Will my weekly check change if I start my own business?

Will my weekly check change if I start my own business?

Will my weekly check change if I start my own business?

“Weekly checks” the are benefits an injured worker receives when they are injured on the job.  The weekly checks, legally known as temporary total benefits or temporary partial benefits, are provided to injured workers’ pursuant to N.C. Gen. Stat. 97-29 or 30.  The checks should be 2/3 of the injured workers’ average weekly wage.  Because of the shortfall, injured workers’ may feel that they need extra income.  However, the injured worker is hurt.  Who’s going to hire an injured worker?  So, the injured worker is left to ask if they can start their own business while they are receiving weekly checks?

Injured workers’ should receive a weekly check for being out of work

Will my own job change a weekly check?

If an injured worker starts to work a self-employed job while out on workers’ compensation, it is likely that the weekly check will change.  However, it depends on the new job and whether or not the injured worker has “wage earning capacity.”

An injured worker is entitled to weekly checks so long as they can demonstrate:

  1.  The injured worker is incapable after the injury of earning the same wages they had earned before the injury in the same employment.
  2. The  injured worker was incapable of earning the same wages they had earned before his employment in any other employment. AND
  3. That the incapacity to earn was caused by the injury.

Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982)

The focus is not whether the injured employee actually earns wages, but whether the injured employee has a capacity to earn the wages.  The North Carolina Court of Appeals has stated “post-injury earnings should not be relied on in determining earning capacity of [injured worker] when they do not reflect his ability to compete with others.”  See Bridwell v. Golden Corral Steak House, 149 N.C. App. 338 (2002).

The test for determining whether a self-employed injured worker has “wage-earning capacity” is that the injured worker:

  1. be actively involved in the day to day operation of the business
  2. utilize skills which would enable the injured worker to be employable in the competitive market place, regardless of the injured worker’s physical limitation, age, education and experience.

In other words, would the injured worker be hired in the competitive job market based on what they are doing for the self-employed position?  If so, then the weekly checks could change.  If not, then the weekly change may not change.

So, before opening your own business or starting a new job while receiving weekly checks, the injured worker should contact an attorney that focuses on workers’ compensation.




Advocating for Workers’ rights

Advocating for Workers’ rights

Advocating for Workers’ Rights

At the present time, thousands of jobs a week are disappearing in the wake of automation and other production efficiency techniques. Black and white, we will all be harmed unless something grand and imaginative is done. The unemployed, poverty-stricken white man must be made to realize that he is in the very same boat with the Negro.”

Martin Luther King, Jr. (1965)

The quote above is just as relevant today as it was in 1965.  Brian Elston Law shares Dr. King’s concern in its workers’ compensation practice.

Working class jobs are dwindling by the day.  Hence, when an on-the-job accident takes an employee out of work, an employee’s concern for job security is an increasingly important aspect of a workers’ compensation claim. In short, just because an employee is hurt doesn’t mean that they have to lose their job.

Brian Elston Law advocates for employees injured on the job.  The goal is simply not only to ensure that an employee maintains their current employment situation, but also is protected in the future.  Whether it is compelling an employer to provide vocational rehabilitation, pursuing additional medical treatment beyond what the employer is offering, or ensuring the employer is complying with an employee’s job restrictions, Brian Elston Law protects its clients.

In this day and age, employment can be scarce and hard to find.  Brian Elston Law works with individuals to protect their employment dreams, and thanks Dr. King for his work.

What is a good settlement offer?

What is a good settlement offer?

It is very common for victims of a personal injury caused by other individual’s fault to get a settlement offer before going to court. In fact, around 95% of personal injury cases are settled before court trial. (1) It turns out that there is more than one good reason for this – you will save time, energy and money. However, simply because you have a chance to avoid a long trial and you have an offer for a settlement doesn’t mean that you should accept it right away. Namely, there are situations when the settlement offer is not fair or reasonable and some people still accept these offers.

One of the best ways to determine whether a settlement offer is good or not is to talk to an experienced attorney. These professionals know that every case is different, but if they have experience, they have probably handled a case similar to your case in the past. In other words, they will know what a good settlement looks like. But, if you want to stay on the safe side and be sure that the settlement is reasonable and acceptable, you should analyze the elements of the offer.

Analyze the damages

What kind of injury do you have? For instance, if you were involved in a motor vehicle accident, you might have experienced head and back injuries which are among the most serious personal injuries. On the other hand, there are situations when people experience soft tissue injuries and these injuries usually don’t have a significant impact on people’s everyday life. So, the extent of the injury and its effect on your life and your ability to conduct everyday task should determine the value of the settlement.

Check the liability

Is the defendant completely responsible for the accident that led to the injury? In this case, the settlement offer should include their consent to pay for all the damages to the plaintiff. If the accident is caused (partially) by your actions then you should expect to settle for less.

A factor in settlement is liability.


Calculate your wage loss

Did you miss work due to this accident? There are many cases when accidents like this prevent people from working or they have to work on less demanding tasks. As a result of that people lose wages and the settlement offer must include a part in which the defendant is held responsible for this loss. If you have missed a lot of work, the settlement must be higher.


What kind of insurance coverage does the defendant have? Is there worker’s compensation involved? In case they have a policy for $15,000 then you should expect a settlement that doesn’t exceed $15.000.

Take the attorney fees into consideration

When you get the settlement offer, you should not forget that part of the money goes to the attorney. As a matter of fact, they usually take 33% of the settlement amount. (2) Of course, they will get this sum only if they are able to win the case, but you still have to check whether you will be satisfied with the offer once this amount of money is deducted.

