What are the Stages of a Car Accident Case?

Posted on Friday, June 15th, 2018 at 10:13 am    

Car accident cases aren’t simply a matter of “here’s what happened, pay me a large sum of money.” Experienced Virginia car accident lawyers are skilled at each phase of the trial from the initial client consultation through a trial before a jury. Once your medical diagnosis is clear, the lawyer will work to try to settle your case. To get the best results, the lawyer prepares your case as if it is going to go to trial.

Since car accident lawyers usually take your case on a contingency fee basis, the client does not need to rush to make a quick settlement. Contingency fee means the car accident lawyer only gets paid if your case settles or if you obtain a jury verdict. So you will not have to stroke a check to hire the attorney.

There are several steps a car accident victim should take before speaking with an attorney. For more detailed information on what to do and what not to do if you’ve been in a car accident, please download my book 23 Simple Rules to Follow if You’ve Been in a Car Accident, or call our office for a hard-bound copy. Also, remember that if you were on the job at the time of your accident, there will be a Workers’ Compensation element to your claim as well which we can handle for you.

  • The first step is to get an immediate medical evaluation. Even if accident victims feel well immediately after the accident, they should still go to the emergency room or see their family doctor. Some injuries like traumatic brain injury, concussions, or whiplash take a day or more to show symptoms. The sooner you see a doctor, even when pain is not immediate, the better care you should get. Early diagnosis and early treatment helps you get better faster and with stronger results. Additionally, if you wait to see your physician, the insurance companies may argue that you weren’t really hurt.
  • The second step is to contact the police if anyone was hurt or if there was property damage. The police will get everyone’s contact and insurance information. The officers will write a report which details the accident site including lanes of travel, traffic signals and signs, and other information. The police will work to secure the area so that nobody else is hurt. They’ll physical also arrange for any ambulance or EMT services. They will also charge anyone they feel violated any laws, such as failure to yield, running a red light, etc. This helps to determine who was at fault for the accident, and if that person pre-pays the fine, then they have admitted guilt in your case.
  • The next step is to make sure you take or get someone to take numerous photos of any damage to the vehicle you were occupying at the time of the accident, before the vehicle is repaired. This can easily be done with most smartphones today. In addition, if you have any bruises  lacerations, or seatbelt burn, etc. from the accident, you should get someone to photograph them extensively and as clearly as possible before they heal.
  • The third step is to contact an experienced car accident lawyer as soon as possible. The attorney will advise you how to document your pain and suffering. He’ll explain how the litigation process works. An experienced car crash lawyer will explain that you shouldn’t think about a settlement until you fully understand your injuries and what your long-term prognosis is. He’ll speak with the insurance adjusters for you have signed documents to allow him to represent you.
  • Vehicle owners are required to notify their own insurance carrier about the accident. You should never admit fault even to your own company.  You should give the facts about what happened. Normally, the insurance company will want to inspect the car to see what repairs may be necessary or to determine if the car was totaled.
  • Vehicle accident victims are not required to speak with the insurance adjuster for the people who were at fault, i.e. the defendant. If an insurance company, other than yours, wants to speak with you, you have every right to say that you want them to speak with your lawyer. If your lawyer thinks it prudent, he will set up a recorded statement and prepare you for it, and do a three-way telephone interview so that he is on the phone during the statement. He will also prepare you before the statement as to how to conduct yourself.

 

Victims should also understand that both Virginia and North Carolina have a strict contributory negligence laws. This means if a jury finds that the other driver was 90% at fault and you were just 10% at fault, then you get nothing. You don’t get 90%. You don’t get 50%. You get zero. So, admitting or implying fault in any way can cause you to lose your case.

Now if you were on the job at the time of your accident, generally, fault does not affect workers comp entitlement, unless you were grossly negligent, or failed to follow a company safety rule. For instance, if company safety rules require that you wear a seatbelt, and you were not wearing one and this increased your injuries, you would not be entitled to workers comp coverage.

The stages of your case once you a hire a lawyer

  • Consultation. The attorney will begin by reviewing what happened and your medical complaints. The more he understands what happened, the better he can analyze who was responsible and why.
  • Investigation. In the old days, the attorney would routinely send investigators to the accident site to take pictures and/or video of the site, but today, for most locations, you can view just about every angle of the scene using Google Earth and save the shots you want.  If skid marks or sight distance are important, then an investigator with appropriate training will be sent to take measurements. This can prove critical in close cases. The investigators may also examine your vehicle. The damage to all the vehicles (what parts of the car and how severe) is another piece of evidence to help determine fault.
  • Determination and Estimation of Coverage. Your own insurance policy should have a portion called Underinsured Motorist Coverage.  (UIM). It is very important to find the declaration page of your policy. This will display what your coverage is. It is usually expressed as policy limits, with two numbers and a slash line. For instance it may say $100,000/$300,000.00. The first number is the per person limit and the second number is the total coverage in the event that more than one person was hurt. The reason the amounts are important is because the minimum coverage required in Virginia is $25,000.00, and in North Carolina, $30,000.00. So no matter how bad your injuries are, if both you and the defendant have the minimum coverage, that is all you will be entitled to. Unfortunately, we are not entitled to know the amount of the defendant’s coverage without filing a lawsuit. Most of the time, you can get an idea based on the year, make and model of the defendant’s car. So if they are driving a 1980 Honda that is barely holding together, you can bet their coverage is very different from someone driving a brand new Mercedes.
  • Photos of the damage to the vehicle and any severe injuries.  As noted above, it is very important to get photos of the vehicle damage. Particularly in a nasty wreck, a picture is worth a thousand words. If you have to go to trial, nothing conveys what you have been through better than a mangled mass of twisted metal.
  • Medical care and gathering of records and bills. The attorney will review your medical injuries and the treatment you’ve received so far. The lawyer may suggest that your see other doctors, psychologists, therapists, and other health care providers. During your case, the lawyer will obtain medical reports which explain your medical condition, your prognosis, the loss of any long-term function, the pain and suffering that usually accompanies the type of injury you have, and any problems that are unique to your situation.
  • When to negotiate. Insurance companies for the people who hit your car want to settle your case as quickly as possible for as little as possible. Experienced Virginia car accident lawyers understand that delay is not your friend. Many doctors will defer payment until your case is resolved, but they are not required to do so. Therefore, your own health insurance company should pay for your medical care until the case settles or there is a verdict.

While some injuries such as a broken arm are treated and then heal in a few months, there are often exceptions. When your arm heals, you may lose some range of motion. There still may be a persistent pain. If you settle too early, you can’t come back and ask for more money. That’s why it’s good to wait until your medical condition has stabilized.

