Strong Representation for Virginia and North Carolina Truck Drivers Hurt on the Job

Posted on Friday, January 6th, 2017 at 9:45 am    

Driving a truck exposes the driver to the possibility of many different accidents and different injuries. Some of the accidents can be caused when driving. Other accidents may happen when the truck driver is loading or unloading the inventory and cargo. The reason for the accident isn’t a factor in North Carolina or Virginia workers’ compensation matters. If the truck driver was an employee, the accident happened while he/she was working for the employer and the resulting injuries prevent the driver from working – then the driver of the truck should  be entitled to workers’ compensation benefits. (more…)

FAQs about North Carolina Mediation

Posted on Wednesday, December 7th, 2016 at 2:00 pm    

What are the settlement rates at North Carolina Industrial Commission mediation conferences?

Settlement rates at IC mediation conferences have historically been at or above 70%.

Does the Commission order all workers’ compensation cases to mediation?

Under the automatic referral procedures commenced during the 1996-97 fiscal year, whenever a party files a request for hearing in a workers’ compensation claim, the Clerk’s Office sends an Order for Mediated Settlement Conference to all parties along with the Commission’s acknowledgment letter.

The only cases that are not automatically referred to mediation are claims against the state brought by prison inmates, which are excluded by law, expedited medical motions and administrative appeals.

Cases involving injured workers who are not represented by counsel are generally mediated only if all parties agree to mediate

Cases involving non-insured employers are generally mediated only if all parties agree to mediate and the Deputy Commissioner responsible for the adjudication of non-insured cases approves the parties’ request to refer such cases to mediation.

How are mediators selected or appointed?

The parties have the right to select a mediator certified by the Dispute Resolution Commission on their own and may do so within the time periods specified by the ICSMC Rules. If the parties do not have a specific mediator in mind, they can select one from a list of mediators available on the Commission’s web site or from the Dispute Resolution Coordinator’s office. Our office has our ‘favorites’ who we feel do a good job for our clients and will typically select those mediators if we can, barring some major objection from the defense.

How does a person become eligible to be appointed by the Commission?

To be appointed by the Industrial Commission, a mediator must be certified by the North Carolina Dispute Resolution Commission to mediate cases in North Carolina’s Superior Courts through the court’s mediated settlement conference program. The mediator also must have a Declaration of Interest and Qualifications form on file with the Commission. The declaration must state that the mediator, if an attorney, is a member in good standing of the North Carolina State Bar; that the declarant agrees to accept and perform mediations of disputes before the Commission with reasonable frequency when called upon for the fees and at the rates of payment specified by the Commission.

Can a mediation conference be postponed after it has been scheduled?

After a mediation conference is scheduled to convene on a specific date, it may not be postponed unless the requesting party first notifies all other parties of the grounds for the requested postponement, or without the consent and approval of the mediator or the Dispute Resolution Coordinator.

Which party is responsible for paying the mediation fees?

Generally, the worker and the employer split the mediator’s fee though sometimes payment of the fee can be adjusted as part of any overall settlement.

What are the rules that govern mediators?

All mediators must adhere to the Standards of Professional Conduct for Mediators adopted by the North Carolina Dispute Resolution Commission.

To what person should a party address motions while a case is in the process of being mediated?

Motions related to the ICMSC (Industrial Commission Mediated Settlement Conference) Rules should always be addressed to the Dispute Resolution Coordinator, but all other motions should be addressed to the Industrial Commission’s Executive Secretary, unless the case has already been assigned to a Deputy Commissioner or a Full Commission panel, or the motion is otherwise subject to the Commission’s expedited medical motions procedures.

What should the worker bring to the mediation conference?

An experienced North Carolina workers’ compensation lawyer will prepare your case for mediation by making sure all the appropriate medical reports, bills, and future cost estimates are available. The attorney should also have ready any vocational reports or other documents. Additionally, the attorney will review what happens at the mediation, and what the worker’s negotiating points are in advance, and the best way for the injured worker to conduct him or herself at the mediation. The employee is not required to speak or testify at the mediation. With an experienced work injury attorney, such as Joe Miller, the mediation should run smoothly with minimal surprises.

