North Carolina claims jurisdiction
North Carolina claims jurisdiction – the right to apply it’s law to your case – if you were hurt in North Carolina, if your place of business is in North Carolina, or if you were hired in North Carolina. Why should you care? It happens that North Carolina has considerably better laws for injured workers than many of it’s neighboring states. In fact we get calls weekly from attorneys in other states asking that we assist them in bringing their client’s case in North Carolina.
So let’s look at this. The first way to bring a workers compensation claim in North Carolina is to have an accident here. That’s pretty self-explanatory isn’t it? Remember… if you are an over the road driver out of Florida and you’re heading up the East Coast and get injured hopping out of your truck at a stop in North Carolina – you’ve got a North Carolina workers’ compensation case.
The second way to bring a claim in North Carolina is if your place of employment is here. A lot of our clients live in other states but the depot they drive out of is in North Carolina. There are lots of these close to the borders in Charlotte, Mt. Airy, Reidsville, etc., but the truth of the matter is many truck drivers are rarely, if ever at the depot. They may well live in Maryland but have Fayetteville as the depot they take their assignments from. We’ve represented dozens of truck drivers who live in Tennessee, Virginia, and South Carolina but technically the truck they park at home or at the closest truck stop is based in North Carolina.
Finally, if you were hired in North Carolina you can bring a claim here regardless of whether you and your truck were ever here again. Think for a second on how you got your last job. There’s a good chance that you were talking to someone over the phone. And there’s a good chance you were sitting in your house when you did it. So you answered an ad online or gave the company a call. You talked about your experience, history, and driving record. They talked up their company. And you reached a deal. The next thing you know you’re getting picked up or they sent you a bus ticket to the home office. Yes, there is paperwork and all to be done there. But we’ve successfully convinced the North Carolina Industrial Commission on a number of occasions that the decision to hire was made over the phone. Whatever happened at the home office was just confirmation.
There’s no reason to go through the hassle of an out-of-state workers compensation claim when you can bring one here in North Carolina.
If your workers compensation doctor has taken you out of work
If your workers compensation doctor has taken you out of work the adjuster is supposed to be paying you what is called Temporary Total Disability. Basically because you are going to get better and hopefully back to work it is a “disability” that has you “totally” out of work for a “temporary” period of time. Or if the doctor has given you light duty restrictions which your company cannot honor then you are supposed to draw temporary total disability benefits. While you are disabled the adjuster pays you a compensation rate of two-thirds of your average weekly wage. This check is to come to you tax-free and the amounts will not show up on your W-2 or 1099 for taxes.
We’ve seen truck drivers get paid all sorts of different ways. Some of you get paid by the hour, some get paid a flat salary. Some truckers get paid by the mile. Some truck drivers get paid by the mile plus a certain amount for every stop. Some of you get paid by the mile plus a certain amount of every stop plus a per diem. Let’s just say that calculating the average weekly wage of an injured worker who drives a truck for a living is a lot more complicated than it is to figure it out for someone working at Wal-Mart.
Where there is complication there is room for a worker’s compensation adjuster to get it wrong. There is also a possibility that the adjuster might deliberately ignore some things – bonuses, per diems, etc., that are a big part of your monthly budget and that you need to live on. Trust us. We’ve seen every “mistake” imaginable. When you are injured and out of work you probably need every dime to make ends meet. That’s why it is absolutely critical that your average weekly wage gets calculated properly. The system is stacked against you so you need us to make it better than it appears.
One of the loopholes that we are able to exploit for a lot of truck drivers is the fact that if you drive cross-country some freight carriers may have you on the road for a couple of weeks at a time but then you are home for several days. You are well familiar with the limits the Federal Motor Carrier Safety Administration puts on drivers. If you fall under the 70 hours/8 days regulations there is a good chance that you had an extended period of off duty. If at any time during the last year you were off the road for more than seven days straight there are several things we can do to raise your average weekly wage. It is too technical to get into here, but give us a call and we can have you on the road to extra money in no time flat.
Your back hurts, you’ve got pain down your legs, and the adjuster is telling you that you didn’t have an accident
Your back hurts, you’ve got pain down your legs, and the adjuster is telling you that you didn’t have an accident. If you are like most people you think of an “accident” as a “slip, trip, or fall.” For a trucker an accident brings to mind a collision or going off the road. Possibly slipping as you get in or out of your cab. Or falling on ice at a truck stop. All of those are obvious accidents.
For most on the job injuries that is a correct definition of “accident.” However there is an exception for necks and backs (and actually for hernias, too). The Worker’s Compensation Act and the North Carolina Industrial Commission get it that an employee can have a back or neck injury without having anything unusual happen at all.
There is something called a Specific Traumatic Incident which the Industrial Commission says counts as an accident.
