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Workers' Compensation

What’s New for Extended Compensation

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Less than two weeks after the North Carolina Court of Appeals made a decision in Sturdivant v. N.C. Dept. of Public Safety, which would have ultimately determined how claims for extended compensation were handled, the court’s opinion was withdrawn, without explanation.

However, on April 18, 2023, the North Carolina Court of Appeals filed a new decision in the case of first impression on extended compensation in North Carolina.  Unfortunately, the Court of Appeals maintained that the term “total loss of wage-earning capacity” in the extended compensation (post-500 weeks) section of the statute is no different that the term “total disability” in the temporary total disability section of the statute.  In doing so, the Court of Appeals added to its decision that the 2011 amendment to the Workers’ Compensation Act did not create a higher burden of proof in order for an employee to qualify for extended compensation.  Instead, the Court of Appeals wrote, the standard of proof for an award of extended compensation is the very same standard of proof for an award of TTD benefits during the initial 500 week period.  We believe (as did the Industrial Commission) that the Legislature intended the burden of proving extended disability to be significantly higher than the burden for ordinary TTD, and anticipate that the parties will seek review by the Supreme Court. 

Our workers’ compensation defense attorneys will monitor Sturdivant for an appeal to the North Carolina Supreme Court, and a decision in the companion case, Betts v. N.C. Dep’t of Health & Hum. Ser., for any changes to the interpretation of “total loss of wage-earning capacity” in extended compensation cases. 

We welcome any inquiries you may have about the Sturdivant decision or extended compensation in North Carolina.

NC Court of Appeals Decides First Extended Benefits Case Under N.C. Gen. Stat. §97-29(c)

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Both sides of the bar have been anxiously awaiting decisions from the North Carolina Court of Appeals that will determine how claims for extended compensation pursuant to N.C. Gen. Stat. § 97-29(c) are handled.  The first decision in this line of cases has now arrived. 

In Sturdivant v. N.C. Dept. of Public Safety, the plaintiff sought benefits beyond the 500 weeks for his back injury.  On appeal, plaintiff argued that he had “total loss of wage-earning capacity,” and that the Industrial Commission erred in concluding that his burden of proof was higher than the standard for proving “total disability.”  The defense bar disagrees with this definition, and in their Amicus Brief (co-authored by Wilson Ratledge attorneys Frances M. Clement and Kristine L. Prati), the North Carolina Association of Defense Attorneys (NCADA) argued that in 2011, the Legislature created a separate section for extended compensation and specifically used the term “total loss of wage-earning capacity” instead of the term “disability,” therefore indicating that a different standard applies for an award of extended compensation.   

The Court of Appeals unfortunately agreed with plaintiff’s argument that “total loss of wage-earning capacity” is synonymous with “total disability.”  However, the Court of Appeals agreed with defendants’ argument that the burden of proof rests with plaintiff, and ultimately upheld the Industrial Commission’s denial for an extension of benefits, as the evidence showed that there were jobs available for plaintiff, and that plaintiff was capable of performing those jobs given his physical restrictions, education, and work history. 

We will be monitoring this case for any appeal to the N.C. Supreme Court, as well as a decision in two other extended compensation cases pending at the Court of Appeals.

Read the full decision here

If you have any questions about this case or extended compensation, please contact one of the workers’ compensation attorneys!

What Is Workers’ Compensation and How Does It Work?

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Workers’ compensation is a system in North Carolina that provides benefits to employees who are injured or become ill at work. The system is designed to help employees recover from injuries and return to their everyday lives as quickly as possible. 

Workers’ compensation insurance covers medical expenses, wage replacement, and other benefits. Workers’ compensation is mandatory in North Carolina, and almost all categories of employers must have this insurance for their staff.

What Types of Injuries Are Compensated for Under the Workers Compensation Plan in NC

Under the workers’ compensation plan in North Carolina, there are several types of injuries that are compensated for. These injuries can include physical injuries, mental health issues, and even death. Essentially, anything that seriously affects a member of staff’s health at their job is compensable under the state’s workers’ compensation program.

It is important to note the following eligibility requirements when considering filing for workers’ compensation in North Carolina:

i. The affected employee must be employed at the firm the injury happened.

ii. The affected employee must still have a valid employment contract at the time of the injury.

iii. The affected employee must have been injured while performing an authorized job duty.

What Types of Injuries Are Not Compensated for Under the Workers Compensation Plan in NC

In North Carolina, a few injuries are not typically covered by workers’ compensation. These include: 

i. Intentional acts

ii. Injuries that are not work-related (e.g., an auto accident outside of the workplace)

iii. An injury caused by the use of an intoxicating or impairing substance (e.g., alcohol) on the job

Also, under North Carolina’s Workers’ Compensation system, some injuries that are not covered by the plan include pain and suffering, as well as normal wear and tear that is peculiar to your line of work. 