What if the mediator is biased?

Mediation is an attempt to resolve a dispute. If either party does not think the mediator is working towards a fair resolution, the party (including the employee) can request a full hearing. The worker, or the worker’s lawyer, may also seek to have a clearly biased mediator disqualified and request that a new fair mediator be appointed.

Is there more than one mediation?

Generally, no. The parties should be prepared to discuss all the relevant issues at the assigned mediation. If any issues cannot be resolved, then the mediator will report that there was an impasse and the case will then proceed to a hearing before a North Carolina worker’s compensation Deputy Commissioner.

How long does the mediation take?

It varies. Some mediations can take a very short time – less than an hour. Usually those are the ones that do not settle. Most mediations several hours to make sure all the issues are addressed and all the details are addressed. A lot of mediation comes down to getting the math right – making sure all the future medical bills and all the lost wages are addressed. Other issues such as discounts for lump sum payments and any moneys that might be owed to other government agencies who advanced money may also need to be finalized. Once an agreement is reached, you can’t reopen the process. So, it is important to be prepared and get all the details right. That is also a big advantage in North Carolina. If an agreement is reached, the Mediator will draw it up on a special form. That form carries the weight of a Court Order. This is so that if anything should ever happen to the injured worker, the money is still required to be paid on the claim by the insurance company. That’s a major reason for hiring a North Carolina workers’ compensation lawyer who has successfully negotiated many mediations.

What issues get discussed at the mediation before settlement figures are discussed?

The mediation topics are going to vary depending on whether the claim is accepted or denied. We obviously prefer to mediate accepted claims, as we are in a stronger position. This is because the employer and insurance company have obligated themselves to pay the injured worker on an ongoing basis and cover the ongoing medical bills. Therefore, the only issues typically will relate to the degree of impairment of the worker and his or her ability to return to work, as well as future medicals.

When the claim is denied, them many more issues may come into play, just as they would at a hearing.             Some common mediation topics are:

  • Did the worker truly suffer a compensable injury?
  • Has the worker been held out of work by his or her doctors so that he or she deserves benefits from the date of the accident and ongoing?
  • Do the medical records support a compensable injury?
  • Do the doctors support a connection between the work injury and the workers’ current disability from work?
  • Whether the worker can change doctors?
  • What medical bills should be paid?
  • Is light-duty work available?
  • What is the nature of the disability – temporary or permanent?
  • What is the present value of the workers’ ongoing workers’ compensation benefits?
  • Are the any rehabilitation or vocational education issues?
  • What is the correct average weekly wage?
  • Are there going to be payments for adaptive vehicles or mobile homes?

 

Many other issues get discussed. Your North Carolina work injury lawyers will address all the ones that apply to your situation.

Make an appointment with a Professional North Carolina Speak Work Injury Lawyer Today

Mediation is a negotiation. The employer and the employer’s insurance company will have an experienced attorney fighting for them. You need a North Carolina work injury lawyer who understands mediation and has a track-record of success, with a team behind him that knows how to put you in the best position to successfully resolve your claim at mediation. Attorney Joe Miller, Esq. has been helping injured workers for over a quarter century get justice. He will fight to get you every dollar you deserve and will only work towards a settlement when you know your medical condition. Call now at (888) 694-1671 to get answers to your questions. You can also fill out my contact form to make an appointment.

Pros and Cons of Workers’ Compensation Mediation in North Carolina

Posted on Monday, December 5th, 2016 at 2:00 pm    

What is mediation?

After the injured worker files a work injury claim and requests a hearing on the case, the North Carolina Industrial Commission will first order the parties to a mediation conference. The parties can either agree to have the mediation or disagree in which case the NICC will make the decision whether a mediation is advisable or a waste of everyone’s time.

North Carolina worker’s compensation lawyer Joe Miller will review with you the pros and cons of mediation. Many cases do settle at the mediation. Mediations can be worthwhile, even if the case doesn’t settle, because they can help narrow the issues and help get advance knowledge of what the insurance carrier for the employer thinks.

