North Carolina Worker's Compensation - Help For Injured North Carolina Workers

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  1. #1
    Join Date
    Jul 2007
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    13

    Default Workers Comp For A Shoulder Injury

    Last august I slipped and fell off of my truck. I grabbed ahold of the hand rail and caught myself before I fell completely off but I mess up my shoulder in the process. I had surgery in november for a torn rotator cuff and I also had a clavical resection. I was out of work until jan when I returned to full duty. Within a few weeks I was back on restricted duty because I was having problems with the joint swelling up and one side of my hand would go numb. I have been doing light duty since feb and I am only working about 30 hours a week because of PT. Since I have been back on light duty my wc checks are only comming about once a month and always for the wrong amount. Is this normal? I hired a lawyer about a month ago and I have a hearing set for sept. I was told that things are moving very fast. Does that mean that the IC is wanting to hurry and settle? I am pretty sure that my employer wants to get rid of me and they are just waiting for this to be settled.

  2. #2
    Join Date
    Feb 2007
    Location
    Charlotte, NC
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    3,049

    Default Re: Question about shoulder injury

    The fact that the hearing is already set for Sept. is why the lawyer is telling you that "things are moving fast." And that may be a mediated settlement conference, not a hearing, set in Sept., so you better make sure.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney at Law

  3. #3
    Join Date
    Oct 2006
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    9,108

    Default Re: Question about shoulder injury

    You can be terminated at any time; the employer doesn't have to wait for settlement. Even with FMLA protections you only have 12 weeks.

  4. #4
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    Jul 2007
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    13

    Default Re: Question about shoulder injury

    What is a mediated settlement conference? What do they do during that? Anyway the lawyer called me a few days ago and said the IC offered me 30,000. He said that that was kind of a big first offer. He said he was fairly certain that this will all be over with soon.

  5. #5
    Join Date
    Feb 2007
    Location
    Charlotte, NC
    Posts
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    Default Re: Question about shoulder injury

    An opening offer of $30K at a mediation may be "big for a first offer" on a case like yours but I suspect they have skipped the usual lowball "first offer" baloney and are actually "cutting to the chase" in an effort to save on legal fees and mediation costs. So that may or may not be "big for a first offer." It may actually be pretty close to what they have "reserved" or "authorized" to settle your case. It may be pretty close to their "best offer."

    Your lawyer will probably counteroffer at an amount that is significantly higher than what the ultimate settlement amount will be. There is still some negotiating to be done.

    The most important fact for you is whether you will be able to go back to work or not, and if so, at what level of earnings. Your age and compensation rate are also very important to the settlement discussions. These facts will most likely determine the settlement amount.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney at Law

  6. #6
    Join Date
    Jul 2007
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    13

    Default Re: Question about shoulder injury

    Oh ok I am starting to understand it a little more. It's just been kind of frustrating. I had a fce test done last week and the most I could lift was 20lbs. That pretty much rules out me going back to my old job. The next question I have on average how long does this part take? I am wanting to get this over with and move on. I already know that I am going to have to do something else I just can't until this is over. By the way thank you for answering my questions. I really appreciate it.

    Also I am in my mid 30's and being a truck driver is all I have ever done. If I were to go somewhere else right now I would be earning alot less than I was before the accident.
    Last edited by littlebit1; 07-14-2007 at 08:20 PM.

  7. #7
    Join Date
    Feb 2007
    Location
    Charlotte, NC
    Posts
    3,049

    Default Re: Question about shoulder injury

    Man, you are just starting. It may take 2 or 3 years for you to get to the end of this road. Patience is a virtue in a case like yours. Be patient. Don't let anyone push you into settling before the time is right.

    The insurance company will want to put you back to work in "suitable employment." That means a job that is within your restrictions, abilities, even your interests, and with a pay scale to get you back up to your pre-injury earnings as soon as practical. For truck drivers, this is a tough thing to do, as driving is typically the best paying job that a driver is qualified for. Truck drivers are paid pretty highly compared to most blue-collar, and many white-collar, occupations. Most drivers will need additional education to match their pre-injury earnings in some other job.

