Workers' Compensation Claims Before the North Carolina Industrial Commission
(A Guide for Persons Incarcerated by the NC Department of Correction)

By Linda B. Weisel and Kathryn L. VandenBerg
North Carolina Prisoner Legal Services, Inc.
October 1997

© 1997 NCPLS

I. INTRODUCTION

The Workers' Compensation Act was created to solve problems between workers and employers about injuries in the workplace. It allows workers who are injured on the job to recover a part of their lost wages, medical expenses, and other benefits from their employers. Benefits under the Workers' Compensation Act are not based on fault. In North Carolina, all workers' compensation claims are decided according to the Workers' Compensation Act, and the claims are handled by a state agency known as the North Carolina Industrial Commission. In most situations, workers' compensation is the exclusive remedy for workers injured on the job. N.C.G.S. 97-10.1 (Appendix p. 5) (hereafter "A.").

Section 97-13 of the Workers' Compensation Act says that a prisoner injured on a prison job may recover benefits up to a maximum of $30.00 a week if the prisoner is still disabled and unable to work because of the injury, when he is released from prison. N.C.G.S. 97-13 (A. pp. 6-7) . Benefits may also include medical care related to the injury and vocational rehabilitation. In most situations, no benefits are available until a prisoner is released.

Two North Carolina Supreme Court cases decided in 1996 concluded that workers' compensation benefits are the exclusive remedy available to prisoners injured on prison work assignments. The first case, Blackmon v. N.C. Department of Correction, 343 N.C. 259, 470 S.E.2d 8 (1996) , said that the only remedy for the family of a prisoner who was killed on a prison job was to file a claim under the Workers' Compensation Act. The Supreme Court concluded that the family could not recover under the Tort Claims Act. The second case, Richardson v. N.C. Department of Correction, 345 N.C. 128, 478 S.E.2d 501 (1996) , similarly concluded that the only remedy for a prisoner who suffered a disabling injury on a prison job was to file a claim under the Workers' Compensation Act. Again, the prisoner could not recover under the Tort Claims Act.

Because of these cases, it appears that most prisoners injured on a prison work assignment will be limited to filing a workers' compensation claim. There may be exceptions to this general rule. Some of these exceptions are discussed below in Section II. Before you file any claim for a work-related injury, you may want to write to NCPLS so an attorney can review the specific facts of your case and explain your legal options.

In this booklet, we have done our best to explain workers' compensation law and procedure as we understand it. Because the decisions in the Blackmon and Richardson cases have changed previously settled law, there are very few workers' compensation cases that involve prisoners. As a result, it is impossible to predict how the Industrial Commission and the courts will treat the workers' compensation claims of prisoners. For this reason, we strongly encourage you to get the advice of an attorney if you think you have a right to workers' compensation benefits.

II. OTHER POSSIBLE LEGAL REMEDIES FOR PRISON JOB INJURIES

A. Tort Claims

Before the Supreme Court decided the Blackmon and Richardson cases, prisoners injured on prison jobs were allowed to choose whether to file a claim for their injuries under the Workers' Compensation Act or under the Tort Claims Act. The Tort Claims Act allows any person injured by the negligence of a state employee to file a lawsuit against the state for damages. The limit on recovery in a tort claim is $150,000.

Tort claims may still be available as a legal remedy for prisoners injured on a prison job assignment in cases where all the legal requirements for workers' compensation are not met. For example, if you were injured due to the negligence of a state employee while on your prison job, but the injury was not related to your work assignment, your case may be covered by the Tort Claims Act, rather than the Workers' Compensation Act.

B. Intentional injury by employer

If your employer intentionally caused your injury, the Workers' Compensation Act does not apply. In that case, you may be able to sue your employer directly.

C. Woodson claims

If your employer's conduct or failure to take necessary safety precautions was "substantially certain" to cause you injury or death, and you were injured by that conduct, you may be able to file a tort claim against your employer. This type of claim is based on a North Carolina Supreme Court case called Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991) . This type of claim is rarely successful in North Carolina, and you should get a lawyer to help you if you decide to bring this type of case.

D. Third party claims

If your injury was caused by a third party who is not your employer or a fellow worker, you may be able to file a lawsuit against the third party. Examples of this type of claim would be suing the driver of a car that hit you while you were working on the road squad, or suing the manufacturer of a tool that was improperly designed or had inadequate safety guards.

