appointment.

Can the employer or insurance carrier speak with my treating physician or write to my treating physician without my permission?

Prior to October 1, 2005, in an accepted claim the employer/carrier cannot speak to or write to the treating physician without your permission. After October 1, 2005, the employer/carrier can request medical records without your permission for the related injury only. After October 1, 2005, the employer/carrier can write to your treating physician asking very specific questions as allowed by the Industrial Commission.

Prior to October 1, 2005, in a denied claim the employer/carrier cannot contact the treating physician. After October 1, 2005, in a denied claim the employer/carrier can request a copy of related medical records provided a copy of such request is simultaneously sent to you. However, the rehabilitation nurse can speak to the treating physician at any time but only in your presence.

Who provides and directs medical treatment?

The employer or its insurance company, subject to any Commission orders, provides and directs medical treatment. The Commission may permit the employee to change physicians or approve a physician of employee's selection when good grounds are shown. However, payment by the employer or carrier is not guaranteed unless written permission to change physicians is obtained from the employer, carrier, or Commission before the treatment is rendered.

Can I treat with a chiropractor?

If the employer grants permission to seek medical treatment from a chiropractor, the employee is entitled to 20 visits if medically necessary. If additional visits are needed, the chiropractor should request this authorization from the employer.

When can reimbursement for sick travel be collected?

Employees are entitled to collect for mileage for medical treatment in workers' compensation cases at the rate of 25 cents a mile for travel prior to June 1, 2000 and at the rate of 31 cents a mile for travel on or after June 1, 2000, provided they travel 20 miles or more round trip. Special consideration will be given to employees who are totally disabled.

NOTE: The Industrial Commission has given the self-insurers and insurance carriers permission to pay drug and travel expenses directly to the employee without approval from the Commission.

What happens if in an emergency the employer fails or refuses to provide medical treatment?

The employee may obtain the necessary treatment from a physician or hospital of his own choice, but must promptly request the Commission's approval.

When do I become eligible for lost wage compensation?

No compensation is due for the first seven (7) days of lost time unless the disability exceeds 21 days. Therefore, the first check will not include payment for days 1-7. Payment for those days will be made should the disability continue beyond 21 days.

How often are wage compensation payments made?

Weekly.

At what rate of pay?

66 2/3% of the average weekly wage, not to exceed $786.00* (2008 maximum) per week.

* The maximum weekly benefit is adjusted annually. However, your maximum weekly wage compensation benefit is frozen as of your date of injury.

How long is the employee eligible to receive lost-time weekly benefits?

Until the employee is able to return to work.

What is permanent partial disability?

Total loss or partial loss of use of a member of the body or inability to earn the same wages in any employment as earned at the time of injury.

What happens when the employer refuses to acknowledge the claim?

When liability for payment of compensation is denied, the Commission, claimant, his or her attorney, if any, and all known providers of health care shall be promptly notified of the reason for such denial. The denial Form 61 shall not be worded in general terms, but must detail the exact reason for the denial of liability.

If a claim is denied by the insurance company or self-insurer, the employee may request a hearing before the Industrial Commission by submitting a Form 33, Request for Hearing.

Medical providers may bill the employee only after it has finally been determined that it is not a compensable workers' compensation claim.