Vocational Rehabilitation in NC Workers’ Comp Claims

An important goal of the workers’ compensation system in North Carolina is to quickly return injured workers back to employment as close to their pre-injury wage as practical. Ideally, the worker can return to full-time, full-duty work in his or her prior occupation. But often permanent restrictions related to the workplace injury make this impossible. In these situations, vocational rehabilitation, or “voc rehab,” can play an important role in returning an injured worker to gainful employment.

Vocational rehabilitation in North Carolina workers’ compensation claims is regulated by North Carolina General Statute § 97-32.2, and Subchapter 10C of the Rules for Utilization of Rehabilitation Professionals. Together these provisions set the ground rules for voc rehab for NC workers’ compensation claimants. The North Carolina Industrial Commission decides any disputes that may arise between the injured worker and the employer that relate to vocational rehabilitation efforts.

What is Vocational Rehabilitation?

Vocational rehabilitation includes a broad range of services meant to help return the employee to work in “suitable employment.” Vocational rehabilitation efforts are directed by a certified vocational Rehabilitation professional and may include:

  • assessing an injured employee’s work qualifications, including skills, education and aptitude;
  • identifying factors that may impair a return to work, including physical and job skill imitations;
  • identifying skills, certifications or training that might improve the workers’ job prospects;
  • arranging for appropriate classes or training in the North Carolina community college or university systems;
  • providing job-search counseling and assistance with resume preparation;
  • identifying suitable job opportunities in the job market as well as specific job leads.

It is the job of the voc rehab professional to provide these services, within the framework provided by North Carolina General Statute § 97-32.2, and Subchapter 10C of the Rules for Utilization of Rehabilitation Professionals.

When is Vocational Rehabilitation allowed?

An employer can begin vocational rehabilitation services at any time during an accepted workers’ compensation claim. An employer cannot require vocational rehabilitation in a denied claim. Certain severely injured workers may not be required to participate in voc rehab if they are receiving disability benefits beyond 500 weeks under G.S. §97‑29(c), or have been determined to be permanently and totally disabled pursuant to or G.S. §97‑29(d).

An employee can request vocational rehabilitation services when he or she has not returned to work, or has returned to work making less than seventy-five percent (75%) of what he or she was making before the injury. An employee’s request can include training in the North Carolina community college or university system so long as the training is likely to improve the worker’s wage-earning ability.

Vocational rehabilitation services continue so long as they might be beneficial to the worker and the employer is willing to pay for it. The Industrial Commission has the authority to order vocational rehabilitation to continue or be terminated.

Who can provide Vocational Rehabilitation services?

Vocational Rehabilitation services in North Carolina can only be provided by a qualified vocational rehabilitation professional approved by the North Carolina Industrial Commission. There are strict rules governing who can qualify as a vocational rehabilitation professional in North Carolina workers’ compensation cases. The Industrial Commission keeps a list of qualified voc rehab professionals.

Generally, a vocational rehabilitation specialist must be hold on of several specific certifications, have at least two years of experience working with disabled workers, and complete a special course in North Carolina workers’ compensation case management. Vocational rehabilitation professionals must attend continuing education classes in to remain qualified, and must follow the ethics rules and laws of their own occupation.

What are the guidelines for a Vocational Rehabilitation Professional?

The employer or its workers’ compensation insurance company makes the initial selection of the vocational rehabilitation professional, and pays for vocational rehabilitation in the same way it pays for medical treatment. The insurance carrier should notify the Industrial Commission when a vocational rehabilitation professional is retained.

Although the employer selects the initial vocational rehabilitation professional, they are to use their own best independent judgment in their work. Voc Rehab professionals are not agents of the employer. Vocational rehabilitation professionals should not give legal advice to the injured worker about any aspect of their claim, engage in settlement discussions between the parties, or assist the employer in investigating the claim.

At their initial meeting the vocational vehabilitation professional should provide the worker a copy of the rules that govern vocational rehabilitation, and advise the worker that the VR professional will share relevant information from the rehabilitation process with the employer. If the injured worker has an workers’ compensation attorney the initial meeting must be at the attorney’s office if requested.

