Checklist of Affirmative Defenses for NC Comp Claims
Although arguably the most important determination an adjuster makes when a claim is filed is whether or not the claim is compensable, before even contemplating that question, the adjuster should consider whether or not the claim has a basis under the NC Workers’ Compensation Act (the “Act”.) Listed below are several affirmative defenses for defendants to consider at the beginning of any claim.
Was there a workers’ compensation policy insuring the Employer on the date of injury which covered the claimant and the job site?
Does the Workers’ Compensation Act apply?
Only Employers who have 3 or more regular employees are required to carry workers’ compensation insurance. Parties cannot “agree” that there is coverage.
Was the injured worker an Employee of the Employer?
Only Employees are covered by the Act. Independent contractors are not. The fact that an Employer designates a worker as an independent contract or that the Employer “1099s” the worker does not mean the IC will agree that the worker is an independent contractor and therefore not entitled to workers’ compensation benefits. The claim must be considered using a common law test.
- COMPLY WITH NOTICE REQUIREMENTS?
Did the injured worker provide written notice of the injury within the required amount of time?
The Act requires that the injured worker given written notice of the accident to the Employer within 30 days unless:
1) Employer has actual notice of the accident;
2) Injured worker is prevented from giving notice due to impairment; or
3) Injured worker has a reasonable excuse; and
4) Employer is not prejudiced by the delay.
- COMPLY WITH STATUTE OF LIMITATIONS?
Did the injured worker file the claim within the statute of limitations?
The Act states that an injured worker is barred from receiving workers’ compensation benefits unless he files a claim or is paid indemnity benefits within 2 years of the accident. An informal letter that does not request a hearing or state that the injured worker is claiming benefits and IC action is required is not enough. Also, an Employer’s voluntary payment of medical bills is not an admission of liability and does not negate the requirement that the injured worker file a claim.
- WILLFUL INTENT TO INJURE?
Unless suicide is induced by the injury, if the injured worker intended to hurt himself (or someone else) and does suffer injury, that injury is not covered.
If the injured worker was intoxicated to an “appreciable degree” either physically or mentally, his accident will not be covered. A Defendant must be able to establish the impairment by accepted medical testing. (Hint: Case law establishes that a urine test positive for the presence of marijuana is not sufficient to prove impairment.) Once the Defendant proves “appreciable impairment”, the burden of proof shifts to the injured worker to establish that the impairment did not cause the accident.
For a downloadable reference sheet with these defenses listed, click here. If you have questions, contact me directly at 919-863-8733 or firstname.lastname@example.org.