Disability Benefits in NC Workers’ Comp

NC Workers' Comp Wage Replacement BenefitsInjured North Carolina workers who suffer wage loss or permanent physical impairment because of a NC workers’ compensation injury or occupational disease are entitled to disability benefits.  It is critical to understand when benefits NC workers’ comp benefits are paid, how long they are available and how much the benefit should be.

When are disability benefits paid?

With the exception of the Permanent Partial Disability benefit, which is discussed below, wage replacement benefits are paid under workers’ compensation in NC only when the injured employee is disabled.  Disability is a complex concept in NC workers’ compensation law, but generally means decreased wage earning ability.

The initial burden is on the employee who was injured on the job in NC to prove disability.  As with every workers’ compensation question if the employee and employer disagree over whether the employee is entitled to wage replacement benefits, or the amount of those benefits, the North Carolina Industrial Commission will decide the issue.  Employees who are considering filing for a hearing before the Industrial Commission should consult a Board Certified Workers’ Comp Lawyer.

There are four different types of disability benefits under NC workers’ comp.  The type of benefit that applies depends on how long the disability is expected to last (temporary or permanent) and the extent of the disability (total or partial).

Temporary Total Disability Benefits in NC Workers’ Comp (TTD) are paid during the healing period after an accident or onset of disease when the injured employee is unable to work in suitable employment.  Suitable employment is a complex concept in NC workers’ compensation law and varies greatly case to case.

There is a seven day waiting period to receive TTD in workers’ comp in NC.  The seven days do not have to be consecutive and if an employee misses any part of a day that counts towards the seven days.  If the worker’s disability lasts for twenty one days then the injured worker will be paid benefits for the seven day waiting period.  For cases that arise under workers’ comp in NC after June 24, 2011, TTD benefits can continue for up to 500 weeks, with the possibility of an extension in certain circumstances.  There is no cap on TTD benefits for cases that arose prior to that date.

It is initially the injured NC workers’ responsibility to prove disability in order to receive TTD benefits.  Most often this is done when an authorized treating physician puts the employee out of work.  Benefits should also be paid during the healing period if the employee is returned to work with physical restrictions that the employer cannot accommodate.

The amount of the TTD payment in workers’ comp in NC is 2/3rds of the employee’s Average Weekly Wage, as described below.  Payments are made weekly unless the NC Industrial Commission orders otherwise.

When an injured worker is being paid TTD in NC the employer may only stop benefits when the employee returns to work or when the employer convinces the Industrial Commission that the employee is no longer disabled.  Most often when an employer seeks to stop an employee’s TTD benefits they will file a Form 24 Application to Terminate Benefits with the Industrial Commission.  The Industrial Commission will usually decide a Form 24 application in a telephonic hearing.  An injured NC worker who receives a Form 24 should immediately contact a Board Certified Specialist in NC Workers’ Comp Law.

Temporary Partial Disability Benefits in NC Workers’ Comp (TPD) are paid during the healing period when an injured NC worker returns to some work but at reduced wages.  The seven day waiting period also applies to TPD benefits.  For cases that arise under workers’ comp in NC after June 24, 2011, TPD benefits can continue for up to 500 weeks.  For cases that arose prior to that date the benefits cannot extend past 300 weeks from the date of the accident.  The amount of the TPD payment is 2/3rds of the difference between wages earned after the injury and the employees Average Weekly Wage.

Permanent Partial Disability Benefits in NC Workers’ Comp (PPD) are paid when an injured worker has reached the end of the healing period, called Maximum Medical Improvement (MMI), but continues to have impairment to one of the body parts listed in the schedule contained in N.C.G.S. 97-31.  These are referred to as “scheduled injuries.”  Scheduled injuries are presumed to be disabling under workers’ compensation law in NC, whether there is actual wage loss or not.

Each scheduled body part is assigned a specific number of weeks of benefits in N.C.G.S. 97-31.  For example a hand is assigned 200 weeks of benefits.

When an injured NC worker who has sustained a scheduled injury reaches Maximum Medical Improvement the authorized treating physician will determine a percentage disability rating for the body part.  The disability rating in NC workers’ comp represents the percentage loss of function to the injured body part.  An employee is entitled to a second opinion on a PPD disability rating with a doctor of the employee’s choice at the employer’s expense.