The Process of Claiming Workers’ Compensation in North Carolina

In the event of an injury or illness, workers’ compensation is valuable protection. But even after your work-related illness or injury, there are still steps you need to take to get compensation. These steps include:

i. Report the injury to your employer: In North Carolina, as in most states, if you are injured at work and might need to seek medical attention from a doctor, you are required by law to report the injury to your employer. You can do this orally or in writing. If you wish to claim workers’ compensation in North Carolina, you must have informed your employer no later than 30 days from the date of the injury.

ii. Visit a hospital: The next step is to visit a hospital. This is important because, to claim workers’ compensation benefits, you will be required to provide hospital records as proof of your work-related injury or illness. It is also important to note that you can be compensated for your trips to the hospital. In North Carolina, if your hospital is 20 miles or more roundtrip from your home or office, you will be reimbursed at a rate of 54 cents per mile for every medically necessary trip you make to and from a doctor’s office.

iii. File a claim with N.C. Industrial Commission: After following through with steps (i.) and (ii.) above, you will then need to file form 18 with the North Carolina Industrial Commission. This form will ask for basic information about your injury and employer and will also document when and how you were injured. You are expected to make at least two copies of this form. The original copy is to be submitted to N.C. Industrial Commission, one copy is yours, and the last copy must be given to your employer. Afterward, the Industrial Commission will then process your claim and determine whether you’re eligible for benefits. 

What Are Some Reasons a Workers Compensation Claim Might Not Be Successful in North Carolina

Workers’ compensation claims can be complex, requiring injured workers to follow all the steps in the process to ensure that they get compensated. Some common reasons why an injured or ill worker may be denied include the following:

i. A filing for an ineligible injury

ii. An instance where an employer disputes the injury or the cause of the injury

iii. A lack of provision of all required documents (e.g., medical statements)

iv. Not filing the documents within the stipulated timeframes

v. Incorrect filling and filing of workers’ compensation documents

How Can You Ensure That You’ll Receive Your Workers’ Compensation After an Illness or Injury? 

North Carolina workers’ compensation covers medical expenses, wage replacement, and disability benefits. Workers’ compensation is important because it helps to ensure that workers can recover from injuries and return to their jobs. But how can you be sure you won’t get denied at any stage of the process?

To ensure you get what you deserve, you need to work with a North Carolina workers’ compensation attorney at Wilson Ratledge from the get-go. We know what to do and how to do it and would be happy to help. If you have filed a previous application that has been denied, you may also contact us to help you file an appeal.

What Are the Workers’ Compensation Insurance Requirements for North Carolina Employers?

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Workers’ compensation claims have a twofold purpose: to compensate employees who suffer work-related injuries and to protect employers from being sued by their injured employees. For this reason, North Carolina requires most businesses with three or more employees to obtain workers’ compensation insurance. Here, we discuss the general worker’s compensation requirements for North Carolina employers and how COVID-19 might impact employee claims.

General Requirements for Employers

The North Carolina Workers’ Compensation Act (North Carolina General Statutes §97-94) generally requires all businesses in the state (whether they operate as corporations, sole proprietorships, LLCs, or partnerships) with three or more employees to obtain worker’s compensation insurance. Certain exemptions apply, including for businesses that employ:

  • “casual” employees (those whose work is casual and not part of the regular trade or business);
  • domestic servants working in a household;
  • farm laborers when there are fewer than ten full-time, non-seasonal workers;
  • employees of certain railroads; and
  • North Carolina federal government employees.

Who Does NOT Count as an “Employee” for Workers’ Compensation Purposes?

Whether a business employs three or more employees is not as straightforward as it might sound. The following groups of individuals generally do not need to be covered by workers’ compensation insurance:

  • Business owners, such as partners in a partnership, do not necessarily count as employees.
  • Corporate officers may elect to be excluded from coverage (however, they will still be counted as employees when determining whether a business has three or more employees, even if they opt-out of coverage).
  • Finally, with some exceptions, independent contractors generally do not qualify as employees.

How Much Does Workers’ Compensation Coverage Cost Employers?

The cost of workers’ compensation insurance coverage will vary depending on the number of employees a business employs and the type of jobs its employees perform. The North Carolina Rate Bureau is a non-profit organization that sets “class codes” and “base premium rates” for workers’ compensation, which will determine the total cost of workers’ compensation for a business.

These figures vary and reflect how dangerous a job is compared to another type of job (with high-risk jobs carrying higher base rates than lower-risk jobs). Depending on an employee’s class code and base premium rate, the North Carolina Rate Bureau will set a rate for its workers’ compensation premiums, which businesses must follow.

North Carolina workers’ compensation insurers usually offer discounts to employers. These discounts will vary based on the insurer but can include discounts for a drug-free workplace; for businesses that are part of a professional, trade or industry group; and for businesses that implement certain safety or fall prevention programs. 

COVID-19 and Workers’ Compensation in North Carolina

For the foreseeable future, COVID-19 appears to be here to stay, and businesses across the State continue to be affected by it. While most businesses will undoubtedly be impacted by COVID-19 in one way or another, many business owners likely wonder how it will affect their workers’ compensation claims. Most notably: Will employees be able to file workers’ compensation claims for having contracted COVID-19?

