Only the Authorized Treating Physician Can Provide Work Restrictions

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:

The Settlement Process In A Virginia Workers’ Comp Case

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.

Can you take a Vacation While Receiving Comp Benefits?

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:

Can you take a Vacation While Receiving Comp Benefits?

Whether it’s summer vacation, winter break, or you simply had a vacation planned prior to your injury, I am unfortunately here to tell you that you may want to think twice before going on vacation if you are receiving workers comp benefits. In this email we will discuss why going on vacation could have adverse effects on your workers compensation claim.

Medical Treatment

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.

If you are going on a short trip and you will not be missing or rescheduling any doctor appointments to do so, you may be alright. However, as we will discuss in the next section, there are still other issues you need to be aware of even if your medical treatment is not affected.

They are always watching– Surveillance

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.

Marketing does not stop while you’re on vacation

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 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,

Joe Miller

Always Attend Your Physical Therapy Appointments

Posted on Thursday, January 31st, 2019 at 5:41 pm    

Here is another important piece of information, this time regarding Physical Therapy. 

We have had some of our clients tell us (after the fact) that they didn’t make their physical therapy or other doctor’s appointment for one reason or another. It might be a sick child. It might be that the client didn’t feel well. Perhaps the person’s ride fell through at the last minute.

Or, we’ve even heard “Well, I just didn’t feel like they were helping me, so I quit going.”

You must understand that when you are in a worker’s compensation case, especially an accepted claim, it’s a lot like being in a fishbowl.

The workers comp insurance company has a defense team that is watching your every move, and just waiting, like a cat standing over that fishbowl, for the right moment to “pounce” and wipe out your case.

We understand that occasionally, there may be things that come up which interfere with your ability to get to a physical therapy appointment. But habitual absence from scheduled appointments will only give the carrier the ammunition it needs to file a motion and stop your checks.

All the insurance company has to do is file a simple paper called a Form 24 that says that you have not been complying with the medical treatment plan by failing to attend the PT appointments prescribed by your treating physician. And you only have 14 days to respond to that Form 24. You should consider it like a nuclear bomb insofar as your case is concerned.

That’s because if you fail to respond within the 14 days, then the Industrial Commission can enter an Order stating that you have failed to comply with your medical treatment plan, and from that day forward, as long as that is true, your workers compensation weekly checks will stop.

So, please do not let this happen to you. Make every effort to attend all of your appointments. If therapy is not helping, then by all means, tell your treating doctor, but do not decide to stop going on your own.

All the best,

Joe Miller

Don’t Quit Your Job

Posted on Thursday, January 31st, 2019 at 5:40 pm    

Here is another important piece of information we want to provide you with respect to North Carolina Workers Compensation Claims.

And that is this: If you get hurt at work, don’t quit your job.

I’ll say it again: If you get hurt at work, don’t quit your job.

And again: Do not quit your job!

I know I sound like a broken record, but if I could shout it from the rooftops, I would. We regularly get calls from people who were badly hurt on the job, who desperately need help paying the mounting medical bills, and actually have a pretty good case on their hands. And it breaks my heart every time I hear that that person quit his or her job before calling us.

I understand why injured workers feel like their only option is to quit their job after an accident. They’re hurting, and their employer won’t listen and refuses to change their duties to match the doctor’s restrictions. Or maybe the doctor they went to won’t listen, and their pain only gets worse every day. It’s frustrating and stressful and eventually everyone has a breaking point. But if you get hurt at work and decide to quit your job, you instantly lessen any hope you had of taking your workers’ comp case to a Hearing and recovering your benefits.

The workers’ comp insurance companies would love for you to quit, because by quitting, you basically make their case for them. Injured employees can be awarded workers’ comp benefits when a workplace injury leaves them unable to work. In North Carolina, if you have an accepted claim, even if you are able to work, but your doctor says you cannot physically return to the work you were doing before the accident, you would still likely be entitled to ongoing weekly benefits.

But if you quit your job, the reason you can’t work isn’t because you were injured and you have to adhere to your doctor’s physical restrictions; it’s mostly because you took yourself out of the labor market by quitting. A Commissioner will take one look at a case where the employee quit, shrug, and may very well say, “tough luck.”