  • Demand Letter-Once all the bills and records regarding your related treatment are received, and you have reached maximum medical improvement,  your attorney will prepare a demand letter, which will set forth the facts of the claim, and recite, in detail, the entirety of your medical treatment related to the accident. If you had any prior injuries to the same body parts, this would also need to be discussed and dealt with. You attorney will also attach all the relevant medical records and bills and tally them up to compute an appropriate amount to ask for settlement from the insurance company. The amount asked for is typically not the amount your attorney expects the case to settle for, but is merely a place to begin negotiations. The attorney will also attach any relevant photos of the vehicle damage, photos of your visible bodily injuries, and a copy of the accident report.
  • How to negotiate. An experienced car accident lawyer understands how much your case is worth. He understands the strengths and weakness of your case and the defendant’s case. He understands the art of negotiation – how much to ask to start in order to get the settlement you deserve. The lawyer also understands when a settlement offer just isn’t fair and that you should proceed to a jury trial. Often times, the best settlement offer comes right before the jury trial date.
  • Watch out if you have a worker’s comp case. One thing many folks ignore is the situation where they may have a worker’s compensation case as well because you were on the job at the time of your accident. Generally, the law does not allow a double recovery. This first means that you cannot settle your case against the other driver without the permission of the workers comp adjuster. If you do, that is the automatic end of your comp case. Also, the money paid out by workers comp will create a lien against your injury case. That being said, these amounts are usually reduced and worked out at the time of settlement. The main take-away is NEVER settle your injury case before your workers comp case or you will be in for a rough ride.
  • Figuring how much the case is worth. For more detail on this subject, please download my free book, How Much is My Case Worth?  Your lawyer should understand how to value and how to prove each of the following damage items:
    • Your past and future medical bills. This includes hospital visits, doctor exams, work with physical therapists, and time with other medical professionals and healthcare providers.
    • All medical prescription costs. Often, a car accident victim needs to take medications during the healing process. Some patients may need to take medications for the rest of their lives.
    • The cost of any medical devices. Prosthetics, walkers, canes, and other devices cost money. They may need to be replaced over time. These expenses should be calculated.
    • Lost income. This includes all the money you lost because you couldn’t work up through the date of the trial. It also includes any lost wages or income that you will lose because you have a partial or complete disability or until your injuries heal. Lost income is generally proved, with the preparation of legal counsel, by evaluating your tax returns, statements from your employers, and profit and lost summaries. In some cases, we work with accountants, vocational experts, and other financial professions to detail how much lost income the accident cost you.
    • Property damage. This is typically the cost to fix your car or to replace it if the cost to repair it is nearly as much as the cost to buy a new one. It should be noted that typically your personal injury attorney will not deal with this at all, and it will be handled early on by you, and not by your attorney. This is because there is little leeway in negotiating vehicle damage amounts. You are entitled to recover the blue book value of the car and nothing more. While occasionally, there may be some add-ons for new items on the vehicle or other property damaged in the accident, it is usually fairly set in stone and there is little an attorney can do to change what you are entitled to. So unless the claim was completely denied, property damage is usually not part of your lawsuit.
    • Pain and suffering. Each day, you have to live with physical aches, pain, and discomfort. The pain may get worse when you move or perform simple tasks. Pain can prevent you from sleeping, enjoying family, doing your job, and engaging in simple tasks like eating and walking. Pain can include itching, swelling, vision loss, and a range of agonies.

 

Along with the physical pain is the emotional worry about when and if your injuries will heal. You worry that you’ve become a burden to your family. Physical pain is often accompanied by depression, anxiety, fear, and other emotions.

 

Your doctors can summarize some of your pain and suffering. Family members can testify as to your sadness, your crying, and other symptoms. Often, the best witness for showing pain is you, the victim. An experienced lawyer will usually value the pain and suffering part of your claim based on his experience and knowledge of the jury pool and what other juries have awarded in the past.

  • Scarring and disfigurement. Car accident victims who have scars, especially facial scars, or who lost a limb or body part because of the accident or an amputation – are generally entitled to additional damages.
  • Loss of consortium. In North Carolina, (but not in Virginia) a spouse of an accident victim may be entitled to damages because they have lost the ability to enjoy their spouse’s companionship, guidance, and intimacy. This element only becomes significant in the most severe injury cases.

 

How long will all of this Take?

So, this sounds like an awful lot to do. You may ask how long all of this will take? And this really depends on how long your treatment takes and many other factors that are too numerous to get into here. I suggest you download the book How Long Will My Case Take? where attorney Joe Miller provides the detailed answers to that question.

 

  • Filing of the claim in Court. If your attorney cannot reach an agreeable settlement with the insurance company, then a lawsuit should be filed before the statute of limitations runs. In both Virginia and North Carolina, that is two years after an accident. The complaint will identify who you are. It will also identify the defendants who caused you injuries. The complaint typically sets forth the theories of liability,  typically negligence, and there may be a plea for punitive damages, if warranted. Once the complaint is filed, we can then formally conduct discovery and prepare your case for trial.

 

  • Formal discovery. Discovery is the phase where each of the parties has the right to ask questions about what the other side knows.
    • Defense questions. Defense lawyers will ask victims to state what happened, what their injuries are, and what treatments they’ve received. The defense lawyers will explore anything that might show the victim was partially at fault for the car accident. The defense attorneys will also try to minimize your injuries by exploring if you had any prior accidents or if there were other events that may be the cause of your pain.

 

    • Plaintiff questions. Your lawyer will seek to determine which defendants owned the car. If the driver was different than the owner, we’ll seek to determine if the driver had permission to use the car. We’ll ask the driver where he/she was coming from and where they were going and get into all the details of the accident, particularly if liability or fault is contested. Many questions will vary depending on how the accident happened.
    • Discovery has three basic parts to it:
      • Interrogatories. These are written questions, sometimes 50 or even 100, about the events surrounding the car accident and the injuries
      • Depositions. These are oral questions under oath that one lawyer asks the opposing party. All of your responses are taken down by a court reporter. This also includes depositions of your doctors.
      • Requests for production of documents. These are written request to produce things such as medical bills, medical reports, proof of insurance, traffic citations, and other documents.
  • The trial. Cases that can’t be settled should be tried before a jury. Depending on the amount we are trying to claim, some cases can be tried in lower Court by a judge. For instance, in Virginia, a district court case has a $25,000.00 limit. So if you know for a fact that there is only $25,000.00 in coverage, this may be the way to go. It does save a lot of money on doctor’s fees, deposition costs, etc.
  • But on the higher value cases, plaintiff’s lawyers always ask to have a jury decide the case. The main parts of a jury trial include:
    • Voir dire. The selection of the jury
    • Opening statements. Each side presents its version of what happened
    • The presentation of evidence. Each side calls witnesses to testify. The opposing side can cross-examine those witnesses. The victim’s lawyer will generally call the victim/plaintiff, the family members, and any witnesses to the accident, if liability is contested. The employer and co-workers may be called. Doctors may also be called unless the parties agree that medical reports or video depositions can be used. Depending on the type of claim, economic experts may be called to testify about future wage loss and even vocational experts, if the plaintiff is unable to return to work due to his or her injuries.
    • Closing statements. Each side summarizes the evidence and argues why its side should win.
    • Instruction to the jury. The judge instructs the jury on how to properly review the case.
    • Jury deliberation. The jury reviews the evidence and decides who is responsible. If the defendants are responsible, the jury decides how much damage to award the car accident victim.
    • The verdict. The jury informs the judge what decision it has made. The judge then reads the verdict to the parties.
  • Appeal. The losing side may appeal the verdict to a higher court. Appeals are usually based on some legal or judicial error during the trial phase.

 

Speak with an Experienced Virginia car accident lawyer now

Car accident victims shouldn’t wait to speak with a lawyer. Memories fade. Evidence such as skid marks can disappear. Injuries usually worsen if you don’t see your doctor. As a respected car accident lawyer, Joe Miller will guide you through each phase of your case. He has been fighting for injury victims for over a quarter century. To make an appointment, please call (888) 694-1671 or complete my contact form.

 

The Dangers of Distracted Driving and Driving While Tired

Posted on Tuesday, May 22nd, 2018 at 12:22 pm    

According to the Centers for Disease Control and Prevention, nearly 9 people are killed and 1,000 people injured by a distracted driver – each day. Distracted driving is dangerous for three fundamental reasons:

  • Distracted drivers aren’t looking the road in front of them
  • Distracted drivers don’t have their hands on the steering wheel. This makes it tough to respond to emergencies. Careful drivers have both hands on the wheel.
  • Distracted drivers aren’t thinking about how to respond to dangers such as by braking, steering into a different lane, slowing down, or taking other safety measures.

Types of distracted driving

Common examples of distracted driving including

  • Texting while driving
  • Speaking on a smartphone or cell phone
  • Using a GPS system
  • Eating while driving
  • Adjusting the radio
  • Looking at a video
  • Conversing with passengers especially those in the back seat
  • Personal grooming
  • Drinking a beverage such as coffee or soda
  • Smoking

Drivers who are tired or who are under the influence of alcohol are also unable to anticipate, control, and respond to emergencies.

A momentary lapse of even a second can be fatal or cause catastrophic injuries. A car travelling at 60mph is travelling 88 feet per second – which is about 4-5 car lengths.