Unfortunately, the short answer is that we simply do not know. It is unclear whether these claims will be compensable under North Carolina law. While it appears more likely that they will be denied, to understand why this issue is so complex, it helps to review the laws surrounding workers’ compensation claims.

Coverage for Workers’ Compensation Injuries

Coverage for workers’ compensation injuries is divided as follows:

  • Injuries that occurred because of an accident or specific trauma (e.g., a slip-and-fall at work); and
  • Injuries caused by an “occupational disease.”

Potential COVID-19 claims would likely have to be filed as “occupational disease” claims. The North Carolina statutes define an occupational disease as either one of the specific diseases enumerated in the Act (which does not include COVID-19), or any disease acquired while working at a job that placed the person more at risk for getting the disease than the general public.

Thus, if the general public is equally exposed to the disease outside of the place of employment, the disease is not considered an occupational disease and therefore would not be covered by workers’ compensation.

Establishing Eligibility for a COVID-19 Workers’ Compensation Claim

To be eligible for benefits, an employee must show that he or she contracted COVID-19 from exposure on the job and, because of the job, he or she was at a greater risk than the general public. It might be that some frontline workers, such as healthcare workers, would be able to show that they were at higher risk of exposure to the virus than the general public. Likewise, it is possible that others, such as grocery store clerks, could show the same.

What becomes more challenging to prove, however, is causation, that is, a link between the employee’s job and the resulting COVID-19 infection. Even if it were likely that the employee contracted the virus while on the job, (such as while working at a hospital or treating patients infected with COVID), it would be very hard to prove this, as the disease could have just as easily been contracted outside of work. In other words, proving causation is extremely difficult, if not virtually impossible.

Currently, unless legislation is passed that defines COVID-19 as an occupational disease, it appears likely that an employer will be in the position to deny such claims in North Carolina. However, this is an unfamiliar terrain, and the coming months are likely to bring more clarity.

Workers’ Compensation Claims During Uncertain Times

While the costs associated with a workers’ compensation policy will vary depending on the size and nature of your business, owners of small, medium-sized, or large businesses should be aware of their obligations. At this time, it remains unclear whether COVID-19 claims will be covered under workers’ compensation insurance, but business owners should make sure they are fully in compliance with the laws regardless of what changes may be on the horizon.

North Carolina’s Response to the Opioid Crisis Continues to Build Steam

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As the nation struggles to deal with the staggering human and economic costs associated with the crises of opioid addiction and misuse, North Carolina is on the vanguard of the response.

The centerpiece of this effort is the Strengthen Opioid Misuse Prevention Act, more commonly referred to as the STOP Act.  Passed unanimously by both houses of the General Assembly on June 28, 2017 and signed into law by Governor Cooper on June 29, 2017, the STOP Act limits first time prescriptions for most opioids to no more than 5 days for acute pain, and 7 days for post-surgical pain.  It will require medical providers to check North Carolina’s Controlled Substance Reporting System database (CSRS) to confirm that the patient is not receiving inappropriate medications from other sources, and will require electronic prescriptions for such drugs by 2020.  The STOP Act also strengthens the CSRS, including provisions requiring pharmacies to report opioid transactions more quickly, and expands the availability of the opioid antagonist naloxone, in an effort to reduce the harm from opioid overdose.  But, recognizing the value of opioids in the correct settings, the STOP Act does not apply to medications administered in an inpatient setting, nor does it prevent follow up prescriptions for longer terms when medically appropriate.

In concert with the STOP Act, other efforts to confront the opioid crisis include the North Carolina Department of Health and Human Services’ Prescription Drug Abuse Advisory Committee, and the North Carolina Industrial Commission’s Opioid Task Force, which seeks to recommend rules and guidelines addressing the use of opioids in the context of workers’ compensation claims.

For more information on how North Carolina is addressing the opioid crisis, you may want to review the state’s Opioid Action Plan:  https://www.ncdhhs.gov/opioids

Select NC Industrial Commission Filings Now Require An Attorney

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As of Monday, September 18, 2017 the North Carolina Industrial Commission will no longer allow adjusters to file or respond to the below documents, as the North Carolina State Bar has determined that it constitutes the unlicensed practice of law.  Therefore, if you wish to file or respond to any of the below documents, an attorney will have to be retained in order to do so:

  • Form 24 Application to Terminate or Suspend Benefits
  • Motion to Compel Cooperation with Medical Treatment or Vocational Rehabilitation
  • Response to Form 23 Application to Reinstate Benefits
  • Response to Form 18M, Form 28U
  • Response to any Motions filed by Plaintiff or Plaintiff’s Attorney, including a Motion to Compel Medical Treatment, Motion to Compel Rule 607 or Discovery Responses, Motion to Compel Second Opinion.

Please contact any of our workers’ compensation attorneys if you have any questions.