Workers’ Comp Claim Denied in North Carolina: What to Do Next

How Does A Workers’ Comp Denial Arrive In North Carolina?

Under N.C. Gen. Stat. § 97-18, an employer or insurer has 14 days after written or actual notice of the injury to admit the claim and start paying (Form 60), deny it (Form 61), or pay without prejudice while it investigates (Form 63). A denial must be filed with the Industrial Commission by that day, and the insurer must advise you in writing, on the Commission’s form, with a detailed statement of the grounds upon which the right to compensation is denied and notice of your right to request a hearing under § 97-83. A denial with no stated reason, or delivered by phone, does not meet the statute.

Read the grounds carefully; they are the insurer’s theory of the case, and “no injury by accident” is a different dispute from “late notice.” A denial is not a decision by the Commission, which has heard nothing yet. Nor is it the same as cutting off an accepted claim: to stop paying, the insurer must file a Form 24, you have 17 days from its mailing date to respond, and payments may be stopped only if the Commission approves the application.

What Is The Difference Between A Form 61 Denial And A Form 63?

A Form 63, Notice to Employee of Payment of Compensation Without Prejudice, means the insurer is paying while reserving the right to deny. Under § 97-18(d) those payments may continue until the insurer contests or accepts liability, or until 90 days from the date the employer had notice of the injury, whichever comes first, with one extension of not more than 30 days.

If the insurer does not contest the claim within that window, the statute says it waives the right to contest the compensability of and its liability for the claim, and the Act’s provision on form agreements (§ 97-82) treats payment under an uncontested Form 63 as an award of the Commission on compensability. It is not a presumption that every later condition is related to the injury, but the question of whether the claim is covered is closed. The practical difference: a Form 61 is a denial you must fight now; a Form 63 is a claim the insurer may still deny inside 90 days (120 with the extension). Mark the date the employer first had notice and count forward.

What Are The Most Common Denial Grounds, And What Beats Them?

Every denial rests on an element the insurer says you cannot prove. These are the grounds that appear most often on a North Carolina Form 61 and the evidence that answers each.

• “Not an injury by accident.” Under N.C. Gen. Stat. § 97-2, injury means injury by accident arising out of and in the course of the employment, and insurers argue a lifting injury during ordinary work was routine. For back injuries the statute answers directly: a back injury that is the direct result of a specific traumatic incident of the work assigned is an injury by accident. The evidence is a clear account of the specific moment it happened, told the same way to your employer, your doctor and the Commission.
• “Late notice.” N.C. Gen. Stat. § 97-22 requires written notice within 30 days, but allows compensation where reasonable excuse is made to the satisfaction of the Commission and the employer was not prejudiced. Under N.C. Gen. Stat. § 97-23, no defect or inaccuracy in the notice bars compensation unless the employer proves prejudice. An employer that knew about the injury from day one has a hard time showing it.
• “Pre-existing condition.” The statutory question is whether an injury by accident arising out of the employment occurred; § 97-2 does not exclude workers with a prior condition. The fight is medical: records showing what you could do before the incident and not after, and a treating physician’s opinion tying the change to the work event.
• “Not an employee.” Under § 97-2, an employee is every person engaged in an employment under any contract of hire, express or implied, oral or written, and no contract or device can relieve an employer of its obligations under the Act. On construction jobs, N.C. Gen. Stat. § 97-19 makes a principal contractor liable for an uninsured subcontractor’s injured worker unless it collected a certificate of coverage.
• “Intoxication” or misconduct. N.C. Gen. Stat. § 97-12 bars compensation only where the injury was proximately caused by intoxication (with an intoxicant the employer did not supply), a non-prescribed controlled substance, or a willful intention to injure, and the burden of proof is on the party claiming the forfeiture. A positive test creates a rebuttable presumption of impairment, but impairment that did not cause the injury is not a bar. Ordinary carelessness never is.

What If Only The Medical Treatment Was Denied?

Many denials are partial: the claim is accepted but the insurer refuses a surgery, an MRI or a referral. Under N.C. Gen. Stat. § 97-25 the employer directs medical care, but you may ask in writing for a second opinion examination; if the employer refuses or does not agree within 14 calendar days, you may ask the Commission to order one at the employer’s expense. You may also ask the Commission to approve a provider of your own choosing if the change is reasonably necessary to effect a cure, give relief or lessen the period of disability. Get written authorization before self-referring. Medical motions are decided by the Commission’s Executive Secretary within 30 days, or five days in an emergency.