The PPD disability rating in NC workers’ comp is calculated by multiplying the impairment rating percentage, by the injured workers’ compensation rate and the number of weeks assigned to the injured body part.  For example, an injured NC worker with a back injury might be entitled to a PPD rating as follows: 20% impairment rating x 300 weeks (weeks assigned for a back) x $500 (employee’s compensation rate) = $30,000.

When the employee reaches Maximum Medical Improvement he or she is entitled to elect between Temporary Partial Disability benefits and the Permanent Partial Disability rating benefit.  Payment of the Permanent Partial Disability benefit is made pursuant to an Industrial Commission Form 26A.

Payment may also be made under the schedule contained in NCGS 97-31 for loss of hearing or vision, as well as for disfigurement.  This section also allows for the payment of compensation for injury to any important bodily organ for which no compensation is paid under any other provision of this section, such as the heart or lungs.

If the injured employee elects to receive payment of the Permanent Partial Disability rating benefit, then the employee has two years from the date of receipt of the payment within which to file a claim for a “change in condition.”  A change in condition under workers’ comp in NC requires a showing of a substantial worsening of the injury.

Payment of a rating is not a full and final or “clincher” settlement under workers’ comp in NC.  The payment of a rating does not itself terminate the employee’s eligibility for medical benefits, but can begin that process.  An injured worker should consult a workers’ compensation lawyer in NC before accepting the payment of a disability rating.

Permanent Total Disability Benefits in NC Workers’ Comp (PTD) are payable in limited circumstances to injured NC workers who meet certain criteria.  These employees are entitled to disability payments for life.

For cases that arise under workers’ comp in NC prior to June 24, 2011, PTD benefits are paid to employees who are determined to be unable to ever work in suitable employment.  For cases that arise after June 24, 2011, PTD benefits should be paid when the employee has 1) suffered the loss of loss of both hands, both arms, both feet, both legs, both eyes, or any combination of any two of these listed body parts; 2) spinal injury involving severe paralysis of both arms, both legs, or the trunk; 3) certain severe brain or closed head injuries; 4) second-degree or third-degree burns to thirty-three percent (33%) or more of the total body surface.

How is the disability benefit calculated?

The correct calculation of an injured worker’s Average Weekly Wage (AWW) is critical to the proper administration of a workers’ compensation claim in North Carolina.  The AWW is the basis for the “comp rate” which is the amount paid weekly to a totally disabled employee, is the baseline for determining whether an injured worker has sustained a decreased earning capacity for purposes of determining Temporary Partial Disability benefits, is a factor in determining the value of the workers’ Permanent Partial Disability rating, and determines the amount of the death benefit.

North Carolina General Statute 97-2(5) controls the determination of an injured employee’s Average Weekly Wage in NC.  This statute sets out four methods for determining Average Weekly Wage under workers’ comp in NC, which must be followed in order.  First, if the injured worker has been in the job for more than a year, the Average Weekly Wage is the total amount of money earned during the 52 weeks prior to the injury divided by the fifty-two weeks, but excluding any periods of 7 or more days not worked.  Second, if the employment was employed for less than 52 weeks, the Average Weekly Wage is the total amount of money earned during the employment divided by the number of weeks worked.  Third, if the employment is so short that it is not fair to apply the second method then the wages of a similar employee are considered.  Finally, if none of the prior methods would be fair, then the Average Weekly Wage is the amount of money that would most closely approximate the amount of money the employee would be earning but for the injury.

Average Weekly Wage in NC workers’ comp is calculated from “gross” or pre-tax income earned in the employment the worker was engaged in when the injury occurred.   AWW includes any overtime and bonuses, as well as any non-wage allowances such as a per-diem or allowances for gas or housing.

The actual amount of the weekly Temporary Total Disability or Permanent Total Disability benefit paid to a disabled employee is 2/3rds of the Average Weekly Wage.  This is referred to as the “compensation rate.”  The compensation rate is capped at an amount set yearly by the NC Industrial Commission.

When the employee is entitled to Temporary Partial Disability the amount of the payment is 2/3rds of the difference between the employee’s pre-injury Average Weekly Wage, and wages the employee can ear after the injury.  As noted previously, a Permanent Partial Disability rating is calculated using the comp rate.

