A Few Exceptions to Standard North Carolina Workers’ Compensation Issues

Posted on Wednesday, June 28th, 2017 at 11:39 am    

Many workers work a 40-hour shift at just one location. Most get a paycheck based on their hours of work. There are many exceptions though that an experienced work injury lawyer can help you with. Attorney Joe Miller, Esq. has been helping North Carolina employees for over 25 years. He’s handled almost every type of unusual situation that can arise. Here are a few unique work situations:

Commuting to work or traveling for work

As a general rule, employees are not eligible for worker’s compensation if they are hurt on the way to work or on the way home. This is often referred to as the “Coming and Going” rule. Employees are normally only eligible for worker’s compensation while they at the job site. Employees who leave the job site during the day will be judged by whether they were running company errands or were doing personal chores.

There are a few exceptions though:

  • Workers who are expected to be on the road should be able to recover work injury benefits. This includes salespeople, nurses, and others who travel to see customers and clients at their homes and businesses.
  • Employees who are on-call are expected to be ready to come to work on a moment’s notice. They may be eligible for worker’s compensation from the moment they get the call.
  • Employees who are at a trade show or conducting business away from the standard work are helping their employer. It only seems fair they should be protected if they are hurt while helping their employer. They may be eligible even if they aren’t doing work activities such as shopping or enjoying a social activity.
  • If the employee is running a work-related errand on the way to work or on the way home, they may be eligible for work benefits.
  • If the worker has to drive through a construction site or dangerous site to get to work, getting work injury benefits may be possible.
  • If the employee is using the company car and the company is paying for the gas and mileage, then if the employee is hurt coming or going, he/she may be entitled to work injury benefits.

Some of the questions and answers that we will review for our clients are:

  • Was the accident during a typical commute or did the employee go off-course for some reason?
  • Did the accident happen while the employee was running personal errands, business errands, or a combination of both?
  • Who paid for the commute?
  • Was the employee travelling from one work site to another work site?
  • Did the accident happen in a company parking lot or a private parking lot?
  • Did the employer benefit from the trip in any way?

Part-time, Temporary, and Seasonal employees

Many employers hire workers only when they need them. For example, retailers often hire employees during the winter holidays and construction companies hire crews when the weather is warmer. Non-full time workers are classified as follows:

  • Part time employees. As a general rule, full-time employees work 40 hours while part-time employees work 35 hours or less. Employees who work 35-40 hours are in a grey hour. Another rule of thumb is that full-time employees are more likely to paid a weekly salary while part-time employees work on an hourly rate. Part-time workers usually receive no or little benefits especially health benefits – which makes getting work injury benefits all the more important because worker’s compensation pays for necessary medical bills.
  • Temporary employees. Temporary workers are normally hired for just a few days or a few weeks to fill in for someone who is on maternity leave or vacation or to fill a short-term need in the company. Temps may work for a temp agency or for the company where they are doing the work. Temporary employees may work full-time meaning they are paid a salary.
  • Seasonal Employees. Most seasonal workers are hired during Christmas seasons or during the summer months. Some industries like the hotel industry may add workers during the summer when there is a lot more travel. Seasonal workers may also be full-time employees for the time they work.

Whether these workers qualify for workers’ compensation depends on whether the worker is classified as an employee or an independent contractor. That distinction, in turn, is based on a variety of factors. Injured workers shouldn’t automatically assume that just because they don’t get a weekly paycheck and health benefits that they are an independent contractor. The main criteria that North Carolina will use in deciding if you are an employee or not is how much control over the worker’s duties the company had. If the employer decided what hours you worked, where your worked, what job tasks you did at work, who provided the tools that used; then you may be eligible for worker’s compensation because you’re an employee, even if the company claims that you are not.

Working for Tips

Workers such as waitresses who work for tips need to make sure they are getting the correct weekly income. Employees who are injured on the job get 2/3rds of their lost wages until they can return to work or for up to 500 weeks for more serious injuries. For waitresses, the starting point is their weekly pay which for many isn’t much more than the state minimum wage. The amount of the employees tips should also be determined. Most workers who have a work history know (and their employers know) how much extra they are getting in tips. Tips should be reported as income on the waitresses’ tax returns. If returns are reported then it should be straightforward that the waitress is entitled to 2/3rds of the tips and the wages added together. If tips were not reported, then getting 2/3rds of the tips paid for a work injury can be more difficult.

Make the call to an experienced work injury lawyer today.

Attorney Joe Miller Esq. has helped thousands of injured workers get the full workers’ compensation benefits they’ve earned. In many cases, he had to argue the exceptional or unique case. To see if you’re eligible and to get the best recovery the law allows, please call us at (888) 694-1671 or complete the contact form.


Must Your Virginia Accident be Work- Related in order to Collect Worker’s Compensation Payments?

In any work injury case, it is necessary to prove the following in order to be paid your benefits:

  • The injury or illness must be work-related
  • You must be an employee
  • The injury must be what is preventing you from working

Each of these elements can be complicated. The good news is that injured and ill workers do not need to prove the employer was negligent or reckless. Fault is not an issue in work injury cases. Your doctors or independent physicians can usually confirm that your injuries are what is preventing you from doing your job.