If you have an accepted claim, and your doctor puts you on light-duty, your employer has to either: 1. find a reasonable way to accommodate your restrictions, 2. find you another job within your restrictions, or 3. If they do not want to accommodate your restrictions, then keep paying you benefits for up to 500 weeks, assuming you are looking for other work within your restrictions. In most cases, they will simply keep paying you your weekly benefits.

If your employer does accommodate your restrictions and you come back to work on light duty after an injury, and it still hurts, then you should go back to your doctor, tell the doctor exactly what they are making you do at work that hurts you, and have your doctor write an order demanding the employer follow your restrictions. Sometimes, the doctor may decide that it’s a dangerous environment for you and he or she does not want you working in that environment at all, and then takes you back out of work again, in which case your weekly comp benefits would re-start. If your doctor won’t listen to you, call a workers’ comp attorney who may be able to get you a different doctor who will listen.

But again, if you quit, without the doctor holding you out of work, you have greatly lessened any possibility that any of those things can occur because you have removed yourself from work by quitting. In other words, the reason you are not working is because you quit, not because a doctor says you cannot work.

I cannot tell you how many great cases we have been forced to turn away because the worker quit his job before he called us.

If you have been injured at work or you know someone who was hurt on the job, and are wondering if you should quit, think about all the medical bills you have to pay on your road to recovery from your work injuries. Workers’ comp exists to help you cover your medical expenses so you can heal and maybe one day rejoin the workforce. Don’t make an impulsive decision to quit that ruins your chances of being able to get the help you need.

I’ll leave you with one last piece of advice: If you get hurt at work, don’t quit your job!

Wishing you a speedy recovery,

Joe Miller

Why You Should Hire An Attorney

Posted on Thursday, January 31st, 2019 at 5:38 pm    

I want to provide you with an important piece of information, this time regarding whether or not to hire an attorney for your workers comp claim. We have noticed that one of the things that folks often say as to why they have hesitated in hiring an attorney is that “it costs too much,” and “I simply cannot afford it now.” In some cases, we’ve heard folks say that they did not speak to an attorney because “I know lawyers bill by the hour and I don’t want to get stuck with the bill.”

Well, if that sounds familiar to you, let me put your mind at ease because the good news is that


If you have been severely injured, you may be out of work due to your injuries. How can you possibly afford an attorney now? You don’t even know how you are going to pay the bills that you have, much less afford an attorney! After all, your friend had to shell out a fortune to hire a divorce attorney. And your cousin had to stroke a BIG check to a criminal defense attorney after that cousin got his second DUI.

Well, here is the great news. You will not have to stroke a check or shell out cash, money order, or anything else to hire the team at Joe Miller Law/The Work Injury Center, to represent you, whether you’ve been hurt on the job, been in a car accident, or both.

How is that possible? What is the catch?

The fact is that almost the entirety of our fees are received on what is known as a contingency basis. This means that if you don’t get paid, then we don’t get paid.


How does that work?


On North Carolina Worker’s Compensation claims, we are typically awarded no more than 25% of any settlement of your case as an attorney’s fee. The reason we say “typically” is because at the end of the day, the North Carolina Industrial Commission decides what our fee will be. The percentages I just mentioned are the maximum standard amounts that are almost always awarded to the attorney in a settlement of your claim.


But hey, wait a minute, Miller! Why do you say “almost the entirety of our fees?” What is the small print here?


The reason we say “almost” is that sometimes, for instance if we need to go to a Hearing or other significant Motion before the Industrial Commission to get your benefits underway, the Industrial Commission may Award us every fourth check (i.e.,25%) of your weekly comp checks as ongoing compensation, if we elect to apply for that fee. In many cases, for instance, if we believe the case is ripe for settlement, we will forego that fee and wait until settlement to ask for our 25% fee out of settlement.

But again, notice that regardless of whether it is at the end of the case or while you are being paid benefits, you will still not have to stroke a check. If you get no weekly compensation check and/or Award, for instance if your claim is denied, then we are entitled to nothing from ongoing benefits, because there are no ongoing benefits. So those are all still contingency fees.