At a mediation, typically the lawyer, for the insurance carrier and employer appears alone, and the insurance adjuster is on standby on the phone. Although they are technically supposed to appear, many times, it is more expedient to waive their appearance so the mediation can take place at a time more convenient to the injured worker and his or her attorney.

The worker appears at the mediation with his/her attorney, and there is a mediator who tries to resolve the disputes. The mediator is a neutral party—typically an attorney knowledgeable in workers compensation law, selected by the parties from an approved list of qualified mediators. He or she is usually an attorney who has received training on how to mediate disputes. The mediator does not make any decisions or rulings, other than to declare an impasse if the parties cannot reach an agreement.

The mediation usually begins in a conference room at an agreed-upon location, with the mediator explaining the process. Each side then states its positions. This is usually a short statement of the facts relevant to the dispute.

Then, the two sides typically split up and go into two different rooms. The mediator go back and forth between each room, speaks to both sides to identify the issues, identity the disputes, and try to reach a solution. The mediator then gets input from one side and then walks to the other room to hear the input from the other side. Before the mediator leaves the room to head to the other, he or she will usually be given a monetary figure. On the injured worker’s side, this is called a “demand.” On the insurance company’s side, this is called an “offer.”

In this way, many disputes are resolved. The back and forth continues until hopefully, the offer and demand figures move closer and closer, until either there is a settlement or until there is an impasse. If the case cannot be resolved, then the mediator notifies the NICC and the case is set up for a hearing.

Preparation for the Mediation

Injured workers should review their mediation case with their attorney well in advance of the mediation. Strategy and experience are crucial to a successful mediation and typically our office will schedule a “mediation preparation” call or session a week or two prior to the mediation. Well in advance of the mediation, the injured worker’s attorney will be reviewing all of the relevant medical records and will typically have issued a “demand letter” to the insurance adjuster or his or her attorney.

This is done because the employer’s and insurance company’s lawyer often needs to get authority to settle the claim. This refers to the amount of money that the insurance company is willing to authorize the attorney to offer to resolve the claim.

Accordingly, the more they know about the case beforehand, often the better. Unlike a hearing, where surprise can work in your favor because the parties cannot walk away from a hearing – in mediation, the element of surprise can be a disadvantage because the party that is surprised can just refuse to settle and demand a hearing.

On the other hand, one does not want to come to the mediation as a “beggar.” If the insurance company thinks the worker is desperate for a settlement, then they will “low ball” and not offer the true value of the claim. Accordingly, it is best to engage in at least some “poker playing” and not appear too eager to settle. An experienced North Carolina worker’s compensation attorney will therefore advise you to “keep your cards close to your chest” when engaged in a mediation setting.

Mediations are confidential. This means that statements by either side cannot be used at the hearing. There is a trade-off though. While the statements can’t be used, the words don’t evaporate. The lawyers will know what was said and use the facts in those statements to their practical advantage by engaging in discovery about anything that is learned in mediation that was not known previously.

Mediators often review the potential outcomes of a case and the odds of success for each outcome. A mediation resolution usually means some compromise. Preparation helps because an experienced lawyer will explain which compromises are minor in the long run and which compromises cost a lot of money. Both sides usually walk away from the mediation slightly unhappy. The keys to a successful compromise are to balance properly the odds of winning, the money at stake, and the needs of the injured worker.

Mediation is generally useful only when the injured worker knows the full extent of his/her injuries and their full medical prognosis. It doesn’t make sense to mediate if the worker hasn’t reached his/her full point of medical improvement. Clients who have reached full medical improvement may need to still treat to maintain their medical level. But if the patient doesn’t know if he/she can still get better, mediation is usually not advisable.

This is why usually, well before mediation, the injured workers’ attorney will write to the workers’ treating physicians to obtain their opinions on the likely course and cost of future care. These opinions will accordingly be used to help form the demand letter to the insurance company.

