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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. What if I have problems after I settle my workers’ compensation claim?

A. 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 a complete evaluation of how any future medical expenses will be handled. Medicare and Medicaid have the right to question future medical expenses that result from you work injury.

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 time limit do I have to file WC?

As soon as possible, you should file a Form 18, Notice of Accident, with the IC and employer, informing them that you wish to make a claim. While N.C. law requires this Form 18 to be filed within 30 days, an absolute time limit of 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. This form can be obtained by e-mailing our office or calling the IC at 828-348-4107.

Q. I was involved in a car accident while working. Can I make a claim against the car insurance in addition to the workers’ compensation insurance company?

A. Yes. You will likely have a workers’ compensation claim regardless of how the car accident occurred. If the wreck was caused by someone else’s negligence, you will also have a personal injury claim against the responsible party. You should consult a lawyer familiar with both personal injury and workers’ compensation law to make sure these claims are brought in proper legal procedure. Failure to coordinate both claims could result in enforceable liens of one or both of the insurance payouts.

Q. Do I have to allow my Rehabilitation Provider in the examining room while I am being examined by my doctor for a workers’ compensation claim?

A. No. Workers have an absolute right to a private examination by their doctors. The NC Industrial Commission does encourage the worker to allow the provider to meet with both the worker and the doctor immediately following the examination when the doctor discusses his/her findings and makes his/her recommendations for treatment. This will allow everyone to be aware of and understand treatment plans and expectations.

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...

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Contemporaneous Workers’ Compensation and Social Security Disability Claims

Contemporaneous Workers’ Compensation and Social Security Disability Benefit

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David Gantt describes his History in Helping People with Workers’ Compensation and Social Security Disability Cases

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