MEDIATION IN NC WORKERS’ COMPENSATION CASES
Mediation in NC Workers’ Compensation Cases is an attempt to settle a dispute by use of an independent person to aid the parties in the resolution of their disagreement. The advantage of mediation is it gives the parties an opportunity in an informal environment to resolve their differences without the delay, expense and uncertainty of trial.
A mediator is a person, typically a lawyer, with special training in helping people resolve their disputes. The mediator must be independent, with no stake in the outcome of the case. The mediator’s responsibilities are to schedule and control the mediation. A mediation is not a trial and the mediator will not make any decisions in the case, other than those having to do with scheduling and conducting the mediation. Statements made at mediation may not be used at trial.
Mediation in North Carolina workers’ comp cases is controlled by the North Carolina Industrial Commission Rules for Mediated Settlement and Neutral Evaluation Conferences. When a request for hearing on a disputed issue is filed with the North Carolina Industrial Commission the parties will be ordered to mediation. This requirement is waived for parties who do not have an attorney. Mediation can also occur when the parties voluntarily agree to mediation when no hearing is pending or when otherwise ordered by the Industrial Commission upon motion of a party or not.
The mediator must be selected within 55 days of the order to mediation, and the mediation must be completed within 120 days of the order. Usually the lawyers will agree on a mediator however if they do not then one is appointed by the Industrial Commission from a list of eligible mediators.
On the day of mediation generally the injured worker and their attorney will present along with the mediator and the attorney for the employer and workers’ comp insurance company. Occasionally a representative of the employer or insurance company will also be present. The mediator will give a brief outline of the ground rules after which the attorneys for the parties will give short statements of their clients’ position on the case. After that the mediator will usually separate the parties and shuttle back and forth attempting to settle the case.
The parties share the cost of the mediator equally, unless they otherwise agree. However if the case does not settle at mediation the defendants must pay the injured worker’s share of the mediation cost and may recover that from benefits paid to the injured worker later.
If the parties reach an agreement then the mediator will prepare a Mediated Settlement Agreement for the parties to sign. At that point the case is settled. The Mediated Settlement Agreement can be set aside only in the event of fraud, misrepresentation, undue influence or mutual mistake.
Typically within a few days after settlement at mediation the attorney for the employer will draft a Settlement Agreement, often referred to as a “clincher,” for the parties to sign. The clincher, along with all of the medical records, is submitted to the Industrial Commission for approval. In deciding whether to approve the clincher the Industrial Commission must consider whether it is fair to the parties and reasonable to any medical providers who have provided services. Defendants have 24 days from Industrial Commission approval to make the payments called for in the Settlement Agreement or be subject to a 10% penalty. If the case does not settle and either party has requested a hearing then the case is set on the trial calendar.
Before deciding to settle their workers’ compensation case an injured workers should carefully consider their need for future medical and wage replacement benefits, as well as any the potential impact on other benefits such as Social Security disability, Medicare and private benefit plans.
If you have questions about Mediation in NC Workers’ Compensation Cases contact Raleigh, NC area workers’ compensation lawyer Kevin Bunn.
INJURY RATINGS IN NC WORKERS’ COMPENSATION CASES.
There are a number of ways that disability is paid in North Carolina Workers’ Compensation cases. Generally an employee must be physically restricted from some or all work or be working reduced hours or for reduced wages in order to receive disability payments. This is the case for Temporary Total Disability (TTD), Temporary Partial Disability (TPD), or Permanent Partial Disability (PPD). Certain injuries however are set out in North Carolina General Statute § 97-31 and are presumed to be disabling under the North Carolina Workers Compensation Law.
When an injured workers with one of these particular injuries reaches Maximum Medical Improvement, their authorized treating physician will generally assign a disability “rating” to that body part. This rating is supposed to represent the percentage of disability to the affected body part. The rating, multiplied by the appropriate compensation rate and the number of weeks assigned to the injured body part yields the 97-31 benefit, or the rating payment, for that employee’s injury. So, an injured workers with a back injury could be rated as follows: 10% Rating x 300 weeks (weeks assigned for a back) x $400 (employee’s compensation rate) = $12,000.
Now, a some words of caution about ratings in NC Workers’ Compensation cases. First, the payment of a rating starts the two year deadline clock ticking for for a change in condition under NCGS 97-47. If the employee does not file a notice with the North Carolina Industrial Commission that they have sustained a change in condition to the injured body part within two years of the payment of the rating, the employee may forever lose the right to claim additional disability benefits. Second, accepting the payment of a rating terminates any ongoing payments of disability.
