Category Archives: Workers’ Compensation

Workers’ Compensation ‘Reform,’ Profits: What NCCI Shared

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

Workers’ compensation laws are under constant attack by “reformers” from industry, insurance and self-insureds. NCCI is the National Council on Compensation Insurance, a group that participates in many aspects of workers’ compensation, including setting premiums. The NCCI recently released presentations regarding big issues in workers’ compensation, including information about prescription drug cost-control (listed first below) and an insurance industry financial review (listed last below). These presentations were part of the NCCI’s 2016 Annual Issues Symposium. 

These presentations are interesting. I recommend reviewing them for a snapshot of our current workers’ compensation system in America. The financial review link (“Shape of Things to Come … ” above) shows  high net income for the  insurance industry. Is the constant pressure to “reform” workers’ compensation law fair and reasonable? Is maximizing profit for the insurance industry more important than fair compensation of worker injury and death?

Can I Get Workers’ Comp Benefits For My Loss of Sense of Taste and Smell?

What is your sense of smell and sense of taste worth to you? These senses are truly priceless. In a medical malpractice case, the plaintiff – a chef – was awarded $1.5 million in damages when he lost his sense of taste following a tonsillectomy when the surgeon failed to disclose that this was a risk.


Unfortunately, sometimes an injured worker may suffer a head injury or other type of injury that causes him or her to lose his/her sense of smell and/or taste. While no amount of money will ever make a person whole after losing one of their senses, North Carolina workers’ compensation law allows for an injured worker to be awarded some compensation for the loss of sense of smell and taste if the loss was a result of compensable workplace injury. Under North Carolina General Statute § 97-31(24), the “loss or permanent injury to any important organ or part of the body for which no compensation is payable under any other subdivision of this section. . .”. The maximum award for the loss of both senses (combined) is capped at $20,000 in North Carolina.


North Carolina law treats the “loss of sense of taste and smell” as the loss of an important internal organ.” See Cloutier v. State, 57 N.C. App. 239, 291 S.E.2d 362 (1982).  In 1997, the North Carolina Court of Appeals (Bess v. Tyson Foods, Inc., 125 N.C. App. 698, 482 S.E.2d 26 (1997) held that the injured worker was entitled to compensation for permanent damage to the olfactory organ but not for compensation for two separate compensable injuries. As a result, in North Carolina the most a plaintiff can receive for losing his or her sense of taste and smell is $20,000.


Based on a brief look at other states, it appears that many states do not compensate injured workers for their loss of sense of taste or smell at all. When compensation is allowed, the states have compensation caps less than North Carolina’s cap.  For example, Connecticut allows 17 weeks (max) compensation for loss of sense of taste, and 17 weeks (max) for loss of sense of smell. Minnesota allows a 1% disability rating for total loss of taste and 1% rating for total loss of sense of smell. Washington caps the total body impairment for the loss of taste and smell at 3% (or a max award of $5,977.41). Finally, Wisconsin has a cap of 2.5% for permanent total disability for losses of taste and smell. 

Scorpion Sting While Working at the Grocery Store – Compensable?

In Raleigh, North Carolina, we see a lot of crickets, wasps, bees, lightning bugs, and an occasional cicada. What we don’t have – thank goodness – are scorpions. Those belong far, far away – preferably in other countries or in the Southwest. However, just a few weeks ago, an employee at a grocery store in Raleigh sustained a scorpion sting while working near the bananas in the produce section of the store. Based on the news article, it’s unclear what s/he was doing exactly – perhaps unloading or sorting bananas?

So, would this mean that the stung employee would have a workers’ compensation claim? Based on the limited details from the news article, the answer is “quite possibly.” The Industrial Commission would apply an “increased risk” test to determine whether the employee’s injury from the insect sting arose out of his or her employment, and whether the employment peculiarly exposed the employee to a risk of being stung by a scorpion sting greater than that of other persons in the community. See Minter v. Osborne, 127 N.C. App. 134, 487 S.E.2d 835 (1997).

The case will likely hinge on coworker testimony and expert testimony (i.e. an entomologist testifying about insect habitats and behaviors). In this particular example, a local entomologist from North Carolina State University stated that “scorpions and spiders get to the state [North Carolina] from tropical areas by hitchhiking on bananas or other imported produce.” So, based on this statement, it’s likely if the employee was unloading bananas from out-of-state, s/he was at an increased risk due to his/her employment of encountering and subsequently being stung by a scorpion than, for example, I am sitting in my office just down the street.

The compensability of the case is going to center on a lot of factors. Insect bite cases involving workers’ comp issues are highly fact sensitive and quite interesting. Hopefully the injuries are typically minor and heal in a matter of days. However, when there are complications or reactions from an insect bite, it would be wise to consult with an attorney to discuss aspects of the case.

