Archive for the ‘Workers’ Compensation’ Category

Answers to Your COVID-19 Employment Questions

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Now that North Carolina’s stay-at-home order has been lifted, many people are going back to their jobs or have already been back at work for a while. You may have questions about how the pandemic may change the workplace and how this impacts your legal rights.

In the Q&A below, I’m addressing some of the most common questions people have about working in the COVID-19 era and discussing recent changes to employment law. If you have other questions about workers’ compensation, Social Security disability, auto accidents and personal injury, veterans disability, labor and employment issues, please contact us at the Deuterman Law Group. We are here to help you.

How much information may your employer request from you if you call in sick?

Any employer with 15 or more employees is covered by the Americans with Disabilities Act (ADA) and would not normally be able to ask such personal questions when you call in sick. However, to protect the rest of its workforce during the COVID-19 pandemic, an employer may ask employees if they are experiencing symptoms of the virus. For example, your employer can ask if your symptoms include fever, chills, shortness of breath, sore throat, loss of smell or taste, as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

Can your employer take your body temperature before allowing you to enter the workplace?

Yes, although this would normally be considered a medical examination that might not be allowed under the ADA, because the CDC and state and local health authorities have acknowledged community spread of COVID-19, employers may measure employees’ body temperature during the pandemic.

Can your employer administer a COVID-19 test before allowing you to enter the workplace?

Yes, the ADA requires that any mandatory test of employees be “job-related and consistent with business necessity.” Applying this standard to the current circumstances, companies may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.

However, as with any questions or testing we have discussed, an employer must ask the questions or perform the tests on all employees. In other words, an employer could not choose to ask questions or perform tests to only men or African Americans. Doing so would violate Title VII of the Civil Rights Act of 1964.

Can employers require employees to stay home if they think they have symptoms of COVID-19?

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace.

When employees return to work, can your employer require a doctor’s note certifying fitness for duty?

Yes. As a practical matter, doctors and other healthcare professionals may be too busy during and immediately after a pandemic outbreak to provide this type of documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an email to certify that an individual does not have the virus.

What happens if I get sick with COVID-19 or I am experiencing symptoms of COVID-19?

If you are a full-time employee and get COVID-19 or are experiencing symptoms of COVID-19 and seek a medical diagnosis, and your employer has less than 500 employees, you are entitled to 80 hours of paid sick time under the Emergency Paid Sick Leave Act (EPSLA), which is part of the new Families First Coronavirus Response Act.

If you are a part-time employee, you are entitled to a number of hours equal to the number of hours that you work, on average, over a two-week period.

What happens if my employer refuses to pay me the 80 hours of paid sick time or fires or disciplines me for taking the two-week leave?

If an employer discharges, disciplines, or in any manner discriminates against an employee for taking leave under the EPSLA, or refuses to pay for the two-week leave, you would be able to enforce the law by filing a lawsuit against them.

If an employer is hiring new employees, may it screen applicants for symptoms of COVID-19?

Yes, an employer may screen job applicants for symptoms of COVID-19, but only after making a conditional job offer. However, as with other questions or medical tests, the employer must screen all job applicants and cannot discriminate on the basis of such factors as gender, race or national origin.

May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?

Yes, as long as it does so for all new employees.

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes, an individual who has COVID-19 or related symptoms should not be in the workplace as that would pose a direct threat to the health of others.

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

Yes, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. Therefore, if the employer truly needs an applicant to start immediately, it can withdraw the job offer.

May an employer postpone the start date or withdraw a job offer because the individual is over 65 years old or pregnant, both of which place them at higher risk for COVID-19?

No. The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or discuss with these individuals if they would like to postpone the start date.

If a job can only be performed at the workplace, are there reasonable accommodations employers can make for individuals whose pre-existing disabilities put them at a higher risk from COVID-19?

Under the ADA, an employer must provide a reasonable accommodation for someone with a disability unless that would impose an undue hardship on the employer. There may be reasonable accommodations that could offer protection and limit exposure for workers whose disabilities put them at greater risk from COVID-19. Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.

Such accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees. Accommodations also may include additional or enhanced protective measures. For example: erecting a barrier that provides separation between an employee with a disability and coworkers or the public or increasing the space between an employee with a disability and others.

Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).

In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and the public when on duty or commuting) or moving the location of where a person performs their work. (For example, a manufacturer could move a person to the end of a production line rather than in the middle to allow for more social distancing.)

How do people who have medical conditions that the CDC says may put them at higher risk for severe illness from COVID-19 request reasonable accommodations from their employers?

An employee — or third party, such as a physician — must let the employer know that she or he needs a change for a reason related to an underlying medical condition.

Individuals may request accommodation in conversation or in writing. While it’s not necessary to use the term the “reasonable accommodation” or reference the ADA, doing so is a good idea.