In personal injury cases, such as car accidents, where the injured person was not on the job at the time of the injury, our fee is 33.3% of the recovery, which may increase to 40% of the recovery, in the event that a lawsuit has to be filed. In the vast majority of cases, we are able to settle your claim without having to file a lawsuit.

So that sounds too easy to be true. What do I have to do to hire Joe Miller Law and the Work Injury Center and put your team to work for me?

If we decide to accept your claim, all you have to do is sign a fee contract that gives us permission to represent your interests in your case. Also, the contract contains the applicable language setting out what has just been explained to you above as to our contingency fees.

In addition, there are HIPPA forms to sign so that we can obtain all of your relevant medical records. You will not have to worry about getting those records as we do all the work. Finally, there are some easy fact forms to fill out so that we have all of the relevant information with regard to your claim. Just give us a call at 1-888-694-1671 or email us at or fill out the online form to get started!!!!

If you are still not ready to get an attorney involved in your case, we still understand, but please remember that we have a free information kit ready and waiting for you! All you have to do is CLICK HERE to order!


All the best,

Joe Miller

More on Cold Weather Risks for Workers and How to Prevent or Treat Them

Posted on Tuesday, January 29th, 2019 at 11:33 am    

Another danger for workers who work outside is trench foot. Trench foot is also known as immersion. Trench foot is due to lengthy exposure to cold temperatures and wet elements. Workers can develop trench foot even if temperatures are as much as 60 degrees F. The injury happens “because wet feet lose heat 25-times faster than dry feet.” According to OSHA’s stress guide, the danger is that the body, to prevent heat loss, will “constrict the blood vessels to shut down the circulation in the feet.” When the circulation is cut, skin tissue can die because the tissue doesn’t get the oxygen and nutrients it needs. There can also be a buildup of toxins.

Trench foot symptoms include swelling, numbness, blisters, and redness of the skin. If a worker develops trench foot, contact 911 immediately or get medical help immediately. The wet footwear and socks should be removed, and the feet should be dried.

OSHA recommendations for preventing cold stress

While OSHA does not have specific standards for how employers should handle cold weather, it does have recommendations. These recommendations include training workers on how to prevent cold stress injuries and illnesses. This includes what protective clothing and equipment should be worn outdoors. It includes creating policies for reducing risk such as monitoring temperatures and wet conditions and understanding when workers should come in from the cold. Proper “engineering controls” should be considered. This can include radiant heaters, and temporary facilities where workers can warm up. Equipment and devices can be purchased or crafted to reduce exposure to winds and drafts.

Some safe work practice policies that employers should consider when the weather gets cold include:

  • Preventing workers from becoming dehydrated. Fluids should be readily available. Workers should be encouraged to drink them. Warm sweet liquids generally help workers drink more liquids. Alcoholic beverages, however, should be avoided.
  • Heavy work should be scheduled for the sunnier warmer parts of the day.
  • Employees should use a buddy system (where employees work in pairs) so that each employee can monitor and help the other work.
  • If workers aren’t feeling well, they should be allowed to stop working and get hydrated or rest.
  • Employees should be allowed to take rest breaks, even when feeling well, on a more regular basis than in other weather conditions.
  • Workers who have been out of work due to a workplace injury or illness should be given plenty of time to acclimate themselves to work, in general, so they can build up their tolerance – before being given outdoor assignments.

Many factors contribute to workers feeling as warm as they need to be in cold weather. Proper dress for work factors include:

  • The fabric in the clothing. Cotton doesn’t have much insulation value if it becomes wet. Silk, wool, and many synthetics are better fabrics for protecting cold weather workers.
    • Workers should have at least three layers of clothing. The layers should be loose fitting. This combination helps to better insulate the worker. Tight fighting clothing is actually not as effective as many workers would think it should be. The three layers should consist of the following:
    • “An inner layer of wool, silk or synthetic to keep moisture away from the body.
    • A middle layer of wool or synthetic to provide insulation even when wet.
    • An outer wind and rain protection layer that allows some ventilation to prevent overheating.”
  • Workers should wear a hat or wear a coat with a hood. Head coverings are essential to reducing the amount of body heat that can escape.
  • Knit masks can protect the face. Some knit masks can even protect the mouth and lips.
  • Gloves should be insulated. Better gloves are also resistant to water.
  • Workers should wear boots that are insulated and waterproof boots. An extra pair of socks may help.