The CDC reports that teenagers have an especially high likelihood of driving while distracted:

  • Drivers less than 20 years of age have the highest rate of distraction-related fatal accidents
  • In 2015, nearly two in five high-school students said that they sent an email or text while driving in the previous 30 days. Many of these young drivers also admitted that they didn’t wear a seat-belt while they were sending these emails and texts.

Texting while driving laws in North Carolina

North Carolina enacted a strong texting while driving ban that applies to all drivers though it is especially tough on novice drivers. The law provides that adult drivers can speak on their cell phones while behind the wheel but they can NOT text while the car is in motion. The texting while driving ban applies to reading, sending, or composing a text message. It is not illegal to text if the car is stopped or is parked. Violators can be stopped by a police officer and ticketed even if they haven’t committed another traffic offense.

Drivers under the age of 18 (novice drivers) can’t text while driving. They also can’t use a cell-phone (even a hands-free phone). Novice drivers can also be stopped if they haven’t committed another traffic offense.

Bus drivers are also banned from using a cell phone while their bus is in motion – in addition to the texting while driving fan.

Texting while driving in Virginia

In Virginia, it is unlawful for any person to operate a moving motor vehicle on the highways in the Commonwealth while using any handheld personal communications device to:

  1. Manually enter multiple letters or text in the device as a means of communicating with another person; or
  2. Read any email or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored within the device nor to any caller identification information.

Fines are $125.00 for the first offense and $250.00 thereafter.

The dangers of driving while tired

Nearly 20 percent of all fatal car crashes are caused by a driver who is too tired – as reported by the AAA Foundation for Traffic Safety, The foundation also found that young drivers, those between 19 and 24, were the most likely to drive while fatigued. While nearly all drivers understand the dangers of driving drowsy, most drivers still drive – even though it puts their lives, the lives of passengers, the lives of other car occupants, and the lives of pedestrians at risk.

Indicators a driver is drowsy

Drivers and occupants of the cars need to know when they need to avoid getting into the car if they’re tired or when to get off the ride if they’re getting sleepy. They’re no reason to risk a life to get somewhere a little faster. Drivers should plan to take regular rest stops. They should know where the hotels are where they can stop and sleep. Some of the signs of drowsy driving include:

  • Yawning constantly
  • Not remembering the most recent leg of a journey
  • An inability to focus
  • Shifting into other lanes of traffic
  • Tailgating or getting too close to other drivers
  • Near misses
  • Traveling too fast
  • Going through red lights
  • Failing to stop for stop signs

Some recommendations for sleepy drivers include:

  • Making regular rest stops for every 100 miles or for every several hours of driving time
  • Get plenty of sleep before you plan a long drive
  • Keep your sleep/awake patterns
  • Try to have another driver so you can take turns
  • Avoid medications that might make you sleepy
  • Avoid relying on caffeine to keep you awake
  • Don’t trust that having the radio on will keep you from getting drowsy
  • Avoid using cruise control

Some automakers who are aware of the dangers of drowsy driving are working to install technology that senses when a driver is tired. The cars sound alarms and even force the car to stop. Alas, that technology does not currently exist with any reliability. All drivers are responsible for any deaths or injuries they cause due to drowsy driving.

Talk with a respected North Carolina car accident lawyer as soon as possible

In many cases, when a teenager or young driver causes death or injury, the young driver is not the owner of the vehicle. Attorney Joe Miller Esq. can explain when you can also sue the owners of the vehicle in North Carolina under the “Family Purpose Doctrine.”  The car owners are generally the people who have liability insurance to pay for all your damages if the driver caused your injuries or the death of a loved one. If there is not enough insurance to cover you claim, you may be entitled to payment for your pain and suffering and economic losses from your own uninsured or underinsurance policy.

In addition, if you were on-the-clock for your employer or your travel was connected to a business trip at the time of your accident, we can, of course, handle any Workers Compensation aspects to the claim as that is also a specialty of our firm. To make an appointment with an experienced North Carolina car accident attorney, please phone (888) 694-1671 or fill out the contact form.

Some Common Types of Car Crash Injuries

Posted on Friday, May 18th, 2018 at 8:07 am    

Drivers and passengers suffer many different types of injuries. In the worst cases, the car occupants die. In severe cases, victims may suffer catastrophic injuries such as a traumatic brain injury or a in injury to their spine. Spinal cord damage may result in partial or full paralysis. Catastrophic injuries can change the quality of accident victim’s life forever. Many victims suffer broken bones, nerve damage, cuts from windshield glass, and burns. Some victims suffer amputations, disfigurement, and scarring.

Most injuries are due to the car driver or passenger being thrown around the vehicle. Occupants may strike the windshield, the dashboard, or the steering wheel. Many car crash victims collide with other car passengers. Some victims are thrown from the vehicle. Occupants may also be hurt when their air bag inflates.

Depending on what type of injuries the driver or passenger suffered, victims need to get medical help from many different types of doctors. North Carolina and Virginia car accident lawyer Joe Miller works with the following type of physicians:

  • Neurosurgeons and neurologists
  • General surgeons
  • Orthopedic doctors
  • Psychiatrists
  • Psychologists
  • Cardiologists
  • Physical therapists
  • Neuropsychologists
  • Neuropsychiatrists
  • Pain management doctors
  • Occupational therapists
  • Physiatrists
  • Chiropractors
  • Nurse Practitioners
  • Physician’s Assistants
  • Physical Medicine and Rehabilitation Doctors
  • Your family Doctor
  • Many other medical specialists

Some patients may need a medical device such as a prosthetic or wheelchair. Most car accident victims need to take prescription medications

Two common types of injuries are internal damage and whiplash.

Victims who suffer or think they might have internal damage are usually transported by ambulance or by emergency medical care to the closest emergency room. There, the doctors will conduct a battery of imaging tests, a physical exam, and an oral exam to help make a medical diagnosis.

Examples of internal injuries include:

  • Broken ribs. Broken ribs often take months to heal. The pain is often unbearable. Sometimes, the broken ribs don’t heal 100% leaving the victim in a lot of chronic pain. If ribs are injured, it’s also likely that internal organs such as kidneys, lungs, and the spleen may be damaged.
  • An abdominal aorta aneurysm. This type of rupture is extremely dangerous and often deadly.
  • Internal bleeding. Doctors should be on the lookout for this condition. While external bleeding is fairly easy to spot (just look for the red blood), internal bleeding requires a more thorough examination. Internal bleeding can affect the head, brain, spine, heart, abdomen, joints, and muscles.  Some of the ways physicians look for internal bleeding are by conducting CT-scans, blood tests, an ultrasound, or an angiography. Symptoms doctors look for are lightheadedness, vomiting, difficulty breathing, blood clots, and examining your urine for signs of blood. Internal bleeding can also affect tissues and organs. Internal bleeding occurs when damage to a vein or artery causes the blood to leak into other parts of the car accident victim’s body
  • Organ damage. If the kidney, lungs, or other internal organs fail to function, surgery may be required. Extensive organ damage, particularly to the liver,  is often fatal.
  • A ruptured spleen. Doctors normally need to repair a ruptured spleen by performing a surgery. Internal bleeding usually accompanies a ruptured spleen.
  • Pneumothorax. This is a fancy way of saying you have a collapsed lung. It occurs when air gets into part of area between the lung and the chest wall. It often requires surgery to correct the damage.

Many patients with internal injuries often have to cope with internal bruises.

Whiplash Injuries

Most whiplash injuries occur when a front car is struck in the rear by a distracted or careless driver. It is often made fun of comedically in TV sketches; however, it can actually be a serious, and in some instances, permanent injury. Whiplash involves a tearing of the muscles and ligaments that surround the cervical spine.

The symptoms of a whiplash can take a day or few days to appear. So, anyone in a rear-end collision should avoid saying they feel fine until they’ve waited to see if they do have a whiplash. Most often, you will feel it when you wake up the next day. Common symptoms include:

  • A stiff neck
  • Reduce range of motion
  • Neck pain
  • Back pain and shoulder pain
  • Headaches
  • Numbness and tingling
  • Dizziness
  • Difficulty seeing
  • Ear ringing

A whiplash injury happens when the neck and head suddenly move backwards and then forward. (Hyperextension). This unusual motion puts a great deal of stress on the cervical/neck spine. Some car accident whiplash victims may even lose their memory due to the brain being slammed up against the interior of the skull. Whiplash injuries damage the muscles, discs, nerves, joints, and bones around the neck.

