Although great latitude is given to the injured worker for failure to file a written notice of accident with the employer, no such latitude is given with respect to the requirement that the claim be filed with the N.C. Industrial Commission within two years of the date of the accident.
North Carolina statutes provide that:
“The right to compensation shall be...forever barred unless a written claim is filed with the Industrial Commission within two years after the date of the accident.”
This claim is filed on a form called a Form 18 which is provided by the Industrial Commission. If this Form 18 is properly filled out and submitted to the Industrial Commission within two years of the date of the accident, the filing requirement is satisfied and the claim may proceed. However, if such written notice is not submitted to the Industrial Commission within the appropriate time, the claim is forever barred and there can be no recovery ever.
An example of a properly completed Form 18 is found in the Appendix to our North Carolina workers' compensation book - available at no cost to injured workers in North Carolina.
The time requirement for filing a written claim with the Industrial Commission is rigid. Even where all parties consent to a late filing, such consent is not sufficient to overcome the bar which prevents any further action.
The best practice is to file a Form 18 as soon as possible. There is no reason for delay. If the claimant fails for whatever reason to file this claim within two years from the date of the accident, the claimant is forever barred and there can never be a recovery for the claim.
It does not cost anything to file the Form 18 with the Industrial Commission, and there is no reason not to file it just as soon as the accident occurs. With respect to occupational diseases, the claim must be filed, within two years from the date the employee becomes unable to work.
The worker is not considered “disabled” until he becomes unable to earn the wages he was earning at the time of the incapacity. (The rule is somewhat different with respect to an occupational disease caused by exposure to radiation.)
These rules with respect to filing a claim may be subject to certain very narrow exceptions. However, the safest course of conduct, and the one that should be followed in every case, is to file a written claim with the N.C. Industrial Commission as soon as possible.
It is important in preparing the Form 18 to list all of the injuries that are suspected to have occurred in connection with the work-related injury or occupational disease. When in doubt, be as inclusive as possible. Failure to list any body part or organ in the Form 18 could result in a denial of a claim based upon that omitted body part or organ. For instance, if a worker feels that the primary injury was a broken arm, but he also injured his knee, which gives him less problems, the worker should list both the arm and the knee on the Form 18, even if he does not feel the knee will give him significant problems in the future.
The best procedure for filing a notice of the injury or occupational disease with the employer, and for filing the claim with the Industrial Commission, is to use Form 18. This must be filed with the Industrial Commission in any event. By sending a copy of the Form 18 to the employer, the notice requirement to the employer is thereby satisfied. However, the notice to the employer must be delivered to the employer within 30 days of the accident or occupational disease. Although the law allows up to two years within which to file a notice of claim with the N.C. Industrial Commission, there is no reason to wait.
It is important to remember that the Form 18 must be filed with the Industrial Commission within the appropriate time. If not, the employee will lose his right to NC workers’ compensation benefits.