The employee or her representative should communicate that she or he has a medical condition that necessitates a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship?

Yes. An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

What if an employee is already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation?

An employee who is already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship.

During the pandemic, if an employee requests an accommodation for a medical condition, whether it pertains to COVID-19 or not, may an employer still request information to determine if the condition is a disability?

Yes, if not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the ADA.

What You Need to Know about COVID-19 and Workers’ Compensation

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Are essential workers and others who are exposed to COVID-19 on the job able to receive workers’ compensation benefits if they become sick?

The answer to that question is a complicated one, especially here in North Carolina.

Some states have enacted legislation or implemented special rules to ensure workers’ comp coverage for first responders, health care workers and other essential workers who get sick from coronavirus. A bill that would have offered the same protection to North Carolina workers never made it out of committee.

So, what does that mean for grocery store workers, nurses, teachers and others who contract COVID-19 at work? Is COVID-19 considered an occupational disease under state law?

Workers who become sick now have the burden of proving their infection occurred in the workplace if they want to be successful in their workers’ comp claim. The failed legislation would have created a “rebuttable presumption” that would have extended workers’ comp benefits to sick workers unless the employer could prove the employee was infected elsewhere.

Existing workers’ compensation law in North Carolina includes a special test in order to recover benefits for occupational diseases. An employee first has to prove that their illness occurred as a result of their employment, but also that their employment placed them at an increased risk of contracting the occupational disease than the general public.

Generally, workers’ compensation does not apply in cases of community-spread diseases, such as a cold or the flu, because infection usually cannot be directly tied to the workplace.

Employees who contract COVID-19 will still be allowed to file a claim for benefits under workers’ compensation, however they would not be entitled to a presumption of causation that the proposed legislation would have provided.

Without a presumption of causation, it is highly likely that the claim would be denied, and the employee would be required to engage in costly and prolonged litigation to recover their damages. In most cases of COVID-19, those damages may be a few weeks of benefits at most.

For others, however, physical recovery from COVID-19 may take much longer and the health effects may be longer lasting. Some people may find themselves out of work for long periods of time because of coronavirus and related illnesses.

Thankfully, some businesses are doing part to protect and provide for employees who become sick. Some hospital systems are providing paid leave for every employee who contracts COVID-19, as well as payment of their medicals.

Full- and part-time employees also are entitled to paid sick time under the Emergency Paid Sick Leave Act (EPSLA), which is part of the new Families First Coronavirus Response Act. (You can read more about that in my colleague Seth Cohen’s article about COVID-19 and employment issues. )

If you contracted coronavirus at work and are dealing with the medical and financial consequences of that, you may be entitled to legal benefits. Our attorneys and staff can help protect your legal rights and determine the best course of action for your particular case and circumstances.

Virtual Workers’ Comp Mediations & Hearings

The N.C. Industrial Commission has begun holding some in-person workers’ compensation hearings in limited cases. For the safety of our clients and employees, we continue to advocate for virtual hearings and mediations.

If you have an upcoming workers’ comp hearing or mediation, we will work to make sure these proceedings happen in the safest way possible, without jeopardizing anyone’s health or legal outcomes. If you have questions or concerns, feel free to contact us.

Treating Injured Workers: Is Chiropractic Care Covered?

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Updated February 2019

Can I see a chiropractor for my workers’ compensation injury?

The answer is … maybe.

While we respect the care that chiropractors provide in some injury cases, the insurance companies don’t share that opinion because chiropractors are not medical doctors. Our general recommendation is that you should not seek treatment from a chiropractor without first receiving approval to do some from your treating physician. Doing so could affect your workers’ compensation claim, and you may not be reimbursed for those unapproved chiropractor visits.

That said, the workers’ compensation laws in North Carolina do allow for reimbursement for chiropractic care.

These conditions must be met for chiropractic care to be covered:

  1. Your treating physicians must order chiropractic care and
  2. The insurance company must approve it.

If an injured worker requires lengthy chiropractic treatment, the chiropractor should request authorization from N.C. Industrial Commission (and the insurance company) before continuing treatment. Failure to seek approval could affect reimbursement and negatively impact your workers’ comp claim.

It may actually be easier now to seek chiropractic care than it was only a few years ago. In 2018, the Industrial Commission adopted a set of rules designed to address the growing reliance on opioids to treat pain. These new rules indicate that, in addition to medication, doctors should consider other ways to treat pain. Doctors may prescribe chiropractic treatment as well as things like acupuncture, massage, biofeedback, and functional restoration programs.

In general, chiropractic treatment alone is not ideal in a workers’ compensation claim. It is preferable to seek treatment from a medical specialist, such as an orthopedist. If you do end up seeing a chiropractor, it’s a good idea to regularly check in with your medical doctor who can oversee your treatment and who can provide additional documentation of your injuries and treatment.

