Additional Mistakes Employees Make In Their Workers’ Compensation Cases

Posted on Wednesday, July 22nd, 2020 at 9:54 am    

In addition to the errors of judgment we reviewed in the first part of our discussion on employee mistakes in workers’ compensation, employees also need to avoid the following workers’ compensation mistakes:

  • Not filing a claim within the statute of limitations. The North Carolina and Virginia state workers’ compensation claims require that all claims within a specific time period – typically two years. If you fail to file a claim within this statutory period even if you have a lifetime disability, your claim will be denied. In Virginia, this is done with a Claim Form, and in North Carolina, a Form 18.  An experienced workers’ compensation will review your claim and work to ensure it is filed in a timely manner. As a general rule, workers should consult with legal counsel immediately after a workplace accident occurs or a workplace illness prevents them from working. The earlier a claim is filed; the sooner you may receive medical treatments and the sooner you may begin receiving your fair share of wage losses.
  • Nor reporting all your symptoms. Your physician can only respond to your complaints. He/she can’t run a computer scan of your whole body. The more you tell your doctor about each and every little thing that is hurting you as a result of your work injury, the better the doctor can prepare a treatment plan to treat all your injuries. Also, when the time comes to file your claim, if the employer agrees to accept the claim, they will typically only agree to those items which you complained about to your treating physician that are part of the medical record. If you failed to mention it, they will not agree to make it part of the claim.  
  • Not getting the names of witnesses. Even though fault should not be an issue in workers’ compensation cases, there are times when it becomes critical to have witnesses who will support your claim, particularly if the employer disputes the way the accident occurs. You do still need to prove that an accident occurred while you were doing your job. For example, if the employer claims that you violated a known safety rule by not following directions, then if anyone was present while those directions were given to you, then that would be someone you or your attorney would want to speak with. Also, if you have witnesses who say that the “safety rules” were non-existent or not followed that would be help as well in such a case.  Injured workers should aim to get the names and contact information of the witnesses to their accident, or other witnesses who can help fight whatever defenses the employer is trying to bring to bear in your case. 
  • Posting about your injury or case on social media. Workers need to understand that insurance companies will review your Facebook, Twitter, Instagram, and other social media accounts. The moment they find a post or picture that shows you are healthier than you claim or that the injuries were due to causes other than your job, the insurance company will seek to terminate your benefits. Better to post nothing in relation to your injuries at all. 
  • Handling your workers’ compensation claim on your own. An experienced workers compensation attorney understands how to process your claim. 
    • The lawyer will work your physicians do fully document your medical condition, sometimes ordering opinion letters from your doctors containing the “magic words” that need to be recited for the Commission to be persuaded by your doctor’s opinions;
    • The lawyer will contest efforts by the insurance company to force you back to work before you are sufficiently recovered from your injuries;
    • The lawyer may be able to help you change physicians when the company doctors aren’t fighting to improve your health;
    • The attorney will explain your rights and obligations if the employer hires a nurse case manager;
    • The workers’ compensation lawyer will explain what types of disability payments you’re entitled to;
    • The attorney will work to show you have a permanent disability if you do;
    • The attorney will explain that cases shouldn’t be settled until you have reached maximal medical improvement and will follow your progress to take appropriate action when that point is reached; 
    • The attorney will explain the role of the vocational rehabilitation counselor and guide you through that difficult experience;
    • The work injury lawyer will negotiate a strong settlement which ensures that you are receiving all the benefits you deserve, that any Medicare Set-Aside issues are addressed, and that many other settlement issues are negotiated properly on your behalf;
    • The attorney will explain the difference between a workers’ compensation case based on an accident and a case based on an occupational disease;
    • The work injury lawyer will explain that once you settle your claim, you can’t renegotiate the settlement if your medical condition worsens;
    • The workers compensation lawyer will file a motion for penalties against the workers compensation carrier and employer if your workers compensation check is legally considered to be “late.” 
    • A skilled workers’ compensation lawyer will help you with many other issues depending on your injuries, the type of work you do, your medical condition, and any other issues
  • Thinking that workers’ compensation benefits are discretionary. Both North Carolina and Virginia require that employers carry workers’ compensation benefits for their employees. We’ll explain which employees are covered (generally most employees are covered). 
  • Thinking that you don’t qualify because the employer labeled you as independent contractor and not an employee. The employer does not have the final say on whether you are an employee or an independent contractor. You do have the right to challenge your employment status even if the employer pays you by giving you a 1099 instead of a W-2. Whether you are an employee or an independent contractor depends on many different factors. The main factor is whether the employer has the right to control when and how you do your work. Employees have the right to file a workers’ compensation claim in both North Carolina in Virginia. Injured independent contractors must generally file a personal injury claim.
  • Thinking that fault is a factor. In workers’ compensation cases, you do not need to prove the employer was negligent or careless. There is a trade-off. Workers who are eligible for workers’ compensation are not entitled to pain and suffering and they only get about 2/3 of their lost wages. The trade-off is that that they don’t have to prove fault. There are a few exceptions that an experienced workers’ compensation lawyer can explain. For example, you may not be entitled to workers’ compensation benefits if:
    • You were drunk or under the influence of narcotics at the time of the accident and your impaired state caused the accident.
    • You intentionally caused the accident.
  • Thinking you can see the doctors of your own choosing. Workers are normally required to treat with a doctor that the employer chooses. More specifically, employers have the right to provide a panel of doctors. The worker then picks one doctor from that panel. There are some exceptions to this requirement. If you need emergency medical care, a worker has the righto to go the nearest hospital or emergency medical care center. If you have been treating with the company doctors for a sufficient period of time and there is no improvement, you generally have the right to ask for an independent medical review. Based on that review, you may be granted the right to treat with doctors you choose.

North Carolina and Virginia workers’ compensation attorney Joe Miller Esq. works with your doctors to help document your injuries. He guides injured and ill workers through each stage of the claims process. He understands the arguments and positions insurance companies and lawyers for the employer usually assert. To pursue your workers’ compensation case with an experienced work injury lawyer, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295. or complete our online contact form to schedule an appointment.