E. Other sources of benefits

You may also be eligible for other types of benefits, such as social security disability. You cannot receive social security disability while you are in prison.

III. LEGAL ASSISTANCE

NCPLS is not funded to provide representation in most workers' compensation claims. Our funding may allow us to provide representation if your case fits within the tort claim exceptions or if you have a workers' compensation claim based on an injury you suffered while working on a work release job. In any event, we can review the facts of your case to decide what claims you may have and to advise you on their possibility of success. NCPLS may consider accepting some workers' compensation cases that it is not funded to handle, on a contingent fee basis, depending on the circumstances. A contingent fee means that the lawyer receives an agreed percentage of the money that is awarded. Many private lawyers handle workers' compensation claims on a contingent fee basis. If you decide to discuss your claim with a private lawyer, try to find someone with workers' compensation experience, who will provide a free initial consultation.

IV. ELEMENTS OF A WORKERS' COMPENSATION CLAIM

The Workers' Compensation Act provides compensation to workers for accidental injury or death on the job and for occupational disease caused by the worker's employment. N.C.G.S. 97-13 provides that in order to recover under the Workers' Compensation Act, a prisoner must show that he suffered "accidental injury or accidental death arising out of and in the course of the employment to which he had been assigned, if there be death or if the results of such injury continue until after the date of the lawful discharge of such prisoner to such an extent as to amount to a disability" as defined by the Workers' Compensation Act (A. pp. 6-7). Each of these elements is briefly described below.

A. Injury or death by accident or occupational disease

A1. Injury by death or accident

Not every injury that occurs while working is considered an accident. Injuries that result from performing your regular duties in the usual manner are not compensable, unless they involve a back injury. An accident causing injury to any other body part must involve an unusual or unexpected event or condition. An injury resulting from doing a newly assigned task will be considered an accident, but if it becomes a regular task it eventually becomes part of the work routine.

Special provisions define back injuries and hernias. N.C.G.S. 97-2(6), (18) (A. pp. 3-5) . These type of injuries often are not caused by one specific event, but are the result of excessive strain over time. It is possible to recover for a back injury or hernia even if it was not caused by an accident. However, you must still show that the injury was caused by the trauma of performing your job. These cases are somewhat complicated to prove, and it would be useful to talk to a lawyer.

A2. Occupational disease

Occupational diseases are also covered under the Workers' Compensation Act and do not require an accident. N.C.G.S. 97-52 (A. p. 15) . An occupational disease is a disease "proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment." N.C.G.S. 97-53(13) (A. p. 16) . The disease does not have to be caused only by the employment.

The legal requirements for proving occupational disease are: 1) that the occupation significantly contributed to the condition and 2) that the occupation placed the worker at increased risk of developing the condition.

Examples of occupational diseases are lead poisoning and asbestosis. The accepted occupational diseases are listed in N.C.G.S. 97-53 (A. pp. 16-18) . The above definition, which is set out in N.C.G.S. 97-53(13) (A. p. 16) , can be used to get compensation for a disease that is not listed in the statute. Silicosis, asbestosis, and some other conditions, like hearing loss, have specific statutes that apply: N.C.G.S. 97-53; 97-54; 97-60 - 97-66 (A. pp. 16-23) . Occupational disease claims are generally challenged by an employer. These cases involve complex legal and medical issues and you will need the assistance of a lawyer who has experience handling occupational disease cases.

B. Arising out of employment

Ordinarily, an injury arises out of employment if it is caused by the job or if it occurs while a worker is doing an authorized activity to help the employer's business. A good test to decide if your injury arose out of your job is to ask whether your work placed you at a greater risk of being injured than the average person who does not do this kind of work.

Example : Prisoner A is struck by lightning while picking up trash on the prison yard. His job did not increase his risk of being hit by lightning, so the injury did not arise out of the employment. Prisoner B is struck by lightning while repairing an antenna on top of a metal prison roof. His risk of being hit by lightning was increased by his job assignment, so his injury did arise out of the employment.

C. In the course of employment

An injury that occurs in the course of employment is one that occurs when you are doing what your employer directed you to do. Generally, the injury must occur during working hours and at the place of employment, but there are many exceptions to this rule.