Your attorney and the paralegals assigned to your case can help make sure you get the medical treatment you need without jeopardizing your workers’ compensation benefits. Please contact us with any questions you may have about your workers’ comp claim and your medical treatment for your workplace injury.

Undocumented Workers Rights: Workers’ Compensation in NC

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North Carolina is home to about 350,000 undocumented immigrants. These immigrants are an important part of the state’s economy and workforce, performing some of the most dangerous and deadly jobs. A large percentage work in agriculture, construction and manufacturing – industries with significantly higher rates of workplace injuries or deaths.

What are undocumented workers rights? What happens when an undocumented worker is injured on the job? Are undocumented workers entitled to workers’ compensation benefits in North Carolina? Can an injured worker be deported for filing a workers’ comp claim?

These are questions we hear often from our clients and their family members. Many undocumented workers are rightfully fearful, especially given the current political climate and recent changes to immigration policies. There’s also a lot of misinformation circulating, perpetuated by employers, insurance companies and the workplace rumor mill. This often prevents many immigrants from reporting their on-the-job injuries, getting medical treatment and seeking their lawful workers’ compensation benefits.

Undocumented workers are entitled to the same legal protections as anyone else if they get hurt on the job. So yes, you can get workers’ compensation benefits and medical treatment, even if you are undocumented.

Still, we understand our immigrant and Spanish-speaking clients may have many worries and questions about workers’ compensation:

  • If I report a work injury, can I be deported or will they go after any undocumented family members?
  • Do I have to reveal my immigration status to the judge or others involved in my case?
  • Can I trust my employer, the insurance company or the legal system to do what is right?
  • Who can I trust? How do I know the police officers, judges and other officials I’m dealing with aren’t corrupt?
  • How am I going to get the right medical care when I don’t even speak the same language as my doctor?
  • Will I ever be able to go back to work again?

Let me make my earlier point very clear. Your immigration status has no bearing on your ability to collect workers’ compensation benefits in North Carolina. That’s the truth, no matter what anyone else has told you, including your boss or your coworkers.

Your right to workers’ compensation – including payment for lost wages and medical treatment – is spelled out in state law and has been upheld by the courts.

If you are undocumented and living and working in North Carolina, your fear of deportation is very real. We understand that you may not want to risk leaving the life you’ve built here by reporting that you’ve been hurt at work. But keeping quiet will not help you heal. It will not pay your medical bills. It will not provide for your family when you’re in too much pain to work.

There are legal protections in place regarding deportation.

Here at the Deuterman Law Group, we take very seriously our role as your legal advocate and the ally. When it comes to justice for clients, money isn’t our only goal. We’re also concerned with our clients’ health and overall wellbeing, and protecting all their legal rights.

Please know that as your attorney, anything you tell us is confidential. That means we will not reveal your immigration status.

As for the other side in the case, legal ethics rules are also very clear. The defense attorney and the insurance carrier in your workers’ compensation case ethically cannot use information discovered in the course of the claim to report the injured worker to ICE.

However, the individuals in the claim (namely employers, particularly those who are uninsured) are not bound by these same ethical rules.

When working with our undocumented clients, we do everything within our legal power to make sure the employer doesn’t retaliate by reporting them to immigration officials. We don’t tolerate bullying or threats of deportation from employers who are trying to get out of paying a legitimate workers’ comp claim.

Even so, we understand it can be extremely stressful and frightening to file a workers’ compensation claim if you are undocumented. But trust me when I say we have lots of experience with these types of cases and many good outcomes for our clients. We also understand the cultural and language issues involved in these types of cases.

Our workers’ compensation team speaks fluent Spanish, and they are uniquely qualified to cater to the Hispanic population.

We will work hard to earn your trust and fight for your case. And we also keep you informed every step of the way, through face-to-face meetings, telephone updates or whatever method you prefer. We do not charge for these meetings or phone conferences.

We provide copies of most documents in Spanish and in English for our clients, and we do not charge our Spanish speakers for the use of an interpreter. We can even help you get an interpreter for your medical appointments.

Please keep these things in mind as you decide whether to file a workers’ compensation claim or keep silent about your injury. You’re not doing yourself any favors by ignoring your injury and working through the pain.

This is what many employers expect you to do. Many companies knowingly hire undocumented workers as a way of avoiding their legal and moral obligation to keep their workers safe. They know many undocumented immigrants will not pursue workers’ compensation benefits because they’re afraid of being discovered.

These companies are doing something illegal, too. It is illegal for them to hire undocumented workers, but they do it anyway to keep their labor and safety costs down. These companies know it’s illegal to have an unsafe workplace, but they know many undocumented workers won’t report them.

It is a terrible cycle that victimizes undocumented workers.