Physicians will conduct an oral exam and a physical examination. In addition to listening to you explain your symptoms, the doctor will feel or palpate your neck to see if there is muscle spasm.  The doctor will see if anything isn’t aligned properly and determine your range of motion. The doctors may analyze your reflexes and how strong or weak your neck muscles and nerves exiting the spinal column in that area are.

Imaging tests include CT scans, MRI exams, and X-Rays – especially if they suspect a fracture. Whiplash injuries are graded depending on their severity. One of the most common effects of whiplash is a straightening of the spine or cervical lordosis. This can actually be seen on X-ray, and in some cases, digital motion x-ray. This happens when the muscle spasm is so severe it pulls the neck out of it’s normal curvature, and into a straight, “beanpole” configuration, where there is no curvature at all.

Self-help whiplash treatments include:

  • Rest
  • Heat and ice treatments
  • Over-the-counter medications such as Motrin, Advil, and Tylenol

Cervical collars used to be a standard recommendation for whiplash but now there is some thought that these collars may actually weaken neck muscles.

Doctors may recommend the following treatments:

  • Injections
  • Pain medications
  • Physical therapy
  • Psychotherapy
  • Yoga
  • Acupuncture
  • Chiropractic manipulation
  • Radiofrequency neurotomy

Most patients with just whiplash return to reasonably normal lives in a few months.  In severe cases, some car accident victims may have a lifetime of chronic pain due to the scar tissue left over from the whiplash. Older victims usually have a more difficult time fully recovering than younger victims because the tissue is not as resilient. Women are also more prone to long-term whiplash damage than men.

Make the call to an experienced North Carolina and Virginia car accident lawyer

Both North Carolina and Virginia are fault-car accident states. This means injured victims need to prove that another driver or another responsible party caused your injuries. Victims who can prove fault are entitled to payment of their reasonable medical bills, lost wages and pain and suffering. Proving fault and getting a just recovery requires the help of a respected lawyer. And of course, we know car accidents also occur while people are ‘on-the-clock’ for their employer. Because we also specialize in workers compensation in both Virginia and North Carolina, we can help with that portion of your claim as well. Joe Miller Esq. has been helping injury victims get justice for more than 30 years. To arrange a free consultation, please phone (888) 694-1671 or fill out my contact form.

Major Steps to Take after a Virginia or North Carolina Accident Occurs

Posted on Tuesday, May 1st, 2018 at 10:48 am    

Car crashes can be frightening. It’s hard to know who to call, what information you need, what evidence is needed, or how to care for the injured. Certainly, nobody wants to get into an accident – but it helps to have a plan in case a crash does occur. Almost everyone will have an accident in their lifetime.

The best plan is to contact an experienced car accident lawyer as soon as possible. The attorney will explain your rights and guide you through each stage of the claims and litigation process. A second plan is to make sure you have your cellphone with you. The phone should be charged and should have access to the Internet. With your smartphone, you can review our blog for general suggestions.

Key things to consider and be ready for if an accident happens

  • Stay at the accident scene. If you drive away from the accident site and anyone is injured, you can be cited for a hit and run offense. If someone is hurt (either a passenger or the occupant of another car), that person needs medical help. You should either call the police or a local hospital or doctor’s office and ask for assistance. You can reach the police by dialing 911. If you leave the accident site, even if it is not a hit and run case, your flight may used against you. Jurors and insurance companies may believe you wouldn’t have left the scene if you didn’t cause the accident. You should get to where it’s safe. For starters, this means getting off the center of the road and off to the sidewalk or another safe place. Make sure the engine is turned off. Turn on the hazard lights.
  • Determine if anyone was hurt. Nobody expects you to b a doctor. But most people understand the signs of being hurt. Victims may bleed. They may faint. If they can talk, they will tell you themselves that they are in pain. Normally, the police or a hospital will arrange for an ambulance or a first-aid service to come to the accident site and render assistance. Most victims are taken to a local emergency room for treatment. If you suspect that you yourself were hurt in any way, you should arrange to go to the local emergency room. Early treatment can help your recovery process. If you delay getting medical attention, the insurance company may claim you weren’t seriously injured. You should also follow up with your family doctor as soon as you can.
  • Exchange relevant information. It’s generally a good policy to exchange basic information. It may even be a requirement of law. Your lawyer can tell you what information you must disclose. Typically, drivers should exchange:
    • Their name
    • Their insurance information
    • The make, model, and year of the cars
    • Their driver’s license numbers

When you speak with your lawyer, he can explain what information is not required to be exchanged. Generally, drivers shouldn’t discuss how the accident happened. NEVER admit any fault, or say you are “sorry,” even it sounds nice. That will be determined later. As a general rule, it’s not necessary to give your address and phone number, unless asked for by the police.

  • Take pictures. Another good reason for having a charged cellphone is so that you can take photographs. You should take pictures of the following:
    • The damage to the cars – make sure to take pictures of all the vehicles
    • The traffic site – this includes any traffic signals and the lanes of traffic. Pictures should note street names, any obstructions, and anything unusual about the location
    • The witnesses, drivers, and passengers – if they don’t object. Don’t be afraid to show the cuts, bruises, and injuries – while being respectful.
    • Any skid marks or debris.
    • Evidence of intoxication of defendant drivers-especially if they are stumbling or slurring their speech-video them!
  • Talk with a trusted North Carolina or Virginia car accident lawyer. The lawyer will help calm you down. The lawyer will explain any legal answers and questions. He’ll also review all practical steps you need to take to put your case in the best possible light.
  • Cooperate with the police. Standard police procedure is to:
    • Determine if anyone is injured and help them get medical care
    • Get the relevant information such as driver’s license and registration information
    • Clear the accident site so that nobody else runs the risk of getting hurt
    • Speak with any witnesses
    • Prepare a police report which your lawyer will review so that he knows how to start the litigation process and who is at fault
  • Call your own insurance company. You should let your own insurance company know about the accident. They may want to send someone to the accident site. They will almost certainly want to inspect the damage to your vehicle when they get the chance. Your insurance company will help arrange a tow for your car to a local repair shop.

There are other precautions and plans drivers should consider. The car should be stocked with different items to handle different situations. A car should include:

  • Blankets
  • Flashlights
  • Some way to keep warm if the car heater doesn’t work
  • Some non-perishable food

When you get home, you should note the time and date of the accident and what the weather conditions were. Try to remember how fast each car was going and which directions they were going.

Proper planning helps determine who caused the accident. Planning helps verify your damages which include:

  • All reasonable medical bills including hospital surgeries, doctor visits, physical therapy, rehabilitation costs, medical equipment, and medications.
  • Your daily physical pain and emotional suffering
  • Payment for any scarring or disfigurement
  • Lost income and the inability to work
  • Property damage
  • Other relevant damages

Talk to a respected North Carolina or Virginia car crash lawyer as soon as the accident happens

Attorney Joe Miller Esq. has been fighting for the injured for more than 30 years. He’s helped thousands of people get justice in both Virginia and North Carolina He’ll fight to get you the damage award you deserve through a strong settlement or a jury verdict.  For hep now, please phone (888) 694-1671 or complete the contact form.

Experienced North Carolina and Virginia Counsel for Every Type of Car Accident

Posted on Friday, April 27th, 2018 at 10:20 am    

Every car accident happens in a different way. How the crash happens is a strong indicator of which driver was at fault. For example, almost all read-end collisions happen because one car was struck in the rear by another driver who wasn’t paying attention. How the accident occurred also indicates what injuries are likely. Again, in a rear-end collision, the occupants of the car that is struck usually suffer whiplash and other soft-tissue injuries.

