Posted on Friday, April 19th, 2019 at 8:50 am
Workers can file for workers’ compensation in both Virginia and North Carolina if they are an employee. They cannot file for workers compensation injury benefits if they are an independent contractor. The main factor in determining whether a worker is an employee or an independent contractor is how much control the employer has over the worker’s performance. More control means an employee status. Less control means an independent contractor status.
Independent contractors, if an accident occurs, can generally only file a personal injury complaint. Unlike workers comp claims, in a personal injury complaint, the plaintiff must prove that the party at fault was careless or negligent. In workers’ compensation cases, the worker does not have to prove any type of fault. The employee is entitled to workers’ compensation if the accident was work-related.
The difference between an employee status and an independent contractor status is often a fine line. Employers often try to assert a worker was an independent contractor so they don’t have to pay the worker his/her wages and medical bills. Fortunately, for workers, the employee does not have the final say on the work-relationship status. The workers’ compensation Commissioners decide the status – and thus the eligibility to file a claim.
Many times, it is easy to determine whether the worker is an employee or independent contractor. If a retail store hires a full-time employee who also gets vacation pay, health insurance, and retirement benefits – and the employee reports to the same store and the same office manager and has set hours – then the worker is most likely an employee. If the retail store hires someone to come into the store and fix a broken tile in one hour – and that’s all the worker does – that suggests an independent contractor status.
Again, as noted above, the main factor in determining whether a worker is an employee or an independent contractor is how much control the employer has over the worker’s performance. More control means an employee status. Less control means an independent contractor status. The Internal Revenue Service uses the following key factors to decide the work-relationship question. Workers’ compensation Commissioners look to a very similar set of factors to decide whether the worker is an employee or an independent contractor.
The employee versus independent contractor question can often arise when workers are seasonal or temporary workers. Many times, these workers are employees because they work solely at the control and direction of the employer.
If an employer suggests that a worker is an independent contractor, that worker should speak with an experienced workers’ compensation lawyer. The difference between the two types of work relationships can mean the difference between getting workers’ compensation benefits and being denied benefits.
Unfortunately, we come across this issue quite a bit, and we have prevailed in cases where the employer attempts to save money by mischaracterizing the employment relationship to get out of paying payroll taxes, insurance, workers compensation, and other benefits.
Please also see our previous article on Independent Contractors vs. Employees for additional information.
At the North Carolina and Virginia Law office of Joe Miller Esq., we’ve been fighting for injured workers for more than 30 years. We aggressively fight to have workers evaluated as employees instead of independent contractors. We understand and defend against the common arguments that employers try to make to deny you coverage by saying you don’t really work for us an employee. To speak with an experienced workers’ compensation lawyer, call 1-(888) 667-8295 or complete my contact form to schedule a free appointment.
Posted on Friday, April 5th, 2019 at 3:06 pm
The bulk of the payments in a North Carolina or Virginia workers’ compensation claim are the wage loss benefits and the medical expenses. Wage loss benefits are generally paid at the rate of 2/3rds of the worker’s average weekly wages (prior to the accident) – up to preset maximums. The wages are paid until the employee can return to work. Additional payments may be made if the worker has a full or partial permanent disability. Adjustments to the pay are usually made if the employee can return to work but at a lower paying salary.
Medical payments cover surgeries, doctor visits, psychological counseling, and a variety of different therapies. The payments are made by the employer’s insurance company as long as the treatments are helping the worker get better. Even when an employee has reached maximum medical improvement (no additional medical care will improve his/her condition), the worker is still entitled to have the medical bills paid so that the condition doesn’t worsen. In other words, the worker is entitled to medical coverage to maintain his/her health.
Some workers may not be able to return to their prior work because of the severity of their injuries. North Carolina and Virginia allow these workers to explore the option of vocational retraining. The employer may be required to pay the cost of training the worker or helping the worker get an education – up to certain limitations. Helping workers acquire new schools often means they can work in new jobs at somewhat similar pay. Speak with a skilled North Carolina or Virginia workers’ compensation lawyer to learn if you are entitled to vocational rehabilitation expenses.
Mileage reimbursement to the doctors
Workers often need to treat with many different doctors. Additionally, they may be required to see a doctor or health provider multiple times. Many workers, for example, can see their physical therapist several times a week for months at a time.