The vocational rehabilitation professional should prepare regular reports of vocational activities and share these reports with the employer and injured worker at the same time, or at least let the injured worker know the report is available for review. The reports should contain only information relevant to the rehabilitation process, and not information simply intended to embarrass the worker or make him or her look bad.

A vocational rehabilitation professional should refer an injured worker only to suitable work, and should end the rehabilitation process when it is not likely to be successful. Either the employer or employee may ask the Industrial Commission to replace the vocational rehabilitation professional for good cause.

What is an Individualized Vocational Plan?

The first step in vocational rehabilitation is developing a return-to-work plan that is tailored to the needs and circumstances of the injured worker. Developing the plan should be a cooperative effort among the voc rehab professional assigned to the case, the injured worker and the employer. This should include a face-to-face meeting between the vocational professional and the injured worker.

Vocational rehabilitation services cannot begin until the return-to work plan is complete, and all vocational activities must be consistent with the plan. According to the rules governing vocational rehabilitation, return to work options should be prioritized in this order:

  1. current job, current employer;
  2. new job, current employer;
  3. on-the-job training, current employer;
  4. new job, new employer;
  5. on-the-job training, new employer;
  6. formal education or vocational training to prepare the worker for a job with current or new employer; and
  7. self-employment, only when its feasibility is documented with reference to the employee’s aptitudes and training, adequate capitalization, and market conditions.

What happens if the employee refuses to cooperate with Vocational Rehabilitation?

An employee is required to participate in vocational rehabilitation when it is offered. If the employee refuses to cooperate with vocational rehabilitation the Industrial Commission can order the employee to comply. If the employee continues to refuse to cooperate, and the refusal is unjustified, then the Industrial Commission can suspend the employee’s wage replacemen benefits. The Industrial Commission must say in its order suspending benefits what action the employee should take to end the suspension of benefits. A vocational rehabilitation professional who believes that an injured worker is not cooperating with vocational efforts should document what the worker should do in order to return to compliance.

Few injured workers simply refuse to cooperate with vocational rehabilitation. More often, workers will object to what they see as unnecessary or even silly vocational activities. These may include the vocational counselor requiring too frequent meetings, application for jobs the employee is not physically or otherwise qualified for or that are not suitable, and even participation in volunteer activities. Many times, the vocational rehabilitation professional and the injured worker struggle to effectively communicate the date, time and place of meetings, leading to missed appointments and allegations that the employee is not cooperating.

What is the Role of a Lawyer in Vocational Rehabilitation?

Vocational rehabilitation can tricky for an injured worker. A North Carolina Workers’ Compensation lawyer can help keep things on track. While voc rehab should be a team effort with the goal of helping the injured worker return to a suitable job, it can turn into a game of “gotcha” with the goal being to terminate the employee’s wage replacement benefits. Sometimes vocational rehabilitation is used to prod an injured worker to settle their NC workers’ compensation claim.

The role of a lawyer in vocational rehabilitation is to be sure everyone follows the rules and to help ensure a smooth process. A workers’ compensation attorney should stay closely involved in the vocational rehabilitation process. This includes attending the initial meeting between the injured worker and the vocational professional, regular communication with the injured worker and the vocational professional, and review of the job leads being submitted to the employee to be sure they are suitable.

Kevin Bunn is a North Carolina workers’ compensation lawyer. He has practiced law in Cary, North Carolina, since 1993. Kevin is a Board Certified Expert in North Carolina Workers’ Compensation Law, a member of the North Carolina Industrial Commission’s Advisory Council, a past Chair of the NCAJ Workers’ Compensation Section, and serves on the NCAJ Board of Governors. For more information about Kevin and his law practice please visit ncworkercomp.com.

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Workers’ Compensation and Personal Injury – What is the Difference and Why Should I Care?

A workers’ compensation claim and a personal injury case are completely different things. If you have been injured it is important to understand which kind of case you have, or if maybe you have both, and the differences between the two.

Is the injury related to your job?

A worker who is injured on the job in NC may have a workers’ compensation claim. The injury must come from an accident that happens in the “course and scope” of the work. Not all workplace injuries are covered by workers’ compensation in North Carolina. Workers who develop an occupational disease in North Carolina may be covered by workers’ compensation if their employment put them at risk for the condition. The point is that to have a workers’ compensation case in NC the injury or medical condition must be related to your employment.