For example, if you are leaving your kitchen job and your supervisor assigns you to do some additional task on your way back to the dormitory, and you are somehow injured doing that task, your injury is still "in the course of your employment" even though it is after usual working hours and did not happen in the kitchen.

Travel : For non-prisoner employees, injuries occurring during travel to and from work generally are not covered by workers' compensation. For prisoners, since the employer ordinarily provides transportation to and from work, injuries occurring during that travel probably are "in the course of employment." If your job involves traveling from place to place, such as the road squad, injuries occurring during travel to, from, or between jobs probably would be "in the course of employment."

Personal hygiene : Injuries that occur when you take a bathroom break or similar break for the purpose of comfort and health are considered to be "in the course of employment," even though you are not directly working to benefit the employer at the time.

Fights/Horseplay : For non-prisoner employees, injuries that occur at work as a result of a fight about work or that result from horseplay may be covered by workers' compensation. It is unclear whether these same principles apply to prisoners.

Conduct outside course of employment : You are not in the course of employment if you are injured doing some activity not authorized by the employer, or if you are doing some activity to benefit yourself or a third party, rather than to benefit the employer. This is true even if the injury occurs during work hours and at the workplace.

D. Disability at the time of release from prison

Unlike other workers, prisoners cannot collect workers' compensation from the time of injury. A prisoner can only collect workers' compensation if he is disabled at the time of his release from prison. Disability is either a lowered capacity to earn wages, or a permanent injury to any body part or function. There are four main categories of disability: 1) Temporary disability; 2) Permanent total disability; 3) Permanent partial disability; and 4) Disfigurement.

Usually your injury will fit in only one category. If it fits in more than one category, you may be able to choose which type of benefits you want to receive. The types of disabilities and the benefits available for them are explained in more detail in Section VI.

Exceptions : Prisoners may be able to collect workers' compensation prior to release from prison if the injury occurs during a work release job or if the prisoner has a scheduled injury. Scheduled injuries are explained below in Section VI.

V. DEFENSES

A. Absence of element(s)

The employer can challenge your claim by showing the absence of any of the above elements. For example, the employer can argue that you are not disabled, or that you were not injured while working at a prison job. The employer can also argue that you did not give proper notice or file your claim within the time limit.

B. Intoxication or Willful Injury

The employer can defend against your claim and argue that you should not get workers' compensation because of intoxication or willful injury. N.C.G.S. 97-12 (A. p. 6) . If the employer can prove that your intoxication with alcohol or any controlled substance was a cause of the accident resulting in your injury, you would not be entitled to any workers' compensation. In most situations, you also cannot recover if the employer can prove that your injury was caused by your intentional act to injure yourself or others.

C. Violation of Safety Rules

If you intentionally violate a safety rule or regulation or refuse to use a safety appliance, the compensation you are entitled to receive will be reduced by 10%. However, the same is true for the employer. If your injury was caused by the willful failure of the employer to follow a statutory requirement or lawful order of the Industrial Commission, your compensation will be increased by 10%. N.C.G.S. 97-12 (A. p. 6) .

VI. SPECIFIC BENEFITS AVAILABLE

The Workers' Compensation Act provides for replacement of lost wages, medical expenses, and vocational rehabilitation.

A. Lost wages

The benefits you receive for lost wages will depend on your type of disability.

1. Temporary disability. N.C.G.S. 97-29, 97-30 (A. pp. 10-11)

Temporary disability will probably not be available if you are injured on a prison job assignment, because most temporary disabilities will be resolved by the time a prisoner is released from prison. A temporary disability can be partial or total. Generally, an injured employee will receive a weekly amount based on the type of disability and his average weekly wages up to a maximum amount determined each year by the Industrial Commission, for as long as he is unable to work. The payments stop when the employee is able to return to work. If you are injured on a work-release job, you may be able to receive temporary disability benefits.

2. Permanent total disability. N.C.G.S. 97-29 (A. pp. 10-11)

For total disability, compensation continues for your lifetime or as long as you are disabled, at a rate of 66 2/3% of your average weekly wage. For prisoners, this is $20.00 a week. If an employer believes that a person who is receiving permanent total disability is no longer totally and permanently disabled, the employer can file a Form 24 (A. pp. 35-35) to try to end the compensation. This will result in a hearing. You should get assistance from a lawyer if you are in this situation and believe that you are still entitled to compensation.