Attorney Joe Miller works with the police and investigators to determine how the crash occurred. If necessary, his team speaks to all relevant witnesses including the passengers in any cars and any bystanders. The good news is that in most circumstances, the rear-end collision scenario requires little investigation. Some of the other kinds may require more intensive investigation. What is most important is that you do not say something early on that you do not realize implicates you in some level of fault. In Virginia and North Carolina, that could mean the end of your case.

Common kinds of car crashes

Most car crashes fall into one of the following categories:

  • Rear-end collisions. Most rear-end crashes happen when one car is stopped waiting for a traffic light to turn or waiting their turn to proceed through a stop sign. The car behind the stopped car is usually traveling too fast and fails to stop in time. Often, the failure is because they are distracted because the driver is too tired, looking at the scenery, texting while driving, or for other reasons. The bumper and rear of the car in front usually require repairs. The front and hood of the second car (the one that causes the crash) may also require maintenance. Whiplash, soft-tissue damage to the neck, is a common injury to the driver and passengers in the front car.
  • Head-on crashes. This type of accident usually happens because one driver is in the wrong lane of traffic. Drunkenness can cause a driver to veer into an oncoming lane. Driver distraction can also cause a driver to swerve into the other lane. Some drivers get confused and go the wrong way. Head-on collisions often cause death and serious injuries to the occupants of both cars. When cars strike head on, the impact is worse than most types of accidents because the speed of the cars is combined. For example, if you are going 30mph and the car in the wrong is going 20mph towards you – the crash is comparable to one car striking another going 50mph. If anyone is killed in this type of crash, we file a wrongful-death claim on behalf of the family members of the deceased.
  • T-bone collisions. These crashes, also called broadsides and side-impact crashes, involve the front of one car striking the side of another car. These crashes often happen at intersections when one driver runs through a red light or through a red or yellow traffic signal or stop sign. The person in the struck vehicle often suffers catastrophic injuries or dies because the side of the car offers little protection. The driver in the car where the front is damaged can suffer serious injuries, too. Generally, the car that strikes the car in the side is the one that caused the accident. T-bone collisions are dangerous because both cars may spin out of control causing havoc on the road for all nearby drivers.
  • Sideswipes. Sometimes the side of one car strikes the side of another car. This often happens if one car passes too closely to another car. It can also happen when two cars are merging and neither driver waits for the other driver to slow down. The danger in sideswipe accidents is that one or both cars can then veer into other lanes of traffic striking other cars. Determining fault in sideswipe accidents often depends on who was passing and which car had the right of way during the merge. Typically, the passenger side of one car strikes the driver side of the other car. Two cars can also collide with each other if they are going in opposite directions and both aren’t driving in the center of their lanes.
  • Car rollovers. Some cars like SUVs and jeeps have a different center of gravity than standard vehicles. Flips generally occur if a car is going too fast while the car is in a turn. If a car rolls over, the crushed hood and other vehicle damage can kill the occupants. Survivors often suffer severe injuries including traumatic brain injury, spinal cord damage, and paralysis. Cars can also roll over if they strike an object in the road such as a large pothole or a dead animal. In some cases, if the impact from a rear-end collision is severe enough and occurs at high speed, it can cause the struck vehicle to roll over. We have seen drivers and passengers actually ejected from vehicles due to the impact and rollover.
  • Single-vehicle collisions. Many deadly and serious accidents happen because a driver was distracted, was speeding, or was driving recklessly. Single-vehicle accidents include striking a traffic pole or other object, veering off the road, and rolling over. Typically, the driver is the one at fault. Any passengers in the single car should have a claim against the driver and the owners of the vehicle. Even if the driver is uninsured, if the passenger has uninsured motorist coverage on his or her vehicle, even though it was not involved in the accident, that coverage sticks to the passenger like glue and will cover the passenger for the accident.
  • Crashes involving multiple cars. These are very difficult cases which require the experience and resources of a respected North Carolina and Virginia car accident lawyer. They can happen for different reasons: One car may driver into the lane of traffic of other cars. A car may flip over. A truck may spill its cargo causing all cars around the truck to change their traffic patterns. In addition to the initial car or truck that caused the accident, other drivers may be liable too. In multi-vehicle crashes, people often die or suffer permanent injuries. We recently settled a case involving two vehicles and 10 (ten) injured people. We represented five occupants of one of the cars.

Accidents happen for many other reasons:

  • One driver is usually violating a traffic law
  • A driver may be intoxicated or under the influence of alcohol-depending on the facts, this may result in higher damages, and punitive damages against the drunk driver
  • Many drivers are texting while they drive.
  • Drivers may hit you and then run instead of having the decency to identify themselves.

In many car accidents, more than one person may be responsible. The owners of the car can be held liable if someone else used their car with their permission. In North Carolina, a Bar may be responsible if they served alcohol to someone they knew or should have known was intoxicated and who then caused an accident due to drunk driving.

Speak with a strong North Carolina or Virginia car accident lawyer today

Delay can hurt your case. It’s best to inspect the accident scene and speak to witnesses as soon as possible. Attorney Joe Miller Esq. has been fighting for injured residents for more than 25 years. He understands how to prove fault. He’ll demand the right amount of damages for your pain and suffering, medical bills, and lost wages. For help now, please call (888) 694-1671 or fill out the contact form.

Why Working with Cranes at Construction Sites is So Dangerous

Posted on Wednesday, April 4th, 2018 at 9:51 am    

Most construction work, especially building new public or private structures such as homes and offices, requires that cranes be used to lift, lower, and move workers, equipment, materials, and tools. In addition, many large manufacturing operations require cranes to move heavy equipment and assemblies into place. Injuries from crane accidents can cause death, catastrophic injuries, broken bones, bruises, amputations, neck and back pain, electrocution, lacerations, damage to internal organs, and a host of long-term problems. Catastrophic injuries include spinal cord damage, paralysis, and traumatic brain injury – all of which can prevent a worker from ever having gainful employment again.

Each type of crane has its own dangers.

  • Tower cranes operate at great heights
  • Crawler cranes operate on tracks/crawlers that guide the movement of the cane. These cranes often weigh a lot and move heavy tons of materials. Being struck by one or any object dropped by such a crane may mean instant death.
  • Other types of cranes include overhead cranes, railroad canes, all-terrain cranes, aerial cranes, and floating cranes.

Types of construction site crane accidents

While there is no requirement that an injured worker prove fault, the best way to protect any crane accidents is to avoid accidents in the first place. We have represented severely injured workers hurt by falling debris from a crane. Some of the major reasons crane accidents happen include:

  • Cranes that collide with other cranes, buildings, and nearby objects. Safe crane operation requires proper planning. Sightlines should be visible so that the crane doesn’t strike oil rigs, workers who have already been lifted to great heights, other cranes in the construction site area, and any temporary or permanent buildings. There should be communication between all workers in the area so everyone knows when and where the crane will move. A signalperson should guide the movement of the crane along with the crane operator. Cranes swing around across a wide radius. Anything in the path of the crane swing can be easily hurt or killed.
  • Overhead powerlines. Operators need to check for powerlines at the construction site. The operators and supervisors should assume that the lines are live. In some cases, the lines need to be grounded or deenergized. Extra precautions such as alarms that signal when the crane is too close to the powerline, barricades, or signal persons may be required. Contact with a crane can cause anyone nearby to die from electrocution.
  • Falling materials. The manufacturer requirements should be studied before the crane is placed into operation so that the load is below the safety limits. How the loads are weighed should be clear. The crane apparatus including ropes should be inspected frequently. If the load falls, it can easily strike and kill any workers on the ground or in the vicinity of the crane. In addition, the ‘S’ hooks and other equipment used to attach loads can become damaged and worn over time. They should be frequently inspected and replaced if worn. Even a load that is within the safety limitations of the crane can easily slip out of a worn or defective hook.
  • Tipping-over. Crane stability is a major concern sine most constructions sites don’t have level surfaces. Cranes are constantly running over holes, inclines, and surfaces made of different materials. Civil engineers or other types of engineers may be required to inspect the soil and ground before the crane is used. In some cases, the ground surface may need to dry or be stabilized before the crane is operated.
  • Road-accidents. More and more construction sites are using mobile cranes instead of assembling them at the construction site. The magnitude and awkwardness of these vehicles can create havoc for other drivers on the road. Mobile cranes can make it hard to see. It can be hard to gage how mobile cranes are going to turn.

