We get so many calls from injured workers who have questions about what to do in certain workers' comp situations. Some questions we hear consistently. We sat down with workers' compensation attorney Jacob Goad to address 10 of the most common questions we hear.
(Incidentally, before Jacob became an attorney, he worked as a workers' comp paralegal for many years, so he has a uniquely rounded perspective). Here, Jacob shares some good news about your rights under North Carolina's workers' comp law.
1. My employer is treating me differently now that I filed for workers' comp - can they do that?
They shouldn't be, but we see it all the time.
We recently represented a client* who injured his leg driving a delivery truck. The workers' comp doctors insisted the injury only needed a brief stint of physical therapy and the employee could go back to work soon. Yet physical therapy wasn't working. The employee went to another doctor for a second opinion, and that doctor took images that proved the employee would need much more time off work to heal. That extra time off did not go over well with the employee's manager. When he showed up for work after healing, his manager fired him. That's when he called us.
2. I filed for workers' comp and got fired - what can I do?
When some employers notice an employee files a workers' comp claim they might try to terminate the employee because of the injury. That's against the law in North Carolina.
An employer cannot fire you simply because you filed a workers' comp claim. If they do, they could be violating the Retaliatory Employment Discrimination Act, (REDA). REDA is one of a number of laws enacted after the 1991 Imperial Foods Inc. fire in which more than 70 employees were killed or injured in a chicken processing plant that had previously been cited for numerous safety violations.
REDA protects employees who have been hurt on the job and are entitled to workers' comp benefits. It also protects them from being mistreated at work for filing a claim.
Yet people still get fired when they come back after an injury. Let me explain why.
In certain cases, if an employee files a claim, they might as well have a proverbial bull's-eye on their back. The reason is employers and insurance companies know that if the employee is terminated for non-workers' comp issues, the amount they'll have to pay may be significantly reduced. In other words, it can often be cheaper to fire an employee than to pay them workers' comp benefits. That is why some employers may try to get the employee back to work right away, and then look for any technicality to get rid them.
This is often done under guise of rehabilitation. Get the worker as good as possible to get them back to work as quickly as possible, and then fire them so you don't have to possibly deal with a more substantial workers' comp settlement. Return-to-work issues happen in our cases fairly regularly. We often encourage employees to return to work if it is advisable to do so and when their doctor tells them to. But some employers in North Carolina are particularly aggressive with return to work issues, and if employees don't have good legal counsel we've seen them get pushed around. That's when employees could use a lawyer with resolve and passion to help the injured.
3. Do I have a better case if I am terminated after a workers' comp claim?
Not necessarily. If the employer has solid documentation of why you were terminated, then it may impact your potential compensation because it could mean the insurance company doesn't have to pay your future out-of-work benefits or as much out-of-work benefits.
On the other hand, if the employer fires you for no good reason after you've returned to work under workers' comp simply because they don't want to deal with your ongoing disability, then that does likely help your case. We've seen this happen a lot.
4. What protection is available to keep me from losing my job if I file for workers' comp?
Primarily the REDA, as I mentioned earlier. It is a safety net for employees who have been injured in the workplace when they are entitled to workers' comp benefits. And again, REDA is also supposed to help protect you from being harassed or mistreated at work because of your injury.
5. Will it hurt my workers' comp case if I go back to work?
It depends on your circumstances. You should always discuss this with your workers' compensation attorney first.
In many cases, if you go back to work you may be forfeiting your right to continue receiving workers' compensation checks.
However, if recommended by your attorney, it may be advisable to return to work if your employer is willing to accommodate work restrictions, and you want to stay with that employer for a long time or permanently. In those cases where there is a good relationship and there is no permanent medical restrictions, it could be in your best interest to go back to work and continue working with your employer, and be compensated for your permanent partial impairment rating (PPI) rating. We see a lot of claims go that route. As a matter of fact, the majority of claims filed through the workers' comp system resolve this way. Additionally, we have knowledge and experience working with many employers throughout the state; so again, it may potentially benefit you to consult with us about your claim.
6. What if I can't do the same job?
Often injuries prevent an employee from continuing to do the same work they were doing before their accident. That's where the rub often is. A lot of employers have policies in place where if the employee can't come back full duty, they can't accommodate them permanently. The employee would then be entitled to future out-of-work compensation until they or the insurance company find more suitable work for them.
This would come through vocational rehabilitation or possibly even a self-guided job search. For example, a Spanish-speaking laborer might be assigned to ESL classes to be able to acquire marketable skills in a non heavy-duty job. If somebody can't go back to their regular job, the insurance company assumes a major responsibility to try to get that person gainful employment.