If the dispute is over the impairment rating, N.C. Gen. Stat. § 97-27 gives you another examination on the percentage of permanent disability by a physician of your choosing, paid by the employer. If the whole claim is denied, the Commission’s guidance is that you may see any provider of your choice, though the insurer may still require an independent medical examination and must give you the report within 10 business days. And under N.C. Gen. Stat. § 97-90, a provider may not bill you privately for work-injury treatment unless the claim is finally adjudicated not compensable or you fail to request a hearing after the denial.

How Do You Challenge A Denied Workers’ Comp Claim In North Carolina, Step By Step?

The Industrial Commission’s own instruction for a denied claim is simple: to pursue benefits, request a hearing before a deputy commissioner by filing a Form 33. Here is the sequence.

• Confirm your claim is on file. The employer’s Form 19 does not constitute the filing of a claim for you. Your claim is the Form 18, filed with the Commission. If it is not filed, file it now.
• Gather the record. The Form 19 and Form 61, every medical record from the first visit forward (medical records and communications in a claim are governed by N.C. Gen. Stat. § 97-25.6), your wage history for the 52 weeks before the injury (the Commission’s Form 22), and the co-workers who saw the accident or heard you report it.
• File the Form 33. Under N.C. Gen. Stat. § 97-83, either party may request a hearing once 14 days pass without agreement, or whenever a dispute arises. The form is on the Commission’s forms page; the insurer answers on a Form 33R.
• Mediate. On receipt of a Form 33 the Commission orders a mediated settlement conference for a represented worker, scheduled within 120 days of the order. Any settlement must be approved by the Commission as fair and just under N.C. Gen. Stat. § 97-17.
• Hearing and decision. A deputy commissioner hears the evidence near where the injury occurred and issues an Opinion and Award within 180 days of the close of the record; either side has 15 days to appeal to the Full Commission and 30 days beyond that to the Court of Appeals. Our chapter on the Industrial Commission hearing process walks through each stage.

Which Deadlines Keep Running After A Denial?

A denial pauses nothing. Under N.C. Gen. Stat. § 97-24, the right to compensation is forever barred unless a claim is filed with the Commission, or compensation is paid, within two years after the accident, or, where only medical compensation has been paid, within two years after the last medical payment. The clock started the day you were hurt, and the Form 61 did not stop it.

If late notice is the stated ground, gather now the proof that your employer actually knew: the supervisor you told, the incident report, the clinic the company sent you to. Under § 97-22 the questions are reasonable excuse and prejudice, and contemporaneous evidence of actual knowledge answers both. Once you are in the Commission’s process the appeal clocks are short: 15 days from a deputy commissioner’s award to seek Full Commission review, and 30 days from a Full Commission award to reach the Court of Appeals.

Can You Be Fired Or Accused Of Fraud For Fighting A Denial?

Not lawfully. Under N.C. Gen. Stat. § 95-241, the Retaliatory Employment Discrimination Act, no person may discriminate or retaliate against an employee because the employee in good faith files a claim, initiates a proceeding, or testifies or provides information with respect to Chapter 97. The employer’s only defense is to prove by the greater weight of the evidence that it would have taken the same action anyway. A denied claim is still a claim filed in good faith.

Fraud accusations are the other pressure tactic. N.C. Gen. Stat. § 97-88.2 makes it a crime to willfully make a false statement of a material fact to obtain or deny any benefit, and it binds insurers and employers as much as workers. It then adds the part every injured worker should know: threatening prosecution for the purpose of coercing an employee to accept or forgo compensation is itself a Class H felony. An adjuster who hints that pressing your claim could get you charged has described a crime, and not yours.

Can you just sue the employer instead? Generally no. Under N.C. Gen. Stat. § 97-10.1, when the employer is covered and has complied with the Act, workers’ compensation is the exclusive remedy against the employer, and a denial does not change that. A claim against a third party, such as another driver, is preserved by N.C. Gen. Stat. § 97-10.2. Our FAQ on whether you can sue your employer for a workplace injury covers the exceptions.

When Should You Call A Lawyer About A North Carolina Workers’ Comp Denial?

When the Form 61 arrives, and before mediation is scheduled. The hearing is decided on a record that takes time to assemble, an unrepresented worker is not even sent to mediation unless they ask, and the stated grounds tell a lawyer within minutes which element is in play and what evidence answers it.

Under N.C. Gen. Stat. § 97-90, every attorney fee in a workers’ compensation claim is subject to the approval of the Industrial Commission, which considers the time invested, the amount involved, the results achieved and the customary fee for similar services. No fee is owed unless the Commission approves it, and it is paid from the recovery. If the Commission finds the insurer defended without reasonable ground, N.C. Gen. Stat. § 97-88.1 lets it assess the whole cost of the proceedings, including your attorney’s fees, against the insurer. Joshua E. Palmer, Attorney at Law reviews North Carolina denials at no charge.