Additional safety tips for employees

Other steps that the Occupational Safety and Health Administration recommends employers take include:

  • Constant monitoring of workers’ physical conditions in outdoor weather
  • Staying as dry as possible. It’s the combination of cold and wetness that can often be the most harmful – causing hypothermia, frostbite, and trench mouth. Wetness doesn’t just include external liquids. Excess sweating can be dangerous too. The sweat quickly turns cold in bad weather.
  • Workers should have extra clothing such as sweaters and warm underwear ready.

Other cold weather problems besides the cold and wet

Icy and Snowy Walkways and Parking Lots. Ice is an especially dangerous concern in several respects. Icy surfaces can make it much more likely that workers will slip and fall. We unfortunately have represented many injured workers in all kinds of occupations who are injured—typically when exiting or entering their place of employment.  Even a telecommuter may be entitled to make a claim if he or she slipped on snow or ice at home—provided he or she has begun engaging in employment-related activities for the day and was so engaged at the time of the fall.

Snow and ice make it easy for people to lose their footing. Workers who slip and fall can suffer broken bones, muscle and ligament damage, and other types of injuries that can prevent them from working for a long time, or in some cases, unable to return to work at all. We have seen numerous surgeries made necessary due to a slip and fall on ice.

A typical office environment—where ladies wear high heels and men wear dress shoes—combined with ice, is an absolute prescription for disaster. These types of footwear provide no traction whatsoever on icy surfaces and are likely to slide out and cause serious injury. If possible, particularly if there is a long trek from the parking lot to the entry of your place of employment—alternate, weather appropriate footwear should be worn, such as warm boots, like the Sorel brand, and you should carry your office shoes with you in a backpack or by other means. This will also prevent the shoes from being ruined by the harsh salt and other chemicals which are often used in an attempt to melt icy walkways.

Steps should be taken by the employer/landlord to remove ice and clean up snow and ice on company sidewalks and parking lots – as soon as possible after the weather has ceased precipitation.  

Icy Road Conditions. Many North Carolina and Virginia drivers have difficulty driving in the snow. It is not something we are used to. Icy road conditions make driving especially dangerous. Icy conditions can also make it hard for drivers to see. Windshield wipers may stop working completely if the ice builds up too much.

Employers should prepare for bad weather and should educate their workers and have a plan in place about what to do in the event the roads are deemed hazardous. Follow your local news and school and employer closings. If most of the larger employers are opting out of requiring their employees to come to work, that might be a good indication that the employer should advise your employees not to come in as well.

Workers who are injured while driving on the job can suffer a broad range of serious injuries or may even be killed. Moreover, workers should be aware of the “going and coming rule”. That is, you typically cannot claim any injury that you suffered while on the way to or from work as a workers comp injury.  

North Carolina and Virginia worker’s compensation lawyer Joe Miller Esq. has been helping injured workers get justice for more than 30 years.  He’s helped thousands of injured employees get compensation for their medical bills and lost wages. He helps all types of workers from construction and heavy industry workers to healthcare workers and officer workers. For help now, please phone me at 1-(888) 667-8295 or fill out my contact form.

Worker’s Compensation and Winter Safety

Posted on Thursday, January 17th, 2019 at 4:45 pm    

Rear view of man holding shovel over his shoulder and preparing for shoveling snow.

North Carolina already had one significant snowfall during December of 2018 and early in 2018, southeast Virginia was struck by a crippling blizzard. Ice, snow, and cold weather can make it extremely difficult to work – especially for construction workers and anyone who works outside. Anyone who walks outside may slip and fall on the ice. Well-known dangers, although rare in our neck of the woods,  include hypothermia and frostbite.

Some examples of outdoor work include:

  • Construction work
  • Snow cleanup crews
  • Police officers
  • Firefighters
  • Sanitation workers
  • Emergency medical technicians
  • Highway maintenance crews
  • Landscapers
  • HVAC Technicians
  • Utility Workers
  • Refuse and Recyclable Collectors
  • Surveyors

Cold weather can be relative. Some climates are known for their cold weather and people there understand what steps are needed to protect roads, pipes from bursting due to freezing, and most of all people. Other climates including southern climates often don’t understand how to respond to cold weather and the city crews with their meager supplies and equipment are quickly overwhelmed when extreme winter weather takes over. It is not their fault; it is simply such a rarity that it is not worth the expenditure to purchase the extra equipment.

