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Charlotte Workers’ Comp Attorney and Third Party Claims

Every employee is entitled to workers’ compensation benefits if that employee is injured while working, with certain exceptions. The also applies to employees who drive for their employment or do a majority of their work driving. In addition to the workers’ compensation benefits, an employee who is injured while operating vehicle on the job may also have a separate and distinct “third party claim” for negligence if the work related accident occurred due to the fault of another driver. This is commonly referred to as a third party claim since it is totally separate from the WC claim against a “third party,” not the employer or their WC carrier.

Workers’ Compensation Benefits

Workers’ compensation benefits essentially boil down to your employer paying for your medical expenses and lost wages because you were injured in an accident while working for them. Unlike most auto accident cases in North Carolina, the employee can be at fault and still receive these benefits. In order to get these benefits, the employee must follow the proper steps under the Workers’ Compensation Statute. The Charlotte workers’ comp attorneys at Auger & Auger can help you file the claim and make sure that you receive the WC benefits and settlement that you may be entitled to depending on the nature of your injuries.

Who is Exempt From Workers’ Compensation in Charlotte?

Although most employees are entitled to workers’ compensation, there are a few exceptions under state law:

• “Casual” employees. These are workers who occasionally perform tasks at a workplace but don’t do so regularly and can leave without giving notice.
• Domestic or household employees.
• Workers on farms with less than 10 employees.
• Employees of the federal government.
• Railroad workers.
• Certain high-ranking corporate leaders who are members of an LLC or partners in the business, and who choose to be excluded from worker’s compensation coverage.
• Workers at businesses with less than three employees. Mostly this applies in “mom and pop” situations where a very small business only has one or two employees.

Who is Not Exempt from Workers’ Compensation Benefits?

We’ve had clients tell us that they don’t think they can get workers’ comp because they only work part-time or as “temporary” help – often they got this idea from a supervisor. This is incorrect. If your boss or someone else at work has told you that you don’t qualify for workers’ comp because you are a part-time, temporary, or a seasonal worker, you should speak with an attorney right away. Even “unlawfully employed” workers may be eligible for workers’ compensation.

Employees and Contractors

There is one more important caveat to understand about workers’ compensation. When we talk about employees, there is a distinction between an employee and a contractor. Contractors may perform services for a person or business but are not their employees. For example, if a newspaper office pays a janitorial service to clean once a week, the janitorial service would be a contractor. If one of the cleaners gets hurt while on the job, they would not have a workers’ claim with the newspaper office, even though they were there when it happened. However, if the cleaner is employed by the janitorial service, they could have a workers’ comp claim through the janitorial company’s worker’s comp insurance. On the other hand, if the cleaner is a contractor for the janitorial service, they would not have a workers’ comp claim at all. But in most cases, they would have other options outside of the workers’ comp system.

How can you tell if you are an employee or a contractor if you’re not sure? Typically this is discussed before you begin working, and many businesses will have contractors sign an independent contractor agreement. Here are some other ways to determine if you should be classified as an employee or a contractor:

• Do you have regular, set hours that you’re expected to be working (even if you work from home/remotely)? Does the company tell you not just what to do, but how to do it? Generally, an employer can tell an employee when to work and how to do their tasks. An independent contractor requires less supervision. They can set their own hours as long as they complete tasks by the deadline, and they don’t need anyone telling them how to do their job.
• Is the company in charge of various aspects of the job, such as when and how you get paid, if you get reimbursed for business costs, and how office supplies or other tools are provided? This is often indicative of an employer/employee relationship.
• What does the written agreement say? Usually, a contractor agreement comes right out and says that you are not an employee and are not entitled to any benefits like health insurance or paid time off. An employment contract will spell out the benefits an employee receives, as well as what they are expected to do. An employee will also be asked to fill out a W-4 tax form for withholdings, while a contractor will usually be asked to complete a W-9. Although businesses are not required to withhold money from a contractor’s check for tax purposes as they are with employees, they are required to send a 1099 tax form to contractors who make a certain amount of money within the year. If you do infrequent and inexpensive jobs for the business and make less than $600 in the calendar year, they do not have to send you a 1099 (but they might do so anyway).

Understanding the difference is essential, because there are some situations where an employer misclassifies someone as an independent contractor, when in fact their position better fits the qualifications of an employee. This saves the business a lot of money since they don’t have to pay for health insurance or other benefits. Often the “contractor” doesn’t realize they have been misclassified either – until they get hurt on the job and consult a workers’ comp attorney. When we talk with contractors, we always ask questions to ensure they do actually meet the criteria for being an independent contractor. If not, they may have a case against their employer for the misclassification, which would make them eligible for workers’ compensation. Not only that, but in this situation, they might also be eligible for back benefits, such as reimbursement for health coverage.