North Carolina companies who have more than three employees are legally required to provide workers’ compensation coverage for their entire workforce. When someone is hurt (or killed) on the job, they owe the injured worker (or their family) compensation for injuries, lost wages and medical care. Companies that break the law can face stiff fines, and their owners can face serious criminal charges.

Filing and collecting on a workers’ compensation claim can be challenging for any injured person. It is often a lengthy legal battle. But it can be especially difficult for undocumented immigrants. That’s why it’s important to have an attorney and legal team whose sole focus is workers’ compensation working on your behalf to ensure your rights are protected and you get the benefits you deserve.

This article has been updated in August 2018.

Employee or Independent Contractor? Who is Eligible for Workers’ Comp?

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You may be wondering if you’re eligible for workers’ compensation based on your employment status, read below to see the differences in each status.

North Carolina law requires businesses with three or more employees to carry workers’ compensation insurance to protect them in case of injury or illness. There are a few exemptions, including household domestic workers, certain agricultural businesses and farms with fewer than 10 laborers. But in most cases, your employer is legally required to provide workers’ compensation coverage for you.

However, businesses may also hire freelancers and other independent contractors to do work for them. By law, these people are considered to be self-employed, and they are not eligible for workers’ compensation coverage or benefits.

Knowing this, you might assume that if the company you’re working for says you are an independent contractor, then you must not be eligible for workers’ compensation benefits. Unfortunately, it’s not as simple as that.

Just because the company says you’re an independent contractor, and not an employee, does not mean that you are one. Also, you shouldn’t assume that you are an independent contractor because you get a 1099 tax form, instead of a W-2, from the company at the end of the year. Your employer may be misclassifying you with the IRS, as well, to avoid paying taxes, Social Security, and unemployment and injury insurance on your behalf.

If you’re a truck driver, there are some pretty specific rules about workers’ compensation coverage for independent contractors. If a trucking owner-operator does not have workers’ compensation insurance coverage, the motor carrier must provide workers’ compensation coverage. If you are a truck driver who has been injured in a wreck or if you’ve suffered another work-related injury, you may very well be entitled to workers’ comp benefits despite the confusion created by the terms “independent contractor” or “owner-operator.”

In many industries, companies misclassify employees as independent contractors – sometimes deliberately – to avoid providing workers’ compensation coverage and other benefits to these workers. An experienced workers’ compensation attorney can help determine your actual employment status – employee or independent contractor – so you get the benefits you deserve.

Plenty of people are properly classified as independent contractors. These self-employed people, often also called W9 employees or freelancers, perform work for a variety of different companies or clients, set their own hours, and derive their income from multiple sources.

However, many companies improperly assign the “independent contractor” designation to employees. In doing so, they might skirt their legal obligation to provide workers’ compensation coverage to protect these workers if they are injured on the job or develop a work-related illness. Do not just take the company’s word on these distinctions, and definitely do not forego filing a workers’ compensation claim simply because the company labels you as an independent contractor.

One good rule of thumb for determining whether a worker is an employee or an independent contractor is whether they work only with one company and that business sets his or her hours and specific duties. Such a person is likely an employee and, as such, they may be entitled to benefits under workers’ compensation.

Other important questions to ask in determining whether you are an employee or an independent contractor:

  1. Do you work for more than one company?
  2. Do you set your own hours or does your employer set your hours?
  3. Are you paid on set dates in regular amounts?
  4. Are you given extensive supervision or are you allowed freedom in when, where, and how you do your job?
  5. Who provides the materials and tools you use to perform your job?
  6. Have you been trained by the company to do your job in a certain way?
  7. Have you worked for the same company for many years?

If you have been denied workers’ compensation because you are an “independent contractor,” contact one of our experienced attorneys at the Deuterman Law Group to see if you might be eligible for benefits.

Can I Choose Which Doctor Treats Me After My Workplace Injury?

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It depends.

There’s no single, straightforward answer to that question. Generally, your employer’s insurance company will dictate which doctors you see when you have an accepted workers’ compensation claim. While you may prefer to see your family physician or another doctor of your choosing, this isn’t always possible.

If you’ve been injured on the job, it is your employer’s legal responsibility to provide medical treatment. That also means the employer’s insurance company can send you to a qualified doctor of their choosing for treatment. You can ask N.C. Industrial Commission for permission to see a different doctor or get a second opinion, but the rules for changing doctors are very strict. Recent legislation has made the process of switching doctors even more complicated.

The insurance company has the right to choose your workers’ compensation doctor except in these circumstances:

  • You require emergency medical treatment.
  • Your employer refuses to send you to a doctor.
  • The insurance company denies your workers’ compensation claim.
  • The Industrial Commission has given you written permission to be treated by a different physician.