The OSHA Cold Stress Guide

As with all worker’s compensation claims, there is no requirement to prove fault. If an accident at work causes the employee to be injured, the employee has a right to demand wage loss benefits and payment for the medical costs to get healthy again. The employer is generally liable even if it did everything it could to prevent the accident.

Employers and employees should both understand the risks of working in cold weather and to how to minimize those risks. The Occupational Safety and Health Administration does have some guidelines on what employers can do to help any worker who works outside in extreme cold or a combination of cold and wet weather.

Still, employers are required to comply with “hazard-specific safety and health standards.” Employers must also “provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.” Employers should also use standards that are commonplace in their industry.

Risk factors for cold stress

Cold weather includes more than just looking at the temperature. It also requires looking at how wind chill makes it feel colder.

In addition to wind, the following factors can make cold weather more difficult to manage, according to OSHA:

  • Wet and damp weather
  • Employee fatigue
  • Not being properly dressed for winter. Workers should wear layered clothing and have protection for their hands, fingers, feet, toes and face.
  • Workers who are in poor health or who have certain risk factors such as diabetes, hypertension, and hypothyroidism should stay inside.

Cold weather places stress on the body by shifting blood flow, over time, away from the extremities to the body’s internal organs, the chest, and the abdomen. This shift plus any exposure of the extremities increases the body’s risk for hypothermia, frostbite, and trench foot.

What is hypothermia?

Hypothermia is a dangerous condition which happens “when body heat is lost faster than it can be replaced.” Another factor is that the body’s temperature drops to below 95 degrees F instead of its normal temperature of 98.6 degrees F. Hypothermia normally occurs at very cold temperatures. It can, however, happen even at temperatures above 40 degrees F if other elements exist. These elements include exposure to rain, sweating, or being submersed in cold water such as falling into a lake or pond.

Hypothermia symptoms. Mild symptoms include shivering and stomping one’s feet to try to get the blood circulating. More serious conditions include a falling body temperature. The worker will stop shivering and may become confused and disoriented. He/she may show signs of losing coordination. Workers may not be able to stand. Their pupils become dilated. Their pulse and breathing slow. Workers with hypothermia may lose consciousness. In tragic cases, they may if they don’t get immediate help.

Treatment for hypothermia. Any worker, supervisor, or helper should call 911 or seek immediate medical help. Some of the many common steps OSHA recommends include:

  • Moving the worker to a dry, warm location
  • Taking off any wet clothes and putting on dry clothes.
  • Covering the whole body including the head and neck with blankets – and with “a vapor barrier.” The face should not be covered.
  • If medical help is over 30 minutes away, the worker should
    • Be given warm sweet drinks (but no alcoholic drinks) which can help raise the worker’s body temperature. If the person isn’t conscious, then he/she should not be given a drink.
    • Placing “warm bottles or hot packs in the armpits, the sides of the chest, and the groin. Call 911 for additional rewarming instructions.

If the worker isn’t breathing or doesn’t have a pulse, a call to 911 for emergency help should be made immediately. Additionally, OSHA recommends:

  • That the general instructions above, other than being given fluids, should be followed
  • The worker should be checked again for signs of breathing and for a pulse. The check should be for 60 seconds.
  • A 911 operator or emergency medical service worker should start chest compressions – or direct someone at the site on how to perform chest compressions. OSHA’s cold weather guidelines provide that “Chest compressions are recommended only if the patient will not receive medical care within 3 hours.”


The dangers of frostbite?

Frostbite occurs when the skin freezes and the tissue beneath the skin is affected. The lower the temperature, the greater the risk of frostbite. The hands and face are normally the parts of the body affected. In severe cases, amputation may be required.

Frostbite symptoms include red skin with gray and white patches. There’s numbness in the body part affected. There can be a feeling of hardness in the hand, foot, or body part. In severe cases, there may be blisters.

