When reading this, please be aware that many “independent contractors” are, in fact, employees, who are eligible for workers’ compensation benefits, or are otherwise eligible. If you have been told by your employer that you are an independent contractor, you should contact a qualified workers’ compensation lawyer, to make sure that that is true. While many misclassified workers have coverage through non-workers’ compensation “occupational accident” insurance policies, those polices generally do not provide benefits that are as good as workers’ compensation.
When, for example, working as a truck driver, you may not always be an employee of the company for which you work. In some cases, the company may categorize you as an independent contractor. It is essential that you understand whether you are an employee or an independent contractor when it comes to applying for workers’ compensation benefits because your status will determine if you qualify for benefits.
In general, workers’ compensation does not provide coverage for independent contractors as a contractor is a separate business entity.
However, the North Carolina Industrial Commission explains that in some cases, the use of the title independent contractor is not valid when it comes to workers’ compensation. The Commission will consider how much control your company has over your work duties and details, along with other factors. It may determine that while the company calls you an independent contractor, you qualify as an employee under workers’ compensation. Therefore, your employer would have to provide you with benefits.
The experience at Jay Gervasi, P.A. has been that in the vast majority of cases in which injured employees are told that they are independent contractors, proper analysis under the law indicates that they are employees, eligible for workers’ compensation benefits.
Even if it appears that an immediate employer has no workers’ compensation insurance coverage, and even if there is a question as to whether that employer is itself an independent contractor, there is a section of the North Carolina Workers’ Compensation Act that provides for coverage by general contractors and intermediate subcontractors of workers farther down the stream of contracts. While this is complicated, it can provide access to an employer with coverage or enough money of its own to protect the injured worker.
It is important that you understand the responsibilities of your employer under workers’ compensation. You also need to understand the legal difference between an employee and an independent contractor. Knowing this information will help you to ensure that should you suffer an on-the-job injury that you can get compensation to which the law entitles you. If you have any questions about that, you should contact a qualified worker’s compensation lawyer, before you assume that you are not entitled to benefits.
Forklifts are more dangerous than most people think
Of the various types of heavy equipment, a forklift may seem like the safest to operate. After all, operators generally use them indoors, they are slow-moving and they are relatively compact. However, according to the U.S. Bureau of Labor Statistics, forklifts can be dangerous or even fatal. If a person operates a forklift in North Carolina, he or she should make him or herself aware of the dangers and how to avoid them.
Between 2011 and 2017, 614 individuals lost their lives in forklift accidents. That approximates to 100 forklift-related deaths per year. Every year, more than 7,000 nonfatal injuries occur as a result of forklift incidents. In 2017, 9,050 nonfatal workplace injuries involved forklifts. The median number of days workers missed because of said injuries was 13, which is higher than the median of eight for all other cases. The majority of cases — about 2,000 — involved non-roadway accidents.
EHS Today explains the most common forklift fowls and how operators can work to prevent them. The first is not knowing the machine’s load capacity. Carrying a load that is too heavy is a surefire way to tip it. Operators should always check the truck’s data plate before loading it.
Operating with an unsecured load is also a common yet dangerous mistake. Even if a shipment has an odd shape, an operator should take extra care to secure it correctly.
Operating without an intimate understanding of one’s route can also pose a hazard. This is particularly true in environments that are complex or overly dynamic. In addition to studying the course before driving, an operator should also clearly communicate with other workers to prevent pedestrian accidents, which, according to BLS, are the second leading cause of nonfatal forklift injuries.
A worker should never drive a forklift at excessive speeds or at speeds that are too high for the equipment and/or environment. He or she should also never misuse a forklift. Forklifts can be dangerous if not operated with care, so an operator should always resist the temptation to use the piece of equipment for anything other than its specified purpose.
If you have been injured at work in North Carolina, you may be questioning when the appropriate time is to write a claim to request workers’ compensation from your employer. Waiting too long or overlooking important steps during the process of applying could compromise your efforts to get the support you need.
Immediately following your accident that has left you injured, you should contact your supervisor and/or employer’s human resources department and disclose what has happened. The people you speak with should be able to provide you with the information you need to file a claim, tell you how you will receive updates, how to claim the services you are eligible for and what your employer will do to help you return to work as quickly as possible. If you need medical attention, the person who handles workers’ compensation for your employer will often tell you where to go to get it, so that worker’s compensation will be available to pay for it.
According to hni.com, your employer should also efficiently process your claim. Their neglect in being timely can cost them more money for your injury and decrease your motivation to return to work for them. Their willingness to show compassion and maintain timely communication with you is an effective measure of their desire to retain you as an employee and help you to achieve a full recovery.