The cost to get these doctors can add up quickly. In North Carolina and Virginia, workers are entitled to be reimbursed for the cost to see their own doctors, to travel to an independent medical examination when requested, and for vocational rehabilitation support and schooling. The mileage reimbursement expenses continue for health care even if the worker has returned to the job – provided the worker needs the medical treatments to stay healthy.
The mileage expenses are calculated as follows:
In North Carolina, workers can claim mileage reimbursement if the round trip to the doctor or therapist is 20 miles or more. The amount the worker will receive is generally set by the North Carolina Industrial Commission. The NCIC, in turn, sets its rates based on the Standard Mileage Rate that is annually prepared by the IRS.
According to the NCIC, the mileage reimbursement rates are as follows:
“If employees travel 20 miles or more round-trip for medical treatment in workers’ compensation cases, they are entitled to collect for mileage at the rate of 25 cents a mile for travel prior to June 1, 2000;
According to the IRS, the rates for 2017 are 53.5 cents per mile and for 2018, the reimbursement rate is 54.5 cents per mile.
The costs are meant to cover expenses for gasoline as well as wear and tear on the vehicle.
“The Industrial Commission has given the self-insurers and insurance carriers permission to pay drug and travel expenses directly to the employee without approval from the Commission.” This means that, normally, the worker will keep a record of the mileage and then submit the record to the employer’s insurance company. The record should include the date of the visit to the health provider, the identity and location of the healthcare provided, and the total distance traveled. North Carolina actually provides a form, called a Form 25T, upon which the worker should submit his or her mileage information to the employer. It’s generally a good idea to mark down the odometer amount before the trip starts and at the end of the return home. The distance from your home to the health care provider can also be tracked by using Google Maps.
Generally, workers should be reimbursed within a few weeks from the time they submit their form but unfortunately there is no rule that sets for the time frame by which the employer/insurance carrier are required to reimburse the employee. Unfortunately, some carriers are delinquent in this regard and we sometimes have to file a motion with the Commission if an unreasonable amount of time has passed before payment has been received by the injured worker. Depending on the amount of medical and/or vocational travel you are engaging in, it’s a good idea to submit mileage reimbursement requests on a monthly basis
Workers who take public transportation are generally allowed to be reimbursed for the cost of the public transportation. Workers who use their car to see their health care provider should also add in the cost of parking – if there is any.
The mileage reimbursement rates in Virginia are based on the same principles. Virginia likes workers to:
Reimbursement includes the mileage reimbursement and the other miscellaneous costs – tolls, public transportation, and taxi. Workers should also include a statement from the healthcare provider to confirm they were at the appointment on the scheduled dates. Virginia does not have the 20-mile round requirement that North Carolina does.
At the North Carolina and Virginia Law office of Joe Miller Esq., we’ve been fighting for injured workers for more than 25 years. We fight to get our clients every amount they deserve – large and small. We’ll fight to get you approved for worker’s compensation benefits and explain which forms you need to complete to get paid. To speak with an experienced work injury lawyer, phone 1-(888) 694-7994 or fill out my contact form to schedule a free appointment.
Posted on Monday, April 1st, 2019 at 9:14 am
According to a report cited by the National Safety Council, 69% of employees say they suffer from fatigue at work. The report is titled “Fatigue in Safety-Critical Industries: Impact, Risks and Recommendations.” The report is based on several studies – one of workers and another was of a more mathematical survey. The NSC studied the utilities sector in addition to the other named work sectors.
Fatigue at work can cause numerous types of accidents. The report noted that 90% of employers said that fatigue was impacting their businesses. Fatigue, employers understand, also decreases productivity in addition to causing workplace accidents. 72% of workers said they thought workplace fatigue was a safety issue – indicating a disparity between employer and employee views. Fatigue is especially dangerous in industry sectors where machines vehicles, equipment, and tools are part of the job.
Tired truck drivers for example can easily crash into other vehicles, lose control of their vehicles, run red lights, speed, or driver off the highway. These type of truck accidents often cause death. Survivors may suffer catastrophic injuries that leave them permanently disabled. Even workers who eventually can return to work need months or years of medical help.