North Carolina law requires the insurance company to pay for all reasonable and necessary medical treatment. Workers’ compensation covers medical treatment for the compensable injury or disease, as well as any physical condition arising as a direct and natural consequence of the injury. The insurance company’s physician is required to treat your injury and help manage your pain. The goal is to help you recover and return to work, if you’re able.

As you can imagine, the treating physician in a workers’ comp case can have a direct impact on the outcome of your claim and the amount of compensation and benefits you ultimately receive. The physician is responsible for setting your work restrictions and determining if and when you are healthy enough to work.

Your employer must make reasonable accommodations for any work restrictions and find you alternative work that complies with them. They also must provide vocational rehabilitation or additional training if you are unable to perform your previous job.

For serious injuries involving permanent partial disability, the doctor’s diagnosis will determine whether you qualify.

Permanent partial disability is available to those workers who have reached Maximum Medical Improvement. That means, in essence, the condition will not improve with further treatment. These patients continue to have some degree of impairment to at least one of the body parts listed in the scheduled injuries. When MMI is reached, the physician will determine a percentage disability rating. This percentage is used to calculate the amount of disability benefits you will receive going forward.

There are advantages of being treated by the insurance company’s doctor.

  1. Using the insurance company’s doctor may expedite the workers’ compensation process.
  2. It takes time to petition the Industrial Commission to change to another doctor.
  3. Also, the insurance company is more likely to accept the findings of its own doctor and not dispute the diagnosis.

If at any time you become dissatisfied with the insurance company’s doctor, you can ask the Industrial Commission to change physicians. It is important you receive written permission from the Industrial Commission before switching doctors. Without written permission, there is no guarantee your treatment will be covered by workers’ compensation.

There are also clear disadvantages to being treated by the insurance company’s doctor.

  1. While many of these doctors will provide you with the same level of care as your own physician, some are less neutral than others.
  2. Doctors hired by insurance companies may become jaded with the system and treat you as just another workers’ compensation claimant.
  3. Through the lens of workers’ compensation, they may be less likely to provide you with work restrictions, treatment, medication or even a diagnosis you may have otherwise received if you had chosen your physician. This can happen even more so if your doctor is pressured by a Nurse Case Manager hired by the insurance company to move your claim along.

There are advantages to being treated by your own family physician with whom you have a history. They have an understanding of your health and history, before and after the injury, that an insurance company doctor doesn’t.

Remember – whether you see the insurance company doctor or your own – you deserve quality and compassionate medical treatment for your workplace injuries. You must be able to trust your physicians, nurses and others in charge of your health care. If you don’t, or if you feel like you’re not receiving adequate care, it’s time to switch doctors.

We have worked with many physicians and workers’ compensation insurance companies on behalf of our clients. An experienced North Carolina workers’ compensation attorney on our team can help you get the treatment you need and the compensation you deserve.

 

Dealing with Employers Who Won’t Acknowledge a Workplace Injury

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Typically, when someone is injured on the job in North Carolina, their employer will acknowledge the injury, file an accident report, and provide the worker with instructions for how to get medical treatment as part of a workers’ compensation claim.

Problems arise when an employer refuses to acknowledge a workplace injury.

There are several reasons why your employer may be uncooperative:

  • Lack of coverage: Your employer may not carry the workers’ compensation insurance. Most employers are required to carry insurance and cannot legally choose to not have it.
  • Non-compliance: Your employer may want to avoid an increase in their insurance rates. An employer has a legal obligation to report injuries and is already violating the law by not reporting an injury.
  • Mild or repetitive injuries: The employer may claim the injury isn’t severe enough to require medical treatment. This determination should be one for a doctor. Sometimes employers claim that repetitive motion injuries are not covered. This is not true.
  • Mitigating circumstances: Your employer may believe the circumstances surrounding your injury relieve them from legal and financial responsibility.
  • Delay in reporting: Your employer may tell you that because you did not report the injury to them right away that you cannot file. This is not true.

If you are injured on the job, you have the right to receive medical treatment and to have that treatment covered by workers’ compensation even if your employer refuses to acknowledge the injury or tries to discourage you from reporting it.

No matter what your employer says or does, your first priority in an emergency should be getting medical treatment. If you need medical treatment urgently, don’t wait to go to the ER, urgent care, or the doctor because you think you need to report your injury first.

In North Carolina, there are several steps things you can do following a workplace injury to preserve your workers’ compensation claim.

When possible, report your injury immediately to your employer and file an accident report. When reporting your accident, it’s important to both verbally inform your employer you have been injured and provide written notice in the form of an accident report. Make sure the accident report accurately reflects what happened and is clear that your injuries were caused by a work-related accident. Try to keep a copy of the accident report for your own records.

As I mentioned above, seek medical treatment right away. Even if your employer is uncooperative or refuses to acknowledge your injuries or tries to get you to handle things “off the books,” continuing to work while hurt or delaying treatment can make your injuries worse. Delaying treatment may also make it harder to prove your claim later.

