Visitor Question

What are My Options for Workers’ Comp Injury Caused by Third Party?

Submitted By: Anonymous (Dunn, North Carolina)

I work for a public school system in North Carolina. I am an administrator (exempt employee) so not really any scheduled work hours.

I was working late one evening and stepped out of a carpeted area (not aware that a custodian had just mopped) onto a freshly mopped floor.

I fell extremely hard on my back and shoulder. I saw the workers’ comp  doctor the next day. A week later they did an x-ray. I have soft tissue injuries.

I was advised by the worker’s comp doc not to get an MRI because if it shows no injury then the worker’s comp insurance will probably close the case. Is this common practice?

I was out of work for 8 days, then returned on half days this week. For the amount of time required to be out for workman’s comp (21 days?), are half days factored in, or just whole days?

Also, the custodial company that mopped the floor and did not display a wet floor sign is a third-party company.

What are my options for pursuing a negligence claim for my pain and suffering?

Thank you for any information you provide.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.

Answer

Dear Anonymous,

You ask several questions, and I will attempt to address each one in order.

First, you indicate that the workers’ compensation doctor has advised against an MRI because it could result in payment of your worker’s compensation benefits being stopped.

As you know, you are entitled to workers’ compensation benefits only as long as you are dealing with issues caused by a work-related injury. If a doctor deems you fully recovered, then you should expect workers’ compensation payments to end.

Disputing Workers’ Comp Decisions

You do not, however, have to accept that decision if you believe you have ongoing injury-related issues.

The North Carolina Workers’ Compensation Act allows you to dispute a decision to end your benefits:

“[The injured worker] may file a motion [with the Industrial Commision] regarding a request for medical compensation or a dispute involving medical issues.”

Whether to proceed with an MRI is not an easy question. If you have only minor injuries, then your workers’ compensation benefits will likely end soon anyway. You note, however, that you fell on your back and shoulder, and certain shoulder injuries can require significant medical attention.

You may want to get a second medical opinion if you believe your injuries are more severe than what the workers’ compensation doctor has diagnosed.

Calculating Missed Days for Workers’ Comp

Next, you ask if the half days you have missed from work count toward the twenty-one (21) day total under North Carolina workers’ compensation law. What that 21-day total refers to is your employer’s obligation to pay you temporary total disability benefits for time you miss from work due to your injuries.

Your first seven days of missed work are not paid unless you miss more than 21 days total. Partial missed days do count toward the 21-day total and the seven days don’t have to be missed consecutively.

Regarding a potential claim against the custodial company, as you are probably aware, benefits under the state’s workers’ compensation laws are your exclusive remedy against your employer for any work-related injuries. That exclusion does not apply in situations where the injury was caused by third-party unrelated to your employer.

Claims Against Third-Parties

I take it from your question that the custodial services were being provided by a private company and not a public school employee. North Carolina workers’ compensation law specifically provides for claims against such third parties.

There are some things you should think about when considering a potential third-party claim:

  • Unlike workers’ compensation benefits which are paid to you without you having to show that your employer was negligent or at fault, you would have to establish negligence by the custodial company in order to recover against it.
  • The custodial company may have been negligent in failing to post signs indicating that the floor was wet, but there could be questions of whether such signs were necessary if you were working late into the evening and the custodian was not aware you were in the building.
  • Additionally, North Carolina is one of only five jurisdictions to still recognize pure contributory negligence. That means that if a jury found you to be even one percent (1%) at fault for your own injury, then you would be completely barred from recovering. Contributory negligence adds a layer of difficulty to slip and fall cases in North Carolina.
  • Finally, if you were to bring a successful third-party claim and recover from the custodial company, you would face a lien against that recovery for repayment of the workers’ compensation benefits you have received.

Unless a judge reduced or eliminated that lien, you could end up paying back a portion of your recovery to the workers’ compensation insurance company.

The interplay between a workers’ compensation claim and a third-party claim can be confusing. An experienced personal injury attorney can help you understand your rights and options and help you maximize your recovery.

Learn more here: Third-Party Lawsuits and Workers' Comp

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.

Find a local attorney to give you a free case review here, or call 888-972-0892.

Best of luck with your claim,

Published:

How Much is Your Injury Claim Worth?

Find out now with a FREE case review from an attorney…

  • Your Accident
  • Your Claim
  • Contact Info
  • Your Evaluation

Leave a Comment

Don’t ask a personal injury question here – comments are not reviewed by an attorney. Ask your question on this page. Required fields are marked *