Does workers’ comp pay for pain and suffering in North Carolina?

What Does North Carolina Workers’ Comp Pay Instead?

Three kinds of benefit, each defined by statute. Medical compensation under N.C. Gen. Stat. § 97-25 covers the treatment reasonably required for the injury. Wage replacement pays two-thirds of your average weekly wage, up to a yearly maximum, while you cannot work under N.C. Gen. Stat. § 97-29, or two-thirds of the difference in wages if you can work but earn less under N.C. Gen. Stat. § 97-30. Permanent impairment is paid under the schedule in N.C. Gen. Stat. § 97-31, which assigns a number of weeks to each body part.

None of those sections contains a line for pain, emotional distress, or loss of enjoyment of life. Benefits are paid without regard to fault, which also means North Carolina’s contributory negligence rule is not a defense to a workers’ compensation claim.

Does Any Workers’ Comp Benefit Compensate For More Than Wages?

A few come close. The impairment schedule pays for the permanent loss of use of a body part whether or not it reduces your earnings, so a worker who returns to the same job at the same pay still receives the scheduled weeks for a permanently damaged hand or knee. The same statute gives the Industrial Commission authority to award proper and equitable compensation for serious facial or head disfigurement, not to exceed $20,000, for serious bodily disfigurement not otherwise compensated, not to exceed $10,000, and for the loss of or permanent injury to an important organ or part of the body not covered elsewhere, not to exceed $20,000.

These awards are not pain and suffering by another name. They are fixed by statute, modest next to what a jury may award, and limited to permanent, visible, or organ-level harm. But they are frequently overlooked in settlement negotiations, and they belong in the valuation of any claim that involves scarring or lasting loss of function.

Can You Sue Your Employer For Pain And Suffering?

Almost never. Under N.C. Gen. Stat. § 97-10.1, when the employer is covered by the Act and has complied with it, the Act’s benefits exclude all other rights and remedies against the employer for the injury. That holds even when the employer was plainly careless. North Carolina courts recognize a narrow exception for intentional conduct that is substantially certain to cause serious injury or death, and it is rarely met. An employer that failed to carry required coverage is in a different position and can be sued.

When Can An Injured Worker Recover Pain And Suffering In North Carolina?

When someone other than the employer caused the injury. N.C. Gen. Stat. § 97-10.2 preserves the worker’s right to bring a negligence claim against a third party while still receiving workers’ compensation benefits. In that claim the full range of damages is available: all lost income rather than two-thirds, future losses, and pain and suffering. A delivery driver hit by another motorist is the common example; the workers’ compensation claim pays the medical bills and weekly checks, and the claim against the at-fault driver covers the rest.

Two cautions. The employer or its insurer has a lien on the third-party recovery for the benefits it paid, so the two claims have to be coordinated. And the third-party claim is an ordinary negligence case, which means contributory negligence applies there even though it does not apply to your comp claim: if your own negligence contributed to the injury, the third party’s insurer will argue you recover nothing. A North Carolina workers’ compensation lawyer can run both claims so one does not undercut the other.