Some of the other findings from the NSC report
The NSC’s mission is to help prevent deaths at work and elsewhere. Founded over 100 years ago, in 1913, the NSC works with businesses, government, elected officials, and others to help prevent deaths. The fatigue report found that lack of sleeps results in $410 billion yearly in “societal expenses.”
Common accidents where fatigue plays a factor
In the construction industry, fatigue can easily cause a tired worker to slip and fall. Workers can be electrocuted if they don’t follow safety rules. They can be hurt from falling objects. They can fall from scaffolds. They can be struck by moving equipment.
In the manufacturing sector, tired workers use many different types of heavy machinery. If they’re tired, these workers pose a risk to themselves and everyone in the workforce.
Tired drivers aren’t paying attention to the traffic in front of them. They’re slow to recognize emergencies and too slow to respond. For example, they don’t apply the brakes quickly enough. They don’t steer out of trouble. Many tired drivers are also easily distracted because they’re grabbing for the coffee, rolling down the windows for fresh air, or doing other things to try to stay awake such as taking amphetamines – when they should just get off the roadway.
It is precisely because tired truck drivers are dangerous drivers, that the Federal Motor Carrier Safety Administration (FMCSA) has federal regulations. Drivers can only drive a maximum of 11 hours after 10 hours of rest. There are limits on how many hours truck drivers can work during a 60-hour week and during a 70-hour week.
Some of the symptoms of workplace fatigue
Common fatigue symptoms that workers and employers should be on the lookout for include:
Common causes of driver fatigue
How employers can address driver fatigue
Employers should consider making the following workplace changes so that employees are energized so they can better focus on their job duties:
In workers’ compensation cases, an injured worker is not required to prove that the employer was at fault for the accident. There’s no need to prove the employer made the employee work harder or longer than necessary. There’s no need to show the employer failed to follow proper safety laws.
In North Carolina and in Virginia, if an employee suffers an accident in the course and scope of employment, regardless of fault, the worker is entitled to state workers’ compensation benefits. Standard work injury benefits include 2/3rds of the worker’s average weekly wages while he/she is unable to work and payment of all reasonable medical bills. Attorney Joe Miller has helped thousands of injured workers in both North Carolina and Virginia get the pay and medical benefits they deserve. For help now, please call me at 1-(888) 888-694-1671 or complete my contact form to schedule a free consultation.
Posted on Thursday, March 21st, 2019 at 12:48 pm
Most workers who are hurt on the job make arrangements to go their nearest emergency room – or someone makes the arrangements for them. The ER facility takes your history and may conduct some initial diagnostic tests such as taking an X-Ray. They then make an initial diagnosis. In serious cases, they’ll then advise you whether they think you should be admitted – or not. If you are admitted, then your local hospital generally performs whatever procedures are necessary.
After the visit to the ER, or if you never went to the ER, the next normal step is to see the physicians who can help you. These doctors include family doctors, orthopedists, pain management doctors, neurologists, psychiatrists, psychologists, cardiologists, and many other types of doctors. You may also need to treat with physical therapists, vocational therapists, and other health care providers. Some workers also find that working with a chiropractor can help.
Unfortunately, in a worker’s compensation case, you typically don’t get to make the initial choice as to which health providers you see. You can’t choose your own doctors and therapists. Instead, in Virginia, unless you have a catastrophic injury that requires immediate surgery—in which case whatever surgeon is on call at the hospital typically becomes your treating physician—the workers comp insurance company will give you a list of 3 of their preferred doctors for each type of doctor or health provider you want to see. This is known as a “panel” of doctors. For example, the employer may give you several pain management doctors and give you the right to choose one of the several doctors listed.
Employees should understand that most, if not all, of the doctors on the list were chosen by the employer for a reason. The employer wants doctors who will get you back to work as soon as possible. While company doctors are duty-bound to help employees, company doctors tend to certify patients as ready to return to work (or to work with restrictions) much more readily than non-company doctors. These doctors will be looking to see if you have any pre-existing injuries that might disqualify you from work injury benefits. They will be aware if you state that the you’re not really hurting that much. They’re less likely to recommend long-term or expensive treatments than everyday doctors.
That being said, on most of these panels, it is our experience that there is at least one doctor who is “less bad” or even helpful, as compared with the other two on the panel.