Personal injury cases on the other hand can happen anywhere and do not need to be related to your employment. Typical examples of personal injury cases include automobile accidents, slip and falls, and professional malpractice.

Was somebody else at fault?

With workers’ compensation, it does not matter who was at fault in causing the injury. An injured worker does not have to prove that the employer was at fault. In fact, an injured worker can receive workers’ compensation benefits in North Carolina even if the worker accidentally causes the injury. In workers’ compensation, fault does not matter as to whether the claim is valid or not.

In a personal injury claim the injured person must show that the person who caused the injury was “negligent.” Negligence means the breach of a legal duty of care resulting in an injury and damages. In other words, negligence is hurting someone because you are not being careful enough. (Although my law school torts professor would have disapproved of that definition.) In a personal injury case in North Carolina, if the injured person is partly at fault in causing the injury, his or her claim may be barred. This is called “contributory negligence.” In North Carolina, an injured person who contributes even 1% to his or her own injury may not be able to recover at all.

Who do you file your claim against?

If you are injured on the job in North Carolina, you should file your workers’ compensation claim against your employer’s workers’ compensation insurance company or workers’ compensation administrator. This claim will be handled by the North Carolina Industrial Commission. With very few exceptions you cannot file a lawsuit for a workplace injury against your employer in civil court, even if you were injured because of your employer’s carelessness. Again, in workers’ compensation cases fault does not matter. Your only option is to take your claim to the Industrial Commission. This is known as the “exclusive remedy” provision. The exclusive remedy rule also applies if you are hurt at work because of the carelessness of a co-worker. Again, you must file the claim with the Industrial Commission.

Deciding who to recover from in a personal injury claim is a little more complicated. You can seek to recover from the person or people whose lack of care caused your injuries. If you are injured in an automobile accident that is someone else’s fault, and that person was driving a vehicle owned by a family member, you may be able to recover from the vehicle owner. If the person who injured you was acting as an employee of a company you can also seek to recover against that company.

Where, when and how do you file your claim?

If you are injured on the job you must file your North Carolina workers’ compensation claim with the North Carolina Industrial Commission. In most cases, you must file your claim within two years. You should also give notice right away to your employer. The Industrial Commission is a government agency responsible for administering workers’ comp claims in North Carolina. The Industrial Commission decides disputes between injured workers and their employer’s workers’ compensation insurance company, including whether an injury or occupational disease is covered by workers’ comp, what medical treatment should be provided, and what wage replacement benefits are owed. The Industrial Commission also reviews all workers’ compensation settlements in North Carolina.

If you are injured because of someone’s carelessness and have a personal injury claim, you can file a lawsuit in civil court. In most cases, you have three years from the date of the injury to file your lawsuit, but there are many exceptions to this rule. Most claims can be filed in the county where you live or where one of the people you are suing lives. Your lawsuit, call a “complaint,” must be filed with the Clerk of Court and must be delivered to or “served” on each defendant. A judge will make decisions about who should be involved in the lawsuit, what evidence can be used, and when the case will be heard. You have the right to have your damages decided by a jury in a personal injury case.

What can you recover?

Workers’ compensation in North Carolina provides two benefits, medical treatment paid for by workers’ compensation for the injured body part, and workers’ compensation disability payments. Workers’ compensation does not pay pain and suffering or other types of damages.

If you have a personal injury case you may be able to recover a much broader range of damages, including past and future medical expenses and wage loss, as well as for pain and suffering.

Can you have both a workers’ compensation case and a personal injury claim?

If you are injured on the job through the carelessness of someone who is not an employer or co-worker, you may have both a workers’ compensation claim and a personal injury claim. You can and should pursue both. An example would be if you were injured in an automobile accident while on the job in North Carolina. The workers’ compensation insurance company may be able to recover money it pays on the workers’ compensation claim from the personal injury case so the cases must be carefully coordinated.