Injured workers should understand that the result of a full and final settlement at mediation is typically a lump sum payment. This means the worker will forfeit the right to continuing medical bill payments and continuing lost wage benefits for a one-time cash settlement. An experienced workers’ compensation lawyer will review:

  • The outstanding medical bills;
  • The length of time temporary total disability or temporary partial disability would continue to be paid to the worker;
  • The need for and cost of additional medical treatment for the work injuries for the remainder of the worker’s life;
  • Any permanent partial impairment ratings to any particular body part;
  • The ability of the worker to return to work – with or without restrictions—in his or her pre-injury job, or in alternate employment;
  • Whether the worker remains completely disabled to perform any work and if so, if that disability is likely to remain past 500 weeks.
  • Whether the worker is a current Medicare recipient or anticipates qualifying for Medicare in the next 30 months.

Because the ability to obtain temporary total disability typically ends at 500 weeks of benefits, many times the future medical benefits become very important and a can be key issue is figuring out the value of any potential workers comp settlement. Joe Miller Esq. works with your doctors to determine your medical diagnosis, your prognosis, the type and extent of the medical treatments needed, and the expenses for each treatment going forward. Sometimes these things can be estimated, sometimes it is much more difficult. The cost of medications and medical equipment such as prosthetics will also be part of the settlement equation.

Speak with an Experienced North Carolina Workers’ Compensation Attorney today

North Carolina worker’s compensation attorney Joe Miller has been helping injured workers in North Carolina and Virginia get justice. He has helped thousands of clients get the compensation they deserve. He understands the ins and outs of mediation. For help now, please call Joe Miller at (888) 694-1671 or fill out his online contact form

Where Workplace Accidents Happen Most Often

Posted on Monday, October 31st, 2016 at 2:00 pm    

Accidents at work happen for many reasons. Employers should be aware of the various causes and take steps to try to avoid these types of workplace accidents or, at least, take preventive steps to try to reduce them.  A common misconception is that the employer has to be negligent or “at fault” for the accident at work. This is false. Workers in North Carolina and Virginia do not have to prove that the  employer was responsible for a workplace accident in order to have a valid workers compensation case. The worker just needs to prove a workplace accident did occur at some specific moment in time, and the injuries were caused by the workplace accident. Still, the best way employers can help their workers is to take safety precautions to prevent the accident from occurring.

Attorney Joe Miller is an experienced North Carolina and Virginia Workers’ Compensation attorney. When a common or uncommon workplace injury occurs, he has the skills and tenacity to file, negotiate, and litigate your work injury claim. He also understands that often times the type of accident is an indicator of the types of injuries that occur and the typical time frame for how long the worker will likely be out of work.

The Most Common Types of Workplace Accidents

·       Workplace violence. Many injuries are caused when workers get into arguments with other workers or when a worker has mental health issues and that instability leads him/her to lash out at other workers. In Virginia, if the employee was an unwitting victim of horseplay or violence, he or she still has a valid claim. On the other hand, if the worker was a willing participant, this may invalidate the claim, especially if the argument had nothing to do with the work at hand.

·       Repetitive Stress or noise exposure. Many workers suffer injures due to repetitive motions such as working with computers or performing the same tasks over and over and over again in an assembly line or using hand tools. These are known as occupational disease injuries. Employees who suffer this type of stress often get injuries such as carpal tunnel syndrome, or hearing loss.  Better equipment and better training, and rule enforcement can help reduce these types of injuries. Employees who suffer repetitive motion injuries, hearing loss, or some other injury they believe was caused by conditions at work need to speak to an experienced Workers’ Compensation lawyer because there are very specific things that need to be proven in order to qualify for a valid occupational disease case.

·       Getting clothes or body parts entangled in machinery. Clothing, hair, fingers, shoelaces, and other items can get caught in the machinery which can then cause severe injuries including loss of a body part. Employers should make sure workers are educated about the risks of working with some types of equipment and take necessary preventative steps. Examples of safety measures include better equipment and educating the employee about proper work techniques. We often see some of the most severe injuries where employers cut corners by failing to properly maintain equipment, failing to utilize machine safety guards, deliberately disengaging safety devices, or failing to have any written, enforced rules or procedures for hazardous work duties.

·       Car and truck accidents. Many workers such as construction workers or delivery drivers use vehicles for their job.  Vehicle accidents can be deadly or cause serious injuries.  Workers should be advised on the local driving rules and on how to properly operate the vehicles – especially trucks. Employers should have clearly defined and enforced safety rules which require the use of seatbelts at all times.