3. Permanent partial disability. N.C.G.S. 97-30, 97-31 (A. pp. 11-13)

If you have a permanent partial disability, your injury will entitle you to either a percentage of your average weekly wage under N.C.G.S. 97-30, or a scheduled rate of compensation for specific injuries under N.C.G.S. 97-31. If your injury fits into both categories, you may choose which type of coverage is best for you. You cannot receive both types of compensation.

a. Scheduled injuries N.C.G.S. 97-31 (A. pp. 12-13)

Scheduled injuries are amounts set out in the statute for specific losses, such as the loss of a finger, a hand, a leg, etc. The scheduled injuries are listed in N.C.G.S. 97-31 . Here is an example of how to determine what you would recover under the schedule of injuries:

Prisoner X cuts off his thumb using a saw. The schedule of injuries in N.C.G.S. 97-31(1) lists a specific amount of recovery for a thumb: "For the loss of a thumb, 66 2/3% of the average weekly wages during 75 weeks." The maximum average weekly wage for a prisoner is $30.00. Your total recovery under the schedule would be $1500, calculated this way:

(66 2/3 x $30.00) x 75 weeks = $1500.

The employer could choose to pay you $20 a week for 75 weeks, but it is more likely that the employer would pay you in a lump sum.

b. Percentage ratings. N.C.G.S. 97-31 (A. pp. 12-13)

If you have an injury that is not listed in the schedule or if you have a partial permanent impairment to a body part, you will need to have a doctor decide your permanent partial disability rating. This rating will be a percentage. For example, if you have a hand injury or a back injury, the doctor may give you a 25% disability rating. As you can imagine, these ratings are subjective. One doctor may call your injury a 10% disability and another may call the same injury a 40% disability. You have the right to a second opinion if you do not like the first disability rating you receive, but you will likely have to pay for the second evaluation.

Example : Prisoner X has a back injury and the doctor gives him a 50% permanent disability rating. The statute says that a prisoner can receive 66 2/3 of his average weekly wage for a maximum of 300 weeks for loss of the use of his back. The maximum average weekly wage for a prisoner is $30.00. The total recovery under the schedule would be $3000, calculated this way:

(66 2/3 x $30.00) for 50% of 300 weeks = $3,000.

c. Wage Loss Benefits. N.C.G.S. 97-30 (A. p. 11)

Non-prisoners are also eligible for another type of partial disability, which is two-thirds of the difference between the wages the disabled worker earned before his disability and the wages he earns after returning to work, for a period of 300 weeks. Since wages on prison jobs are so low, it is unlikely that this type of partial disability would apply to a prisoner, unless his injury occurred on a work release job. If you are in this situation, you can write to NCPLS and we will try to advise you.

4. Disfigurement N.C.G.S. 97-31(21) and (22) (A. p. 13)

Even if you are not physically injured in a way that prevents you from working, you may still be able to recover under the schedule of injuries if you are seriously disfigured. The disfigurement must be visible under normal working conditions. For example, if you are severely burned on a prison job and you are left with scarring, your recovery depends on the location of the scar. If the scars are on your face, you can recover under N.C.G.S. 97-31(21) . If the scars are on your legs or stomach, or some other location that would not normally show at work, you cannot recover under the schedule, unless the scars affect your wage earning potential in some way.

B. Medical compensation. N.C.G.S. 97-25; 97-90; 97-2(19) (A. pp. 9, 24-26, 5)

1. In general. Medical compensation includes medical, surgical, hospital and nursing expenses, rehabilitation services, travel costs for medical appointments, medical and surgical supplies, medical prostheses, and chiropractic services. Compensation generally includes any treatment reasonably required to cure or bring relief. The treatment must be related to the work injury.

2. Medical care while still incarcerated. While you are incarcerated, the Department of Correction (DOC) is responsible for your medical care. It is unclear whether your employer would be responsible for some portion of your medical care if you were injured on a work release job. Even if the employer were partially responsible for your medical expenses, any money the employer paid would likely go to the DOC to offset their expenses for your medical care.