 

Kevin Bunn is a North Carolina workers’ compensation lawyer. He has practiced law in Cary, North Carolina, since 1993. Kevin is a Board Certified Expert in North Carolina Workers’ Compensation Law, a member of the North Carolina Industrial Commission’s Advisory Council, a past Chair of the NCAJ Workers’ Compensation Section, and serves on the NCAJ Board of Governors. For more information about Kevin and his law practice please visit ncworkercomp.com.

OSHA reminds employers of summer temperature risks

Outdoor workers in North Carolina who do not have regular access to drinking water and shaded areas are at risk for heat exhaustion or heat stroke. This is the message being pushed heavily by the Occupational Safety and Health Administration in a campaign designed to cut down on the 2,630 American workers who developed a heat-related illness in 2014.

While workers who develop heat related illnesses are sometimes able to rejoin the workforce after a short period of rest, the consequences of heat stroke can be fatal. OSHA is urging employers to review their orientation and training programs and use resources like animated videos and illustrations to make improvements. The safety agency’s focus on training is a result of their investigations into heat-related incidents that have often involved workers with only a few days of experience.

Another potential hazard for outdoor workers during summer months comes from lightning. OSHA and the National Oceanic and Atmospheric Administration released a joint fact sheet detailing the risks posed by lightning during the summer months. Lightning kills about 50 people each year in the United States, and employers are urged to monitor weather conditions and forecasts frequently when their workers are exposed to the elements. The safety campaign highlights the unpredictable nature of lightning by pointing out that it can strike as far as 10 miles away from rainfall.

Filing a workers’ compensation claim and dealing with the claims process can sometimes be a frustrating experience for injured workers. This may be especially true if a claim is challenged by an employer or delayed for some reason. Attorneys with experience of workplace accident cases may assist injured workers with their claims, answer their questions about the potential benefits and advocate on their behalf during workers’ compensation hearings.

At the Law Offices of Lyndon R. Helton, PLLC, each of their attorneys brings nearly 20 years of legal experience to people throughout Western North Carolina.  They focus their representation on the needs of people with problems involving Personal Injury, Workers’ Compensation Claims, Social Security Disability, Criminal Defense, Traffic Violations and Family Law matters.  For more information, visit www.heltonlaw.com.   

The Five Things You Must Do When You Are Hurt at Work

When you are seriously injured on the job, your health and your workers’ comp claim depend on your actions.  You may need medical treatment.  You may need compensation to make up for your lost wages.  Don’t endanger these two essential needs:  follow through with these five steps to give yourself the best chance of a good recovery.

  • Report your injury immediately:  You should tell your employer what happened at once.  Give details, including how the injury was an unusual event.  Most injuries are only covered by workers’ comp if there was an accident. An accident is when something unusual caused the injury.
  • Go to the doctor:  Your employer is responsible for getting you medical care.  If your claim is denied, you may go see your own doctor.  But if the employer has accepted your claim or if they are providing medical treatment, you could endanger your claim if you go to your own doctor.  Tell the doctor how the accident happened. Your medical providers will be recording your history in their records.  Make sure they know you are there because of your accident at work.
  • Fill out a Form 18 to start your claim.  You can find it at the North Carolina Industrial Commission website.  Send a copy to the Industrial Commission or file it online. Send a copy to your employer, and keep a copy for your files.
  • Get witnesses: Write down the names of anyone who knows about your accident.  If you can get their contact information, it will help later if you have questions or need their help.
  • Don’t sign anything: Don’t sign anything without fully understanding it.  Never sign a blank form.  If your employer presents you with a document, tell them you want to consult with an attorney before you sign.

If you have been seriously injured in an accident, consult the board-certified workers’ compensation attorneys at Copeley Johnson & Groninger PLLC.  Valerie Johnson and Leto Copeley are here to help you. Copeley Johnson & Groninger PLLC is a law firm focused on representing individuals and their family members who find themselves in circumstances that they never expected.  Their clients include those who have been injured on the job, on the road, and on the premises of businesses and public facilities.  They also help those whose employers have violated their legal rights.  For more on this firm, visit http://www.cjglawfirm.com.