Some additional reasons why crane accidents happen

  • Bad weather. Cranes should not be operated when the weather conditions are windy or the weather is inclement – foggy, raining, snowing, lightening, or even too sunny.
  • Lack of training. It takes a lot of skill to operate a crane. Some cranes require that the operator have an approved certification. Operators should follow manufacturer and OSHA safety guidelines and not rely on their personal judgment alone.
  • Collapse of the crane boom. There are safe limits on how far the crane boon should be extended. If the crane is extended too far, the crane operator and others near the site can be severely injured
  • Faulty assembly and disassembly. The manufacture guidelines must be followed to prevent injury or death to workers.

OSHA crane operation requirements

The Occupational Safety and Health Administration has numerous regulations that employers must follow to help protect employees and all workers. These guidelines are based on recommendations by engineers, employers, and many other professionals and businesses. Some of these guidelines include:

  • Specific education and certification requirements
  • A prohibition against operating cranes in unsafe work areas and informing the operators about these unsafe areas
  • The precise safe distance requirements that cranes must meet when power lines are around. Typically, the cranes should operate more than ten feet away from the power lines
  • Danger areas should be clearly marked with fences and other barricades
  • Cranes should be routinely inspected and maintained. This includes ropes, cables, and all related crane parts
  • Cranes should be operated so they comply with the manufacturer’s specifications

OSHA also has specific requirements for when crane operation is allowed and when it isn’t based on specific wind speeds – as well as other regulations.

Speak with an experienced North Carolina or Virginia Worker’s Compensation Lawyer Today

The insurance company for the employer will fight to deny your claim, force you back to work too son, and limit the amount of your benefits. They’re all about the money. Attorney Joe Miller is all about the person. For more than 25 years, he’s helped workers get the wage loss and medical benefits they deserve. He works hard so that employees return to work when they’re ready – if they’re ever ready. He works with families who have tragically lost a loved one due to an injury on the job. For help now, please phone attorney Joe Miller at (888) 694-1671. You can also arrange to speak with him or provide information to evaluate your case through his online contact form.

How Is Average Weekly Wage Determined in North Carolina and Virginia?

Posted on Thursday, March 1st, 2018 at 4:01 pm    

The amount of wage benefits injured workers receive is based on the following calculation/formula:

2/3rds (.66667) of your average weekly wage (AWW) times the number of weeks you’re entitled to benefits.

The AWW is determined in one of the four following ways:

  1. If you worked at your job for over a year, then your AWW is – how much you earned for 52 weeks before your workplace injury – divided by the number of weeks you worked. If you didn’t work for seven or more days in a row, then the number of weeks is reduced.
  2. If you worked for fewer than 52 weeks, then your AWW is – how much you earned while you worked divided by the number of weeks you worked.
  3. If you didn’t enough weeks to make a fair determination, then your AWW is the amount an employee doing the same type of job who was just starting would be expected to earn
  4. If none of the first three methods is fair, then your AWW is based on the best approximation to what you would be earning if the injury had not occurred.

Workers in North Carolina can only receive the state maximum. The maximum generally increases each year. The maximum North Carolina benefits, after the 2/3rds time AWW calculation, for the past 10 years are:

  • 2009 — $816.00
  • 2010 — $834.00
  • 2011 — $836.00
  • 2012 — $862.00
  • 2013 — $884.00
  • 2014 — $904.00
  • 2015 — $920.00
  • 2016 — $944.00
  • 2017 — $978.00
  • 2018 — $992.00

The state maximums for Virginia are:

  • 2009 — $895.00
  • 2010 — $885.00
  • 2011 — $905.00
  • 2012 — $935.00
  • 2013 — $955.00
  • 2014 — $967.00
  • 2015 — $975.00
  • 2016 — $996.00
  • 2017 — $1,043.00

In both North Carolina and Virginia, the maximum payout is for 500 weeks. Both states also have no  lifetime limit for reasonable and necessary medical bills. Both states also allow a mileage allowance for traveling to see your physician. Only Virginia has a COLA (Cost of Living Adjustment). North Carolina unfortunately does not.

Your AWW includes overtime pay, bonuses, and other relevant income. Generally, health insurance benefits are not included in your wage loss benefits. However, the employer’s insurance company should pay for your medical bills that are necessary because of your injuries.

You receive the 2/3rds (.66667) of the average weekly wages if you have a temporary disability for up to 500 weeks unless and until you can return to work. This is called temporary total disability. (TTD) Of course, this is assuming that you have an Award or Accepted Claim. If you do not, then you will have to prove your claim at a hearing.

You receive 2/3rds of the AWW for a preset number of weeks if you have a permanent disability to specific body part. This is called permanent partial impairment (PPI). But in no event can you get more than the maximum of 500 weeks, unless are declared permanently and totally disabled.

Some adjustments apply if you can return to work with work restrictions and are making less money than your AWW. Then, you are entitled to 2/3rds of the difference between your AWW and your current, “light duty” wage. This is called temporary partial disability. (TPD).  

Get all the work injury compensation you deserve. You have the right to be paid if you can’t work due to a workplace injury and you are an employee. Don’t let your employer short change you. Attorney Joe Miller Esq. fights for every dollar you deserve. When you’re not working, you need money to pay your bills and manage your life. To speak with a respected North Carolina and Virginia work injury lawyer, please call attorney Joe Miller at (888) 694-1671. You can also reach him through his contact form.

Compensation for Emotional Distress in North Carolina and Virginia Workplace Accident Cases

Posted on Monday, February 26th, 2018 at 10:42 am    

Many employers will argue that emotional injuries are insignificant or even frivolous. Accident victims should understand that they DO have the right to seek compensation if they need to see psychiatrist, psychologist, or any type of mental health counselor. It is easier to be approved for emotional distress wages and medical care, but not essential, if your emotional distress accompanies a physical injury.

Workers who suffer broken bones, back injuries, spinal cord damage, or other physical injuries often quite justifiably worry about whether their injuries will heal properly. Accident victims often suffer anxiety and depression about their job prospects and how their injuries will affect their ability to perform even routine tasks like sleeping, walking, and eating. Workplace accident victims often worry about how their pain and recovery process is hurting their spouse and children. Not to mention post- traumatic stress disorder (PTSD) if the injury was violent, such as an attack or fall from heights or an amputation.

In some cases, such as when a worker suffers a traumatic brain injury, it is virtually a given that the worker will need emotional counseling to address issues of confusion, memory loss, an inability to speak, extreme anger, and other difficulties.

In other cases, such as workplace violence, there may be no physical injury at all. If a worker observes  someone being killed, comes upon a horrifically violent scene,  or if a car nearly hits the worker – then these memories can vividly play over and over again in the worker’s mind, like an insane “loop,” interfering with the worker’s sleep and destroying all emotional stability, in some cases even causing hallucinations. This may justify the need to get psychiatric help and could lead to a diagnosis of post-traumatic stress disorder (PTSD).

While many workers may think it is “macho” to tough out their injuries and the reactions to them, experienced workers’ compensation lawyers explain that getting professional help is often the best course. Speaking with psychologists and other professionals may even quicken the date when you can return to work, or in some cases, protect you from prematurely being thrown back into a work environment which is full of the very “triggers” that must be avoided in order for you to heal from the PTSD.

Some of the key issues involved in proving emotional distress in work injury cases

Emotional injuries are harder to prove than physical injuries. Physical injures can be verified by X-Rays, MRIs, CT scans, and other diagnostic tests. Often, there is visual evidence in the form of bruises, scarring, redness, or other unsightly conditions.