Taxability of Disability Benefits

In general, workers’ compensation payments in NC are not taxed as income by either the state or federal governments.  The tax exemption applies to settlements as well as weekly benefits, and also applies to NC workers’ compensation payments that are received by a deceased worker’s survivors.  If an injured NC worker returns to work in light or modified duty and receives wages then those wages are taxable.  If the worker is also receiving Temporary Partial Disability (TPD) benefits then those TPD payments are generally not taxable.  The particular circumstances of a case may affect the taxability of workers’ compensation benefits so an injured worker should consult a tax advisor about the taxation of benefits.

State Employee Teacher and LEO Salary Continuation.

Certain North Carolina State employees, including law enforcement officers and teachers, may be eligible for salary continuation benefits while on workers’ compensation.  Salary continuation will pay the employee 100% of the salary the injured employee was making prior to the injury, as compared to workers’ compensation in NC which generally only replaces 2/3’rds of the pre-injury wage.

In general, NC law enforcement officers subject to the Criminal Justice Training and Standards Act may qualify for up to two years of salary continuation without regard to how they were injured.  Driver’s license examiners and NC Department of Corrections employees may also be eligible for salary continuation for certain on-the-job injuries.  North Carolina public school teachers may be eligible for up to a year of salary continuation if they are injured as a result of an “episode of violence.”

After the salary continuation period is up the injured worker shifts to NC workers’ compensation payments if they remain disabled.  Medical benefits are payable during the salary continuation period as in any other NC workers’ compensation claim.

If you have questions about disability benefits in NC workers’ compensation please call or email Kevin Bunn for your free consultation with a Board Certified Expert in NC Workers’ Compensation Law.