It is the work-related issue that can often lead to litigation. An experienced Virginia work injury lawyer like Joe Miller can help you convince an insurance company or the worker’s compensation hearing officer that your accident was indeed work-related. Some common work-related issues that often arise in Virginia are:

  • Lunch breaks. Whether an employee who is injured while they are on a lunch break is entitled to benefits depends on several factors. If you had lunch in the company cafeteria, that’s a stronger argument for collecting Virginia work injury benefits than if you were hurt away from the office. Likewise, if you were getting lunch for your employer or even other workers, that’s a better case than if you had lunch on your own. If you were meeting a customer or client, that’s good for business and you should be covered. Lunch while at a trade show on company time is similarly a better case than if you were just having lunch with personal friends or your family.


  • Employer events. Many businesses hold events to foster better social relations among office workers. If you hurt playing softball while you were representing the company team against other community businesses, you may be entitled to work injury benefits because that’s good marketing for the business. If the event was a class or some training activity, that also is helping your employer and you’d have a strong argument that you should be compensated.


  • Company travel. This topic is covered in the companion blog about the ‘going and coming’ rule.  The more you can show that the employer was directly benefited by your commute or travel activities, the stronger case for benefits you will have if you get into a car accident while traveling.


  • Your own negligence or misconduct. Just as you do not have to show an employer was negligent in order to collect Virginia worker’s compensation rule, the employer generally can’t argue that you were negligent to deprive you of you worker’s compensation benefits. If you were careless, failed to watch where you were going, used the wrong tool, or made an error in judgment; you still should be able to collect worker’s compensation.


The case gets tougher if you deliberately violated a safety rule or safety law. If you committed a crime at work, and were injured while doing so; then you probably won’t get Virginia worker’s compensation.


North Carolina and Virginia law differ significantly as to these concepts. In Virginia, a showing by the employer of a deliberate rule or safety statute violation could completely bar your claim, whereas in North Carolina, such a violation would only decrease your weekly comp checks by 10%.


  • Preexisting conditions. If you have a prior injury, then the employer or the employer’s insurance company will likely claim that the prior injury defeats your claim. An experienced Virginia work injury attorney will know what counterarguments to apply. For example, so long as your treating physician (who must be an M.D.) is able to give an opinion that the accident caused a sudden mechanical change in the body part in question, even of the slightest amount, and that this change is at least partially responsible for the current treatment and disability, then it makes no difference whether you had a pre-existing condition or not. The good news is also that there is no reduction in your benefits for the pre-existing condition. The entire claim is compensable if your doctor can support it in Virginia, despite whatever pre-existing conditions you may have had in the same injured body part.  


  • Hearing loss. Just because you work in a noisy environment, doesn’t mean you should be denied benefits. As long as it can be shown the hearing loss was work-related, you should be entitled to worker’s compensation, although the benefits for the hearing loss alone are very limited. Unless the hearing loss is so severe that it prevents you from working, the maximum you can recover for hearing loss is 50 weeks of compensation for each ear.  How much of the 50 weeks you will get is determined by the severity of your hearing loss and there is a hearing loss table that sets forth the decibel reduction with the corresponding percentage of hearing loss.


  • Occupational illnesses. You also are entitled to benefits if you suffer a disease or illness from work. Examples can include black lung disease or asbestosis. In order to qualify, the worker must be able to prove that the illness was not an ordinary disease that the community at large would suffer – and that the disease was characteristic of conditions found in a specific type of profession. The job must increase the odds of getting the illness.


Other example diseases include hepatitis suffered by a lab technician or a contagious disease suffered by a healthcare worker at a hospital. The employee does need to also show that the work conditions were what directly caused the disease.


There is one key difference between an occupational illness and a work injury caused by a fall or a specific workplace accident. An occupational illness can accumulate over time – that is the worker doesn’t have to prove any specific incident triggered the illness or disease.


  • Emotional/Psychiatric injuries. You don’t have to suffer a physical injury in order to qualify for benefits. In many cases though, emotional distress, or a psychiatric illness such as PTSD is something that occurs through either experiencing or witnessing an extremely traumatic event. The key in these cases is that the traumatic triggering event must be outside the realm of what the worker would normally encounter in his or her occupation. For instance, a police officer who tries to claim that witnessing a shooting caused him PTSD is going to have a difficult time proving that was outside the normal realm of his occupation. On the other hand, a nurse’s aide who witnesses a patient kill themselves through a self-inflicted gunshot wound to the brain is likely going to recover for her psychiatric injuries, as this is not something that she would normally encounter in her duties as a nurse’s aide.


Speak with an experienced Virginia lawyer as soon as possible

Attorney Joe Miller Esq. has helped thousands of injured workers during the past 25 years. He has the skills and experience to handle the tough cases and the exceptions to the rule. He understands what arguments to make to challenge arguments that injuries weren’t work related. For strong advocacy, please call (888) 694-1671 or fill out the contact form.