    First, you need to make sure they have correctly calculated your pre-injury earnings. That determines your weekly "compensation rate" or "comp rate." Second, you need to think about what other kinds of work you might want to do or be able to do in order to make a living. IF you were earning money in a second job at the time you got hurt, those earnings count too in a loss of earnings capacity claim, explained below.

    But if you return to work for less money, you may have a claim for "loss of earning capacity" benefits. These last for up to 300 weeks from the date of your injury. IF your preinjury earnings (average weekly wage or AWW) was, say, $900 a week driving a truck, then your comp rate is $600 per week. But your lost earning capacity money is $900 minus your new gross weekly earnings = post injury difference in weekly earnings. You take that figure and multiply by .6667 (two-thirds) to determine your lost of earning capacity money.

    Using this example, if you return to work making $600 per week, then it would be $900 - $600 = $300, times .6667, equals $200 per week. This becomes your new comp rate---even though you are now working full time. The insurance companies typically will not volunteer to pay you this so you must be aware of it so you can ask for it at the right time.

    If your injury keeps you from returning to any kind of work, then the insurance company has to keep paying you indefinitely, until you either go back to work or die. The 300 week limit is irrelevant. It you are disabled from any work for at least 2 to 3 years, and your reasonable efforts to return to work have failed, then the insurance company may be willing to consider that you will be disabled for a long time to come, and pay you several years worth of benefits in order to settle with you. However, it is rare for anyone to actually be "permanently and totally disabled in NC" under our work comp law.

    I enjoy representing truck drivers because they usually have "good cases" that we can do something with. The biggest settlement I ever got was for a truck driver. It is easier to get a good settlement for a driver than, say, for a cook at a fast food restaurant or a retail clerk.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney at Law

  8. #8
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    Feb 2007
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    Charlotte, NC
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    Default Re: Question about shoulder injury

    Littlebit, that $30K offer may not reflect reality. Your shoulder surgery probably will result in a 10% to 15% rating to the arm, which is either 24 weeks or 36 weeks times your weekly comp rate. If your comp rate is $600, then a 10% is worth 24 times $600, and a 15% is worth 36 times $600.

    The rating money makes sense if you are back at work, making something close to your preinjury wages and doing well with your injury. But if you are not earning close to your preinjury wages in your post-injury job, then the rating is probably not the way to go. If your weekly comp rate is $600, a year of being out of work is worth 52 times $600, which is $31,200.

    So that $30K offer should be considered in the context of what you would get if you return to work soon, or what you get if you don't go back to work soon. How long do you think it will take you to get back to work, making what you made before you got hurt? That is really the key question, and that question is what drives the calculation of settlement money--for you and for the insurance company.

    Good luck.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney at Law

  9. #9
    Join Date
    Jul 2007
    Posts
    13

    Default Re: Workers Comp For A Shoulder Injury

    Thank you again for you answers. I went back to the doctor today and he put me on a permanent 15 lb lifting restriction. He said he is going to give me a disability rating but he didn't say what it was going to be. At this point that pretty much leaves out driving a truck again. I had a nice talk with my lawyer today and he said the best way for me to go is to try to get enough for me to live on for a little while and for me to go back to school. I am still working in the office of my employer for now but I don't know if they are going to keep me around much longer since I won't be going back to driving.

  10. #10
    Join Date
    Feb 2007
    Location
    Charlotte, NC
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    3,049

    Default Re: Workers Comp For A Shoulder Injury

    If you are not able to work, then forget about that $30K offer for now. That is a screwing. That is peanuts compared to what they should pay.

    I settled a case for a client this week who had a bad knee injury. Client is in early 50s and has not been able to return to work. Client has been out of work for 5 years, drawing her weekly comp check. We got it settled for a lump sum of 392 times the weekly compensation rate. A 15% to the shoulder is only 36 times your weekly comp rate. If your comp rate is $500 per week, for example, 392 times that is close to $200K. But a 15% to the shoulder at $500 comp rate is only $18K.

    There is a tremendous difference in the settlement value of a case if the injury keeps you from working, compared to the value when you are able to return to work.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney at Law

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