THE WORK COMP BLOG

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If You Are Collecting Workers Compensation Benefits and Are Out of Work, You May be Out of Luck

If you were laid off but are collecting workers compensation benefits, expect those payments to come under scrutiny. The state Appeals Court recently issued a decision (Medlin v. Weaver Cooke Construction) that could possibly result in the loss of those benefits.

Claude Medlin worked as a project manager and estimator for Weaver Cooke Construction. He was hired in 2006. He injured his right shoulder while moving furniture at a worksite in May 2008. He continued to work until being laid off in November 2008.

The following month Weaver accepted plaintiff’s injury as compensable and he began receiving medical treatment. In January 2009, Medlin started collecting unemployment benefits and in February 2009 he started collecting both workers compensation and temporary total disability benefits.

Medlin had surgery and physical therapy and was released to return to work. He subsequently felt more pain and a second physician assigned permanent work restrictions. He sought work but was not successful.

The need to prove work related disability is cause of unemployment.

Weaver sought to have Medlin’s workers compensation benefits ended in December 2010. It claimed Medlin couldn’t establish a work related disability and the poor economy was the reason he wasn’t working, not his injury. The full Commission agreed and Medlin appealed.

The Court of Appeals agreed with that decision, stating that an injured worker must prove that his injury caused his inability to find work. The judges ruled Medlin failed to do that because of evidence he was physically able to work, but couldn’t, because of the slow economy. Though he showed evidence of a diligent job search, it wasn’t relevant. In prior decisions, the Court has tended to consider extent of “diligent” job searches, economic conditions, and the actual job availability. If this decisions stands, these factors will have much less or no importance is reviews of ongoing disability.

A large part of my practice involves helping injured workers obtain and maintain workers compensation benefits. I believe that the Medlin case may encourage more insurance companies to move to cut off disability payments using the slow economy argument. If you find yourself in the same situation, or a similar situation as Mr. Medlin, where you’re collecting workers compensation benefits while you’re unemployed and your former employer wants to end those benefits, contact my office to discuss what’s going on and your legal options.

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. As soon as possible, you should file a Form 18 (Notice of Accident or Injury) with the Industrial Commission and employer informing them that you wish to make a claim. While N.C. law requires this Form 18 to be filed within thirty (30) days, an absolute time limit of two (2) years may be applicable to your claim depending on the facts. After your claim is settled, time limits also exist for reopening the case.

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.

How do I pay my lawyer?

All charges for legal services must be approved by the IC. Generally, lawyers charge a 25% flat fee for their services on WC cases. This fee is payable only if: Your claim is successful; and The IC approves the fee. Most lawyers also charge for copies, medical records received from medical providers, long distance calls and other expenses of handling your claim. These costs are usually owed whether or not your claim is successful.

What if I have problems after I settle my claim?

DOL Website/p Employment Discrimination Bureau Most insurance companies will try to clinch or close out the claim when they offer a settlement. This means you can never reopen your claim and cannot get any more medical treatment paid by the carrier. Other settlements can be reached that allow you to reopen the claim for at least a two (2) year period after settlement if your condition changes. Whether you should "clinch" or leave the case open for the two (2) year period is an important decision that should not be made without consulting a lawyer.

Q. My spouse was killed while working on the job. Can I make a claim in addition to workers’ compensation?

A. Possibly. You would likely have a workers’ compensation claim regardless of how your spouse’s fatal injury happened. If the cause of death was due to the negligence of a third person, you will probably have a wrongful death claim in addition to the workers’ compensation action. You should consult a lawyer familiar with both personal injury and workers’ compensation law to make sure that the claims are brought in proper legal procedure. Failure to coordinate multiple claims could result in enforceable liens on one or both of the insurance payouts.

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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