Overexertion a leading cause of workplace injury

According to a recent summary of data related to workplace safety, the leading issue causing injury or illness on the job for 2013 was overexertion. North Carolina workers who are employed in physically demanding jobs might be the most at risk for such injuries, but a worker in any job could deal with physical problems because of an action such as lifting too much or reaching too far. Records from the U.S. Bureau of Labor Statistics indicate that the number of musculoskeletal disorders improved slightly from 2013 to 2014, which provides employers and employees with an important focus for safety strategies and improvements in future years.

The cost of disabling workplace injuries as a whole for 2013 was $61.88 billion, and approximately one-fourth of these costs were used to deal with overexertion injuries. The top five types of injuries represented about 65 percent of the total spent on work-related health issues. These included falls on a single level, falls from one level to another, and individuals being struck by materials on the job. Other leading issues included vehicle incidents on the road, slips and trips, and equipment accidents.

Laborers and movers were among those most prone to musculoskeletal disorders in 2014, which may be related to the need to handle heavy materials in these professions. Additionally, nursing assistants led in MSDs, which may be a result of the physical challenges of moving patients and handling heavy furnishings and devices. An individual dealing with muscle strain or other physical problems because of work-related activity should report such issues and seek proper treatment to alleviate higher costs that could occur by ignoring the problem.

An individual who has a legitimate strain or other work injury and who faces problems from an employer related to reporting the issue might find that legal representation is needed to advance a claim. A lawyer might also help in dealing with a work injury situation if an employer is found to lack proper workers’ compensation insurance.

 

At the Law Offices of Lyndon R. Helton, PLLC, each of their attorneys brings nearly 20 years of legal experience to people throughout Western North Carolina.  They focus their representation on the needs of people with problems involving Personal Injury, Workers’ Compensation Claims, Social Security Disability, Criminal Defense, Traffic Violations and Family Law matters.  For more information, visit www.heltonlaw.com.   

Can I be fired for filing a workers’ comp claim?

You got hurt at work and need medical treatment. You are stressed and worried that you are going to be out of work. You need your wages to support yourself and your family.  hen it crosses your mind, “Can my boss fire me for filing a workers’ compensation claim?”

The answer is no. You can’t be fired for making a workers’ comp claim.

North Carolina has a Retaliatory Employment Discrimination Act (REDA) that makes it illegal to fire someone because you file a claim. If you feel that your employer has fired or demoted you or taken some action against you because of your workers’ comp claim, you can file a claim with the NC Department of Labor within 180 days.

Laws protecting workers can be complicated. Time limits apply if you have been retaliated against because you tried to exercise your rights. Consult us if you have questions. Valerie Johnson and Leto Copeley have experience with fighting discrimination because of workers’ comp claims.

 

Copeley Johnson & Groninger PLLC is a law firm focused on representing individuals and their family members who find themselves in circumstances that they never expected.  Their clients include those who have been injured on the job, on the road, and on the premises of businesses and public facilities.  They also help those whose employers have violated their legal rights.  For more on this firm, visit http://www.cjglawfirm.com.

NCAJ Members Assist Eugenics Victims Pro Bono

Lawyers have a professional obligation to donate their services occasionally to legal activities that are rendered pro bono publico – that is a Latin phrase meaning “uncompensated services provided in the public good.”   Several trial lawyers in North Carolina have donated their services to help victims of the state’s eugenics sterilization policy.

From 1933 until approximately 1974, North Carolina pursued a policy of eugenics sterilization.   Generally speaking, any person in the state who was “feeble-minded, mentally diseased, epileptic” or whose “mental, moral or physical improvement” could be furthered by sterilization, or who might produce a child “who would have a tendency to serious physical, mental or nervous disease or deficiency,” would be a proper target of this involuntary sterilization policy.   In 1933, the General Assembly passed P.L. 1933, Sec. 224, which established the “Eugenics Board” to provide a modicum of due process for the targets of the sterilization program.   This public law also established an affirmative duty on the part of each county’s Board of Commissioners, and each county’s Superintendent of Welfare, to go out into their local community and find all of the people under their jurisdiction who “should” be sterilized pursuant to this public policy.  The 1933 Act required these public officials to get it done by filing a petition for sterilization with the Eugenics Board.   The Board would hold a hearing and could order or deny the request for sterilization.  Once ordered, the operation was performed at public expense in the county from which the petition originated.   There were apparently thousands of North Carolinians involuntarily sterilized pursuant to these policies between 1933 and 1974, when the Eugenics Board was finally disbanded.