3. Medical care after release from prison. If you plan to file a workers' compensation claim, you should visit a doctor soon after your release from prison. You should keep records of all of your medical bills and expenses. You will have to provide copies of these bills in order to be reimbursed.

a. Need to cooperate with medical examination/treatment. Your employer may want you to be examined by a doctor that the employer has chosen. You must cooperate with this examination. You must also cooperate with treatment ordered by the Industrial Commission. Refusal of treatment may be grounds to terminate medical benefits.

b. Employer's ability to control medical care. An employer who has agreed to pay medical compensation for an injury, generally has the right to control the medical services being provided to a worker. But, if you are going to your own doctor before the employer agrees to be responsible for your claim, the employer may not make you change treating doctors without approval of the Industrial Commission. A worker may apply to the Industrial Commission for a change of doctors if he is dissatisfied with the medical care that he is receiving. If the employer has contracted with a managed care organization to provide medical care, the contract must comply with Industrial Commission rules. If a managed care organization is used, the worker may choose his doctor from the doctors who are on the managed care organization's list. In addition, the worker may change his choice of doctor from those on the list once, without the permission of the employer. N.C.G.S. 97-25.2 (A. p. 10) .

c. Industrial Commission approval of medical fees. Medical service fees must be approved by the Industrial Commission before payment. N.C.G.S. 97-90 (A. pp. 24-26) .

4. Additional medical compensation after the case is settled. The question of additional medical compensation has been the subject of considerable change during the past decade. The Legislature changed the Workers' Compensation Act in 1994 to bring some type of finality to workers' compensation claims.

a. Injuries before July 5, 1994. N.C.G.S. 97-25 (A. p. 9) . If your injury happened before July 5, 1994, you are entitled to medical compensation as long as the treatment is reasonably necessary, related to your workers' compensation claim, and authorized by the insurance carrier or the Industrial Commission. In order to be covered, your Memorandum of Agreement must state that it covers future medical bills.

b. Injuries after July 5, 1994. N.C.G.S. 97-25.1 (A. p. 9) . If your injury happened after July 5, 1994, your right to future medical compensation will end two years after the last payment of compensation unless, prior to the end of the two year period:

i) the employee files an application (Form 18M, A. p. 31) for additional medical compensation with the Industrial Commission, which is approved or,

ii) the Industrial Commission, on its own, orders additional compensation.

Both types of additional medical compensation require that the Industrial Commission decide that there is a substantial risk that future medical compensation will be needed. N.C.G.S. 97-25.1 (A. p. 9) .

C. Vocational rehabilitation. N.C.G.S. 97-25; 97-90; 97-2(19) (A. pp. 9, 24-26, 5)

In some cases, the Industrial Commission may decide that an injured worker needs to have rehabilitation therapy as part of medical compensation. An example of this type of rehabilitation would be retraining for a different job. If rehabilitation is ordered, the employer is required to pay. If rehabilitation is ordered for you and you refuse to cooperate with the rehabilitation plan, this can result in the termination of benefits. The testimony of vocational and rehabilitation experts will have a big effect on whether you will receive this type of benefit and in deciding how long the benefits will last.

D. Death benefits. N.C.G.S. 97-38 (A. pp. 13-14)

If a prisoner is killed in an accident on a prison job, his dependents are entitled to benefits. These benefits are calculated at 66 2/3 % of the average weekly wage for 400 weeks (a total of $8,000), plus burial expenses of not more than $2,000. The compensation may continue beyond 400 weeks if the dependent spouse is unable to support himself or herself because of physical or mental disability that existed on the date of the prisoner's death. In that case, compensation will continue until the spouse remarries. In the case of a minor child, compensation continues until the child is 18 years old.

There are some questions about who is entitled to death benefits. The Workers' Compensation Act distinguishes between persons who are "wholly dependent" and "partially dependent." A spouse and minor children are presumed to be "wholly dependent" for support on the employee who has died and are entitled to receive the entire death benefit on a shared basis. N.C.G.S. 97-39 (A. p. 15) . If there are no "whole dependents," persons who are "partially dependent" will be required to prove their actual dependence on the deceased prisoner and may only be entitled to compensation in the same proportion as the support they received from the deceased prisoner.

E. Form 28-B with last payment/Warning about Change in Condition

If you are receiving compensation for lost wages or medical expenses, you will get a Form 28-B with your last payment (A. pp. 37-38). The form will warn you that it is your last payment and that you may be able to apply for additional compensation in the future if you have more problems because of the injury or disease for which you have received compensation. To apply for these benefits, you will need to reopen your claim, which is discussed below in Section X.