It is very frequently a mistake for a n injured worker to accept payment for their rating. Generally, if no additional medical treatment is anticipated, and if an injured worker has returned to full time work for a year or so, at the same or better wage, with no complications, then accepting the rating may make sense. Injured workers should keep in mind that they have a variety of disability options and that accepting a rating is frequently the wrong one.
Coordinating NC Workers’ Comp Benefits with other Medical and Wage Replacement Programs.
One of the most challenging aspects of North Carolina workers’ comp law is coordinating NC workers’ comp benefits with other health and disability benefits. These include public benefits, such as Social Security Disability (SSD) and Medicare, as well as private benefits like health insurance and short and long-term disability plans. Failing to properly coordinate workers’ comp with other programs can have negative long-term consequences not only for your workers’ comp claim but for the other benefits as well. Each of these topics could easily be the subject of an extended dissertation, and indeed have. Here, I will try to hit the highlights.
N.C. Workers’ Compensation and Social Security Disability
Seriously injured workers may be eligible for Social Security Disability (SSD) benefits in addition to NC workers’ comp benefits. Not everyone will be eligible for SSD. Employees must meet “recent work” as well as “duration of work” thresholds. To set up an account to see your own Social Security information including your SSD eligibility go here. Employees will also have to show they are disabled according to SSD guidelines which are different from those under NC workers’ compensation law.
For workers who are eligible and qualify for SSD, the amount of the SSD benefit is based on the amount the employee has paid into the program. The total maximum benefit (Social Security plus most other income, including workers’ comp) is determined by a complex formula. In general, workers’ comp will pay first, then Social Security will kick in an amount up to the maximum benefit. In other words, SSD gets an a credit for the workers’ compensation payments.
Most people who are eligible for both NC workers’ comp and SSD will receive more money by receiving both. Another big advantage to applying for Social Security is that beneficiaries are generally eligible for Medicare two years from the date Social Security determines they are disabled.
Finally, it is important to take into account how Social Security will look at any lump-sum settlement or what we call in North Carolina a “clincher.” It is often possible to use Social Security “offset language” to minimize the potential consequences on SSD payments when settling or “clinchering” a NC Workers’ Comp case. More information from Social Security about this topic is here.
N.C. Workers’ Compensation and Medicare
Disabled workers who are also on Social Security Disability or Social Security Retirement may also be eligible for Medicare benefits. Medicare will generally not pay medical expenses related to a workers’ compensation injury but may pay for other medical expenses.
Medicare requires that its interests be protected in the settlement or “clincher” of a workers’ compensation case. Medicare does not want an injured worker to settle their workers’ compensation case and then come to Medicare to pay for medical treatment for the workers’ compensation injury. In some situations it may be best to “set aside” a certain sum of money from the settlement to be spent on medical treatment for the workers’ compensation injury, after which Medicare will step in and provide further benefits for the workers’ comp injury. These set-asides can be informal and administered by the injured worker or may involve a professionally drafted agreement administered by a third-party.
Medicare regularly changes its guidance on set-asides and determining when and how these Medicare set-asides must be established is one of the most troubling issues facing North Carolina workers’ compensation attorneys today.
N.C. Workers’ Compensation and Private Health Plans
An injured employee should not allow an employer to push their workers’ comp injury off onto health insurance. This could adversely affect the workers’ comp claim and even contribute to a complete loss of benefits. Health plans will frequently attempt to recover money they spend on medical services that are related to a workers’ comp injury. Whether this is allowed depends on the language of the particular health plan or policy. Many large employers have established health plans under a provision in federal law known as ERISA. These plans add an additional level of complexity to the question of reimbursement and must be carefully considered. An injured employee should not allow their health coverage to lapse because workers’ compensation will only pay for services related to the particular injury. The North Carolina State Health Plan may also seek reimbursement from NC workers’ comp benefits.
N.C. Workers’ Compensation and Short and Long-Term Disability Plans
Injured employees frequently are forced to rely on short or long-term disability plans when a workers’ comp claim is denied. These disability plans may be entitled to reimbursement. Each plan is different and the only way to tell if a plan is entitled to reimbursement is to get and read the plan carefully. Another issue can arise if the policy is entirely paid for by the employer. In that event the employer may claim a credit for disability payments made by the short term or long term disability plan against workers’ compensation benefits. An employer can not claim a credit for private disability payments at the same time that the private disability insurer is claiming a right of reimbursement.
