Here Is The Procedure to Follow When Your NC Workers' Compensation Claim is Denied by the Insurance Company

If the insurance adjuster denies your workers' compensation claim, you may appeal that denial by requesting a hearing before a Deputy Commissioner of the North Carolina Industrial Commission. You do this by filling out and filing at the Commission a "Form 33 Request for Hearing.”

Evidentiary hearings are held before Deputy Commissioners -- a type of Administrative Law Judge -- in Charlotte, Asheville, Winston-Salem, Raleigh, and Wilmington, and possibly a few other larger cities, because the Deputy Commissioners are stationed in regions.

At the hearing, you will have to testify under oath as to how you were injured, how much money you made on an average weekly basis before you were injured, the extent of your injuries, whether you have been disabled from work since your injury, and possibly other topics that happen to be at issue. Unless you have legal training it will be virtually impossible for you as a lay person to do this effectively in a disputed case.

After the hearing, you will have to take the deposition of your treating physician and ask the appropriate questions to obtain the evidence from the physician that your injury was proximately caused by the on-the-job accident or incident. You also need evidence from the doctor during this deposition to prove your period of disability and whether you have any permanency to your injury. You will have to arrange for a court reporter to transcribe this deposition and pay the court reporter, although the insurance company pays the doctor’s fees.

Then, you will have to write "Contentions" and a "Proposed Opinion and Award" for the Deputy Commissioner’s review. The Contentions constitute your factual and legal argument based on the evidence that has been admitted into the case. The Proposed Opinion and Award is just that, a proposed decision making all of the appropriate findings of fact and conclusions of law, and award, giving you what you think you are entitled to get under the workers' compensation laws.

The stand-alone workers' compensation statute book that we workers' compensation lawyers use is about two inches thick and contains just over 1,000 pages. It includes the North Carolina Workers' Compensation Act and some related statutes, and it provides case notes and annotations to each statute, which will lead you to the various other items of legal authority that are available in a law library. There are hundreds of cases that have been decided by the North Carolina Court of Appeals and North Carolina Supreme Court in the area of workers' compensation law and those cases are not fully reproduced in the stand-alone statute book. In order to look at those cases and find out whether they are applicable to your particular situation, you either need to have access to those cases on the internet or go to a law library that contains the "Reporters" which are the hardbound volumes of the cases. The Court of Appeals is now up to approximately 140 volumes or books, and the Supreme Court decisions now number more than 350 volumes. In order to find a specific case that might help your argument, you need to know how to find it in those hundreds of law books-and how to interpret it and use it  once you find it. 

When you go to the hearing, if an insurance company is involved, your employer and insurance company will be represented by an experienced Workers' Compensation Defense Attorney. That lawyer will know some other things that are not included in the workers' compensation law books, such as the Rules of Evidence. I have a "Treatise" in my office, "Brandis & Broun on North Carolina Evidence" consisting of two hardbound volumes totaling approximately 1,350 pages. These are the books a lawyer consults to review the Rules of Evidence that might apply to the particular case he or she is handling. If you're going to go to court on your worker's comp hearing to try your own case, go to the library and look up the Rules of Evidence on hearsay, Best Evidence Rule, cross examination and impeachment. That will get you started although other Rules of Evidence may come into play as well.  

Whoever loses at the Deputy Commissioner level typically appeals to the Full Commission. An appeal there involves determining the legal and factual errors made by the Deputy Commissioner and then writing a new Brief to be filed with the Full Commission making your arguments and providing legal authority for each point you want to make. Then you need to travel to Raleigh at the specified time and stand up in front of the panel of three Commissioners and make a 20 minute oral argument that answers any questions you did not cover in the Brief and convinces them that your position is superior to that of the opposing party. 

If you lose at that level you have another appeal, this one to the North Carolina Court of Appeals, but that court only reviews decisions for errors in law. The Full Commission determines what the facts are, so if the facts in your case are in dispute, you have to win that argument at the Full Commission level.

As you can see, getting a denied claim overturned is extremely complicated. You need to engage the services of a Board Certified Specialist in Workers' Compensation Law to assist you if your claim is denied. It is truly not a do-it-yourself operation for an untrained individual. It is not even an appropriate task for a lawyer with no workers’ compensation experience, in my opinion, because of the complexity of workers’ compensation law and procedure. You don't want to be a new lawyer's guinea pig on this. Hire someone with experience and preferably with the Board Certified Specialist designation. The interesting thing is that the experienced lawyer with all the credentials charges you the exact same percentage as the inexperienced lawyer who got out of law school last year and is handling his first workers’ compensation case. If the lawyers are charging the same percentage, why not go with the one that has the most experience and the best track record?

You can review a specific lawyer’s workers' compensation litigation track record at the Industrial Commission website using their database of Commission decisions. As your search term, put in the name of the lawyer that you are interested in learning about, and any cases that that lawyer has handled should pop up in the search. The last time I performed this search for my own name, I had approximately 130 case decisions from the Industrial Commission during the time period covered by the database. I had handled many more cases before the database begins. Be sure to search for the lawyers whose names you see or hear all the time--you may be surprised at how few (if any!) cases they have personally handled in court at the Industrial Commission!  Many lawyers want your business, but check their track record for litigation at the Commission before you hire a lawyer! 

                        Bob Bollinger,   NC State Bar Board Certified Specialist in Workers' Compensation Law