Emotional injuries normally can’t be seen or tested objectively, although some aspects of an underlying condition, such as memory loss or other cognitive deficits can be measured by testing. Most emotional injuries are observed. They require a review with a mental health professional who will need to document the basis for the emotional injury. The psychologist, psychiatrist, or other emotional health provider will normally complete a report which addresses the following:

  • The verbal responses to questions
  • The ability of the worker to communicate his/her thoughts
  • The ability of the worker to remember events, places, or things
  • Whether the worker can focus or if the worker is easily confused
  • The ability of the worker to reason

The emotional health doctor or counselor should be able to document:

  • The depth and level of the worker’s anxiety, depression, or other emotional states that prevent the worker from doing his/her job. Disappointment is generally not compensable. Chronic depression, psychosis, or phobias are conditions that are more likely to justify the cost of seeking medical help.
  • Whether the emotional injuries accompany any physical injury
  • Whether the worker’s distress is a logical result of some work-related event such as being robbed
  • If the distress was due to some intentional misconduct at work
  • The length of the distress and whether the distress is improving with counseling
  • The amount of time and sessions the health provider reasonably thinks are necessary to help the worker do his/her job again
  • The expected emotional issues for the particular type of physical injury the worker suffered
  • The extent of any underlying cognitive deficits which may contribute to the emotional distress, such as memory loss. This can be measured through a battery of tests given by a neuropsychologist.

The doctor should prepare a detailed medical report indicating the precise diagnoses, whether the diagnoses are connected to the work injury and come up with a treatment plan, and the worker’s prognosis.

Additional emotional distress considerations in workers’ compensation cases

In general, an employee can’t claim emotional distress if their negative emotional state is due to standard work conditions. For example, if an employer calls in an employee for a work review or assigns a worker to a new job task, the review or assignment may cause the worker to become quite nervous. Still, reviews and work assignments are routine parts of any job. An employer is not normally going to be required to pay for the worker’s need to seek emotional counseling for standard work conditions.

Please note: This article does not address other remedies that are outside the scope of our practice, such as discrimination or other claims to the EEOC due to a “hostile work environment.” For any such claims, we suggest you consult with a competent labor and discrimination attorney.

The employer’s insurance company may send you to their own doctor who will conduct their own examination. In Virginia, if you are given a psychiatric referral, you get to pick from a panel of three doctors. Often it is up to your attorney to first make sure that everyone on the suggested panel of psychiatrists or psychologists actually accept workers compensation patients. Unfortunately, most do not, so this is very important.

Typically, a key difference between a psychiatrist and a psychologist is that the psychiatrist can prescribe medications while the psychologist cannot write prescriptions. In terms of proving your case, it is very important that you see AT LEAST a psychologist. A licensed professional counselor or nurse practitioner may be able to treat you, but they cannot offer opinions in your case about any psychiatric condition or whether it is connected to the work accident. So if you are seeing such a counselor, and you want to prove your psychiatric diagnoses are connected to your work injury, you will need a referral to a psychologist or psychiatrist.

In addition, if you have suffered a brain injury and you are attempting to prove that you are suffering from psychiatric conditions connected to that injury, you will need a psychiatrist (who is an M.D.) or other medical doctor such as a neurosurgeon to testify that your psychiatric conditions are connected to that brain injury. A psychologist can testify about your diagnosis, but he or she is not allowed to testify that your psychiatric condition is related or a result of a physical brain injury. They CAN testify that you are suffering from a condition that occurred as a result of your reaction to a traumatic event, such as an attack or severe fall. But that is not the same as saying that your psychological diagnosis is the direct result of a physical injury. For that, you need an M.D.  

If you can’t work due to emotional difficulties relating to your work injury, be wary of nurse case managers trying to convince your health care providers to return you to work before you are ready. We have found that on many occasions, the residual emotional issues relating to a traumatic injury are the last to disappear after a bad injury. Many times, it is the psychiatrist or psychologist who is the only health care provider who can protect a severely traumatized worker from being thrown back into a work environment that he or she is nowhere near ready to handle.

Attorney Joe Miller Esq. has been fighting for North Carolina and Virginia workers for more than 25 years. He’s helped thousands of work injury victims get justice. He’ll work aggressively to help you get all the wage loss and medical coverage you deserve. Call his office now at (888) 694-1671. You can also reach him through his contact form.

Independent Contractors and Worker’s Compensation in North Carolina and Virginia

Posted on Wednesday, January 31st, 2018 at 11:02 am    

As a general rule, a worker must be an employee in order to qualify for work injury benefits in either North Carolina or Virginia. Workers who are independent contractors are not eligible for either lost pay benefits or for medical bills through worker’s compensation. This means that any worker who wants to receive workers’ compensation must show he/she was employee when the accident occurred. It also means that the insurance company for the employer will want to show that an injured worker was not an employee but worked independently.

Employers are required to have workers’ compensation for all their employees and are required to know the difference between an employee and an independent contractor. Typically, an employer pays an employee payroll taxes and unemployment taxes for the employee – in addition to paying for worker’s compensation insurance and sometimes even healthcare benefits.

Our firm has handled many of these kinds of cases, and prevailed in all of them by proving that the employee was, in fact, an employee as opposed to an independent contractor. We see many employers attempting to get away with this “misclassification” of employees, particularly in industries such as construction, cable installation, or transportation, where it can be costly to maintain workers compensation insurance. Also, as mentioned previously, classifying employees as independent contractors frees the employer from the obligation to pay payroll taxes or health insurance if there are more than 50 such employees. The problem is, when one of these employees gets seriously injured, he or she has no way to pay for the hefty hospital bills.

We have often found that these employers often do have workers compensation insurance. They just refuse to extend that insurance to cover certain workers that they wrongly classify as independent contractors. Once we have proven those workers are, in fact, employees, then the insurance coverage steps in and covers the employee.

Neither the worker nor the employer gets to make the decision as to the employee’s work status. This is true, even if the employer forces a worker to sign a statement saying he/she is an independent contractor before doing any work. Even if the worker receives a federal 1099 form, that is not conclusive to show the worker is an independent contractor. The state workers ‘compensation commissions make the decision which means, for all practical matters, that the Deputy Commissioner makes the call.

The Virginia Workers Compensation Commission and the North Carolina Industrial Commission typically review a variety of factors to determine if you are an employee or independent contractor. Many of these factors are based on the guidelines set forth by the Internal Revenue Service. The key issue tends to be who controls the worker’s hours, labor, and manner of performance. If the employer has control, then the worker is usually an employee. If the worker has control, the worker is usually an independent contractor. Some of these factors are:

  • Control over the worker’s behavior. This includes such factors as:
    • Instructing how the work is to be done, when it’s to be done, and where it should be done. Employee status is indicated if the employer controls which work tools are used and where supplies should be bought.
    • The extent of the instructions. Precise details suggest employee status. Little or no details suggest independent contractor status.
    • How the work is evaluated. If just the final work is evaluated, such as when a worker does home repairs, that suggest independent contractor status. If the employer reviews the work in stages, or via supervision, that suggests employee status
    • Who trains the worker. If an employer has classroom or on-site training, that suggests the worker is an employee. If the employer relies on the worker’s skills without training, that suggests the worker is an independent contractor
  • Control over how the worker is paid.
    • If the employer invests in the equipment used, that suggests employer status;
    • If the employer pays for the work expenses, that suggests independent contractor status
    • If the worker can earn a profit or can lose money depending on how well the job is done and client satisfaction, that suggests independent contractor status. Payment by the hour or by the week suggests employee status;
    • If the worker is paid a flat fee via invoice, that usually indicates the work is an independent contractor
  • The relationship between the worker and the employer.
    • A written contract suggests that both employer and employee signs suggest an employee relationship if the contract says the work is an independent contractor
    • Benefit payments. Generally only employees are offered and paid health benefits, vacation pay, sick pay. Generally, only employees are offers 401ks, pension plans, or other retirement benefits
    • The length of the work relationship. Long-term relationships suggest employee status. Independent contractors usually just work on a job for short time and then leave
    • They type of work provided. Work that is essential to the employer’s business indicates an employee relationship

Some additional questions a judge will review to determine employee vs. independent contractor status are:

  • Can the worker do other jobs for other employers at the same time?
  • Who has the right to fire the worker and on what terms?
  • Can the worker choose who he works with on the job and who controls these workers, and when he shows up for work?

