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  1. #1
    Join Date
    Nov 2012

    Default Shoulder Injury Claim Denied


    I recently filed for workman's comp in NC. The response to my claim: denied.

    I have been dealing with a shoulder injury. It was not an accident (I did not fall or anything), the position I am in forces me to continuously stress my shoulder. I work more than 10 hours a day and the majority (90%) of my work involves heavy lifting. I had some light pain in my shoulder, which was manageable, however the pain became intense and it started hurting so bad that I went to the ER. I informed my employer and he does not allow me to work at all, because he fears I may injure myself even more. There are jobs available I can do, though.
    I have been at home for days now without any pay and now I received the answer that my claim was denied because of the type of injury. Apparently, this type of injury is not covered.
    I cannot lift anything, even my own child. I am on pain killers the entire day. They (employer) do not let me work and I cannot go back to work until my shoulder is healed.
    I receive treatment through the VA and so far, no one...neither employer nor insurance company sent me to their doctors to find out about my injury.
    I have no idea what to do next. So far, I read that the injury I sustained is difficult to prove.

    I contacted a lawyer in my area because all the information is a bit confusing. Do I have a chance or do I have to prepare myself that I may be losing my job soon?
    And how long will it take to get an answer if I appeal this decision? Bills still need to be paid and I cannot afford to wait weeks or even months.

    It is frustrating.

    Thank you!

  2. #2
    Join Date
    Oct 1971

    Default Re: Shoulder Injury - Claim Denied

    the pain became intense and it started hurting so bad that I went to the ER. I informed my employer and he does not allow me to work at all,
    You have things backwards, you're supposed to inform the employer first, allow them to file an accident report and offer medical.

    At this point you need to consult and retain an attorney, you have a long road ahead.

    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  3. #3
    Join Date
    Feb 2007
    Charlotte, NC

    Default Re: Shoulder Injury - Claim Denied

    If you have already given the other side a recorded statement and you did not describe an accident in it, then you have a very tough case in front of you.

    Your only chance of getting it covered may be as an "occupational disease" under the catch-all provision in 97-53(13). That is much harder than getting it covered as an accident. An "injury by accident" in NC work comp encompasses a whole lot more than simply a "slip, trip or fall" but you may have foreclosed the possiblity of a good lawyer pursuing that theory for you when you gave them a recorded statement. If you have not given a statement yet, DON'T DO IT until you have talked to a good workers' comp lawyer about it.

    Before you do anything else--before you give your employer or its carrier any more information about your injury---you need to consult with a competent NC workers' compensation attorney. I suggest you only consider lawyers who are certified as specialists in workers' comp law. The State Bar website has a directory of them.

    Your case may still be winnable but if you keep trying to explain to your employer or the insurance adjuster how you got hurt, the more you talk the harder it will be to win it.

    - - - Updated - - -

    To answer your questions, if the claim is denied you will have to litigate it to get it covered. That takes 18 to 24 months to get a final decision, and sometimes longer. You will have an opportunity to settle the claim along the way.

    The employer/carrier has denied the case so they are not ever going to send you to a doctor or pay your medical bills unless you litigate the case and win. You said you talked to a lawyer, but unless you talked to the best work comp lawyer in your area, you may have wasted your time. You really are going to need one of the best workers' comp lawyers in the state to have much chance of making this work. It may be that you actually did suffer an "injury by accident" and just did not describe it as such to the employer or carrier rep because you did not know any better. But if that happened, then you may have a credibility problem trying to clear it up. I tried a case not long ago for a man with a knee injury, in which he had an accident but gave a recorded statement in which he did not describe it in enough detail, so they denied the claim. We went to hearing in June and deposed his (supportive) surgeon in August and I am still waiting to get the decision on it. You may have the same situation, but VA docs are not allowed to testify in state work comp cases, and therefore you are going to have a harder time proving your case to begin with. But you have to get treatment somewhere, and the VA can certainly treat you. Better start saving up your money to hire an expert witness to help you prove the case.

    The client for whom I tried the case in June could have avoided all the hassle of a denied case if he had simply called me or another experienced work comp lawyer for a free consultation before he gave the insurance adjuster a recorded statement. We could have interviewed him and then advised him which details were important to share. Unfortunately, he did not think of doing that. It may be that you had an "accident" and just don't realize it, as you probably do not know the definition of "accident" in workers' comp law. If that turns out to be the case for you, then you have a pretty good shot at winning the case. But that recorded statement may make or break your case.
    Last edited by complwyr; 11-01-2012 at 10:43 PM.
    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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