Can Safety Rules or Regulations Impact a Workers’ Compensation Claim?

In North Carolina, if an employer willfully fails to comply with any statutory requirement or an order of the Industrial Commission, an employee’s injury compensation is increased ten percent. If however an employee is injured because he willfully violated a safety rule set by the employer, then his injury compensation will be reduced if (1) the rule or regulation has been approved by the Industrial Commission’s Safety Education Director AND (2) he knew about the rule. N.C. General Statute 97-12.

For an employer’s adopted safety rules or regulations to be approved by the Industrial Commission, the employer must submit them to the Safety Education Director for review. The Safety Director will then review the rules and approve them if they comply with the general provisions of the safety rules outlined by the American National Standards Institute (ANSI) AND The Occupational Safety and Health Act (OSHA). 04 NCAC 10A. 0411.

The burden of proof is on the party who claims an exemption or forfeiture under N.C. General Statute 97-12.

Status of Workers’ Compensation in the United States

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

For all those concerned about worker’s compensation in our country—which really is all citizens—take a look at this important report on the current status of worker’s compensation systems.  The report, from the Worker’s Injury Law & Advocacy Group (WILG) highlights the scary place where some legislators and big businesses want to take worker’s compensation.

Click here for the report. (PDF)

Medical Records Important for Workers’ Compensation Claim

Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.

Medical records are necessary to substantiate an injured worker’s claim. At a minimum, injured workers and attorneys need the records from doctors and hospitals to show the diagnoses the workers have and the treatment that they have received. This includes records from physical therapy, MRI, pain management, orthopedic, etc.  

Every injured worker has a right to receive her or his medical records, and by law should be able to obtain those records promptly at a fair cost.

Federal law is clear: a patient has the “right to obtain from [their health care providers] a copy of [their medical records] in an electronic format,” 42 USC § 17935(e)(1), and that health care providers may bill “only the cost of … copying, including the cost of supplies for and labor of copying,” 45 CFR 164.524(c)(4)(i). This is all part of the Health Information Technology for Economic and Clinical Health Act (HITECH Act).

Rehm, Bennett & Moore employs the HITECH Act on behalf of injured clients to represent them in an efficient and cost-effective manner.

Tips on Your Workers’ Compensation Claim

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

I just returned from New Orleans where I made a presentation to about 150 workers’ compensation lawyers (both for workers and for employers) on “Case and Client Evaluation In Workers’ Compensation”.

Since many in the audience represented insurance companies and employers, I paid particular attention to their response to my presentation. As one would expect, their best chance to win a case on behalf of the employer and insurance carrier occurs when several items come into play:

  1. When there is no actual report of the injury. [Worker’s Tip: No matter how small the work injury, make sure it is reported in some fashion – cell phone, voice recording, or Accident Report and the worker keeps a copy (BEST).]
  2. Failure to report that a work injury occurred to the first treating practitioner (whether Emergency Room, employer-directed medical facility, hospital, or primary care physician). The single most difficult hurdle in a workers’ compensation claim involving a traumatic injury occurs when no report of the injury is found in the initial medical record.
  3. In “Occupational Exposure” cases, no discussion with the doctor about work duties or prior incidents. (In Wisconsin, a worker can recover for workers’ compensation in one of two ways: 
    1. A traumatic injury where a single incident has caused the disability (lifting a box, falling, etc.)
    2. Occupational Exposure, where the wear and tear of a worker’s job causes the disability over time. In this latter category, workers routinely do not indicate with any kind of specificity the type of work they perform when they see the doctor.

These three tips can help us as workers’ compensation lawyers win claims, more so than any “Clarence Darrow” court room techniques or strategies.

Workers’ Compensation Fraud – North Carolina Statistics for 2014 – 2015

Several months ago, the North Carolina Industrial Commission published their Annual Report for 2014 – 2015. Based on the Annual Report, employer fraud was by far the overwhelming majority of investigated fraud in the North Carolina workers’ compensation system.


The Annual Report tracked investigations of suspected fraud and violations related to workers’ compensation involving employees, employers, insurers, health care providers, attorneys, and rehabilitation providers. The total figure of fraud investigations for 2014 – 2015 was 1,474 cases. Of those 1,474 cases, 1,336 cases related to employer fraud. That means that 90.64% of the investigated workers’ comp fraud was fraud on the part of the employer.  Whereas there were 129 cases of suspected employee fraud (i.e. 8.75% of the total investigated fraud cases).


The silver lining? Of the employer fraud that was prosecuted, the State of North Carolina was able to collect nearly $1,000,000 in revenue just in 2014 – 2015 in fraud penalties paid by noncompliant employers.