In North Carolina, there is no such ability to choose even from a panel. The insurance company gets to choose which doctor the employee sees. That being said, as will be further explained, North Carolina has a mechanism in place to request either a change in treating doctors or an Independent Medical Examination to be paid for by the defense. Virginia has no such provision.
When it comes to the initial visit to doctor, therapists, and others – particularly in North Carolina—there isn’t much the employee can do.
Most workers feel more comfortable working with a doctor of their own choosing. The lines of communication are usually better. Workers understand that the doctors they choose will be looking out only for their interests and not the interests of the company or organization that hired you.
There are several ways that a switch can be made
There are some situations where the employer will be required to pay for a doctor who wasn’t pre-approved or for a hospital that wasn’t pre-approved. The main situation/exception is in response to an emergency. Emergencies include the initial injury. They can also include an emergency that appears during your treatment phases – such as an allergic reaction to a medication that requires immediate attention.
Insurance carriers and defense lawyers will normally fight any request to switch doctors or health care providers. An experienced lawyer will help you in several ways. A skilled North Carolina workers’ compensation lawyer normally works with many different work injury doctors. He’ll help you make an appointment with a doctor who has trained for your type of injury. A good work injury attorney will understand what objections the insurance company will likely make and what objections or responses the original treating doctor will make.
The law on second opinions and switching health providers can be found at N.C.G.S. §97-25. Medical treatment and supplies. Some key considerations in the law, in addition to the above summary, are:
Virginia—No Independent Medical Exams for injured workers…. But….
Unlike North Carolina, Virginia has no provision with regard to the payment by the insurance company for an Independent Medical Exam if the worker is being mistreated by the current treating doctor; however, Virginia is less restrictive in terms of choosing a doctor and paying for it on one’s own. In other words, if the injured worker has private health insurance, and he or she is dissatisfied with the care of the authorized treating physician, then the worker can go to whatever doctor he or she wants to, provided that individual is able to pay, either through private health insurance or with his or her own funds. If that new physician should have a clear and reasonable opinion that the authorized treating doctor is incorrect, or engaging in inappropriate treatment for the injured worker, then the Virginia Workers Comp Commission may very well side with the physician chosen by the injured worker.
In North Carolina, unless the injured worker takes advantage of the laws that permit either a change of treating physician or an authorized Independent Medical Examination, then the Industrial Commission has said it will ignore the opinions of any unauthorized treating physicians. In other words, seeking privately paid treatment would likely do little to change the course of one’s case in North Carolina.
Experience matters. North Carolina and Virginia lawyer Joe Miller is a strong advocate with a track record of success. He’s helped many clients get second opinions and has helped many clients switch physicians. To make an appointment now, please call 1-(888) 667-8295 or fill out my contact form
Posted on Wednesday, March 13th, 2019 at 3:45 pm
A compromise and release (C&R) is a way to settle your worker’s compensation claim. In Virginia, these are commonly called Full and Final Settlements, whereas in North Carolina, these are commonly called Clincher Agreements. These kinds of settlements are generally used for workers who are disabled from their pre-injury job and will likely need future, long-term medical care. There can be settlements even when the worker returns to his/her former job – based on the understanding that the worker will need continual funds for medical treatments.
These full settlements mean that the entirety of the case—both the future indemnity (some portion of the value of the future compensation checks the worker would likely receive), and the future medical value of the claim (some portion of the value of the future work injury care that the injured worker will likely receive for the remainder of his or her life) are completely resolved. In exchange for a lump sum which represents these two sides of the injured worker’s case, once the final settlement Order is entered by the Commission, then all of the ongoing benefits for both weekly checks and medical stop, permanently.
There are many considerations that you will need to review with an experienced North Carolina or Virginia work injury lawyer depending on where your claim is:
Additional questions include:
Some of the answers to these questions are general. Most depend on the individual facts of your case.
The employee and employer may have different ideas on how much medical treatment you will need in the future. The amount that will be included in the settlement needs to be artfully negotiated so that the worker gets the best amount. Experienced work injury lawyers understand the legal arguments. They also work very carefully with your doctors to fully understand what treatments, medications, and other health care costs you’ll have. In some cases, it can be fairly clear that the worker will need to see a physical therapist several times a month. In other cases, where the health effects of the work injuries may deteriorate over time (such as when he/she has a disease), it can be harder to determine what care is needed. In other situations, the injury may be so severe that it is clear that as the worker ages, home healthcare or attendant care will be required, with potential significant future costs.