F. Additional information

1. The Workers' Compensation Act does not provide benefits for pain and suffering.

2. Workers' compensation benefits are not taxed.

VII. PROCEDURES FOR FILING A CLAIM

A. Steps to take within 30 days of the accident or injury

1. Give written notice to the employer. N.C.G.S. 97-22, 97-23 (A. p. 8)

Even though prisoners are not ordinarily eligible for workers' compensation benefits until their release from prison, the Workers' Compensation Act appears to require the injured prisoner to give notice of the accident to his employer within 30 days of his injury. In most situations, the employer is the Department of Correction or the Department of Transportation, who likely will be aware of the accident and will fill out an incident report. However, the employer may not take these steps and could later argue that you did not give them notice and therefore should not be able to recover.

We recommend that you either file a grievance or write a letter to your employer about the accident within 30 days. In either case, be sure to keep a copy so you will be able to prove that you gave notice. The grievance or letter should include the date, time, place and cause of the accident, and the resulting injury.

Even if you are not sure that you are disabled by the accident, or that you will be eligible for benefits at the time of your release, you should protect your rights by giving notice to the employer.

2. Find witnesses

As soon as possible after the accident, you should figure out if there are any witnesses to your accident or injury. The DOC usually prepares an incident report with witness statements, but not always. Also, the DOC may not take statements from the witnesses you would want to have testify on your behalf. You should find out the full name, prison number, and home address of your possible witnesses. You should also have each witness write a statement, including all relevant details, and give the statement to you. It will likely be helpful if these statements are notarized. Keep this information in a safe place because you may not process your claim until years after your injury. At that time, it will be difficult to locate witnesses and the witnesses may not remember the facts as clearly.

3. Occupational disease

If your injury is an occupational disease, there is no certain date when the injury occurred. You must give notice to the employer within 30 days of being told by a doctor that you have a specific condition which was related to or caused by something at work.

B. When and how to file a workers' compensation claim

The Workers' Compensation Act is not entirely clear about the length of time that you have to file your claim. It says that a prisoner must file for workers' compensation within one year of release from prison. N.C.G.S. 97-13 (A. p. 6) . It also requires that any claim be filed within two years from the date of the accident. N.C.G.S. 97-24 (A. pp. 8-9) . To protect your rights, we advise you to fill out a Form 18, "Notice of Accident to Employer and Claim of Employee or his Personal Representative or Dependents" within one year after your release from prison or within two years after the accident, whichever occurs first (A. p. 27). Mail two copies of the form to the Industrial Commission and one copy to the employer. Keep a copy of the form for your records. If you are still in prison when you are filing, you should complete the form cover letter and send it with your Form 18 (A. p. 81), to let the Industrial Commission know that you are still in prison and are filing to protect your rights.

These are addresses you will likely need:

North Carolina Industrial Commission, Dobbs Building, 430 N. Salisbury Street, Raleigh, NC 27603

North Carolina Department of Correction, P.O. Box 29540, Raleigh, NC 27626

North Carolina Department of Transportation. Transportation Building,1 South Wilmington Street, Raleigh, NC 27611

If your claim is for an occupational disease:

Most occupational disease claims are also filed on a Form 18 (A. p. 27). A different form, Form 18B, is preferred but not required for filing a workers' compensation claim for certain occupational lung diseases, including those caused by silica, asbestos, cotton dust, and chemicals (A. pp. 29-30). Occupational disease cases usually are contested, and involve complicated legal and medical questions. You should contact a lawyer if you have this type of claim.

If you go back to prison:

N.C.G.S. 97-13(c) (A. pp. 6-7) says that "If any person who has been awarded compensation under the provisions of this subsection shall be recommitted to prison upon conviction of an offense committed subsequent to the award, such compensation shall immediately cease."

There are many questions regarding prisoner claims for workers' compensation that are left unanswered by the Workers' Compensation Act. If you are reincarcerated and have questions about a pending claim, you can write to NCPLS and we will try to advise you.

VIII. WHAT WILL HAPPEN AFTER THE CLAIM IS FILED

After your claim is filed with the Industrial Commission, the claim will be sent to your employer (most likely the DOC). The employer must ordinarily choose to admit or deny liability. It is also possible for an employer to pay medical care without admitting liability, under a rarely used pay without prejudice option.