In North Carolina, there are two separate requirements to pursue your claim—notice and filing. Filing, which is not the subject of this post, is sending a document to the North Carolina Industrial Commission, usually a “Form 18,” which must be filed by the injured employee. The documents that the employer files are often not sufficient, so the injured worker should always be careful to file. That must be done within a period that is dictated by something like a “Statute of Limitations.” If the filing is also sent to the employer, then it can serve as notice, as well, but only if it is done very quickly, on the time required for notice.
The notice requirement is separate, and failure to give timely notice, even if the claim is filed on time, can defeat a claim. To make a very long story short, it is best to tell your employer about an injury, as quickly as possible. The person told must be a supervisor or some other person authorized by the employer to be given notice—that is, not just a co-employee. It is best for the report to be in writing. A typical pattern is to tell a supervisor, who sends the injured worker to someone in human resources, where they fill out a written incident report. Of course, if the injured worker requires immediate medical attention, the meeting with human resources may happen after a visit to the doctor.
Failure to give good notice can have two effects. First, there is the technical requirement, failure of which can bar the claim. More often, notice comes into play when there are disputes about whether there was an injury at work. Detailed written notice adds credibility to the injured worker’s evidence, while lack of notice, when one would expect it, makes it look like the injury may not have happened the way the employee says it did. Lack of writing allows a supervisor to testify that there was no report.
It is true that waiting too long to report your injury and file a claim may prevent you from being able to receive workers’ compensation at all. Some employers may not allow you to claim an injury if so much time has passed and the evidence you have has expired or cannot be verified by a valid source. But be aware that employer policy and the law are two different things. If an employer tells you that it is too late to pursue your claim, you should not accept that at face value. If employers and insurance companies were always right, there would be nothing for lawyers to do. If you have any questions about filing or notice, you should contact a lawyer who is qualified to handle workers’ compensation cases. The information in this article is intended for educational purposes only and should not be taken as legal advice.
What do I do if I get into a car accident?
Even the best drivers in North Carolina fumble when they get into their first accident. Whether you are at fault for the accident or not, you may be in shock. If you do not know how to react, the shock could cause you to make mistakes that may either worsen your injuries or reduce your chances of getting compensation.
According to the North Carolina Bar Association, the first step is to stop. This may sound like an obvious recommendation but you might be surprised to learn how many drivers just keep going. Some of these are bad people who think of no one but themselves. Others are so in shock that they simply do not react.
When you pull over, try not to obstruct traffic. Warning signals, such as your hazard lights, might also help to keep you and other motorists safe. Verify if you or your passengers are injured. Then, assist any injured parties if there are any. Note that the occupants of the other vehicle may be injured and need help.
If there is personal injury, death or property damage, you are required by law to call the police immediately. If there are witnesses, get their information so they can confirm what happened. If you were not at fault, make this your primary responsibility. The other driver may not be keen on helping to gather the information that may incriminate them. You are a witness yourself, so take photos and make notes.
When the police arrive, cooperate with the officers. Before either party leaves the scene, also ensure that you exchange information. Note that unless you are seriously injured, remain at the scene until following the steps above and filling out a form to detail the accident information. You should then visit a doctor to confirm that you have no injuries or treat those you may have. Be sure to also notify your insurance company of the accident.
This article shares information from the North Carolina Bar Association on what to do if you have an accident. Visit their website for more detailed information. This article should not be used as or in place of legal or insurance advice.
Workers’ compensation covers job-related accidents and injuries. Unfortunately, the benefits provided by workers’ compensation are not designed to pay all you have lost, so you may find that workers’ compensation goes only so far. You may need more money to fully cover expenses related to your injuries and lost wages. And workers’ compensation does not provide recovery for the pain, suffering, and loss of enjoyment of life that often arise from an injury.
Except in rare cases of very bad conduct, beyond ordinary negligence, workers’ compensation is generally the only claim you have against your employer or co-employees. However, if the negligent actions of someone other than your employer or colleague caused your work injury, you may have a third-party liability claim. Third party claims are just like the rights you would have to sue someone for negligence, if you were not at work, and are designed to provide a full recovery for the injuries that result. In North Carolina, your workers’ compensation benefits are not affected by third-party liability. You have the right to collect both, though you may have to reimburse the workers’ compensation carrier, from the proceeds of the third party claim. That process can be complicated, so injuries that involve both workers’ compensation and third party claims often call for assistance from a qualified lawyer.
Third-party claims often center on one of five factors:
1. Defective equipment
Job-related injuries are sometimes caused by defective equipment. Faulty machinery can cause burns, electrocution or damage to limbs. If the machine contains a design flaw or a defect, you may be able to collect compensation from the manufacturer. Suppliers and distributors may also be at fault.
