Archive for the ‘Workers’ Compensation’ Category

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

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.

Your social media posts may impact your workers’ comp or injury case

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“Anything you say can and will be used against you in a court of law.”

If you’ve watched any cop shows or movies, you’re probably familiar with those words. While Miranda rights only apply in criminal cases, those words are true even in civil cases.

What you say to the insurance adjuster, to your friends, coworkers and family members and even online on social media, can effect the outcome of your personal injury case or workers’ compensation claim. This applies to statements that seem to have little to do with your auto accident or injury.

The insurance company is looking for ways to discredit you and for reasons to deny your claim. Often, plaintiffs unwittingly give them the legal ammunition to do so with things they say off the cuff or online or without an attorney present.

Our advice is always that our clients should not talk to an insurance adjuster without an attorney present. Also, be careful about what you share online on Facebook, Twitter and Instagram and other social networks, and also with whom you share that information.

A recent ruling by the North Carolina Court of Appeals sets a relatively low bar for authenticating information posted on social media.

The case in question, State v. Ford, was a criminal case, but what it says about social media evidence could also impact civil court cases, including workers’ compensation and auto accident claims.

The case involved a pit bull that attacked and killed a man living next door to the dog and its owner. Evidence was admitted in his criminal trial of a MySpace account that contained photos of the defendant and of the dog. Also admitted at trial were posts about the aggressive nature of the dog.

The defendant, who was the owner of the dog, was convicted, but appealed arguing the state had failed to prove he actually posted the photos and captions himself. His attorneys argued that the court should have provided additional evidence, such as the IP address where the photos and captions were posted. But the appeals court ruled the evidence presented was sufficient.

If you read the case, there was substantial other evidence conclusively linking the dog to the owner and the mauling, and the social media accounts were only one part of the prosecution’s case. But the gist of the ruling about social media is clear: The burden to authenticate social media is really low and can be based on purely circumstantial evidence.

So, anything posted on your account could be used against you.

We always warn our clients to be careful about postings on social media, and this ruling brings it home that a social media account can be incredibly harmful to your case.

In legal proceedings, information is power. If you start essentially giving that away by over sharing or publishing too many details of your life on social media, you are giving away the power you have in the case, to some degree.

Some things you should keep in mind if you have an ongoing workers’ comp or personal injury case:

  • When you talk to other people about your injury, they can be called to testify. Hearsay rules do not apply to statements made by plaintiffs in civil cases.
  • The only person who cannot be called to testify is your spouse. Coworkers, friends, neighbors, the guy at the convenience store and anyone else you talk to can be called to testify.
  • Quite often, coworkers are called to testify in workers’ compensation cases, and they will be asked not only about the accident but also about things you said the accident and your injury.

The Social Media Trap

Now let’s talk specifically about social media.

We live in a world where we’re constantly connected, and lots of people share many details of their lives on social media.

If you’re injured at work or in an accident that is someone else’s fault, you don’t have to unplug from social media. But you do need to be aware of how your posts, tweets and Instagram snapshots might be used in court against you. Even the hashtags you use or the places you check in via apps like Foursquare might come into play in your case.

I’ve seen it happen with my own clients.

One client, who had an injury claim, went out to a bar with friends one night and posted about it on social media. The other side tried to use that status as evidence that his injury wasn’t as serious as he claimed and didn’t affect his daily quality of life. The rationale was that if he could enjoy a night out with friends, then he must not really be hurt.

All because of a Facebook status.

We recommend that our clients use the highest privacy setting available on social media so the things you post are only viewable by close friends and family members. Even so, you need to remember that there’s no real privacy online.

It’s very likely the insurance company and their attorneys will see what you have posted, whether they find it on their own, someone shares it with them or we’re required by the court to provide it to them.

While we don’t expect you to stop using social media, be wise about it. If you have posted something you think could be misinterpreted or used against you in your case, let us know so we can make a plan for how to deal with it.

Don’t delete those posts. Even if they disappear from your Facebook wall or your Twitter feed, they haven’t really been erased. Plus, the N.C. Bar Association has issued some specific rules about deleting social media posts. Hitting delete may cause even more problems.

The lesson here is be careful what you say – and in many cases, it may be best not to say anything at all. The more information you put out in the world, the more likely it’s going to be used against you. #truth

Beware Bad Tax Advice About Workers’ Compensation Payments

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If your tax preparer tells you that you need to claim your workers’ compensation payment as income, it’s time to find a new accountant.

Workers’ compensation benefits, whether paid as weekly checks or settlements, are NEVER taxable.

Now that tax season is in full swing, we’ve been getting calls and questions from clients who are being told otherwise by tax preparers.

The IRS is very clear about this:

Amounts you receive as workers’ compensation for an occupational sickness or injury are fully exempt from tax if they are paid under a workers’ compensation act or a statute in the nature of a workers’ compensation act. The exemption also applies to your survivors. 

There’s a reason you didn’t receive a W2 or 1099 or any other type of tax document summarizing your workers’ compensations benefits for the last year. Those payments, including settlements, temporary total disability and ratings, ARE NOT taxable.

If you’ve heard the opposite from your accountant or tax preparer, please do not file your tax returns without first talking with another financial professional or someone who is familiar with your workers’ compensation case.