FOR EVERY WORKER
WHAT TO DO IF HURT OR INJURED ON THE JOB
TODD E. McCURRY,
WORKERS COMPENSATION ATTORNEY
WILMINGTON, NORTH CAROLINA
At one time or another, everyone has either been injured or has known someone who has been injured on-the-job. This bulletin provides concrete steps that one can take to protect themselves, friends, or family members who have been injured in an on-the-job accident.
FACTS OF LIFE
Insurance companies profit and injured workers suffer to the tune of millions of dollars each year because injured workers do not know their rights. Workers rely on the wrong people to give them advice. Most people who have an on-the-job injury rely on their employer or their employer’s personnel department to fill out necessary reports, make sure vital information is saved, and to secure worker’s compensation benefits. Then, to make matters worse, they rely on their employer’s worker’s compensation carrier to give them advice about their rights and benefits. Nothing could be more dangerous. Only slightly less dangerous is listening to your friends, drinking buddies, or neighbors, no matter how well-meaning, for legal advice. The safest source of information is your Wilmington Workers Compensation Attorney, Todd E. McCurry.
When a worker is injured, the employer’s usual concerns are (a) replacing the employee or the lost man-hours; (b) possible litigation; (c) increased employee complaints about safety; (d) possible OSHA inspections or safety violations; (e) the costs on their worker’s compensation insurance; and lastly, if at all, (e) the injured worker. Not every employer views these items in this order, however, most employees would be shocked to find that their well-being, treatment, recovery, and care are significantly further down the list than they ever imagined. The simple truth is that once an employee is injured, they become a liability and an adversary to their employer. Also, once an on-the-job injury occurs, the employer and employee become adversaries in the worker’s compensation process. It is not always in the employer’s best interest to timely file claims, to inform the employee of all their benefits, or to preserve evidence, including witness statements and/or photographs. Relying on your employer to provide worker’s compensation advice is like asking a cat to guard a canary. It is foolhardy.
12 STEPS EVERY INJURED WORKER SHOULD FOLLOW:
- REPORT THE ACCIDENT IN WRITING TO YOUR EMPLOYER AS SOON AS POSSIBLE. Every accident, no matter how trivial it may seem at the time, should be reported in writing to your immediate supervisor. This should be done right away. The employee should retain a copy of the written report. If there is no report completed or the employee does not get a copy of the report, the employee should write a letter to the employer and maintain a copy for his or her own records. Throughout my years of practice, I have seen numerous cases where the employee says, “Well the employer knew I was hurt because I told them.” or “They saw me get hurt.” Then at a hearing to determine the employee’s benefits, the employer says, “Well the first we heard about this injury was when the employee has his worker’s compensation attorney file this claim against me and nobody at my company knows anything about them ever being hurt and we don’t believe he was hurt on the job, we believe he was hurt somewhere else.”
- FILE A FORM 18 WITH THE NORTH CAROLINA INDUSTRIAL COMMISSION. Even if your employer fills out paperwork, promises to file it, promises to report the accident to their insurance company, the government and everybody else on the planet, DO NOT be misled. You have the burden to comply with the North Carolina Workers’ Compensation Act. N.C.G.S.§97-1, et seq. The Rules of the North Carolina Industrial Commission provide that a Form 18 shall be filed within thirty (30) days of the date of the accident and in no event later than two (2) years after the date of the accident. If this notice is not filed with the Industrial Commission and given to the employer, you could lose your claim totally. Do you think your employer’s workman compensation insurance company is going to tell you this?
- GET THE NAMES AND ADDRESSES OF ALL WITNESSES TO YOUR ACCIDENT. Write down the name, address and phone number for every witness as soon as you are able. Also record the names of all who provide care or first aid to any of your injuries. Yes, they may work with you at the current time and your employer may know where to find them, but people disappear, quit jobs, and/or move. You would be surprised how an accident that you thought everybody in your company saw suddenly has no witnesses. You can be sure that your employer will not help you find witnesses.
- SEEK MEDICAL CARE IMMEDIATELY. If you suspect you have any injuries, be sure to seek medical care immediately. Inform the medical provider how you were injured. Nothing can slow down a claim more than delayed medical care. For example:
Ernie Employee hurts his back at work on Wednesday afternoon. He tries hard, works in pain, and finishes the week. Some time over the weekend Ernie Employee goes to the emergency room and says his back hurts. The doctor examines his back and determines Ernie Employee has what he believes to be a strain. The doctor prescribes him muscle relaxers and takes Ernie out of work. Ernie Employee goes back to the doctor three or four times, and three weeks later tells his doctor that he hurt his back while lifting a motor at Muscle Motors. The insurance company and the employer’s attorney will point out repeatedly that there is no mention of how the accident occurred in Ernie Employee’s medical records until quite a while after the “alleged” date of accident. Furthermore, they will come up with every possible excuse as to how Ernie Employee could have hurt his back, i.e., playing golf on Saturday, changing his oil, cutting his grass, or a previous bad back from when he was in the third grade. Therefore, it is critically important that each and every time you see your doctor, you communicate with him fully, both as to the cause of your injury, pain or symptoms, and the full extent of same. Another common pitfall is failure to tell the emergency room or treating personnel about your injured back when you also have a broken arm. Obviously the broken arm is the most important and painful injury at the time, however, if you do not make a full disclosure of all your injuries, they will come under question later in your workers compensation case.