·       Lack of industry standard simple safety measures. Many workers get injured because they are concentrating so hard on immediate physical tasks that they fail to see objects that can hurt them. For example, a worker may not see a door, table, while carrying a heavy load, or not see a person while driving a forklift around a corner.  Also Employers should create a work environment that minimizes these types of accidents. For instance, the installation of wide-view mirrors at strategic points in a plant or factory can increase visibility of oncoming vehicles and people. Creating ergonomic environments where employees with restricted vision will have a path clear of obstacles is also helpful.

·       Falling Objects. Employers should make sure that shelves aren’t overstocked and that items hanging from the roof or other high places are secure. Workers should be advised to wear helmets in certain work areas. Injuries can include brain damage, head trauma, and pain in the area where the object strikes the worker.

·       Slips and Falls. This type of workplace accident is very common. Workers can slip or trip when there are loose objects lying around, the floors are slippery, there are tears in carpets, or for a variety of other reasons. Injuries can include broken bones, soft tissue injuries, bruises, concussions, and lacerations. In severe cases, a worker may suffer death or permanent injury.

·       Falls from High Places. Workers who use ladders, work on roofs, or work on stairwells can slip and fall. While protective gear can help, anyone who falls from a high height is likely to suffer a long-term injury. Proper spotting and use of safety harnesses as required by OSHA is essential. We have seen too many workers get injured in this fashion when again, employers are willing to cut corners and not create or enforce strict rules in relation to working at heights.

·       Overexertion. Many workplace accidents happen simply because the worker is being pushed too hard, and we often see this occur in the heat. When workers are tired, they are much more likely to trip, fall, fail to see other objects, or fail to use proper techniques, not to mention suffer heat stroke or a heart attack. Fatigue is a major cause of workplace accidents and is one of the most preventable – making sure the employee gets enough rest, and is provided with appropriate opportunities for cool-down and hydration.

Additional causes of workplace accidents

The US Department of Labor, through the Occupational Safety and Health Administration (OSHA), keeps regular records of why workplace accidents occur.  In addition to the causes listed above, some other causes of workplace accidents, according to OSHA, include:

·       Poor communication – especially about safety issues

·       Failure to provide respiratory protection

·       Faulty equipment including up-to-code scaffolding equipment, bad ladders, and machines without safety guards

·       Forklift malfunctions and misuse

·       Electrical failures such as improper wiring

The list or reasons workplace accidents occur is virtually never-ending.  Still, trying to categorize them makes it easier to work to prevent them. Some additional causes, that are human related, include:

·       Taking shortcuts.  Workers should never place speed over safety. Failing to take proper precautions can cause injury and death. Unfortunately, employers often encourage this behavior in the name of higher profits.

·       Failure to clean up. Workplace supervisors should inspect the workplace before work starts each day to make sure the place is free of debris, that equipment functions properly, and that all loose elements such as overheard storage are secure.

·       Poor training and preparation. Workers should be trained on how to use each piece of machinery or equipment. They should also be trained on everyday workplace safety issues to avoid injuries and to respond to them quickly when they do happen. There should also be written enforceable rules, and daily safety meetings prior to work beginning to address specific concerns of employee and management.

·       Failure to address mental and emotional issues. Many workers have personal concerns that should be addressed. Workers who are thinking about their family members or other aspects of their personal lives are not focusing on safety. Employers should make some effort to help workers have the time to address personal issues so the worker can be safe and more productive.

Speak with a trusted Workers’ Compensation Today

If you were hurt in any type of workplace accident, do not delay. Even though the employee does not have to prove the employer was negligent, it does help a great deal to be able to show how the accident occurred. You may be leaving out a critical detail that could mean the difference between your employer covering or denying your case.  For our free, quick, elite, 7-step case evaluation,  phone Joe Miller Esq.  at (888) 694-1671 or fill out his contact form. Attorney Miller represents injured workers in both Virginia and in North Carolina.