Corey reed
Corey reed
15:44 28 Mar 18
The entire office staff is exceptional and wonderful to work with. I would highly recommend Mr. Bunn to anyone with workers' compensation needs.
Lori James
Lori James
19:34 23 Mar 18
First of all.. I want to thank God and my daughter to find such an awesome lawyer Mr.Bunn. I was kind of nervous meeting Mr. Bunn for the first time because he would ask me to explain from the beginning about my injury and ask me again the same questions. I have a very heavy accent and I know I speaks very fast at time. Sometime he would ask me the same question over again. So, I said to myself, this is not going to be a good lawyer for me. I found out that he want to know and understand what I was saying. The more I talk to Mr. Bunn the more i understand about the law. He would explain how workers compensation law is all about. The Insurance company was sending me check of what they believe was the right amount every week. Mr.Bunn recover the amount they were sending was wrong. So my weekly check was $150. Short the whole time. Thank you Mr. Bunn!!! Mr. Bunn will fight hard for you and his knowledge of how workers compensation works, it will speak for itself. I also want to thank his paralegal Ms. Joanne for taking my call and answering all questions I may have . she is always polite no matter what day of the week it is. she ask if i want water and always make me feel comfortable. I highly recommend Mr.Bunn as your lawyer if you want results. Other lawyers might be just all talk and no results. He will ask, understand and work hard for you then, get the results that will amaze you ! Lorelei Jamesread more
Annette Beane
Annette Beane
21:56 17 Mar 18
Mr Bunn and his assistant Joanne made this horrible experience really easy. Not pleasant as laws and lawyers do not equal fun, but reality. Reality is hard, Mr Bunn proved his knowledge of workers compensation laws and got me through this horrible experience. Hoping to never have to do this again, but I do know I'll ask Mr Bunn to represent me if needed.read more
Anne Lineberry
Anne Lineberry
00:13 16 Mar 18
Words cannot adequately express my gratitude for Kevin Bunn, and his awesome paralegal, Joanne. Kevin is an individual with character traits that a client would want from their attorney. He is kind, knowledgeable, straightforward, tough, professional and honest. When I was injured at work I had NO idea that I was about to embark on a legal battle with an employer whom I had LOVED to work for during the past thirty some years. I am a leader in my field including being National Board Certified. During those years I impacted thousands and had distinguished evaluations. All I wanted was a total knee replacement that my surgeon stated I needed as a result of the injury. I quickly found myself in the very complex world of workers compensation that left me overwhelmed and most importantly unvalued. Kevin made me feel very comfortable and knowledgeable about all the many situations involved in the case. I also feel I learned a lot from him to help others know their own rights as individuals. I traveled over two hours out of town just to get Kevin and I am so glad I did. I got the total knee replacement from the surgeon I wanted and have moved on with my life after close to a two year battle. I would HIGHLY recommend anyone looking for a Workers' Compensation attorney to hire Kevin Bunn!read more
jacob Maples
jacob Maples
02:51 10 Mar 18
Mr Bunn and his staff were very polite and took on my case after many other law offices turned it down due to some very special circumstances. I was treated like family and always kept up to date on the status of the case, mr Bunn was very polite and always returned my phone calls or emails. I would highly recommend mr Bunn and his staff.read more
Tina Phillips
Tina Phillips
12:55 04 Oct 17
Attorney Kevin Bunn and his paralegal JoAnne are amazing!! Both worked very close with me and kept me up to date on all information that was going on in my Workers' Comp case. They both treated me with the utmost respect. Mr. Kevin Bunn was even able to obtained a fair settlement amount for me and I would diffidently recommend him to friends, family or just anyone looking for assistance with a workers' compensation claim. Thank you both again!!read more
Cheryl Mancini
Cheryl Mancini
19:13 28 Aug 17
Mr. Bunn went above and beyond helping us with sensitive advice. He was on vacation, and still took the time to go over our concerns. He is very well informed,and cared enough to take the time to explain every detail. I would highly recommend this wonderful attorney.read more
Kurt Kettering
Kurt Kettering
15:06 25 Jul 17
I really appreciate the personal touch Mr. Bunn gave to all aspects of the case. I am very satisfied with the way the case was handled and the outcome received. I would highly recommend Kevin Bunn to anyone in need of help with their workers compensation claim.read more
Jake St. Peter
Jake St. Peter
18:07 19 Jul 17
I've used Kevin in the past and was extremely pleased with the results. Highly recommended and trustworthy attorney.
André L. Farmer
André L. Farmer
17:10 27 Jun 17
I would highly recommend Kevin Bunn. He was very professional and responded promptly to all questions. I am very satisfied with his services and his staff.read more
Daniel Chido
Daniel Chido
07:23 21 Mar 17
Kevin Bunn is a great lawyer and a great man. I consider myself very lucky and blessed to have had him representing and working for me over the past few years. I found him by word of mouth while I was looking for a lawyer to handle my worker's compensation claim and my application for social security disability. He was one of the only lawyers I found in the area who would handle both of these. I knew from the first time I met him in person that he was the right choice. Kevin is a straightforward, honest, rational, down to earth and very kind person who went above and beyond to help me and to bring forth favorable results on all fronts for my situation. He always explained things well, we were always on the same page before making any moves, and I truly felt like he put me as a person first and foremost, before lawyer fees or anything else like that. I honestly only have positive things to say about Kevin and my experience working with him. Also, his paralegal JoAnne is awesome, and it always cheered me up to hear her voice on the phone. I highly recommend Kevin Bunn to anyone who is searching for top notch representation for their worker's compensation claim or social security disability application. Thank you, Kevin and JoAnne!read more
Terri Perry
Terri Perry
21:20 25 Jan 17
Mr. Bunn was straightforward and a highly respected good attorney. I recommend anybody looking for a workers' comp lawyer in NC contact Mr. Bunn. He can represent me any time.read more
Paul Kemper
Paul Kemper
00:37 31 Oct 16
I have used Kevin, twice for work related cases. Kevin, was open and honest with me and my wife. I highly recommend Kevin Bunn, for any injury claim case. If I ever need anything attorney for an injury I will use him again. His secretary Joanne Latta, was always helpful and friendly to us. Thank you Kevin Bunn for your expertise and help. Paul Kemperread more
shane cargain
shane cargain
19:00 17 Jun 16
One of the best experiences I've had with a lawyer! He gets the money that you deserve and doesn't quit until you are satisfied with the outcome! He knows his stuff when it comes to the law and I HIGHLY recommend him to anyone for workers compensation cases or anything else that involves the law! You can't go wrong with him by your side when you need a good lawyer to battle for you!read more
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