Treatment for frostbite. Generally, the treatments for hypothermia should also be used to treat frostbite. Additional treatment considerations include:

  • Do loosely cover the affected body part and try to protect that part.
  • Do give the worker warm sweetened drinks – if they are alert but not if they are unconscious. Don’t give the worker any alcohol.
  • Don’t do the following:
    • Don’t rub the frostbitten party of the body. This can cause more harm.
    • Don’t apply water or snow.
    • Don’t break the blisters
    • Don’t try to rewarm the frostbitten area yourself such as by placing the hand or foot in warm water. This can cause tissue damage. Instead, be sure to get medical help. Medical professionals should understand the right way to warm the affected part.

Attorney Joe Miller Esq. fights for injured workers in North Carolina and Virginia. He’s been helping workers get just recoveries for 30 years. Attorney Miller works with your doctors and independent doctors to fully understand your medical needs. To make an appointment, call 1-(888) 667-8295 or fill out my contact form.

Don’t Get A Side Job While Receiving Comp Checks!

Posted on Wednesday, January 9th, 2019 at 5:01 pm    

In this video, Attorney Joe Miller explains why you should NEVER obtain a side job or other “under the table” job while receiving workers’ compensation benefits:

Frequently Asked Questions – Part Three

Posted on Wednesday, January 9th, 2019 at 4:56 pm    

Here’s our third series in common questions and answers about North Carolina and Virginia worker’s compensation.

What is a Nurse Case Manager? (NCM)

Employers have the right to appoint a nurse case manager to help injured and ill workers with their medical needs. Employers will say that the nurse case manager is just trying to help the worker get healthy. That’s not always the case, in fact it is mostly not the case. While a nurse case manager can help coordinate your appointments and help get workers to their treatment or therapy sessions; nurse case manager’s main goal is to show that you are ready to return to work. They are agents of the insurance company and one of the defense professionals usually hired to do the insurance company’s dirty work.

What is that “dirty work.” The insurance company’s interest is to get you back to work as soon as possible. In Virginia, if you are not yet under an Award, and you get released to light duty— that means ANY light duty—even with a one lbs lifting restriction—then the insurance company does not have to pay you a penny, even if your employer does not accommodate your restrictions.

Employees should review with their worker’s compensation lawyer exactly what the nurse case manager can and cannot do. Nurse case managers do have the right to know about your appointments. They do have the right to go the doctor’s office or therapy office. They do have the right to obtain bills and reports from the health provider’s office. They do have the right to discuss your medical condition (including the diagnosis, necessary treatments, and prognosis) with the health professional. They can help you get transportation to the medical office.

They don’t have the right to be in the examination room with you the entire time, if you do not want them in there.  At least some portion of your examination with your doctor should be private so you’re comfortable explaining exactly why you’re hurting. Your doctor should know you can’t lift objects or that it hurts when you move. You also have the right to be present when the nurse case manager discusses your case with the physician. The nurse case manager and the doctor are supposed to be there to help you – not bow to the insurance company’s desires. They do not have the right to “manage” your medical care by deciding where or with whom you will treat. Those decisions belong to the authorized treating physician.

For the most part, the nurse case manager’s access to your physician will be dependent on how open your physician is to dealing with the nurse case manager. Some are more open to allowing the NCM into the examination room, while others are less open to it. Our interpretation of the law is that their only obligation is to provide the records to the NCM. Beyond that, your physician is under no legal obligation to talk to the NCM. The issue is that many physicians realize that if they completely “shut out” the NCM, it is less likely that the physician is going to get any further referrals from the insurance company. In other words, it’s bad for business. Most patient advocate type physicians will walk a fine line of communicating with the NCM, but maintaining their own independent medical judgement, despite the pleas of the NCM to return you to work before you are ready.

What is an independent medical examination?

Sometimes, the employer or your own lawyer will request an independent medical examination (IME). An IME is a physical and oral examination of your current health condition. It is performed by a physician who is not one of your treating doctors. In North Carolina, you are entitled to an IME with a physician of your choice respect to your permanent impairment rating if you do not like your treating physician’s opinion in that regard, at the defendant’s expense. In North Carolina, you are also entitled to an IME at the defendant’s expense for general issues as well; however, there must either be an agreement by both sides as to who will perform the general IME, or the Industrial Commission will have to order who will perform the IME via a motion filed by the attorney.