Common FAQs About Medical Treatment in North Carolina Workers’ Compensation Cases

Posted on Monday, September 19th, 2016 at 2:00 pm    

Many questions and answers about Worker’s Compensation can be found at the North Carolina Industrial Commission Website. Still, the best recommendation is that a worker review his/her case with an experienced North Carolina Workers’ compensation attorney. The attorney will be current on the relevant laws and legal issues. Mostly, the lawyer will understand many of the practical issues that can help make the difference between a substantial recovery and a minimal recovery – or no recovery at all.

Attorney Joe Miller knows the legal and practical issues. He is also a strong advocate for his clients, most of whom are in pain and worry daily about how they can manage their medical costs and daily living expenses. He has been helping injured workers in North Carolina and also in Virginia get justice for over 25 years. Along the way, he has obtained substantial settlements and awards for thousands of injured workers.

Some of the medical questions his firm advises clients about are:

Who controls the medical treatment?

The employer or the employer’s insurance carrier generally provides the employee with a list of doctors to see and pays the bills for the medical treatment. Employees, with some exceptions such as a medical emergency, treat with the company doctors. If there are good grounds, the employee (with the help of the lawyer) can petition the Industrial Commission for the right to change doctors. Before switching doctors, the employee should get the approval of the employer or, better still, approval from the North Carolina Industrial Commission.

Chiropractic Rules

Generally, an employee can see a chiropractor up to 20 times in North Carolina – if the employer agrees. Employers often agree because the cost for chiropractic services is less than that for pain management and orthopedic doctors. After 20 visits, the chiropractor needs additional approval from the employer.

Can employees be reimbursed for travel expenses for medical treatment?

Employees can be reimbursed in the following instances:

If the travel is more than 20 miles, employees can be reimbursed at the rate of:

  • 25 cents a mile for travel prior to June 1, 2000;
  • 31 cents a mile for travel between June 1, 2000 and January 17, 2006;
  • 5 cents a mile for travel between January 18 and December 31, 2006;
  • 5 cents a mile for travel between January 1 and December 31, 2007;
  • 5 cents a mile for travel between January 1 and June 30, 2008;
  • 5 cents a mile for travel between July 1 and December 31, 2008;
  • 55 cents a mile for travel during 2009;
  • 50 cents a mile for travel during 2010;
  • 51 cents a mile for travel between January 1 and June 30, 2011;
  • 5 cents a mile for travel between July 1, 2011 and December 31, 2012;
  • 5 cents a mile for travel between January 1 and December 31, 2013; 56 cents a mile for travel between January 1 and December 31, 2014;
  • 5 cents a mile for travel between January 1 and December 31, 2015;
  • 54 cents a mile for travel on or after January 1, 2016.

In addition, the North Carolina Industrial Commission permits self-insurers to pay the employee directly for travel expenses – without approval from the Commission.

You need to keep track of and submit your mileage for any and all doctor or therapy visits over 20 miles.

Can an employee see a non-company doctor in case of an emergency?

Yes. The employee can get emergency treatment from a doctor or hospital. The employee must though immediately request approval from the NC Industrial Commission after the fact.

Where should a medical provider send the bill for payment?

The bill, along with the medical records, should be sent certified mail, return receipt requested, to the employer, self-insured employer, or the workers’ compensation insurance carrier. The receipt should be kept as proof of mailing.

Can doctors send medical bills electronically?

Yes. Medical bills, first reports of work injury and subsequent injury reports can be sent through the North Carolina Industrial Commission Electronic Data Interchange (EDI).

When should the medical provider submit the request for payment?

Generally, doctors should submit their medical bills to the NCIC within 75 days of treatment or service. Some extensions can apply such as when an initial work injury claim is first denied and then later approved.

How are IME bills handled?

Bills for Independent Medical Exams (IMEs) are submitted with a special code. The IME includes more than just the exam. It also includes a full review of medical records and a detailed medical report.

How are supplies paid?

“The North Carolina Industrial Commission has adopted nearly 1100 HCPCS billing codes to describe supplies and equipment used in workers’ compensation treatment. However, the Commission has not yet incorporated into its fee schedule all of the HCPCS level codes for supplies and equipment. For example, none of the “J” codes have been adopted.” “If a custom-made orthotic or prosthetic is not contained in the Commission schedule, these items should be paid per agreement between provider and payer.”