A. If the employer admits liability

If the employer admits liability and does not challenge your level of disability, you probably will not have to go to a hearing. If your case is against the DOC, it will likely be handled in the personnel department. A case worker will be assigned to your case and you should be able to speak to that person for information about your case. The current phone number is (919) 733-4465. While the case worker may be helpful, you should understand that the case worker is not your representative, but works for your employer. It may not be in your interest to provide information about your case or agree to a settlement over the phone.

Form 21 . Once the employer has accepted the claim and decided on an amount, you will receive a Form 21 "Agreement for Compensation for Disability." (A. pp. 33-34). Read this form carefully and be sure you agree to all the terms before signing it. Generally, the form describes your injury and the rate at which you will be paid. Line 5 of the form is for the average weekly wage. For prison job injuries, this should be $30 a week. If you agree with the information in the form, you should sign it and return it to your employer for signature. It must then be filed with the Industrial Commission. The Industrial Commission must approve the agreement before you can receive any benefits.

Because a prisoner's average weekly wage is so low, it is likely that you will receive a lump sum payment, rather than weekly checks. If so, make sure the lump sum equals the total of the payments you should receive.

Form 60 . The employer does not always have to file a Form 21 with the Industrial Commission for an employee to receive benefits. If your employer admits that you are entitled to compensation, you may receive a Form 60 "Employer's Admission of Employee's Right to Compensation" with your payment (A. p. 43). Form 60 has information about the date of the injury, your average weekly wage, and the date that your disability began. If you receive a Form 60, review it carefully to make sure it is correct. The Industrial Commission must also approve a Form 60 for you to receive benefits.

Settlement . The employer may offer to settle your case for a lump sum to include payments and medical care. Consider the risks and benefits of such a settlement before you agree to it. One important risk would be agreeing to a certain sum for medical care when you do not know what medical care you are likely to need in the future.

B. If the employer challenges liability

If your employer challenges liability or any aspect of your claim, it is up to you to request a hearing by filing Form 33 (A. pp. 39-40). Your case may then be referred for mediation, which is an assisted negotiation process, designed to help the parties reach an agreement. If there is going to be a hearing in your case it will likely be decided by a Deputy Commissioner of the Industrial Commission. If your case is scheduled for a hearing, you should consider hiring a lawyer to advise and represent you.

Workers' Compensation Rules 601 through 612 (A. pp. 60-66) deal with contested claims. They describe the forms that must be filed, how to obtain information from the other party in the case (discovery), motions, pre-trial conference, and hearings. If you plan to represent yourself, you should read these rules carefully. If you have questions, you may be able to get some assistance from the Industrial Commission's Ombudsman Section. The telephone numbers for the Ombudsman Section are (800) 688-8349 or (919) 733-0345. You can also contact NCPLS for specific advice. You must keep the Industrial Commission informed of your address and follow all instructions you receive from the Industrial Commission and the Deputy Commissioner. A failure to follow the rules and all applicable time-limits may prevent you from receiving workers' compensation benefits.

C. Types of Hearings

The Industrial Commission may be called on to decide a variety of issues when the parties are unable to agree. The following issues are examples:

1. Whether your claim is covered by the Workers' Compensation Act;

2. Your choice of doctors or health care providers;

3. The amount of your benefits;

4. The percentage of your permanent partial disability;

5. Whether you qualify for permanent and total disability;

6. Whether you are entitled to vocational rehabilitation services.

The Industrial Commission may also be called on to decide discovery disputes and procedural disagreements between the parties.

D. Getting Witnesses to a Hearing

1. Prisoner Witnesses

If you have a formal hearing before a Deputy Commissioner about your right to benefits and some of your witnesses are in prison, you will need to take special steps to make sure that your witnesses will be brought to the hearing. You will need to fill out a Writ of Habeas Corpus Ad Testificandum for each prisoner witness (A. pp. 77-78). You can try contacting the Deputy Commissioner assigned to your case and ask that he sign the Writ. If that is not successful, you need to write to a Superior Court Judge in the county where the hearing is scheduled, enclose the Writ and ask the Judge to sign the Writ. In your letter, give the name and docket number of your case, the date and time of the hearing, explain why you need these witnesses to testify at your hearing, and ask the Judge to sign the Writ and return it to you. In the alternative, you could try calling a Superior Court Judge in the county where you live and ask to bring the forms to the court to have them signed.

