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.

 

 

 

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BRIAN ELSTON LAW

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.

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