At the end of the day, unless dealing with a Medicare situation, the portion of the claim and any settlement that deals with future medical care comes down to the comfort level and a frank discussion between the injured worker and his or her attorney. How likely is it that the injured worker will require future surgery? How likely is it that the injured worker will return to employment and obtain health insurance to cover the cost of such surgeries? Are the contemplated future medical costs based in reality or are they just “worst case scenario” medical costs?
It is also important to understand that full settlement means just that—it settles all aspects of your case. It is possible to use the C&R to just settle just settle the wage issues (indemnity-only settlements), but leave the medical payments open. The second scenario is useful, for example, when someone’s future healthcare costs are so extremely high or at this point unknown that it makes a full settlement impractical. In such cases, settling the indemnity side alone—providing a lump sum to the injured worker—while leaving the medical portion open, may make sense.
Then again, many insurance carriers simply refuse to engage in such settlements and insist on an “all or nothing” approach. Either the entire claim is resolved, or not at all.
Injured workers need to review what other benefits they may be entitled to with time or due to a disability. Some workers may be entitled to Social Security Disability. (SSDI) Workers may also be entitled to Social Security retirement income when they reach age 62. They may also be entitled to Medicare, Medicaid, or other government benefits.
Experienced lawyers will also review the workers’ family situation. Who can the employee rely on for support? The education and ability to earn another type of income needs to be considered. The severity of the injuries needs review. The more doctors and healthcare providers the patient requires, the harder it becomes to make an evaluation of how much money is needed for long-term health problems. If a worker has mental health difficulties, it can be extremely difficult to know how much psychiatric and psychological help the worker needs.
At the North Carolina and Virginia Law office of Joe Miller Esq., we have helped thousands of workers get just recoveries for workplace accidents and illnesses. We’ve been fighting for clients for more than 25 year. We’ll explain when you should consider a settlement and what the terms of the settlement should be. For help now, 1-(888) 667-8295 or complete my contact form to schedule a free appointment.
Posted on Tuesday, March 5th, 2019 at 5:14 pm
Workers’ compensation is a no-fault system. Any employee who suffers injuries due to a workplace accident is entitled to demand work loss benefits regardless of whether there is any fault on the part of the company. These benefits typically include 2/3rds of the worker’s average weekly wages for the length of time he/she cannot work. It also includes payment of all reasonably necessary medical bills including surgeries, doctor visits, time with therapists, medications, and the cost of medical devices.
The industries with the most worker’s compensation claims between 2008-2017 were:
There are some surprises in these numbers for the average work. The first is that construction work is only ninth on the list. Construction workers can be electrocuted, suffer serious burns, can fall from scaffolds and other heights, can be hit by vehicles such as trucks and cranes, can be struck by equipment, and often suffer back and neck injuries due to heavy lifting.
It may seem surprising that the nursing sector is so dangerous. Nurses can easily be infected. They must constantly move and manipulate patients and beds. Some patients may not be able to control their hostility. We represent and have represented numerous nurses and certified nursing assistants (CNA’s) who have been injured when heavy patients suddenly shift their weight and an injury occurs. We have also represented and continue to represent several nurses and other health care workers, particularly in the mental health field, who have been violently attacked by patients and suffered severe injuries.
Leading writers of workers’ compensation insurance policies
The top writers of insurance coverage for workplace injuries were the following companies. Employers are either required to have insurance for worker’s compensation claimants or they are required to self-pay if a workplace accident occurs.
The U.S. Department of Labor keeps statistics for workplace deaths. In 2015, logging caused the most workplace deaths – 132.7 deaths per 100,000 full-time employees. The next occupations as to highest workplace death rates were:
On average 3.4 of out of every 100,000 workers died due to a workplace accident or illness.
When a worker dies in a workplace accident or due to an occupational illness, the family (typically the spouse and children, i.e. the dependents of the deceased) is entitled to some benefits. These benefits generally are:
The leading causes of work-related deaths for 2015-2016 were as follows:
In addition, there were 417 homicides in 2015 and 500 homicides in 2016 that were work-related. The source for this set of data comes from the U.S. Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries.