2. Unsafe property
Some jobs involve working at locations other than the company workplace. If you are a construction worker or service provider, you probably often work on private property. When hazards are present on those properties, injuries can result. In such cases, the owner or manager of the property may be liable for your accident or injury.
3. Risky situations
Certain jobs involve working alongside employees of other firms. When you share a worksite, you may come in contact with subcontractors who create hazards. If you become injured due to an unsafe condition created by a company other than your own, that company may need to help with expenses related to your injury.
4. Auto accidents
If you drive for work, you are at significant risk. The Centers for Disease Control and Prevention reports that car accidents are the number one cause of work-related deaths. Injuries are also common. Workers in the transportation, warehousing and construction industries face the highest risk. Whether you drive a truck, a delivery van or your own private vehicle, you may find yourself injured by other motorists’ reckless behavior. In such cases, you deserve compensation from the at-fault driver.
5. Negligence of others at a workplace.
When your job involves going to or otherwise working in places other than your employer’s premises, you can be exposed to injury caused by negligence of others or their employees, just like any other visitor. For example, if you are delivering office supplies to a customer, and an employee of the customer backs a forklift over your foot, there may be recovery available from the third party, in addition to workers’ compensation benefits.
Again, workers’ compensation cases that also involve third party liability raise complications that makes them more likely to require attorney representation. If you have any questions about such claims, you should call a qualified lawyer.
What are some common truck driver injuries?
Driving a truck in North Carolina may seem like a job where the only real injury risk is in a vehicular accident, but that is not true. You face different injury risks ranging from those you may get behind the wheel to those that may occur when doing the other aspects of your job. Trucking can be a dangerous profession.
You may think repetitive stress injuries, such as carpal tunnel, happen in manufacturing and office work only. The Occupational Safety and Health Administration states that these injuries are quite common for truck drivers. Think about the amount of time you spend behind the wheel, doing the same thing for hours. You hold the steering wheel the same way and move the gearshift the same way. Vibration can contribute to repetitive stress injuries. Doing that for hours and hours every week for months and years eventually takes a toll. Even sitting in a vehicle seat for long periods of time can cause back problems.
Sprains and strains are another big issue for this field. Often these occur due to falls. You are climbing up into a big rig multiple times a day, so there is always a risk for falling. Lifting cargo also poses a threat to your muscles and also can lead to back injuries, which are another common problem for truckers. Overexertion, fractures and struck-by accidents are additional issues truck drivers face on the job. Improperly secured loads can fall on drivers and other persons, causing very serious injuries.
While many of the common injuries are treatable or will heal on their own, the most dangerous on-the-job issue will always be road accidents. All it takes is one accident to claim a life. It is important that drivers stay alert on and off the road to avoid hazards, accidents and injuries. But sometimes even the greatest care cannot protect against the carelessness of others or from hazards of a job that carries a number of risks. This information is for education and is not legal advice.
A work-related rotator cuff tear in North Carolina can be extremely painful. You may wonder about the treatment options available to you and whether you will need surgery to repair the damage. Not necessarily; some rotator cuff tears heal on their own without surgical intervention. Therefore, your doctor is unlikely to recommend surgery until after you have first tried a conservative treatment course.
According to Web MD, there are two common types of procedures used to treat a rotator cuff tear. An open tendon repair involves making a large incision into the shoulder. Arthroscopic repair is a more recent innovation that involves inserting a camera and small surgical tools directly into the joint through several small incisions. An arthroscopic repair has certain advantages over open repair, so doctors tend to favor it. However, sometimes the tear is so large and so complex that an open tendon repair is necessary.
Your doctor may recommend surgery for your rotator cuff tear if one or more of the following is true:
- You lead an active lifestyle
- There is evidence of a severe tear that needs surgery immediately
- Six to 12 months after your injury, your condition has not improved
- Movement of the shoulder is painful
- Your shoulder muscles have atrophied, i.e., lost strength
However, treatment measures that do not involve surgery are often effective at healing a rotator cuff tear. Therefore, doctors usually will not recommend surgery until you have completed a course of conservative (i.e., nonsurgical) treatment with no improvement. Conservative treatment may include physical therapy, icing, rest and over-the-counter pain relievers.
Attorney Jay Gervasi can attest personally to this pattern. Several years ago, he started having problems in his shoulder that made him suspicious of a rotator cuff injury that would require surgery. He was told by a qualified orthopedist that physical therapy would probably be sufficient. He was skeptical, but, after a couple of months of formal therapy and home exercise, he was “completely cured.” He still does the home exercises, to make sure his problems don’t return, and he still has an old shoulder (along with the rest of his skeleton), but he is able to use the shoulder without limitation.
