Common Questions about Worker’s Compensation

Posted on Wednesday, December 26th, 2018 at 9:21 am    

Injured workers have many questions about whether they can file a claim, how to file a claim, and what benefits they’re entitled to. Claimants worry about which doctors they can treat with. They wonder what actions the employer’s insurance company can take to force the worker back to work or to terminate his/her benefits.

For the best advice, make an appointment with an experienced North Carolina or Virginia work injury lawyer. Here are some of the many questions workers often ask and some of the answers to those questions:

What exactly is worker’s compensation insurance?

Decades ago, the states agreed to a compromise in how work accident claims are handled. Injured workers used to have to prove the employer was at fault – that they caused the worker’s injuries. If a worker could prove fault, the worker would be entitled to lost wages, medical bills, and pain and suffering damages.

The compromise method helps workers get compensation quicker and helps employers avoid large jury awards. The compromise is that workers don’t have to prove the accident was the employer’s fault. They just have to show an accident happened at work. In return for waiving the liability duty, employees only get about 2/3rds of their wages instead of 100%. They also can’t make a claim for pain and suffering against the employer. Workers are entitled to have the costs for all their medical bills covered as a result of the accident—for life. This includes surgeries, doctor visits, long-term therapy, and other types of medical services. It also includes the cost of medications and any prescribed medical equipment. Workers may also be entitled to vocational retraining benefits if they can’t work at their prior job.

Are there time limits for notifying the employer?

Generally, workers should notify their employer or a supervisor as soon as possible – verbally and in writing. In North Carolina and Virginia, workers are required to provide written notice within 30 days of the accident. This is usually done in the form of an Accident report.

Is there a time limit for filing a claim?

Yes. North Carolina and Virginia both have a statute of limitations for when claims can be filed. You generally have two years to file your claim from the date of the accident. DO NOT BELIEVE your employer if they say they have “filed everything for you.” There is NO SUCH THING. Only YOU or your workers compensation attorney can file the appropriate paperwork to insure your rights are protected.  If you were hurt at work, you should make the call to a work injury lawyer as soon as possible.

When does a worker become eligible for state worker’s compensation benefits?

Workers aren’t entitled to compensation for the first seven (days) unless their disability is more than 21 days. If the worker is out of work for less than three weeks, then the worker isn’t entitled to lost wages for those first seven days.

Who is entitled to worker’s compensation?

As a general rule, the worker must be an employee – not an independent contractor. Some exceptions may apply. Often, an experienced work injury lawyer will fight to show that someone who the employer labeled as an independent contractor is really an employee. Whether someone is an employee or independent contractor basically depends on how much control the employer had over their worker’s job duties. Signs of control include saying when and where the worker must work, how the worker is paid, what tools the worker uses, and other factors. Some employers think they can get around this by having the employee sign some silly agreement that says the worker understands that he or she is an independent contractor and not an employee. Those agreements are WORTHLESS. The Commission will look at the facts on the ground. The employer cannot “contract away” their obligations under the law.

What are the standard wage loss benefits?

In general, workers are entitled to 2/3rds of their average weekly wages as long as he or she can demonstrate disability from work. The average weekly wage is determined by the worker’s salary in the 52 weeks prior to the time of the accident. Workers are entitled to the 2/3rds benefits up to the time they return to work. They may also be entitled to additional wage loss benefits if they have a permanent partial disability to a ratable body part.  North Carolina and Virginia both generally limit the maximum number of weeks obtainable in comp payments to 500 weeks. The exception is if one can show permanent and total disability or in North Carolina, an entitlement to extended compensation. Then one could be entitled to lifetime compensation benefits.

Does it cost money to hire a worker’s compensation lawyer?

No. Worker’s compensation lawyers, if they decide to take your case, are paid their attorney’s fees on a continency fee basis. This means they are paid only if your claim is successful. On successful claims, they are paid a percentage of the worker’s compensation award. If the case is not successful, then you don’t owe the lawyer for his/her time. Occasionally, on successful claims, there may be applications for small fees that come out of ongoing checks even before settlement, but these are small amounts of money, usually in the hundreds of dollars.

Are employers required to carry work injury insurance?

Most North Carolina and Virginia employers are required to have worker’s compensation for their workers. Alternatively, they may be allowed to self-insure – to pay any award from the company funds if they meet certain requirements. In order to be required to have comp insurance, there must be a minimum of three employees routinely engaged and required to perform the employer’s business.

Which doctors can I see?

Typically, injured workers in Virginia will be given a list or panel of 3 doctors to choose from– from their employer’s panel of doctors. This applies to general physicians, pain management doctors, orthopedists, and many other types of doctors. In North Carolina, the law is more strict. An employer and insurance carrier get to choose who the authorized doctor will be.

In Virginia, if a worker is dissatisfied with the workers compensation doctor, one can always see whomever they wish and pay out-of-pocket; however, only authorized treating physicians are required to be paid by the workers compensation insurance carrier. In North Carolina, it is not advisable to seek one’s own doctor unless the Industrial Commission approves that choice. Unapproved doctors in North Carolina are generally ignored by the Commission and will not help your case.  

An experienced North Carolina and Virginia lawyer will explain when you can switch doctors. He’ll work to get approval from the NC Industrial Commission or Virginia Workers Compensation Commission.

Can I get workers’ compensation if the accident was your fault?

Generally, yes but there are exceptions.  As long as the injury wasn’t deliberate such as if you started a fight, and as long as you did not willfully violate a safety rule or you were not willfully intoxicated,  workers are entitled to work injury benefits even if they were careless or sloppy.

In North Carolina, violation of a safety rule merely works to diminish recovery of benefits by 10%, whereas in Virginia it can operate to completely prevent a claim.

Workers often trip over objects, slip and fall, drop merchandise, or make other mistakes that can hurt themselves. Worker’s compensation will still pay benefits for this type of accident.


At the Virginia Law and North Carolina Firm of Joe Miller Law, we’ve helped thousands of injured workers get just recoveries. We’ve been helping injured workers for more than 30 years. To speak with a tough advocate, please call 1-(888) 667-8295 or complete my contact form to schedule an appointment.