If your employer is refusing to send you for treatment, you can use your own health insurance to get treatment at your doctor. Workers’ compensation can reimburse you and your health insurance later. If not, there are a number of clinics that will treat uninsured patients. Keep track of your mileage to and from medical appointments. If you drive your vehicle more than 20 miles roundtrip to receive treatment, you are entitled to reimbursement.

Be sure to tell the doctor your injury occurred at work and provide the physician with your employer’s name and contact information. Medical records that document how you were injured and that you were injured at work can serve as evidence where your employer has refused to file an accident report.

Within 30 days of your injury (but preferably as soon as possible), provide a detailed written statement to your employer that describes your workers’ comp claim. This should detail what happened, what injuries you sustained and the steps you took to receive treatment. Even if your employer is already aware of your accident, providing a written statement you can help prove that your injury was properly reported. Keep a copy of this statement for your records. (For more information on how to report a workers’ compensation injury, read  this post from my colleague, Casey Francis.

Be sure to follow the advice of your doctor. If time off work is recommended, make sure the doctor includes a note in your records. If your doctor suggests follow-up appointments or refers you to a specialist, be sure to continue the treatment plan so you don’t jeopardize your workers’ compensation claim.

After visiting the doctor, check to ensure that your workers’ compensation claim has been filed correctly with the N.C. Industrial Commission by completing and submitting a Form 18, which is available online and in paper form. It is best if this form is filled out by your attorney representing you in your workers’ compensation claim.

As your workers’ comp claim and treatment progresses, you’ll be asked to complete lots of paperwork and sign lots of forms. Know that all this paperwork can have a bearing on your case. Don’t submit or sign any paperwork without fully understanding it.

Finally, keep copies of all records pertaining to your injuries, including the accident report, medical treatment records and any correspondence from your employer, their representative or the Industrial Commission.

When you’ve been injured on the job in North Carolina, you have the legal right to receive medical treatment and pay for lost wages covered by your employer’s insurance company. If your employer refuses to follow the law, an experienced North Carolina workers’ compensation lawyer can help you receive the compensation for medical bills and your lost time.

Reporting a Workplace Injury: Put it In Writing

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Want to know the simplest thing you can do to help your workers’ compensation claim?

As soon as possible, report the injury to your employer – and be sure to put it in writing.

Particularly with back, shoulder and knee injuries, it’s important to report the injury early and in writing. Not doing so could affect your ability to collect workers’ compensation benefits for your injuries or make it harder to your claim accepted and approved.

Here’s a common scenario we encounter: The client lifts something on the job and tweaks his back. He’s definitely hurt. But he doesn’t officially report the injury to his employer in writing, figuring the aches and pains will subside with time. But they don’t, and the condition worsens. After weeks or months of being in chronic pain, the client finally goes to see a doctor and mentions that this all started that day he tweaked his back in the warehouse. When he reports the injury to his employer, the insurance company refuses to accept the claim.

Just telling your supervisor about the injury is not sufficient. You need a written, dated record that it was reported.

Some employers may have you fill out an internal form reporting an injury. But many will not. The gold standard in workplace injury reporting is to complete a Form 18 to be submitted to the N.C. Industrial Commission (NCIC). (It is best if this form is filled out by your attorney representing you in your workers’ compensation claim.)

But there are other types of written documentation that are legally acceptable written methods of notifying your employer of an injury. These include:

  • a text message or email outlining what happened and when
  • a letter to your employer
  • a signed statement
  • an accident report form
  • a recording of a voicemail or phone call in which you report the injury to your employer
  • a work note from your doctor, indicating that you sought treatment after a workplace injury

Always make sure you keep a copy of this notice of an injury – whether it’s a form, email message or recording. Make a photocopy or take a photograph of this documentation so you and your attorney have it. Keep it in a safe place and make backup copies so you don’t lose it.

If you’re unsure about how or who to report an injury top at your workplace, consult your employee handbook. Most companies have formal systems in place for dealing with workers’ compensation injury reports. Telling a coworker you were injured will probably not count as notifying your employer. But telling your supervisor or a dispatcher you were hurt on the job likely satisfies the legal requirement. If you’re unsure who to tell about your injury, ask your boss or someone in human resources. A board certified workers’ compensation attorney can also help.

Why You Need An Attorney for Your Workers’ Comp Claim

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Like most homeowners, I enjoy doing some DIY projects. But some home repairs are too complex or important to tackle by myself. That’s when I call in a professional to help.

If you’ve been trying to DIY your workers’ compensation claim, you know what I’m talking about. Dealing with the insurance company, your employer, the N.C. Industrial Commission and multiple health care providers when you’re trying to get better from a life-altering injury is overwhelming.