According to employer.com:
There are two types of fraud. Fraud committed by employees and fraud committed by employers
The main types of employee fraud were the following:
Employers also do things that are fraudulent or dishonest to falsely deny a valid worker’s compensation claim. Common examples include:
According to the Social Security Administration, in 2013 the total amount of worker’s comp benefits nationwide was $63.6 billion. This total was based on the following:
The amount employers pay for workers’ compensation varies depending on the following factors, among others,
At the North Carolina and Virginia Law office of workers’ compensation lawyer Joe Miller Esq., we fight to get injured workers all the compensation they deserve. We are strong advocates for injured employees. Our office has helped thousands of injured and ill workers get the compensation they deserve. To speak with an experienced attorney, call 1-(888) 667-8295 or complete my contact form to schedule an appointment.
Posted on Tuesday, March 5th, 2019 at 5:11 pm
Some claimants, mostly older workers, are entitled to Medicare in addition to workers’ compensation. We all know that once you qualify for social security retirement, at age 65, you also qualify for Medicare. In addition, if you become entitled to Social Security Disability Benefits or SSDI, you will automatically become Medicare Eligible at 24 months from the date that Medicare deemed you to be completely disabled from all work. Since both Medicare and workers’ compensation can pay for medical expenses, a question arises – who should pay for your medical bills related to your work injuries? The workers comp insurance company or the U.S. Government? If both paid, the healthcare providers would either be paid twice, or you might get a windfall by pocketing the money for future treatment – so there needs to be some procedure to prioritize and allocate the medical bills. Generally, the employer’s workers’ compensation is the primary carrier and Medicare is the secondary payer.
The problem arises mostly when the worker and the employer are thinking about a long-term settlement (commonly called a full and final settlement or Clincher) and the worker is either already Medicare Qualified or is on SSDI currently, or otherwise expects to apply within the next 30 months. The method used to protect Medicare from overpaying is called a Medicare Set-Aside (MSA) account.
The easiest way to think about a Medicare Set Aside is that it is a way of protecting the Medicare program from paying for something that private insurance has agreed to pay. In other words, it prevents “double dipping” by the injured worker receiving a sum of money for future medical care from the workers comp insurance company, and then turning around and using Medicare to pay for that very same medical care. (and pocketing the insurance money). That would not be fair to the Medicare system and would cost the taxpayers undue funds. So, what we are required to do is protect and consider Medicare’s interests by “setting aside” the money that is designated in any settlement to pay for future medical care related to the injured employee’s work injuries.
The Medicare Secondary Payer Act, 42 U.S.C. §1395y provides that other insurers, such as workers’ compensation, will pay for an injured person’s medical expenses in an accepted claim. The compromise and release provides that a specific sum will be used for the employee’s medical bills. The Act then provides that when this specific set aside amount is used up, then Medicare will start paying for the reasonably necessary medical treatments. The Medicare-Set Aside estimate that is usually in the form of a detailed report and if the worker is currently Medicare eligible, the report must be submitted to the Centers for Medicare & Medicaid Services (CMS) prior to final settlement so they can review the patient’s needs and the amount of the set-aside.
The workers’ compensation medical set aside, according to Atlas Settlement Group, Inc. should be submitted to CMS as follows:
There is a reasonable expectation of enrollment if any of the following applies:
Generally, the funds for the medical set aside agreement are placed in an interest-bearing account.
Sometimes the amount of the account is paid to the injured worker by the insurance company in one lump sum and is administered by the injured worker. Other times, particularly when there is a large amount to distribute, the payment occurs with seed money for the first year, and then annual distributions over time from the insurance company or from an annuity purchased by the workers comp insurance company. Payments should be made from the account only for reasonable medical expenses that Medicare would otherwise cover that are related to the work injuries. These medical expenses include hospital stays, doctor visits, treatments with different types of therapists, psychiatric help, medical devices, and medications. The person administering the MSA, if the account is self-administered, is required to provide CMS with a yearly accounting of distributions to the health providers. This is done on a simple form that Medicare provides once the MSA is approved. Again, this formal accounting is only required if the injured worker is a current Medicare recipient or is otherwise qualified to receive Medicare at the time of settlement. A final audit is prepared if and when all the available funds have been spent.
Sometimes, a medical management company is hired by the workers compensation insurance company to administer and monitor the MSA funds and in those cases that company would be responsible for the annual reporting.
