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THE WORK COMP BLOG

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Do Undocumented Workers Qualify for Workers Compensation?

Immigration reform and enforcement of immigration laws have become a political hot topic, especially in light of Arizona’s enactment of several laws aimed at getting more undocumented residents to leave the state. In North Carolina, that debate hasn’t impacted the state’s workers’ compensation laws.

Under §97-2 of the state’s Workers’ Compensation Act, the definition of “employee” states in part,

(E)very person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer…

The key language is that the law covers “aliens…whether lawfully or unlawfully employed…” Big picture, national immigration issues took a back seat (if they were thought of at all) when the legislature wrote this section and when it was signed into law.

There can be lengthy debates about immigration reform, but in North Carolina, if a worker is hurt on the job and otherwise qualifies for benefits, his or her immigration status is irrelevant. Under federal law, employers are required to at least try to find out the status of a job applicant and not hire the person if he or she can’t legally work in the U.S. But that doesn’t impact workers’ compensation benefits once a person is hired, legally or not.

If undocumented workers couldn’t get workers’ compensation benefits, it would make it cheaper for employers to hire undocumented workers and create an incentive to break federal law, since these workers wouldn’t have to be covered by workers compensation insurance. If an undocumented worker couldn’t work because of an on the job injury, the employer could wash its hands of the worker. Given the person’s immigration status, the worker would probably be reluctant to file a personal injury action to get compensation and payment for medical bills.

No matter what your immigration status, if you have questions about workers’ compensation or are thinking about filing a claim, contact our office.

P: 828-252-2852

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FREQUENTLY ASKED WORKERS' COMPENSATION QUESTIONS

Q. How long do I have to file a workers’ compensation claim?

A. NC law requires you to file a written notice of accident with the NC Industrial Commission within thirty (30) days of your injury. You should file the claim regardless of the extent of injury since many small hurts can become major injuries over time. Since the Courts are forgiving of late filings up to two (2) years from the date of accident, you should not hesitant to file your claim even if more than thirty (30) days have passed. While reporting claims can cause some grief from employers, more heartache happens when insurance companies refuse to pay medical bills and other damages because of late filings.

Q. How much $ will I get from WC due to an on-the-job injury?

A. NC law permits an injured worker to receive 66%of his or her pre injury gross wages for each week they are unable to work. This salary continuation or temporary total disability (TTD) payment continues until the worker returns to work at the same job or a “suitable” position making similar wages. If the worker cannot return to a job making similar wages, they are entitled to additional benefits depending on the extent of loss of earning capacity. Each year, the maximum TTD is increased. In 2005, the maximum TTD was $704.

Q. When am I eligible to receive Workers’ Compensation benefits?

A. Regardless of whether you miss any time from work, you are entitled to have your medical expenses paid by the Workers’ Compensation insurance carrier. When your work injury causes you to miss more than one (1) week of work, you are entitled to receive 2/3 of your gross average wages until you are able to return to work. Once you have missed one (1) month of work, you will also be paid for that first week.

Do I need a lawyer?

In order to make sure you have all the necessary facts and N.C. laws to make an intelligent decision on your WC case, it is important to consult an attorney who is both experienced and knowledgeable in WC law.

Q. What if my work injury causes or exacerbates my depression or other mental illness?

A. Work injury related depression and other mental impairments may be compensable under NC Law. Our appellate courts are regularly expanding the consideration of mental and physical ailments that result from your employment and/or inability to work after a physical injury. If you believe your work injury caused or deepened any mental difficulty you might have possessed before or after the actual injury, you should fully discuss your thoughts with your mental counsellor. The Industrial commission is increasingly aware of and open to the concept that mental ailments can be as significant as physical ones.

Q. What can I do if my workers’ compensation checks are late?

A. You should call the insurance carrier and ask (1) whether your check was mailed? and (2) if so, when it was mailed?. Weekly workers’ compensation checks are generally late because either the postal service is slow or your check has "fallen off the diary". Insurance company program computer to print checks according to an automatic diary for a specific number of weeks. When that number of weeks is over, your check “falls off the diary” and must be reset for additional weeks if checks continue to be due. An immediate call to the insurance adjuster should be sufficient to reset the check diary. If checks are regularly late, you should consult a qualified lawyer to take more aggressive action through the NC Industrial Commission.

Our Video Library is not closed-captioned.  Instead of embedding our videos, we have created posts for them, where full transcripts of can be found.
Click on the links below to view the video and its transcript.

Workers’ Compensation Overview on Vimeo

Workers Compensation Overview

Workers’ Compensation Injuries and the Complex nature of the law on Vimeo

Workers’ Compensation Injuries and the Complex Nature of the Law

Waiting Periods for Workers’ Compensation Benefit Payments

Waiting Periods for Workers’ Compensation Benefits

NC Workers’ Compensation Elements of Settlement

NC Workers’ Compensation Elements of Settlement

Settlements of Workers’ Compensation Claims on Vimeo

Settlement of Workers’ Compensation Claims in North Carolina

Pre Existing Conditions and Work Comp in North Carolina

Pre-existing Conditions and Workers’ Compensation Claims

NC Workers’ Comp Covers Many Different Kinds of Injuries

NC Workers’ Comp Covers Many Different Kinds of Injuries

Reopening Workers’ Compensation Cases

Reopening Workers’ Compensation Cases

Can’t Return To Work After an Injury

Workers’ Compensation Benefits When You Cannot Return to Work

Specific Traumatic Injuries

Specific Traumatic Injuries Under Workers’ Compensation

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