As devastating as a work injury can be, most people with valid workers’ compensations claims don’t get help from a qualified attorney. They try to DIY it, and in doing so, they are likely cheating themselves out of compensation they deserve.

If they’re lucky enough to have their claim approved, these injured people may find their workers’ comp checks don’t cover all the bills and lost wages.

Please don’t make that mistake.

If you’re hurt on the job, call a Board Certified Specialist at the Deuterman Law Group. We know the law, and we’ll fight for your rights.

While the insurance companies want to save money on workers’ comp claims, it’s our job to get you the maximum benefits and medical treatment you deserve. Our attorneys and paralegals care about you. We want to help you get your life back, and we’ll treat you with respect.

Don’t be embarrassed to ask for help. Don’t worry that you’ll offend your employer by hiring an attorney to help with your workers’ compensation claim. Your fight is with the insurance company, not your employer. You need someone fighting for your rights and going toe-to-toe with the insurance company’s attorneys.

The truth is, the system is so complicated that every injured worker should call an attorney.

Filing for workers’ compensation by yourself is a difficult process. There are so many deadlines and legal requirements and hoops to jump through. You don’t need to try to DIY this when there are Board Certified Specialists who handle these sorts of claims every day. Your main job should be recovery. We can take care of everything else.

If you’re already receiving a workers’ compensation check every week, our team can review those benefits to make sure you’re being paid correctly. The insurance company isn’t going to help you with that.

If there’s a problem with your benefits, we can work to fix that. Our goal is to protect your rights and to make sure you’re getting the full benefits and treatment to which you’re entitled.

Workers Compensation for Undocumented Workers, Part 3: Handling Challenging Claims

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This is Part 3 of our series on workers’ compensation for undocumented immigrants. You can find links to the entire series here.

It is not unusual for undocumented workers to use a pseudonym, or false name, when seeking employment. In fact, it’s not unusual for several people to share the same pseudonym.

It’s important your attorney know if you used a pseudonym for employment or medical treatment. It could complicate your case, but it does not mean you are ineligible for workers’ compensation benefits for medical treatment.

Attorneys are ethically prohibited from including a false name on a Form 18, which is used to report a workplace injury to the N.C. Industrial Commission and the employer. That’s why it’s important that our clients tell us if they have used someone else’s name, birth date or documentation to get a job or medical care.

Sometimes, if a pseudonym is being used for medical treatment by multiple people, many health care providers will flag this as fraud and will not turn over the medical records. If they do release the records, questions can arise about whether medical treatment was obtained by the injured worker or someone else using the same name and birth date.

We have dealt with these issues before, and we’ve been successful in navigating the complications that arise when someone uses a psuedonym.

At the Deuterman Law Group, we pursue all avenues to obtain our clients’ complete and accurate medical records and other evidence necessary to litigate claims. We don’t just work the telephones or email; we have even driven to medical providers’ offices in the past to get the appropriate records!

Language barriers in Workers’ Comp Cases

As I mentioned earlier in this series, our workers’ compensation team speaks fluent Spanish, and they are uniquely qualified to cater to the Hispanic population.

Language and cultural barriers can cause lots of problems in workers’ compensation cases. It’s not unusual for these issues to lead to inaccurate reports in medical records, accident reports and other documents.

If that’s the situation in your case, don’t worry. All hope is not lost. When working with our Spanish-speaking clients, we take the time to ask about and investigate inaccuracies. Our goal is to find out how these inaccuracies happened and to find a logical explanation to preserve your claim.

All of our clients have the opportunity to meet with an attorney at the start of their claim. From the very beginning, we will address any immediate issues in the claim. We will go over basics of workers’ compensation and outline your responsibilities and ours throughout the claim. We don’t want you to be surprised by anything that happens as your case progresses.

As mentioned previously, one of the issues we will deal with when handling an undocumented worker’s claim is whether to disclose that person’s immigration status. Anything you tell your attorney or paralegal about your immigration status is confidential. You can read more about how immigration status affects a workers’ comp claim here.

Many insurance adjusters will ask the injured worker about their immigration status in a recorded statement. Many times, these interviews are conducted before the injured worker hires an attorney.

We recommend that injured workers do not participate in a recorded statement before talking to an attorney.

At the Deuterman Law Group, we take seriously our role as your advocate. We prepare our clients to make a recorded statement by telling them what to expect and informing them of common questions asked during these interviews.

Talking to an attorney before giving a recorded statement is especially important for injured workers who do not speak English.

While the insurance company should provide an interpreter, many adjusters will conduct the recorded statement in English. As you can imagine, this can cause all sorts of problems.

Even if an interpreter is provided, we don’t advise our clients to use the one hired by the insurance company.