In 2013, the NC General Assembly did the right thing—it enacted a compensation program “to make restitution for injustices suffered and unreasonable hardships endured by the asexualization or sterilization of individuals at the direction of the State between 1933 and 1974.”  The legislature set aside $10,000,000 to be paid per capita to eligible claimants.   Unfortunately, the legislators were unaware that apparently, county welfare departments had involuntarily sterilized some citizens without going through the mandatory Eugenics Board petition process.    In addition, some sterilization victims were left out of the compensation package due to an arbitrary qualification date established by the legislature.

The Industrial Commission was given the responsibility of reviewing the applications and determining who was a “qualified beneficiary” under the 2013 compensation law.  Anyone who was denied administratively could request a hearing in front of the Commission and appeal an adverse decision to the Full Commission, and then to the appellate division.   Approximately 850 claims were filed with the Commission.

As of November 2015, approximately 250 claims had been determined to be valid, and a first installment of compensation has been paid to those individuals.  However, approximately 19 denied claims remained in litigation, either at the Commission or the Court of Appeals.

The denied claims fell into two categories:   Some individuals could prove that they had been involuntarily sterilized for eugenics reasons at the behest of public officials, such as county “welfare department” or social services case workers, but no documents pertaining to them were found in the Eugenics Board archives held by the State.  The Commission denied these claims because there was “insufficient evidence” to show that the victims had been sterilized by order of the Eugenics Board, which the Commission viewed as an essential element of a claim.   Other denied claimants had clearly been sterilized through the Eugenics Board process and their paperwork survived in the archives, but they did not personally survive to the “living victim” threshold cut-off date established by the 2013 legislation.

In 2013, it came to the attention of Kevin Bunn (then Chair of the Workers’ Compensation section of the NCAJ) that numerous Eugenics claimants needed to litigate their administratively denied claims at the Industrial Commission.   The Workers’ Compensation section members all practiced daily before the Industrial Commission, so Bunn asked his section members to help out.  As a result, members of the section volunteered to represent these claimants pro bono on the denied, disputed claims for compensation.

Lawyers from the NCAJ who handled claims before the Commission included Elizabeth McLaughlin Haddix of Chapel Hill, Leslie Wickham and Valerie Johnson of Durham, Marva McKinnon and Ed Pressly of Statesville, Bob Bollinger of Charlotte and Martza McCarthy of Morehead City.    Elizabeth Haddix of the UNC School of Law’s Center for Civil Rights represented claimants from the very beginning of the claim application process and coordinated the pro bono efforts of the other NCAJ attorneys.   This group of lawyers litigated approximately 18 denied claims all the way through the Industrial Commission and are currently representing 18 claimants on individual appeals pending at the NC Court of Appeals.   On November 18, Elizabeth Haddix and Ed Pressly presented an oral argument to the Court in three “living victim threshold” cases, and on November 30, Bob Bollinger presented an oral argument in a “no documents from the Eugenics Board archives” claim.

The stories of the victims are absolutely compelling—-the November 30 argument involved a 26-year-old mother with no financial resources who was sterilized decades ago under duress applied by a county social worker.  The woman and her two young children were receiving welfare benefits, and the social worker threatened to take away her children if she did not “consent” to a sterilization procedure.   The Industrial Commission found that she was involuntarily sterilized, but that she was not eligible to receive compensation because there was no order from the Eugenics Board.  The question for the Court of Appeals is whether the lack of an order from the Board is dispositive, when the involuntary sterilization could only have been lawful under the 1933 Eugenics Sterilization Act.

These trial lawyers collectively have invested hundreds of hours of uncompensated professional time into this effort to bring justice to each person who was involuntarily sterilized by the State pursuant to its eugenics sterilization public policy.

Blog post author Bob Bollinger practices law at the Bollinger Law Firm, PC.  The Bollinger Law Firm, PC, is based in Charlotte, but takes workers’ compensation cases across North Carolina. Founded in 1999, the firm has a strong reputation as a law firm of advocates for injured and disabled people.