We discussed in the last column the basic elements of a workers' compensation (on the job) claim. This column addresses the most likely areas of disagreement between the injured employee and the employer and his insurance company.
Did the employee really have an accident and an injury on the job? An employee needs to tell his supervisor if he has been injured, even if he continues to work. Notice to the employer of a potential claim is important as close to the time of the claim of injury as possible to avoid causation questions. It does not mean the employee is going to file a claim, just that he had an accident and he might be injured.
Who directs the employee's health care during the course of the treatment? The employer does. An employee goes to an unapproved health-care provider at his peril. That said, he can ask for a change in physicians for legitimate reasons.
Should an employee go back to work if he feels he cannot do his job as a result of his injuries? He must show that he cannot, objectively, do the job. He does so by helping the doctor to understand that the physical demands of the job, and the employee's physical limitations, are not consistent.
The best course is for the employee to show the job description for his position to his doctor, noting the physical requirements of the job, to see if the doctor feels that the employee can physically do the job.
What if the employee and the insurance company for the employer have an honest difference of opinion about the impairment rating given by the treating physician of the employee? The employee can request an opinion by a health-care provider of his choice, and at the employer's expense. The employer may in turn request a third rating, at the employer's expense, and the employee must consent to be examined for that purpose.
What if the employee's wage-reduction claim is more, dollar-wise, than the impairment-rating claim? This can occur when the impairment prevents the employee from physically being able to do his regular job, and he must take a lower-paying job. The employee has an election, or choice of options, to make about which claim he wants to pursue. But he can only be paid for one or the other.
How can you resolve your claim? An employee's workers' compensation claim usually remains open for a period of time after all the benefits under the law have been paid (a so-called "Form 26" agreement). If the employee's condition gets worse within that time as a result of the job-related accident, the employee can apply for additional benefits.
Because an employer's insurance company has a liability that is unknown in an open-ended Form 26 agreement, it will likely consider paying an employee more than the face amount of his claim to settle the claim for good. This is a so-called "clincher" settlement. If the employee feels that his risk of future work-related reinjury during the covered period is small, it is generally worth it to consider a full resolution of his claim.
If you are uncertain about what to do about your claim, you should consider calling the North Carolina Bar Association Lawyer Referral line (800-662-7660). You can get a 30 minute conference for no more than $30 with a lawyer who handles workers' compensation claims. What you don't know can hurt you.
The N.C. Bar Association publishes a useful free pamphlet on Workers' Compensation basics which you may download from the NCBA Web site at www.ncbar.org.
Remember: An informed choice is a smart choice.
Mike Wells is an attorney with Wells Jenkins Lucas & Jenkins, PLLC, in Winston-Salem.
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