When our clients are providing a recorded statement, we will also provide an interpreter from our office. It is not uncommon for an interpreter to have a different dialect and completely misinterpret something. An English speaker would not have someone filtering his responses, so we will not let the interpreter filter for our Spanish-speaking clients either.

Our attorneys actively participate when clients provide a recorded statement to an adjuster. We will object to issues with the interpreter and also to any questions about immigration status.

Workers’ Compensation for Undocumented Workers: A New Blog Series

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Today we begin a new series on the blog about the process of applying for workers’ compensation in North Carolina if you are an undocumented worker.

Despite what your employer, the insurance company or coworkers may have told you, if you are hurt at work, you are eligible for workers’ compensation benefits regardless of your immigration status.  These benefits include lost wages and medical treatment, as well as death benefits for family members of workers killed on the job.

Workers’ compensation cases involving undocumented workers can be challenging, and the other side will do everything they can to deny benefits. That’s why it’s important to have an experienced team of attorneys and paralegals working on your behalf. We have an entire bilingual team here at the Deuterman Law Group who are qualified to represent undocumented workers and who will work to get them the full range of benefits they are entitled.

In this multi-part series, we will cover the following:

  • An undocumented workers’ rights under the law
  • Whether you can be fired for filing a workers’ compensation claim
  • Whether you can be deported for filing a workers’ compensation claim
  • How immigration status affects a workers’ compensation claim
  • Your rights to an interpreter in court and for medical appointments
  • What happens if you’ve worked using a different name or a borrowed Social Security number
  • Where to get medical treatment if you’ve been injured on the job
  • The importance of medical treatment
  • What to do if the company denies you are an employee
  • Determining whether you were an employee or an independent contractor
  • What happens if your employer doesn’t carry workers’ compensation insurance
  • The role of our firm investigator plays in collecting evidence for your workers’ comp claim
  • How to prove employment when no official records exist
  • What to expect during a workers’ compensation claim hearing or mediation
  • Death benefits available to the families of workers killed on the job
  • Wrapping up your claim and collecting your benefits

Surveillance Not Uncommon in Workers’ Compensation Cases

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Private investigators and hidden camera surveillance might seem like the stuff of suspenseful TV shows.

But getting “caught” on camera can be a concern in a workers’ compensation case.

In fact, it’s much more common than you might think. A worker gets hurt at work and sees a doctor. The doctor gives the worker restrictions and says, “These are the things you are not supposed to do or else you could hurt yourself. Don’t do these things and you will get better.”

The worker goes about their life, and their case progresses towards a mediation.

Then the worker and their attorney get to mediation and the attorney for the employer and insurance company pulls up a video that the insurance company claims to show the employee doing things that they were not supposed to do. The case is now in trouble.

In workers’ compensation, we call this surveillance.

Insurance companies routinely hire private investigators to video a hurt worker in the hopes that they will “catch” them doing something that is inconsistent with the restrictions the doctors set.

Even if you think you’re aware of your surroundings and that you would know if you were being watched, that’s often not the case.

A good private investigator is invisible and if they do their job well they stay that way.

I’ve seen video taken from a private investigator in a car, in a van, and even posing as a customer in a restaurant. And in this day in age where everyone has a mobile phone with a built-in video camera, you’re probably not even aware of how often in a day you could potentially be on camera. (You should also be careful about what you share on social media because those posts could be used against you, as well.)

Clients have asked me, “Is this legal? He filmed me at MY house and when I was in my yard!”

The answer is yes, it is legal.

It’s legal for anyone to videotape you in your yard, or anywhere else in public view. There is no expectation of privacy when you are in view of the public.
Clients have also said to me, “But I wasn’t doing anything outside my restrictions and the investigator’s report says that I was lifting or carrying more than my restrictions without any apparent difficulty. How would they know that?”

It is very easy for an investigator who was hired by an insurance company to say that you “appear” to be doing something outside your restrictions, or that you were lifting, carrying or walking without any apparent difficulty. We see those types of phrases in investigators’ reports all the time.

While we can always argue that the investigator is biased or just plain wrong, it’s much easier if we simply don’t have to make these arguments.

So, what does this mean to your case as an injured worker?

Does it mean you can’t live your life or that you should be paranoid about everyone around you? Draw the curtains at home and never go out? No.

It means you should be mindful of your surroundings and made sure you are following your doctor’s restrictions all the time regardless of where you are.

That means that if you have a lifting restriction of 20 pounds that you should not be trying to carry in that 40-pound bag of dog food from the store.

If you aren’t supposed to be standing more than 15 minutes at a time then at 16 minutes you should be finding a chair at the church luncheon.

Following your doctor’s restrictions all the time — both inside and outside of work — will not only help keep your worker’s compensation case on track, it will also help you heal and get better faster.

If you think you might be under surveillance on your workers’ compensation claim and you would like help, please contact us as soon as possible.