The benefit consequences for each type of status – employee or independent contractor

If an employer doesn’t have workers’ compensation for an injured worker and that worker is judged to be an employee, then the employer can be required to pay all the work injury benefits, including temporary total disability, medical bills, and vocational rehabilitation expenses out if its own pocket.

If the worker is found to be an independent contractor, then the employer has no obligation to the independent contractor. An injured independent contractor will then look to his/her own health care policy to pay any medical bills. The contractor will lose wages unless he/she also had some sort of professional disability insurance policy or his own workers comp policy.

If the employer was negligent and the negligence caused the worker’s injury, then the injured independent contractor may be able to sue the employer for his/her medical bills, lost wages, and also for any pain and suffering. If it is clear the employer failed to follow the local building codes, OSHA standards, or common sense work safety conditions – then the employer will be more likely to agree that the worker is an employee. Injured workers should consult with their work injury lawyer before agreeing to this because they make more money by bringing a personal injury lawsuit.

Employers who intentionally classify a worker as being an independent contractor, when they certainly know that the worker is an employee can be subject to fines and penalties – and for the payment of the worker’s employment taxes.

We have come across a few larger employers who have attempted to get away with this misclassification. Rather than upend their entire business model by being exposed in a formal Judicial proceeding, many have desperately agreed to settle the claim instead, which, of course, has worked to our client’s benefit.

Speak with a strong North Carolina and Virginia work injury attorney now

Understand your rights. In many cases, the employer misclassified your work status. Attorney Joe Miller Esq. understands the difference between employee and independent contractor status. He’ll fight to get you approved for employee status if you were injured on the job. He’s helped thousands of injured workers get justice. To speak with an experienced workers’ compensation lawyer, please phone (888) 694-1671 or fill out the contact form.

How Does Vocational Rehabilitation in Workers’ Compensation Really Work?

Posted on Monday, January 29th, 2018 at 3:03 pm    

If your physicians make clear that you are unable to perform you prior job because of permanent physical or emotional limitations, (i.e. you are placed on permanent Light Duty),  if you are under an Award in Virginia or an Accepted Claim in North Carolina, AND your employer is not willing or is unable to accommodate your restrictions, the employer’s insurance company will often seek to get you some employment that you can do. There are basically two ways to get you to work with restrictions:

  • The first way is to find you a job that meets your physical restrictions.
  • The second way is to retrain you and/or reeducate you so that you can do different work.

Initially, the employer will assign a vocational rehabilitation counselor to your case. Even though they may be nice, the vocational counselor is often not your friend. He or she is working for the employer and trying to get you any job so the insurance company doesn’t have to continue paying North Carolina or Virginia’s worker’s compensation benefits. More importantly, the vocational rehab counselor will schedule numerous meetings and job leads for you to attend and follow up on. If you fail to “jump through their hoops,” particularly in Virginia, then you will likely be cut off of your benefits for failure to comply with the vocational rehabilitation plan.

Some key considerations when meeting the vocational counselor

The first step is to review your rights with an experienced worker’s compensation who can inform you about:

  • Where the meetings with the counselor should take place. Ideally, they should be at a neutral office and not your home. Public places like libraries and restaurants are sample neutral locations.
  • Who can be present at the meetings. If possible, your lawyer should meet the counselor and be present at the first meeting, usually held at your attorney’s office.
  • Which jobs the vocational counselor can send you to and which ones he/she can’t. Some counselors may send you to jobs that the counselor knows you can’t do because of your work limitations. This is not allowed under the Commission Guidelines in both Virginia and North Carolina. The jobs are supposed to be “pre-screened” by the counselor and within your physical restrictions set forth by your doctor.  If it is clear after you contact the employer or simply on the face of the job description that it falls outside your physical restrictions, you need to bring this to the attention of the counselor—and your attorney.
  • Your duty to actively look for work.  The counselor will require you to follow up on all job leads that she provides to you. You should NOT apply for any jobs on your own outside of those job leads, if you are in active consultation with an insurance company vocational rehab counselor. You should document everything you are doing to look for work, follow her directions, and attend the meetings with the counselor so it’s crystal clear that you are cooperating. If you fail to comply with her legitimate requests and suggestions, the counselor will inform the employer’s carrier. The carrier may then seek to suspend terminate your benefits because you are not being cooperative.
  • Your duty to follow through with the counselor’s recommendations and suggestions. In addition to sending you to interviews for jobs, the counselor will keep track of details such as whether you are on time for meetings and whether you return phone calls and emails. Again, if the counselor can demonstrate you’re not cooperating, your benefits can be suspended or terminated. If benefits are suspended, it can be difficult to reinstate them.
  • Your right to suitable work. In general, both North Carolina and Virginia require that the work you do meet your job restrictions and be work that you are skilled to do. If you do not have the requisite skills, then re-training or schooling may be required.  
  • Your requirement to go to job interviews. It’s best to be safe and go to job interviews even if it’s questionable whether the job is suitable. There usually is not enough time to make changes before you are given the job leads. It could be that the prospective employer may wish to accommodate your restrictions. But if the counselor is sending you on too many bad job interviews, where you are continually being told your restrictions disqualify you from the job, or the job has nothing to do with you still set, then you should review your rights with a trusted work injury attorney who will request that the counselor follow the laws or be replaced. Once again, the vocational rehab counselor is supposed to be “pre-screening” the jobs as suitable for you.

Vocational retraining for when there just aren’t suitable jobs

When it becomes certain that the injured employee simply isn’t going to find a suitable job that meets the work restrictions, then retraining and education is the next likely step. Many employer insurance companies still prefer to pay for retraining rather than to pay for extended work loss wages. Sometimes, this is determined after the first meeting with the vocational rehab counselor.

Retraining usually means one or more of the following:

  • Getting a GED certificate or finishing high school
  • Learning how to read and write
  • Learning a new trade or set of skills such as computer classes
  • Learning how to prepare a resume
  • Learning how to write a cover letter
  • Learning where to look, online and offline for work

Retraining can also mean counseling for people with learning disabilities, blindness, deafness, or mental illness.

Many manual workers can be retrained. Retraining isn’t just limited to high school. Some college education and same trade school education may also be available.  Of course, any costs must be borne by the employer.

The employer’s insurance company should pay for:

  • The cost of tuition, fees, and books
  • Ongoing temporary total disability payments while the worker is being retrained

A vocational rehabilitation counselor will also be assigned to work with you. A good counselor will help your choose training that will help you find a job in your location. A good counselor will also monitor your work not just to see if you taking and passing the classes – but also to review how you are doing and if you need any additional assistance. A bad counselor—which unfortunately is the majority of them— will look to see if you’re missing meetings or performing poorly so he/she can say you’re not cooperating and get you cut off of benefits.

Workers who are fully disabled or who can’t be retrained because of age or other problems shouldn’t be forced to go through a re-education process. If there’s no point to retraining – meaning that completing your studies won’t lead to suitable work, then you should get your benefits on the basis of a total disability.

Your Virginia or North Carolina worker’s compensation attorney can explain when retraining isn’t worth the effort, i.e. would be futile, and how you should proceed. For example, the lawyer may work with a vocational expert who can certify that the retraining simply won’t lead to a real job – given your current work limitations and the known job market in your locale.

On the other hand, if retraining can help and the employer’s insurance company refuses to pay for it, an experienced work injury lawyer will file the proper paperwork and hearing request to force the employer to pay for your vocational rehabilitation.

Understand if vocational rehabilitation is a viable option for you

North Carolina and Virginia lawyer Joe Miller Esq. has been fighting for injured workers for almost thirty years. He has helped thousands of employees get the lost wages they deserve and get their medical bills paid. He has also fought and prevailed against bad vocational rehabilitation counselors who recommend inappropriate jobs as a means to attempt to get the worker cut off.  The goal is always to work towards what is hopefully a good settlement his clients’ work injury case and a chance at a new life and a decent job. For help now, please call (888) 694-1671 or complete my contact form.

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