So what is an STI? The worker’s compensation laws say that if you had an onset of pain in a “judicially cognizable period of time” then you have a valid worker’s comp claim for your back or neck. Now leave it to a bunch of worker’s compensation attorneys and judges to come up with a phrase like that! While it sounds like a lot of legal nonsense it just means if you can say “my back started hurting last Tuesday the 17th” you have a good claim. If you can say “my back started hurting last Tuesday the 17th after I was moving the pins to slide the tandems” or “after I was cranking the landing gear” then you are golden. Saying “my back started hurting last Spring” is not so great a claim!
Does that mean the adjuster is going to accept your claim? Um, no. The adjusters deny perfectly valid claims every single day or at least that’s how it seems to us.
It may be that your back or neck started hurting just while you were driving along. If that’s true then please, please, please call us before you talk to an adjuster! We’ve spoken to enough doctors to know that the pain often comes hours after then event itself. Let us help you get your thoughts in order, collect some records if necessary, and give you the very best chance of getting your worker’s compensation claim accepted right away!
What we have learned is that the more specific you can be the better the outcome is going to be. But we have also learned something less fun… although all worker’s compensation adjusters are well-aware of specific traumatic incidents they very often pretend that they don’t. What do we mean by this? What happens is that the comp adjuster calls you up and takes a recorded statement. During it she asks you “did you fall? Did you roll your truck? Was there an auto accident? Did you fall off the loading dock?” “No, no, no, and no” you truthfully answer. At this point she steps in with the unfair question “So there was no interruption of your normal work routine?” You, being a trucker and not a workers’ comp adjuster answer that question as honestly as you can: No. The adjuster then winds down the conversation and turns off her recorder. Why is this an unfair exchange? Because the legal definition of an “accident” is “an interruption of the normal work routine.” The adjuster has just gotten you to say you didn’t have an accident – in the traditional sense of the word – but didn’t ask you about a sudden onset of pain or a specific traumatic incident.
The adjuster has now got a reason to deny your worker’s comp claim without you even realizing it. Unfortunately we see this happen almost on a weekly basis.
There is another exception in the North Carolina Worker’s Compensation Act
While specific traumatic incidents apply to anyone working in any type of employment, this exception is just for truck drivers.
Ordinarily only employers with three or more employees are required to carry workers’ compensation insurance. Independent contractors are not covered by the Worker’s Compensation Act. However in an exception carved out just for truck drivers North Carolina General Statute 97-19.1 provides that any person who contracts with an independent contractor shall be legally considered to be an employer.
What does this mean? You may be an owner-operator, you may lease your truck, or you may just be driving the company’s truck. But if you are getting paid on a 1099 and have an independent contractor you are considered an employee for purposes of the North Carolina Worker’s Compensation Act.
This doesn’t come without issue though. One of the biggest problems is that this statute is almost unknown. So many adjusters will immediately deny your claim by saying that you are an independent contractor. In most cases that’s the kiss of death to a claim for worker’s compensation. Even though it is irrelevant for truck drivers the adjusters do not realize it and will deny the claim. In fact it’s so few attorneys who represent injured truckers know about this law that we’ve encountered partners, very senior attorneys at insurance defense firms, who had never had this law cited to them before.
As is often the case there is an exception to the truck drivers’ exception: this pertains to you driving under your own Department of Transportation license (NOT a Commercial Drivers License) and only under that DOT license – not the DOT license of the company you are driving for. This is so rare that in over twenty years we have never seen the exception to the exception be successfully used.
As great as the Independent Truck Driver’s exception is it comes with a potential drawback
As great as the Independent Truck Driver’s exception is it comes with a potential drawback: the truck company may not be carrying workers’ compensation coverage one you. We have successfully gotten around this in a number of cases where the truck company is large enough that they do have worker’s comp insurance – just not on enough employees. That’s not a problem. While you never know exactly what the North Carolina Industrial Commission may decide in a given case we haven’t lost a case on this issue yet.
We argue that if an insurance company such as Liberty Mutual, Key Risk, or Stonewood Insurance sells workers’ compensation insurance to a trucking company they automatically are providing coverage to everyone that the Industrial Commission says has to be covered. If the employer did not properly report the correct number of employees to the insurance company that is an issue between the two of them and it cannot cause harm, or lack of insurance coverage, to the injured worker. This is a situation which comes up in the construction industry a lot as well. Workers’ compensation insurance premiums are based on the amount of payroll so employers have an incentive to list fewer employees than the actually have when they are buying insurance.
Many truck companies require independent contractors to carry an “equivalent” to workers’ compensation insurance called an Occupational Accidental Disability policy or a similar name. Very often the truck company takes the premiums out of the pay which they would otherwise be paying to the independent contractor trucker.
These policies are not workers’ compensation policies and they do not pay the same benefits as a worker’s comp policy pays. For instance these disability policies may pay as little as 50% of your average weekly wage – and they are taxable as well. They do not provide for the payment of all your medical bills. Many of them do not pay partial disability. That means even though you may not be able to earn $65,000 as an over the road driver if you have retained your commercial driver’s license and can drive a florist’s delivery van in town for $9.85 and hour they won’t pay you any additional benefits. Plus they do not compensate you for your permanent injuries.
