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Figuring Lost Wage Benefits

February 2, 2012 By Leave a Comment

If you are out of work due to a work-related injury, one of your benefits will be compensation for lost wages.  Generally speaking, workers compensation wage benefits are figured at 2/3 of your pre-injury gross average weekly wage.  So, if you were making $500 per week before you got hurt, then, while you are out for your injury your “comp rate” (as it’s called) will 2/3 of $500, or $333.33 per week.

Remember, the comp rate is based on your gross wages, meaning your wages before taxes and other deductions.

Many will say, “How can I live on 2/3 of my salary?”  Hopefully, this will only be a temporary situation — in fact the wage loss benefits that a person receives while completely out of work are called “temporary total disability,” or “TTD.”   More important, however, is the fact that workers compensation benefits tax free.  No taxes will be deducted from your workers compensation checks, nor will you have to pay any state or federal taxes on worker comp benefits you receive.

The above is a general summary of benefit calculations. There are a number of exceptions and additions that might apply to your case.  If you are wondering whether you are receiving the correct amount of comp benefits, please give me a call at 919-683-2175.       

Filed Under: Updates, Workers Compensation Tagged With: , , , ,

What Doctors Can I See in a Comp Claim?

September 25, 2011 By 21 Comments

Before I get to the main topic of this post, I’d like to talk about a word that I will be using both here and in other posts.  That word is “carrier.”  Any employer that has three or more employees is required to “carry” workers compensation insurance (or prove that they have enough money to be their own insurance company, which is called being self-insured).  The workers compensation insurance company is called the “carrier.”  And since in the vast majority of cases the employer is not self-insured and has workers’ comp insurance, and since the insurance company is paying the bills for the employer, we usually just use the word “carrier” to describe the employer and its insurance company, or both.  Now, to the topic of choice of doctors.

One of the main benefits in workers’ compensation is medical care.  In some ways, it’s better than “regular” health insurance because the carrier is required to pay 100% of the medical bills, including prescription drugs.  There are no medical or prescription co-pays in worker’s compensation cases.  That’s the good part.  Here’s the not-quite-so-good part:  An injured worker generally has to go to the doctor that the carrier chooses.  You may live in Durham and want to see an orthopedist at Duke or Triangle Orthopedics.  You can always ask the carrier if you can see the doctor you have in mind, but if the carrier wants you to go instead to a doctor in Raleigh or Chapel Hill, then that’s where you have to go if you want worker’s comp to pay for it. The doctor the carrier assigns to your case is called the “authorized treating physician.”  There are a few exceptions to this general rule.  One is if there is an emergency and you cannot contact the carrier to arrange to see the authorized doctor.  Another exception would be if you ask the carrier to let you go to the doctor of your choice, and the carrier agrees to that.  A third exception would be if you feel that the doctor assigned to your case is not helping you, then you may request the Industrial Commission to order the carrier to allow you to switch doctors.  The Industrial Commission may or may not grant that request, but you do have the right to ask.

Another exception arises when you get to the end of your healing period (which is called maximum medical improvement, or “MMI”).  If you have received an impairment rating, such as 15% to the back, or 20% to the foot, you are automatically entitled to a second opinion of the rating, at the carrier’s expense, by another doctor of your choice.  Which doctor to choose for the second opinion is a critical decision.  Please let me help you with that — just give me a call at 919-683-2175.  

Filed Under: Updates, Workers Compensation Tagged With: , ,

Step 1 for Workers’ Comp.

September 13, 2011 By 47 Comments

Just abut every legal remedy has time limits called “statutes of limitation.”  Normally, lawyers say that the “statute begins to run” (that is, the clock begins to tick on the time to bring a claim ) when the person who wants to bring a claim is injured, or in some cases when they discover they are injured.  Workers comp is an interesting animal in that it has what I will call one-and-a-half statutes of limitation.   What do I mean by this?

First, in North Carolina, the absolute statute of limitations for a comp claim is two (2) years.  This means that the claimant must file their claim with the North Carolina Industrial Commission or be barred from ever pursuing the claim.  However, there is another time limit (the “half” part of my description) called the “notice” requirement.  The  notice requirement says that a claimant must give written notice of their injury as soon as possible, but no later than thirty days after the injury.  The Industrial Commission likes to use forms, and there is a notice and claim form (called Form 18) that the injured person may download and fill out.  Once the injured person gives a copy of the Form 18 to their employer within thirty days, and at the same time sends the original to the the Industrial Commission, they have met both the notice and statute of limitations requirements.