Of course, it is possible that all the funds in the MSA will never be spent, and in that instance, whatever is in the account remains the estate of the injured worker upon his or her passing.
According to NCCI, the time to process CMS reviews is decreasing. In 2015, the CMS took, on average, about 70 days to review the average MSA. Large MSAs take more time to review than MSAs for smaller amounts.
CMS often responds to an MSA request in a settlement by stating that more money than is recited in the proposed report needs to be set aside. CMS needs to balance what the worker needs with what it thinks it should pay. When claims are large, more than $200,000, CMS on average requests that an additional six percent be set aside. When claims are small, under $25,000, CMS on average is requesting a 51% increase in the set aside amount. The main reason for CMS increases, at every amount, are that that more money is needed top pay for future drug costs which are constantly on the rise.
In general, the amount that workers’ compensation medical set asides need to budget for Medicare Part A and part B is fairly stable from year to year. NCCI claims that the amount for Part D prescription drug services is beginning to stabilize too.
When there are large MSA compromises, more than $100,000, there is usually a corresponding severe injury. Severe injuries include brain injuries, back injuries that involve surgeries, burns, and the amputation of a body part. Workers with these injuries often need long-term treatment with pain management doctors for their chronic pain and treatment with emotional health doctors and counselors for their depression. These treatments often include high prescription medication costs.
Nearly 64% of workers’ compensation who need a Medicare set aside are already on Social Security Disability. 29% of claimants are eligible for Medicare because of their age. About 7% of claimants will become eligible for Medicare in the next two and half years.
Claimants generally need to wait until they have reached maximum medical improvement (MMI) before they consider a compromise and release – and the accompanying MSA. There’s no point in settling a work injury claim until you fully understand your medical condition and how much medical care you will need. Most MSA submissions take place about four years after the workplace accident happened. It’s not unheard of for an MSA to be prepared 10-15 years after the accident. Submission of MSAs in the same years as the accident are rare, although they do occur.
MSAs in general are about 42% of the compromise and settlement amount. The breakdown is typically in the following range for a compromise and release:
More than half of the workers who submit MSAs use an experienced workers’ compensation lawyer. An experienced lawyer understands the need to work with your doctors to understand and verify your medical records and future needs. The lawyer will be sure to help you understand what you are looking at on the Medicare set aside, and also what future medical needs might not be covered by Medicare, (and hence need to be claimed as a separate future expense) such as long-term home care or attendant care, and how much it could cost. A skilled attorney understands what arguments the employer’s lawyer or insurance company will make to try to say everything should be part of the MSA. He’ll also explain tax consequences and other legal and practical matters.
Understanding CMS review trends helps understand what claims will be approved and which ones will need modification. The sooner a claim is approved, the sooner the payments from the compromise and release can be made. The payments include the wage loss payment and any permanent disability benefits – in addition to the medical expenses.
In cases where the claim is self-administered by the employee, we always recommend that the employee obtain a separate debit card for the account and use that card whenever he or she pays any work-injury-related healthcare costs. That way, at the end of each year, the worker has a bank statement that outlines all of the related costs and makes it very simple to do the annual report to Medicare.
Non-Obligatory MSA’s. Oftentimes, workers engage in compromise settlements that do not meet the CMS threshold of review as set forth above. That means that the injured worker is not a current Medicare recipient and the settlement is not over $250,000.00. The problem is that the injured worker is not 100% sure about his or her future. The worker may be considering applying for SSDI within the next 30 months. Also, something could happen, such as a car accident or other unforeseen injury that completely incapacitates the injured worker. In those cases, if no attempt is made to consider Medicare’s interests, then the injured worker may run into problems when he or she qualifies for Medicare and attempts to utilize Medicare to pay for work-injury-related treatment. This could be the case, even though at the time of settlement, the worker was not a Medicare Recipient.
So in these “non-obligatory” cases, we often recommend that an “informal” Medicare Set-Aside be made, whereby some amount of funds is recited in the settlement documents to be set aside by the injured worker to protect Medicare’s potential future interests. There is typically no formal MSA report in these circumstances and of course, nothing needs to be submitted to CMS for approval. We merely come up with a very rough estimate of the amount of future funds that may be necessary to pay for the future medical care of the injured worker. The injured worker is then advised to set up his or her own separate account for these funds and even call it an MSA account. Although there are no yearly accountings necessary in these cases, we also recommend the same thing as in a normal MSA, namely, that the injured worker obtain a separate debit card to make it easier to track expenses and utilize the funds in the MSA for nothing except healthcare for the work-related injuries.