On the other hand, a member of Gervasi’s family was lifting a dumbbell when he heard a pop that caused others in the gym to stop and stare. He obviously required surgery, for a complex set of severe tears in his shoulder. As with most medical conditions, appropriate treatment of the shoulder will depend on the specific nature of the condition.
The information in this article is not intended as legal advice but provided for educational purposes only.
Could exercise help decrease the risk of a fall?
Falls are a leading cause of injury because they can happen so easily. It does not matter how old you are or how physically fit, a fall can happen in an instant. All it takes it a slippery or uneven surface, and the next thing you know, you are on the ground in pain. Seniors in North Carolina are especially at risk for falls, and they end up suffering the most. The good news is that there may be a way to lessen the risk of falls as you get older.
The American Academy of Family Physicians explains that one of the best ways you can prevent falls is through exercise. Research shows that doing specific types of exercises regularly can decrease your overall risk for a fall. This information does come from a limited study, but it is promising because exercise is something that you can easily do as part of a fall prevention program.
The key to making exercise work is to incorporate strength training and balance exercises. This combination strengthens the muscles that support your body while also helping to increase your balance. Increasing strength and balance gives you an edge when it comes to a fall because it enables you to better regain your balance and control over your body if you begin to fall.
The key to using exercise in the fight against falls is to do it on a regular basis. You also want to focus on all muscle groups, but specifically, those that will help fight falls, such as the muscles in your legs and torso. This information is for education and is not legal advice.
The Federal Motor Carrier Safety Administration performs frequent studies related to large commercial vehicles and safety on the road.
Among their studies is the relationship between driver alertness and time of day. This is where the circadian rhythm becomes a factor.
Affecting response time
Many circumstances create truck driver fatigue, such as extended work hours, strenuous activity or an insufficient amount of sleep. One FMCSA study found that the possibility of an accident is highest in the first hour of driving.
Drivers who sleep in their sleeper berths may be most at risk since they often take to the road shortly after waking. Researchers believe that sleep inertia affects drivers at this particular time. It reduces their vigilance, reaction time and cognitive functioning, leaving room for poor judgment calls and the increased opportunity for a crash.
Understanding the circadian rhythm
Human bodies go through a wake/sleep cycle every day. This involves an internal clock, which controls the level of alertness. People are naturally drowsy between midnight to 6 a.m. and again from 2 p.m. until 4 p.m. Truck drivers must be especially careful since they are often driving during these natural lulls. This corresponds to another FMCSA study, which finds that a driver’s alertness level relates more to time of day than to time on task.
Compounding errors
Truck drivers who feel fatigued may try various ways to recharge, such as turning up the radio, smoking, opening a window or drinking coffee. None of these quick fixes are effective in terms of maintaining alertness. In fact, too much coffee can cause headaches, nervousness, irritability and worst of all, insomnia.
Dealing with consequences
When truckers ignore their bodies’ natural rhythms, they put others at risk of a truck-car crash, in addition to themselves. Usually, it is the people in passenger vehicles that suffer most from these collisions. Although the truck driver may be at fault, the trucking company may also have a role in imposing an unhealthy or illegal schedule that leads to the crash. There may be multiple parties liable if the victim decides to take the case to court.
Property damage claims for potholes
According to the findings of a AAA study published in The Virginian-Pilot, potholes cost American drivers approximately $3 billion a year in car damage alone. The average cost of a single repair is $300. These figures do not take into account costs associated with personal injuries, such as medical care, lost wages and emotional duress. When potholes cause accidents in North Carolina, who pays?
According to the journal, North Carolina highway officials promise to fix potholes within two days of a driver reporting them. To report a pothole, a driver must visit the NC Department of Transportation website and submit a complaint regarding the whereabouts of the hazard. From there, the state assumes control. Highway maintenance engineers sift through the logs, find the potholes in question and fill them.
What happens, however, if a request slips through the cracks and a driver sustains considerable damage? According to NCDOT, a person who suffers injury or property damage because of a pothole, or for any other road hazard for which the state is responsible, can file a tort claim for reimbursement for losses. To file a complaint, an injured party must download and fill out a Citizen Incident Statement and mail said statement to the NCDOT location in the county in which the incident occurred.
However, to recover compensation for damages a pothole caused, you must show: 1) That the NCDOT knows about the pothole and 2) it failed to make a considerable effort to repair the road within a reasonable amount of time.
If pothole damage occurred in a contracted work zone, NCDOT would forward the complaint to the contractor. The contractor then assumes liability for damages.
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