For occupational diseases, the 30-day notice period and two-year statute of limitations begin to run when a claimant discovers they have an occupational disease.  That normally is the date the claimant’s doctor tells them that they have an occupational disease.   So, if your doctor informs you that the elbow pain you’ve had for the past six months is actually a case of “tennis elbow” caused by the constant motion you have to do for your job, you have thirty days from the time the doctor tells you that to do the Form 18.

If you would like to read what the Industrial Commission has to say about filing a claim, click here.

 

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Why Choose Kenneth Duke?

July 8, 2011 By 2 Comments
First, clients benefit from the expertise that I have developed through 26 years of law practice in the Research Triangle area of North Carolina.   I have tried cases in the district and superior courts, and I have tried many workers compensation claims before the North Carolina Industrial Commission.  I  know my way around workers’ comp, personal injury and traffic law. 
Further, you usually will be dealing directly with me.  I do have an assistant, but when you call, as likely as not I will answer the phone.  I usually answer client emails myself.  I am willing to discuss directly with you the pros and cons of the various courses of action to be taken in your case, whether it’s a traffic, personal injury, or workers’ compensation claim. 
Call or email me right now and put my skills to work for you. 
Filed Under: Personal Injury, Traffic Law, Updates, Workers Compensation Tagged With: , , , , , ,

What about “occupational diseases?”

June 23, 2011 By 12 Comments

Workers’ compensation claims also may be the result of “occupational diseases.” North Carolina’s Act contains a whole list of diseases that are covered at N.C.G.S. Section 97-53. The list includes the “traditional” industrial diseases, such as asbestosis and silicosis and hearing loss, plus a “catch-all” section that includes any disease caused by conditions peculiar to a particular trade or job.

The “catch-all” section specifically excludes the “ordinary diseases of life to which the general public is equally exposed.” So, that nasty case of the flu you got at work is not likely to be covered — but that case of carpal tunnel syndrome may be!

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What is your fee in a workers’ comp case?

June 22, 2011 By 3 Comments

My fee in a workers’ compensation claim is 25% of whatever you get, plus whatever expenses I have incurred.  That’s the standard rate. 

You may wonder, “What kind of expenses might there be?”  In a workers comp case, my out-of-pocket expenses are usually pretty low.  Often, the only expenses are the fees that your doctors charge me for copies of your medical records.

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What is Workers’ Compensation?

April 15, 2011 By

Hurt at work?  Call now at 919-683-2175 for a free initial consult.

Workers’ compensation is a type of personal injury law that applies only to workplace injuries and illnesses. It is unlike regular personal injury law in that the injured person does not have to prove that someone else was at fault in causing the injury. All the injured person has to prove is that he or she was injured by an accident while they were doing their job. The accident could have been the employer’s fault, or the worker’s fault, or no one’s fault.  As long as an injury arises within the “course and scope” of the injured worker’s job, then it’s covered.

Two Important Exceptions to the Accident Rule

There are a lot of exceptions in law.  Here are two of the most important in workers’ compensation:  If you hurt your back at work or you developed a hernia at work, then you do not have to show it was the result of an accident. Generally speaking, you just have to be able to point to a specific time while you were working that the back pain or hernia started. So, if you have filed a workers’ comp claim for a back injury or hernia and the insurance company has denied your case because they claim it was not the result of an accident, you might want to fight that denial.

What Benefits Are Available in a Comp Claim?

Before I tell you what the benefits are in a workers’ comp claim, I need to explain what you could get in a “regular” personal injury claim.  Before workers comp, workplace injuries and illnesses were handled just like any other personal injury claim. The injured worker had to prove that their injury was the result of the employer’s negligence. If you could prove that, then you could get all the things you can get in any other personal injury case:  lost wages, medical care, pain and suffering (and even punitive damages if the boss’s negligence was bad enough).  On the other hand, if you couldn’t prove that the boss caused your injury through his fault (or if the boss could prove that you also were at fault), you got nothing.    Again, because most work injuries are the result of accidents, in which no one is at fault, most people who were hurt at work got no compensation. However, in those cases in which the employer was liable, he was open to great liability.  To resolve this problem, employers and employees came to an agreement of sorts. Under workers comp law, a claim became much easier to prove.  If an injury was the result of an accident, then it was covered, no matter whose fault it was. This opened the door to many more claims.  In exchange for allowing more claims, employees agreed to accept less benefits. So, you cannot get pain and suffering or punitive damages in a workers’ compensation case. Your benefits are limited to medical care and lost wages. But those “limited” benefits can be very helpful and generous!


Hurt at work?  Call now at 919-683-2175 for a free initial consult.

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