Do insurers and self-insurers have to send medical bills to the Industrial Commission?

No, they do not. Insurers and self-insurers may pay all medical bills, including hospital bills, without submitting them to the Industrial Commission for approval.

Can a medical provider bill for administering an intramuscular injection?

Only if an office visit is not charged.

What is a “medical only” claim?

This type claim means that there is no more than one day of lost time, no disfigurement or impairment, and no more than $2000.00 in medical expenses. Basically, it means that the employee will not be paid any lost wages. The employee is entitled to get medical treatment. The employee or the employer’s insurance carrier must still pay all medical bills that are reasonably supported by medical evidence.

Do you have concerns about your work injury medical bills?

Get help now by making an appointment with an experienced North Carolina Workers’ Compensation lawyer. It’s frustrating just trying to get healthy so you can get back to work or so you can, at least maximize your health situation. The last thing you want to do is worry about who is going to pay your bills. An experienced attorney understands how doctors and hospitals get paid when you are hurt on the job. For help now, call lawyer Joe Miller at 888-667-8295. You can also contact him through his online site.

Reasons an Employer Will Try to Terminate Employee Benefits in North Carolina

Posted on Friday, September 16th, 2016 at 2:00 pm    

Many workers lose their benefits because they fail to follow the proper North Carolina Workers’ Compensation laws. They may also lose their benefits if they are able to return to their pre-injury work. Employers and their insurers are always on the lookout for a way to terminate employee benefits. For this reason, injured employees should work with an experienced North Carolina work injury lawyer who understands what employers can and cannot do.

For starters, a skilled workers’ compensation lawyer will explain that the employer has to follow proper procedures. The employer cannot terminate earned benefits without the approval of the North Carolina Industrial Commission.

(Note: This is very different from Virginia Workers Compensation Procedure, wherein benefits are immediately cut off upon the mere filing by the employer or carrier of an Application to Terminate Benefits.)

The correct procedure in North Carolina is for the employer to file an Application to Suspend or Terminate Compensation. This is otherwise known as a Form 24 Motion. The Motion is completed by the employer and must include the reason(s) for the termination or suspension request, which are all set out on the form itself. The form has a place where the employee must file his or her response within 14 days after the date the Form 24 is filed (or a later time if warranted). The employee does have the right to contest the termination, and you will note that there is space provided for that response on the form itself.

A Form 24 filing should be treated as a nuclear bomb dropped on your case. If you do not spring into action quickly and create a proper response within the 14 days, that could very well be the end of your case.

The hearing on the Motion is often done informally – through a telephone conference or through an informal hearing. In the case of an informal hearing, the hearing is usually conducted within 25 days of the date of the filing. A decision should be made within 5 days of the hearing. The decision can either approve or disapprove the termination or suspension of benefits request. The decision can also hold that a formal hearing is needed.

Either side, employer or employee, can request a formal hearing after the informal hearing decision. At the formal hearing, documentary evidence is submitted and questions can be asked of the worker, a vocational rehabilitation expert, and other necessary witnesses. The formal hearing is “de novo.” – which means the hearing officer does need to consider the results of the formal hearing. In laymen’s terms, it means the formal hearing is a fresh start – a do-over.

Typical reasons an employer requests a termination of benefit

Some of the common reasons an employer will try to cut off your benefits include:

  • The employee’s disability has ended. An employee who is receiving temporary disability does not have the right to wage loss benefits indefinitely. If an employer can demonstrate that the employee’s work condition has improved to the point that the worker can do his/her full-time pre-injury job and that work is available for the employee, the termination request will usually be granted.

The employer can also argue that an employee who is physically fit could find suitable work elsewhere if his/her prior job is no longer available. The argument of job availability can be defeated if the employee can show that he/she has actively looked for work in the same general geographical location and that there are no available jobs that meet the worker’s skill sets.

The employee can also argue that he/she is still physically disabled. This argument usually becomes a battle between a company doctor and the doctor that is currently treating the worker. An experienced North Carolina work injury lawyer reviews and may be able to bolster the medical evidence to help persuade the Industrial Commission that the worker is still disabled.