Otherwise, the insurance company may be on the hook for future time out of work. That is why they will generally work very hard to help them find some work somewhere. Under the new workers' comp law, an employee could potentially get up to 500 weeks of benefits if they are out of work and are unable to find suitable employment.
7. Will I lose my health insurance, if I lose my job?
A lot of times, yes. If you file for workers' comp and you're out of work completely, you're probably going to lose your employer-provided health insurance. Of course, there are exceptions. Some companies have a specific policy in place that says they, as a company, have decided that despite the workers' comp claim, they're going to continue to provide health insurance.
But if a corporation has no such policy in place, the employee could lose their health insurance. Workers' comp will pay for the work-related injury, but no other unrelated health issues.
8. Do I have to go back to work if I'm able to?
If you are able, yes.
For example, let's say an injury is healing well, the employee wants to go back to work and the employer agrees. The doctor will give the employee a Permanent Partial Impairment (PPI) rating. A PPI rating allows an employee to receive compensation for a determined period of time for that injured body part, even if they continue to work. That allows them to go back to work and everyone can live happily ever after.
But sometimes, in the employer's eyes, it may not be about what you want. It might be about their bottom line. If the employer doesn't want you back after you filed a workers' comp claim, you may need a workers' comp attorney to help guide you through this process because the employer may very well want your resignation - or may simply fire you for trumped up allegations. Sadly, as you can imagine after almost 20 years representing injured workers, our firm has handled these situations many times. It's our daily mission as advocates for injured workers.
9. When should I contact a workers' comp lawyer?
Whether or not you'll need a workers' comp lawyer depends on the nature of your injury. But it's almost always wise to contact one early - especially if your injury is serious.
At our firm, these initial case evaluations are free. One of our attorney's will review your claim and let you know if we think we can help you or not.
And if you hire an attorney who works on a contingency basis, like we do, you only pay an attorney's fee for the compensation we may be able to obtain for you.
10. What will a workers' comp lawyer do for me?
First, as your advocate, we try to see to it that you're getting the medical care you may need to heal properly. And we can consider whether it is advisable to try to obtain a second opinion if you don't feel you are getting proper care or if a more neutral medical opinion is needed.
Second, we can try to help you protect your job while you are recovering. And if you are unable to return to work, we will help inform you of your options and the compensation to which you may be entitled.
Third, we help determine what other benefits you may be entitled to. Determining workers' comp benefits is a complex system involving complex math and all kinds of variables. A lot of people don't even know what benefits they may be entitled to, and if they did most would probably not understand how those benefits are calculated and determined.
For example, let's say an employee developed CRPS following the injury to an upper or lower extremity. CRPS is complex regional pain syndrome and it can develop after an injury, surgery, and other situations. It is a major medical condition and is painful and can be difficult to live with. It can also require long-term medication treatment, and that treatment can be expensive.
Now let's look at occupational disease claims like carpal tunnel or de quervain's, for example, repetitive motion injuries. We see this a lot with factory workers, food industry workers, or fabricators here in North Carolina. Those things can be difficult to deal with because it can be a chronic condition. Depending on who the employer is, if you have to go out for surgery, an employer who takes and aggressive position might not want you back. And they might not to want to pay you for future medical expenses for a chronic condition. We've seen this happen too.
Complex conditions, such as CRPS, carpal tunnel, and others abound. It is prudent to have someone on your side who knows what workers' comp insurance calculations involve, including familiarity with these and other medical conditions and knowing how to project future medical costs so that you may not be burdened with these medical expenses after your settlement.
Bottom line? You don't know what you don't know.
For these reasons and dozens of others, we urge anyone who has suffered a workplace injury to contact an experienced workers' comp lawyer as soon as possible. Right away even. If you need a lawyer, the earlier we can advocate for you, the better we can help you deal with your medical issues, your employer, and workers' comp insurance benefits.
END OF Q&A WITH ATTORNEY JACOB GOAD
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If you've been injured at work, don't be afraid to file for workers' comp. It's your right under North Carolina law. Just as importantly, don't think you will necessarily get the medical and future benefits with your workers' comp insurance company just because you were injured on the job. There's too much at stake. Your health, your job, and possibly, future benefits.
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P.S. Don't feel like you can't afford to hire a qualified workers' comp attorney. At the Law Offices of James Scott Farrin, we work on a contingency basis, so you don't owe us an attorney's fee if we don't get you compensation for your claim.
* Client identity has been removed or changed to protect privacy