In Virginia, you have no right to obtain an IME at the defendant’s expense; however, you are entitled to see any doctor you like at any time at your own expense. In North Carolina, it is not advisable to do this, as the IC will generally ignore unauthorized examinations and opinions.

On the other side, the employer’s insurance company also has the right to request an IME at any time in both Virginia and North Carolina. The defense may request an IME to try to show you are ready to go back to work, or when there is a question as to whether a procedure or surgery recommended by your physician is medically necessary. The doctor is hired by the employer’s insurance company which means he/she is not your friend. The employer physician normally only sees you one time at the IME. He or she will take an oral history and then conduct the physical exam.

You and your lawyer have the right to challenge any report the IME doctor makes that suggests you can return to work or that you can go back to work with some restrictions. Your lawyer will normally seek to have one of your own doctors review the IME doctor’s report – and explain where the report is not accurate.  Your treating doctors can show what the IME doctor misses because he/she only sees you one time and why any conclusions about your ability to work are not true.

Should I seek vocational rehabilitation?

Some workers can’t return to the type of job they did before their accident. For example, construction workers who needed to be able to lift 50-100 pounds or more to do their job may now not be able to lift much more than a few pounds.  Going back to work with restrictions may not be an option – either because there are no suitable restrictions (you just can’t do physical labor any more) or because the employer doesn’t have a job that matches your abilities.

Since you can’t do the job you’ve been trained for, you may be eligible to be retrained to do a new type of job. The new job is often more clerical and administrative if you were a physical laborer. Your North Carolina or Virginia work injury lawyer should then explain that you may be eligible to go back to school or to attend a training program so that you can be qualified to do more work.

That being said, the process of vocational rehabilitation, unless it is a simple payment for school tuition (rarely the case), is generally not what it sounds like. In our experience, it is generally an unpleasant and difficult process designed to strip you of your benefits. It is generally not designed to find you suitable employment but trip you up and find you out of compliance and hence no longer entitled to your workers comp benefits.  

While engaged in vocational rehabilitation, you still have the right to be paid your compensation checks (generally 2/3rds of your average weekly wages) and treat with you doctors. The insurance company is supposed to pay for your tuition or course costs, your books and training materials in connection with any vocational rehabilitation, but in our experience, they will typically take the cheapest road and enroll you in free courses if any re-training is required. If you need help getting to the course programs or school, vocational rehabilitation is supposed to either help or reimburse you for your transportation costs as well.

What does a vocational professional do?

This is someone who is trained to say what type of work a person can and can’t do based on the worker’s education, past job experience, current skills, and current physical and emotional abilities. Employers sometimes employ a vocational professional to say that – while you can’t do your current job – you should be able to find suitable work in the area where you live. These professionals usually review Department of Labor standards and other guidelines to help make their determination.

They will typically start with an initial session which goes through your entire work history to determine your current transferrable skills. They will also review any FCE’s and your doctor’s records to determine your current work restrictions. After that, the vocational rehab professional will often meet with you on a weekly basis to provide job leads for you to apply to. These job leads are supposed to be pre-screened, meaning they job must be within your physical restrictions, within your skills, and also at least some significant portion of your pre-injury wages. In other words, if you were earning $1500.00 per week pre-injury, having you apply for a minimum wage job would not be suitable employment.

Experienced work injury lawyers understand how to question vocational professionals. They also understand that most of the time, their job is not to find you suitable employment, but to trip you up so that you are stripped of your workers compensation benefits. They work to make sure the vocational rehabilitation counselor follows the rules and guidelines which govern what they can and cannot do.  In some cases, they may consult with another vocational professional who has a different opinion about the work you can and cannot do.

Attorney Joe Miller Esq. has been a strong advocate for injured and ill workers for more than 30 years. He’s helped thousands of North Carolina and Virginia employees get just recoveries when they’re hurt on the job or suffer an occupational illness. To speak with a lawyer who fights for injured workers, please call 1-(888) 667-8295 or fill out my contact form.

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