That way should the injured worker bump up against any issues in the years following settlement whereby he or she should be forced to make use of Medicare, the injured worker will have ample evidence that Medicare’s interests were taken into account.
At the North Carolina and Virginia Law office of Joe Miller Esq., our experienced workers’ compensation lawyers understand when the right time is to consider an overall settlement. We fight to get you the correct sum for your medical needs and lost wages. For help now, call 1-(888) 667-8295 or complete my contact form to schedule a free appointment.
Posted on Monday, February 18th, 2019 at 5:43 pm
Attorney Joe Miller explains why in a Virginia Workers Compensation Case or North Carolina Workers Compensation Case, only the authorized treating physician (ATP) can provide you with work restrictions:
Posted on Monday, February 18th, 2019 at 5:41 pm
Here Virginia Workers Comp Attorney Joe Miller reviews the Settlement Process in a Virginia Workers Compensation Case. Although he is addressing his clients, if you are looking at settling your case, you can benefit from this “inside baseball” view of settlements as well.
Posted on Thursday, January 31st, 2019 at 5:43 pm
Here is another important piece of information, free of charge, this time regarding Going on Vacation During the Pendency of Your Workers Comp Claim. So here is the question:
If you are receiving workers compensation benefits and you are required to see a physical therapist, orthopedic surgeon, or any other doctor or specialist, it is very important that you keep your appointments and attend every one. If you go on vacation for a long period of time and miss an appointment or request that the doctor change your appointment, you could risk losing your benefits.
Missing an appointment or rescheduling an existing appointment could be viewed as failure to comply with medical treatment by your nurse case manager. As such, particularly in Virginia, the case manager could have the defense lawyers file an application to have your benefits taken away. Once your benefits are stopped, it could be years until they are restored, if ever.
Another issue you need to be aware of is that a worker’s compensation carrier will be keeping an eye on you. It costs very little for them to hire an investigator who is stationed far away from you with a high-powered lens to video your activities. They will always be looking for anything that you do that could damage your workers compensation claim. Of particular concern are any activities which might be viewed as inconsistent with your doctor’s restrictions. When you are on vacation it can be very tempting to do things that you should not be doing with your restrictions. For example, you may be tempted to go jet skiing with the rest of the family, even though with your restrictions and medical condition you clearly should not be doing that. Or, there may be yard work that involves lifting or engaging in other activities that fall well outside your doctor’s restrictions. Even if there is no investigator, in today’s age of smartphones, which are everywhere, videos or photos of you jet skiing or dirt biking take only seconds to be sent out to thousands on Facebook or other social media, in which case you can say goodbye to your benefits.
Yet another issue that could harm your benefits is job marketing. This is for folks who have been released to light duty by their treating doctors, but their employers refuse to accommodate their physical restrictions by allowing them to work in a light duty capacity. So for instance, if you are not under an open award for your workers compensation claim in Virginia, you must be looking for 5-7 jobs a week. If you go on vacation and you stop looking for a week or you find less than 5 for a week, you will have forfeited the right to claim temporary total disability benefits for that week. Similar requirements exist in North Carolina, although they are not as strict.
The bottom line is your vacation should not be a vacation from your marketing efforts and your documentation of those efforts.
If you will not be missing or rescheduling any medical appointments and if you can continue to search for the required 5-7 jobs per week (when not under an open award) then you may go on vacation. But even then, you should be aware that there may be people watching and possibly recording your every move. Do not participate in activities that you should not be doing with your medical restrictions.
If you have been severely injured at work there are many things you need to be aware of to get the compensation you deserve for your injury. You need an experienced worker’s compensation lawyer on your side. Joe Miller has 30 years of experience in bringing injured workers the Strong Justice SM they deserve. Call today at 888-694-1671 or visit www.TheWorkInjuryCenter.com to learn what Joe Miller and his team can do for you.
Remember, you can still claim your free Case Success Tool Kit by clicking here.
All the best,