Brian Elston Law specializes in personal injury settlement negotiations. If you need an Asheville, NC personal injury attorney, contact us today.

Full Commission Finds for Employee

Brian Elston Law is pleased to share a decision in favor of his client at the Full Commission.

In reversing the deputy commissioner, the Full Commission found the Employee credible and that he was in fact injured on the job.  A snippet of the decision is below.

Full Commission Award

If the insurance carrier has denied your workers’ compensation claim, please feel free to contact my office to discuss your options.


Is my injury covered under workers’ comp?

You’ve been injured at work and you want to know: Is my injury covered under workers’ comp?

How the accident is described on the claim form may determine whether the claim is covered.

You were injured at work.  Your Employer is responsible, right?  Your injury should be covered under workers’ comp.  Well, maybe.  The answer depends on exactly how you were injured.

Injury by accident

North Carolina law defines what type of injuries are covered under the worker’s compensation act.  “Injury shall mean only injury by accident arising out of and in the course of employment.”  What does that mean?  It means for an injury to be covered under workers’ comp, the injury must have happened by accident.  So you not only have to have an injury, but you must have an “accident.”*

What’s an accident?  Just what you may have thought: an event that was not planned, unexpected, and unusual.  An accident can be a fall, motor vehicle accident, a sudden twist, or any deviation from the normal work routine.

It is absolutely critical that someone hurt at work understand the importance of describing an accident to their supervisor or director.  When I was a claims adjuster, claims were denied if the individual just described an injury and not an accident.  For example, I recall taking a recorded statement from an injury that had a pretty bad knee injury.  They had already been to the Emergency Room and there was no question that their knee was hurt.  In the recorded statement,  they told me that they injured their knee when they were walking down the stairs.  They didn’t describe turning, twisting, missing a step, or that their use of the stairs was any different that the other times that they used the stairs.  The person was injured but that’s not an accident and the claim was not covered under workers’ comp.

As a workers’ comp attorney, I make sure my clients understand the difference between an injury, and an injury by accident.

If you’ve been injured at work, but not sure if it was an accident, or would like more information on whether your injury is covered by workers’ comp., please contact my office to discuss.

*For more information, see my practice area page on workers’ comp.

What are my work place rights?

What are my work place rights?

What are my work place rights?

Americans can thank Dr. Martin Luther King for his work and efforts in securing their work place rights.  Dr. King raised awareness and put political pressure on members of Congress to protect individuals from discrimination and provide equal work place rights.

Dr. King speaking with the President

Dr. King speaking with the President

During the early sixties, there were four landmark pieces of legislation that were passed:

  • Civil Rights Act of 1964
  • Voting Rights Act of 1965
  • Immigration and Nationality Services Act of 1965
  • Fair Housing Act

In regards to work place rights, the Civil Rights Act created the Equal Employment Opportunity Commission to enforce federal laws prohibiting race and sex discrimination in employment.

Here is a quick look at the Act and an employee’s work place rights:

What is the law?

The ultimate purpose of Title VII of the Act is to “eliminate discriminatory practices in employment.”  NC Dept. of Corr. v. Gibson, 308 N.C. 131 (1983).  Initially the Civil Rights Act bans discrimination on account of race, religion, sex or national origin.

Civil Rights Act prohibits discrimination in the work place

Civil Rights Act prohibits discrimination in the work place

The Act has been supplemented by additional acts, and an employer cannot discriminate based on:

  • Race
  • Religion
  • Sex (which also includes sexual harassment)
  • National Origin
  • Pregnancy (enacted by the Pregnancy Discrimination Act)
  • Age (enacted by the Age Discrimination in Employment Act)
  • Disability (enacted by the Americans with Disability Act)

(Note: there are other federal laws the provide work place rights, such as protection from retaliation due to whistleblowing, protection for filing a workers’ compensation claim, etc.  These laws are not addressed in this article.)

Title VII also prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin, such as by an interracial marriage.

Who is protected?

The EEOC enforces federal anti-discrimination laws against employers that have more than 15 or more employees.  The EEOC enforces that Age Discrimination in Employment Act against employers that have 20 or more employees.

If my work place rights have been violated, what can I do?

First, before heading to the courthouse, check to see if your employer has a complaint or grievance policy.  In certain cases, it is mandatory that an employee first go through the employer’s administrative process before filing a lawsuit.

As a practical matter, an employee should document every conversation or email.  Employment disputes are heavily fact oriented, and it not uncommon for there to be a dispute over the facts.

Contact the EEOC or consult an attorney?

Although Dr. King has passed, his dream of ensuring equal rights for all employees lives on.  The law is constantly changing. (e.g. North Carolina Legislation on HB2).  If you believe that your work place rights have been violated, you can contact the EEOC and request that they investigate the claim, or contact my office in order to address whether your rights have been violated.

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Brian Elston Law is a personal injury law office in Asheville, NC, dedicated to fighting for people who need it most. Our practice areas include personal injury, workers compensation, wrongful death, employment law, civil litigation and more.

At Brian Elston Law our success comes from our willingness to serve individuals and families all across North Carolina with our high-quality personal injury and workers' compensation advocacy. We know how difficult it is to suffer a personal injury and / or workplace injury and how hard this must be for you and your family. Our team of attorney’s are here to help you make the process as easy and stress free as possible. To learn more about what our firm can do for you, just give us a call or a text. If you would like to learn more about how our firm can assist with your case, we encourage you to contact us immediately. We are proud to offer 100% free, confidential consultations.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

The verdicts and settlements listed on this site are intended to be representative of cases handled by Brian Elston Law. These listings are not a guarantee or prediction of the outcome of any other claims.