If a Superior Court Judge is willing to sign the Writ, the signed writ form should be returned to you. You will then need to prepare a subpoena for each prisoner witness (A. p. 79). Send the signed Writ with a completed subpoena for each witness to:

Writ Coordinator, Division of Prisons, Post Office Box 29540, Raleigh, NC 27626-0540

This process may take six weeks to complete. Allow plenty of time so your hearing can proceed on schedule.

2. Non-prisoner witnesses

The above procedure is used only for prisoner witnesses. For other witnesses, fill out the subpoena form and serve it on the witness (A. p. 79). You can serve a subpoena by sending the completed form to the witness at his home or work address by registered or certified mail, return receipt requested; or you can send the completed form to the sheriff in the county where the witness lives or works. If you want the sheriff to serve the subpoena, you will be required to pay a fee (usually about $5.00 for each subpoena served). Rule 45 of the North Carolina Rules of Civil Procedure applies to subpoenas (A. pp. 73-75).

IX. APPEALS

A. Appeal to the Full Industrial Commission

The party against whom the Deputy Commissioner rules has a right to appeal the decision to the Full Commission. The Deputy Commissioner's decision is called an Opinion and Award. Appeals to the Full Commission are covered in Workers' Compensation Rule 701 (A. pp. 68-69). If you want to appeal, you must write a letter to the Industrial Commission within 15 days of entry of the Opinion and Award, stating that you intend to appeal. You must send a copy of this letter to the employer. N.C.G.S. 97-85 (A. p. 23) . It is a very good idea to hire a lawyer to handle an appeal.

The Industrial Commission will then send you a form (Form 44) to fill out (A. pp. 41-42). You must write out your reasons for appeal in detail on this form, including a description of all errors you believe the Deputy Commissioner made in deciding the case. You must file the form and a brief (a document setting out your legal argument with supporting evidence) within 25 days after receiving the transcript from the hearing or learning that there will be no transcript. It generally takes several months to receive a transcript from the hearing. The party who did not appeal (the appellee) has 25 days after receiving the brief of the party who is appealing the decision (appellant) to file a reply brief.

After the briefs have been filed, the case will be set for oral argument in Raleigh, before a panel of three members of the Full Industrial Commission. They will file a written decision.

B. Appeal to the Court of Appeals

If the Full Commission decides against you, you have a right to appeal to the North Carolina Court of Appeals. This procedure is explained in Workers' Compensation Rule 702 (A. p. 69). You have 30 days to appeal from the decision of the Full Commission. N.C.G.S. 97-86 (A. p. 24) . Any disagreement about the appellate record will be decided by the Chairman of the Industrial Commission.

If you do not already have a lawyer, it would be an excellent idea to find a lawyer to assist you with the appeal in the Court of Appeals.

X. CHANGE OF CONDITION AFTER CLAIM RESOLVED

If you have a workers' compensation agreement or award, and something about your case changes, either you or the employer may reopen a claim for "change of condition." There are time limits to reopen a claim. If a worker is filing for change of condition, the timing depends on the benefits you received. If you received only medical compensation, you must claim a change of condition within one year of the last payment. If you received compensation both for lost wages and medical expenses, you must claim a change of condition within two years of the last payment. N.C.G.S. 97-47 (A. p. 15) . This is a complicated area of law. If you think you qualify for a change in condition, you should talk to an experienced workers' compensation lawyer to advise you and represent you at a hearing.

To prove a change of condition involving medical care, a worker must show that he has developed new symptoms or requires additional medical treatments or procedures, such as surgery. It is not a change of condition if a doctor merely changes your partial disability rating based on the same symptoms you had. The change in partial disability rating must be based on physical changes. Increased pain may be considered a change in condition if it affects your ability to work more than it did at the time of the initial agreement or award. A subsequent injury that is unrelated to work does not qualify as a change in condition.

Your employer can also file a change of condition claim. For example, if your employer finds out that you are working when your doctor said that you are permanently disabled, your employer could file for a change of condition.

How to file for change of condition. There is no special form to use for a change of condition claim. You need only to send a letter to the Industrial Commission, with a copy to your employer, describing the change in condition and saying that you are asking for additional benefits due to the change. The employer may accept the claim, or challenge it. If the employer challenges your claim, you will need to request a hearing before the Deputy Commissioner on Form 33 (A. pp. 39-40).

Conclusion. Good luck with your claim. We will do our best to answer your questions.