What if you signed an agreement saying you were an independent contractor? This doesn’t necessarily mean you’re out of luck. If you have the agreement, make a copy for your lawyer to look over. In most cases, a company can’t avoid their responsibilities to an employee by having them agree to contractor status when they are really an employee.

What if You Really Are an Independent Contractor and You Get Hurt?

You still have options for seeking compensation. If there is some evidence that the business you were working for was at fault for your injury or illness, you can file a claim outside of the workers’ compensation system. You can also file a third-party claim if another party was responsible. In some situations, there may be insurance coverage available for the contractor. For example, some rideshare companies offer insurance for contractor drivers who are hurt and unable to work, although this coverage is optional and paid for by the driver. In other cases, another party’s insurance may cover your injuries, such as homeowner’s insurance if a dog bites a courier delivering a package to the home. Regardless of your situation, we will search for any available insurance coverage for you.

How Does Workers’ Compensation Work?

Before filing for workers’ compensation, it’s a good idea to go over your situation with a Charlotte workers’ comp attorney. There are some cases where you may prefer to pursue other options over going through the workers’ compensation system. However, if you think you might want to seek workers’ comp, it’s important to report the injury or illness to your employer within 30 days. You will then have two years from the date of your injury or when your illness first began to file a workers’ compensation claim using the North Carolina Industrial Commission’s Form 18. You will need to include an explanation of how the job caused your injury or illness, your professional relationship with the employer (that you are an employee), and that your injury caused damages covered by the North Carolina Workers’ Compensation Act (NCWCA).

What Does Workers’ Compensation Cover in Charlotte?

Workers’ compensation is a no-fault way to receive compensation for certain damages you may have after an injury or illness caused by working at your job. Under the NCWCA, the following damages are covered:

• Medical care for work-related injuries and illnesses, including those covered by exposure to chemicals or other toxins. If you need ongoing care for a chronic illness or injury, this should also be covered. Repetitive-use injuries like a carpal tunnel that occur not from a single incident but from repetitive motions are also eligible.
• Partial coverage for loss of income. When you’re injured to the point of being unable to do your job, workers’ comp should kick in to pay about two-thirds of your typical weekly earnings. For some people, this is problematic because two-thirds of their usual pay may not be enough to cover their bills. If this is the case, we can discuss other options, including third-party claims, to help make up the difference.
• Disability benefits. In the event that you’re unable to return to your job at all, or unable to work in the same capacity, you may be eligible for disability benefits. For example, a construction worker who hurts his back severely may be unable to go back to working on a job site. But he may be able to get a less physically strenuous job that doesn’t pay as well. In this situation, he might be able to seek disability benefits for the loss of income from switching to a lower-paying job.
• Funeral expenses. In extreme cases, a worker may be injured fatally. In this situation, their family may seek funeral benefits through the workers’ compensation system. They may also receive other benefits, such as two-thirds of the worker’s typical pay for 500 weeks.

Third-Party Claim – Personal Injury Benefits

Unlike the workers’ compensation law, the employee filing a third party claim for injuries sustained in a motor vehicle accident, cannot recover if he or she is partly at fault for the accident.  To be considered for a claim like this, the other driver must be at fault, which means the other driver must have done something to cause the accident (speeding, inattention, running a red light, etc.).

If the other driver caused the accident which led to the injuries, the injured employee has a right to file a “third-party claim” against the other driver and their insurance company.  The employee will have two distinct and pending injury actions, one under the employer’s workers’ compensation insurance and the other for negligence against the at-fault driver and their automobile insurance carrier. Our Charlotte injury attorneys can help you with the third-party claim in addition to the worker’s comp claim.

Most third-party claims involve motor vehicle accidents, but there are sometimes other situations where a person is hurt at work by a third party’s actions and may have both a workers’ comp claim and a third-party claim. For example, if you slipped and fell at work because the company that buffs your employer’s floor left a glob of wax behind, it’s possible you might have a third-party claim against the floor cleaning company. However, with any third party claim, unlike a workers’ comp claim, it will be necessary to show the third party was at fault, that their negligence led to your injury, and that you sustained damages as a result.

Experienced Attorneys Handling Third-Party Claims

The attorneys at Auger and Auger have over 25 years of experience dealing with Charlotte workers’ compensation claims as well as Charlotte third-party automobile accident claims. If you or someone you know has been injured in a work-related accident, you may call us for a free and confidential consultation to learn your rights under both areas of law.