- GET A WRITTEN EXCUSE FROM A MEDICAL PROFESSIONAL BEFORE MISSING WORK. North Carolina law clearly provides that it is against the law for an employer to fire an employee who is injured on-the-job or who has to be out of work for any period of time due to an on-the-job injury. However, without a doctor’s excuse, employers routinely get rid of their “problem employees” (read: workers’ compensation claims) when they are hurt and fail to show up for work without a doctor’s excuse. Therefore, if the emergency room or the physician on your initial visit authorizes you to stay out of work, GET IT IN WRITING!! Provide the excuse to your employer before your scheduled time to show up for work. On a related note, if you have been sent back to work and then suffer a relapse and are unable to work, call your doctor, go see your doctor, and get a written note from the doctor. With a written excuse employers and workers compensation insurance adjusters cannot use your absence against you.
- LIGHT DUTY. If your doctor releases you to return to work with restrictions or to work light duty, be sure your employer, including your shift supervisor, has a written copy of your restrictions. It is your responsibility not to work outside the restrictions the doctor has assigned. Routinely employees injure themselves or do damage to the legitimacy of their case by knuckling under to pressure from their supervisors to “do their job”. The employee often proves the employer’s allegation that they are not hurt by working outside the doctor’s restrictions. Many times this work does permanent damage to the employee’s health and their case. If a written doctor’s restriction is not to lift over ten (10) pounds, then do not lift anything over ten (10) pounds regardless of what your supervisor says or threatens.
- STATEMENTS TO THE WORKER’S COMPENSATION INSURANCE COMPANY. Do not give a statement to the insurance carrier unless you have a worker’s compensation attorney. The simple fact of the matter is that ten times out of ten the purpose of the insurance adjuster taking a statement is to obtain information to use against you. Any representation that they cannot honor your claim without taking your statement right now is merely an internal procedure or fake. You would be much better served by consulting with your Wilmington Workers Compensation Attorney Todd McCurry before giving any statement. Things as seemingly innocent as explaining how your injury occurred could result in losing your benefits if not stated correctly, i.e., with an eye towards the legal implications involved.
- “I SPY”. Many insurance companies would rather spend money on private investigators than on employees. Due to occasional workers compensation fraud, most insurance carriers treat or suspect every claimant as a cheat and a faker. Behave at all times as if you are being watched. Many otherwise valid claims have been destroyed because persons with legitimate on-the-job injuries do something in the privacy of their own home or yard that apparently shows they are not injured.
For instance, a former injury client who could walk only with a cane or walker for balance due to a knee injury purchased his wife a self-propelled lawn mower. She was, after all, stuck cutting the grass. Just to try it out, he put his cane down and used the self-propelled lawn mower to hold himself upright and did one slow, painful lap around the yard. This was filmed by a private investigator hired by the worker’s compensation carrier. The video introduced at trial made it appear as if my client cut the whole yard and even included a shot of the yard after it was cut. This gave the appearance that my client was faking when he said he could not perform work activity on his injured leg. By the way, his case was lost and this “faker” eventually had to have a total knee replacement.
The last time I attended the annual Worker’s Compensation convention in Raleigh held by the North Carolina Industrial Commission about one-third of the booths were private investigation firms hawking their services to insurance carriers. The purpose of hiring these private investigators is an effort to portray employees as frauds. While some fraud does occur, persons should protect their legitimate claims by acting as if they are always being watched. The real fraud is when an insurance company cheats an uninformed employee out of his/her workman compensation benefits.
- DOCTOR’S APPOINTMENTS. Attend all doctors’ appointments, physical therapy appointments, and get all prescriptions filled. In a surprisingly large number of cases, people injured on the job do not even bother to go back to the doctor. Later, they have serious health problems and the doctor cannot legally or medically connect the problems to their worker’s compensation injury. The client says, “Well I know my back was fine before I got hurt on the job.” There is no record of the employee receiving treatment for six months following the accident. This is a sure way to damage or end your worker’s compensation case. Likewise, if you miss your physical therapy appointments, the insurance company will portray this as evidence that you are not really hurt or do not have a legitimate claim.
- KEEP COPIES. Maintain copies of your appointment slips, doctor bills, work excuses, and keep track of your medical bills and mileage. Often times people are not aware that they are entitled for mileage more than twenty (20) miles to and from a doctor’s appointment. One must maintain exact records in order to get the necessary compensation.
- DO NOT LOSE YOUR TEMPER AT THE DOCTOR. On most occasions, the doctor you will be seeing will be one selected by the insurance carrier. The doctor naturally tends to see things in favor of the employer and insurance company. If this medical provider does not give you adequate treatment or take your claim seriously, you are automatically entitled to a second opinion. Do not lose your temper and get labeled a malingerer or troublemaker. This is a label that only makes your case more difficult. Arguing with a doctor will not help you.
- FINALLY, IF YOU ARE INJURED ON-THE-JOB ALWAYS CONTACT THE LAW OFFICE OF TODD E. McCURRY, P.A., Your Workers Compensation Attorney in Wilmington, North Carolina. I have been a practicing attorney for twenty-four (24) years and have experience handling workers’ compensation claims. I also study and read the new laws and case decisions as they come out. This study assures I am aware of all the breaking trends. Each year I attend many hours of Continuing Legal Education seminars and I attend selected seminars devoted solely to workers’ compensation.
TODD E. McCURRY
Attorney at Law, P.A.
207½ Princess Street
Post Office Box 1443
Wilmington, NC 28402
This article and its contents are for informational purposes only and are not to be construed as legal advice or as creating an attorney-client relationship.