Can it get any more complicated? Ha! As a matter of fact it can… most Occupational Accident policies have an exclusion for alleged worker’s compensation claims. That means if you aren’t extremely careful about how you file your claims you might find that the Occ Acc policy cuts of your benefits while the workers’ comp policy is claiming that it doesn’t cover you. This is just one of the many reasons that truck drivers who are injured on the job need an experienced workers’ compensation attorney even more than average injured worker does. We have had a lot of success in balancing these two different insurance policies against each other but it requires a lot of attention and know-how.
Light Duty and Truck Drivers on Workers Compensation
At some point in your workers’ compensation claim the treating doctor is going to give you work restrictions. He may take you out of work entirely, he may give you light duty restrictions, or he may release you to full duty work.
The first of these doesn’t cause a lot of problems but the second and third options can be difficult. Let’s go to the full duty release before we look at the problems associated with the light duty release.
If the authorized treating physician releases you to full duty work the workers’ compensation adjuster does not have to pay you weekly benefits anymore. She cannot simply stop sending checks – it’s more complicated than that and there are certain steps which she must take first, like filing an Industrial Commission Form 24. But the end is in sight in terms of cash flow to you. That’s why it is very important if you haven’t already called us or another experienced workers’ compensation attorney you do so soon.
The other problem with a full duty release to work is that your employer has no obligation to provide any accommodations on the job at all. While the adjuster may pay a rehabilitation nurse to meet with your doctor and assure him that your company “will work with you” there is no assurance this will actually occur. Indeed it may be news to your employer. From the company’s point of view you may be sent off across the country with or without a team driver and be expected to keep up the pace. You are all too aware of the conflict between the Federal Motor Carrier Safety Administration and your boss. The first wants to limit how much time you spend behind the wheel. The second wants you on the road, the road, the road. Truck drivers resting at truck stops are not making money for company.
I was taking the deposition of a doctor a couple of years ago asking him why he released one of my clients who had undergone a total knee replacement to return to work on full duty. Basically the orthopedic surgeon felt that my client could give it a shot. I cannot stress enough that neither I nor any other attorney in this law firm believes people should sit at home when they can safely return to work without causing injury to themselves or another. This particular client had a terrible knee injury. After keeping his leg in one position for 30 minutes or more his whole knee would stiffen up so that he had to bend it gently by using both hands to move his leg. Without even thinking through the ramifications of this the doctor was prepared to certify that my client could drag himself into the cab of his truck and head off from Hickory, North Carolina to Los Angeles, California driving solo. Somehow the doctor pictured him pulling over every 25-30 minutes and walking around for a bit. When I asked the doctor to state, on the record, under oath, that my client did not pose a hazard to himself by driving 11 hours per day and up to 70 hours over 8 days the doctor hesitated and said he could not do it. With that one answer my client’s case was saved. Even more difficult to reconcile with light duty is the 16-hour Short Haul Exception. Let’s face it: if your company is so demanding that they want you in the truck for 16 hours there is no practical way which they are going to accommodate you taking a lot of breaks to work the pain and stiffness out of your neck, arms, back, or legs.
Realistically the doctor in this case should have given my client light duty restrictions. That’s what he was really thinking of. But the employer wasn’t required to even contemplate those with a full duty release. Let’s think for a bit, though, of what may have occurred if the doctor had indeed given a light duty release. Would the employer have actually honored it? In this particular case it was an over the road driving position, no touch, which had my client on the road for a week at a time. Let’s get past the pre-trip inspection for a second and wonder if my client could have been worth his money if he was stopping every 30 minutes to stretch his leg out. Think about it… of course not. With that kind of driving schedule he would be doomed to fail. Perpetually behind schedule and never able to get the work done on time. That is unless he cheated the system, forged his logs, and drove for more than 14 hours per day.
As for the pre-trip inspection, I’ve had any number of workers’ compensation nurses and trucking company safety administrators say that they would have someone assist with it. That might be fine as you leave the depot at the outset of your trip – if you even work out of a depot with other drivers around. But what do you do every other day? Simply put it cannot work. If you have restrictions, and an actual physical inability to kneel, stoop, or bend on any regular basis it’s going to be pretty difficult to do a proper pre-trip inspection. What’s the risk of failing to do proper pre-trip inspections? It gives your employer an easy way to fire you if they want to. What is a better excuse for letting an expensive, injured truck driver, go? Violating safety regulations.
Were you injured in the course and scope of your employment?
Again, an exception to the normal rules for working people. For must of us employment begins and ends on a daily basis. Under some situations employment begins when a worker enters the parking lot of his employer. In others it begins when an employee enters the premises proper. The worker is in the course and scope of his employment throughout breaks until she or he exits at the end of the day.
The rules for a truck driver are similar. Sort of. Just imagine that the continent of North America is your office and you’ll get the idea. We have successfully brought claims for truck drivers who were injured at truck stops, in their motels, at dinner, etc. Don’t expect the insurance adjusters to cooperate with this rather expansive view of your office. This is where having an attorney who has argued these cases time and time again pays off for you.