Please call or click for your free consultation with NC workers’ comp lawyer Kevin Bunn if you have questions about how to coordinate workers’ compensation benefits in NC with other public and private benefits.
Child Support Issues in NC Workers’ Comp Claims
NC WORKERS’ COMPENSATION AND CHILD SUPPORT
Child support is frequently one of the tricky hidden issues in a North Carolina workers’ compensation claim. Under North Carolina law, “no claim for compensation under (the Workers’ Compensation Act) shall be assignable, and all compensation and claims therefor shall be exempt from all claims of creditors and from taxes.” NCGS § 97-21. However this provision does not apply to child support payments, which are not viewed by the North Carolina courts as “debts.”
Garnishment of NC Workers’ Comp Payments for Child Support.
Workers’ compensation payments are included as income for the purpose of determining the presumptive level of child support. Workers’ compensation awards or settlements can also be considered in determining the amount of support. An injured employee who begins drawing workers’ compensation, which is at best a one-third reduction in gross pay, should consider petitioning the Court to reduce their child support obligation in accordance with their diminished income. Generally, up to 40% of and injured workers weekly compensation payments can be withheld or “garnished” and applied to meet child support obligations.
Lien for Past Due NC Child Support
Under certain circumstances, NCGS § 58-3-185(a) creates a lien against a NC workers’ compensation claim for past due child support. The lien applies to nonrecurring payments (like settlements) greater than $3000. While the statute clearly sets out the precise conditions where the lien applies, insurance companies and employers frequently do not understand the requirements, and may insist that any outstanding child support obligation be satisfied from the settlement proceeds. There is no limitation on what percentage of a workers’ compensation settlement must be applied to the child support obligation so great care should be taken in settling workers’ compensation claims involving child support obligations. It is sometimes possible to negotiate the amount of the child support lien, particularly if the workers’ compensation claim is denied, and the alternative may be that nobody gets anything.
For more information about Child Support Issues in NC Workers’ Comp Claims contact Kevin Bunn, a North Carolina workers’ compensation attorney located in Cary, NC. Call or email for your free consultation with a NC workers’ comp lawyer.
Answering the question “should I settle my NC workers’ comp case” is among the most difficult questions a NC workers’ comp lawyer regularly faces. It requires an analysis of the value of the benefits the injured worker is releasing, as well as an evaluation of how the settlement will affect the workers access to other available benefits.
In order to determine the value of a NC workers’ comp claim you must first determine the medical treatment you are likely to need and the cost of that treatment, now and in the future. Also, you must factor in the remaining wage replacement benefits, including total disability and partial disability payments. Insurance companies are very good at estimating the future value of workers’ compensation cases.
Another important consideration is coordinating the workers’ comp benefits with other available benefits. Other benefits include social security disability, Medicare, Medicaid, private long or short term disability policies, and social security retirement. Settling your NC workers’ compensation case without regard to how it may affect these other benefits can be a serious mistake.
Not surprisingly, Medicare takes a dim view of a NC “workmans” comp claimant settling their case and then coming to Medicare to pay for medical treatment related to the injured arm, leg or back. In fact, the law requires that injured workers consider Medicare’s interest in settling their nc workers’ comp claim. Lawyers have made careers from evaluating the potential effects of workers’ comp settlements on future Medicare benefits.
Social Security disability payments may be dramatically affected if the NC workers’ comp “clincher” or settlement documents do not properly “offset” payments so that they are treated as being paid out over the lifetime of the employee. There are several methods for calculating these offsets and the injured worker is entitled to pick the one that works best for them. If the worker fails to do this Social Security will determine how the funds are treated, often to the detriment of the worker.
If you were injured on the job in North Carolina you should consult an experienced NC workers’ comp attorney to help you answer the question, “Should I settle my NC Workers’ Comp Case.”
KevinBunn is a NC Board Certified Expert workers’ compensation attorney, located convenient to Cary, Durham, Raleigh, Fuquay, Apex, Wilson, Rocky Mount, Greenville, and other NC locations. Please call or email if you would like a free consultation with a Raleigh area workers’ compensation lawyer.