How To Determine Your Level Of Injury Or Disability In A Workers’ Compensation Case
The employer will designate a treating physician in a workers’ compensation case where they have accepted liability for the injury. The employer can also request a second opinion if they question the treatment being recommended by the treating physician. A second opinion is a one-time evaluation where another doctor can offer a medical opinion as to whether or not the recommended treatment is appropriate or necessary in the matter.
If a treating physician is no longer recommending treatment or has indicated that they’ve exhausted all the treatment they can and the individual is still concerned about their ongoing symptoms, the individual can request a second opinion. If the second opinion doctor then recommends treatment, offering something that may affect a cure, provide relief or lessen the period of disability, the individual can then take steps to transfer care to the second opinion doctor.
When And Who You Can Sue For A Work-Related Injury
You cannot sue your employer instead of filing for workers’ compensation benefits. The sole jurisdiction for all work-related injuries, as far as claims against the employer, lies within the workers’ compensation system.
In other words, the only recourse for work-related injuries that an employee can take against their employer is filing a claim for workers’ compensation benefits. There is no separate lawsuit that can be filed against an employer for work-related injuries. There can be instances where there are separate lawsuits stemming from a work-related injury, but only in the instance of a third party who is not the employer causing the accident.
A common situation where you may be able to sue a third party for a work-related injury would be if you travel as a part of your employment. For example, if you’re a traveling salesperson and you’re injured in a car accident while driving from your home office to a client, you can pursue a workers’ compensation case as well as file a lawsuit against the at-fault driver. In this situation, you have two separate causes of action that are going on at the same time.
Now, there is some interaction between these two cases. Any benefits being provided by the workers’ compensation insurance company, whether that be paying for medical benefits or disability benefits, create a lien that the workers’ compensation insurance company may be able to seek reimbursement for via the separate personal injury claim. If you’re awarded benefits through a personal injury claim, either by settlement or through trial, and those benefits are to pay for medical treatment or lost time from work which was already paid for via workers’ compensation, workers’ compensation can assert their lien to be reimbursed.
The workers’ compensation insurance company can either agree that they will waive their lien or they can negotiate the potential lien amount. They may agree on some reduced amount or percentage that the workers’ compensation insurance company is willing to receive in order to satisfy that lien. If the insurance company and the individual cannot reach an agreement, that issue can then be brought in front of a district or superior court judge to determine the use of those personal injury funds.
Due to the overlap or interplay between a workers’ compensation case and a personal injury case, it’s essential to discuss the specifics of your case with an experienced attorney before settling your personal injury case or moving forward with any actions for the workers’ compensation case. You want to make sure that you understand your legal rights and the interaction between the two claims. It’s very important to make sure that any lien issues are addressed in order to avoid issues moving forward.
Temporary Total Disability Vs. Salary Continuation
It’s important to understand that, in general, you won’t be able to receive your full salary when you’re injured at work. For work-related injuries, the employee is being paid what is known as a temporary total disability check. Any time that an injury is completely preventing an individual from returning to work, the temporary total disability check is calculated based on the individual’s gross wages. In other words, wages prior to any tax withholdings for the one-year period prior to the date of injury.
An employer and insurance company should look at an individual’s date of injury, go through any prior payroll records one year prior to that date to determine their gross income, then determine how much the employee was paid on average each week. This creates an average weekly wage. The amount of temporary total disability is two-thirds of that average weekly wage.
The temporary total disability check is paid tax-free, but unless that individual had a third of their wages coming out for taxes or withholdings, they may see that the temporary total disability check is a little bit less than what their take-home pay was.
However, there are exceptions to this. One exception for salary continuation is for sworn law enforcement officers who are injured due to an act of violence. They can receive salary continuation for the first two years of being out of work. After two years, if the individual is still unable to work, the salary continuation will stop and they will begin receiving a temporary total disability check.
For more information on Determining The Level Of Injury In NC, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (833) 444-4127 today.
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