- You are injured at work. Get first aid as needed and report the incident and injury to your supervisor.
- Fill out and turn in a written incident report to proper person at your employer, within the first thirty (30) days after the injury occurs.
- Get legal advice before giving employers’ insurance investigator a "recorded statement." This is because you can lose your case and get nothing if you fail to give all of the proper details in the statement. It is a trap for the unwary and the people taking the statements know what they are doing to trick you.
4. File Form 18 with the North Carolina Industrial Commission. Although you have two (2) years from the date of the incident to do this, there is no sense waiting to do it.
5. You will get either a Form 63 contingent acceptance, a Form 61 denial, or a Form 60 Acceptance of Liability form from the insurance company, typically within thirty (30) days of filing the Form 18. The Form 18 starts the ball rolling officially with the Commission and the insurance company, and under the law the insurance company should send the acceptance or denial within fourteen (14) days of receiving the Form 18. As a practical matter, it often takes them more than thirty (30) days to do this.
If you get a Form 61 Denial, it is time to hire a lawyer. If you get a Form 63 with block 2 checked, medical only, then you have received a document that has no legal significance and you need to talk to a workers' compensation lawyer. If you receive a Form 60, Acceptance, review it to see what body parts and injuries have been accepted. If everything is not listed, then you need to speak with a lawyer about getting your entire set of injuries covered.
6. If the case is denied or partially disputed, you (or better, your lawyer) need to file a Form 33 Request for Hearing to put the matter in front of the Industrial Commission for an evidentiary hearing so that you can get the dispute resolved.
7. If you request a hearing, and you are represented by counsel, you will be ordered to participate at a mediated settlement conference. A mediated settlement conference or mediation is simply a settlement meeting presided over by a trained mediator who is also a lawyer, whose job is to help the two parties determine whether or not the dispute can be resolved without litigation. About 80% of disputed cases will settle at the mediated settlement conference.
The remaining 20% of the cases that did not settle go to a full evidentiary hearing before a Deputy Commissioner of the Industrial Commission.
8. After the evidentiary hearing at which the injured worker, coworkers, and employer representatives testify, the lawyers typically have sixty (60) to ninety (90) days to obtain the testimony of the treating doctors by depositions.
9. After the doctor depositions are obtained, the record of evidence closes, and the lawyers write and submit their written arguments to the Deputy Commissioner. These briefs are known as "Contentions".
10. Under the law, the Deputy Commissioner has 180 days to make a decision in the case after the date on which the record of evidence closes. So, a hearing that takes place in, say, March, will not engender a decision from the Deputy Commissioner until the end of the year or later. Yes, it could easily take 9 months or more to get a decision.
The Deputy Commissioner issues an "Opinion and Award" that makes findings of fact, conclusions of law, and either denies the claim or makes an award of benefits to the injured worker. The benefits can be medical treatment paid completely by the employer and its insurance company, weekly checks for lost wages due to the injury, or permanent partial disability money for permanent injury to a body part.
The party that loses at this stage of the proceeding, in front of the Deputy Commissioner, will typically appeal to the Full Commission. This is an administrative appeal.
11. The appeal to the Full Commission takes about nine to fifteen (15) months. After the notice of appeal is given, the appealing party has to file a Form 44 setting forth the errors made by the Deputy Commissioner, along with a Brief (a written argument, limited to 35 pages). Twenty-five (25) days later, the appellee, the party that did not appeal, files its Brief. Approximately two or three months later, the Full Commission will hold an oral argument in Raleigh. Each party or their lawyer gets 20 minutes to stand in front of the panel of judges at a podium to make an oral presentation explaining why their side should win. Three Commissioners sit as a panel to hear this oral argument. Under the law, they get to find the facts from the evidence without regard to the findings of the Deputy Commissioner, and their findings of fact are final in the case. The evidence they review is the written transcript of the hearing, all the documents placed into evidence by the parties at the hearing, and the transcripts of the depositions of the doctors. The three Commissioner panel on appeal does not hear from any live witnesses or get any live testimony. It is entirely a paper review of the cold record done with the assistance of the Briefs of the lawyers and their oral arguments.
Several months after the oral arguments, the Full Commission will render its "Opinion and Award" which replaces the earlier opinion and award from the Deputy Commissioner. This Full Commission decision has the final and binding findings of fact in it, so long as those findings are based on some evidence in the record. However, if the Commission makes an error in its analysis and application of the law, then its decision can be appealed to the North Carolina Court of Appeals. A small percentage of cases are appealed to the court of appeals.
12. If a case is appealed to the Court of Appeals, it takes approximately another eight to 15 months to prepare and file the Record on Appeal, prepare and file the new Briefs, wait for the Court to hear the case, and get a decision. If the Court of Appeals, which also sits in panels of three judges, enters a two to one decision with the one judge writing a "dissenting opinion" then a party has the right to appeal to the next level, the Supreme Court of North Carolina, based on what was in the dissenting opinion. However, if there is no dissenting opinion, a party does not have an absolute right to take a further appeal but must file a petition to the Supreme Court requesting a "discretionary review" of the Court of Appeals decision. The Supreme Court does not typically grant a discretionary petition so as a practical matter, a three to zero decision at the Court of Appeals is the end of the road for the case.
Sometimes the Court of Appeals will "remand" the case back to the Industrial Commission for additional findings of fact or legal analysis at the Commission level. When this happens the Full Commission sometimes allows the lawyers to come back for a new oral argument or hearing. Sometimes additional evidence must be taken from live witnesses. This is all determined on a case-by-case basis.
This entire litigation process can take several years. A party can settle his or her case at any point along the way as settlement simply depends on the opposing parties reaching an agreement between themselves as to the terms of the settlement, and getting that settlement approved by the Industrial Commission.
As you can see, handling a workers' compensation case can be quite complicated and require quite a bit of technical expertise. For these reasons, it makes sense to hire a good workers' compensation lawyer to help you with your workers' compensation claim!