  • The worker has failed to take a suitable job. A suitable job depends on the worker’s physical ability and all the availability of work in the area. When the medical evidence is clear, the task of determining whether work is available for each worker usually falls to a vocational expert. The expert reviews the worker’s job skills, education, medical history, work history, and government statistics to determine if the worker should reasonably be able to find work. A skilled lawyer contests negative findings of the vocational rehabilitation expert when warranted, where, for instance, the vocational expert failed to properly screen the job to make sure it fell within the employee’s work restrictions.

North Carolina does permit workers to return to work on a trial basis – to see if the worker can physically do the job.

Worker refusal to cooperate. If an employee fails to cooperate when informed that cooperation is required, the failure to cooperate can be used to terminate benefits. Some of the ways a worker can fail to cooperate are:

    • Failure to take the advice or follow the treatment plan of the authorized treating doctor – whether the refusal is justified is determined on a case-by-case basis. We often see this if an employee routinely and repeatedly misses physical therapy appointments or refuses to accept a recommended treatment.
    • Failure to appear for an authorized independent medical exam (IME). Sometimes, a worker will be required to see a non-treating doctor so the non-treating doctor can make an independent (though not necessarily impartial) review of the patient’s medical issues.
    • Failure to work with or cooperate with the vocational rehabilitation counselor. If a vocational counselor is properly assigned to the worker, the employee must meet with the vocational rehabilitation counselor on the scheduled days and times. Repeated missing of meetings or failures to follow up on job leads or interviews can lead to a motion in this regard.
    • Refusal to accept suitable employment. If the vocational rehabilitation counselor has found a suitable job for the employee and the employee unreasonably refuses to accept that job, he or she will likely draw a Form 24 Motion to Terminate benefits.

Similar termination and suspension reasoning applies if the worker has a total or partial disability. If the total or partial disability ends, the worker will lose his or her benefits.

If the hearing decision ultimately favors the employer, then benefits are terminated retroactive to the date the petition was filed. This means that employer is entitled to a credit for any overpayment. Termination proceedings usually terminate the wage benefits only and not the medical benefits. If the worker has not fully healed, the worker should be able to continue medical treatment through the North Carolina Worker’s Compensation system.

If an employer or carrier is trying to terminate or suspend your benefits via a Form 24, contact a North Carolina work injury lawyer immediately.

Don’t delay. If you get a notice of a termination or suspension proceeding, it is crucial that you speak with an experienced work injury lawyer as soon as possible. You ONLY HAVE 14 DAYS TO RESPOND TO THE MOTION. You can lose your income and even your medical benefits if you don’t respond to the termination or suspension petition. You may have strong defenses. For help now, contact Joe Miller Esq. to discuss your case and make an appointment. He can be reached at 888-667-8295. He’s been fighting for injured workers for over 25 years.

Spine Impairment Ratings in North Carolina Workers’ Compensation Cases

Posted on Wednesday, August 24th, 2016 at 2:00 pm    

Medical impairment ratings are a way of assessing the severity of your work injury. They are used in cases where your injury is permanent as opposed to something that will heal in time. Doctors use various factors to determine the impairment rating that applies to your injury. Doctors can’t just pick a rating out of a hat. They need to justify their rating. That is why the North Carolina Industrial Commission provides guidelines for doctors. Doctors are required to use the guidelines to help them give the final rating/assessment of your injury.
An experienced North Carolina work injury lawyer is needed to help workers fight to get the correct rating. Attorney Joe Miller, who has helped thousands of injured workers for over a quarter century, understands the rating process. Click here to watch his video regarding permanency ratings. He works to let the doctor know all of your medical complaints and how they affect your ability to work. He reviews the medical reports for accuracy and thoroughness to help the doctor see your full medical problem.
One thing that is significant that should be noted: Unlike North Carolina, permanency ratings for the spine do NOT EXIST in Virginia. Ironically, in North Carolina, spinal impairment carries the highest potential number of weeks of impairment of any body part, namely, 300 weeks. The impairment ratings, which are expressed as percentage ratings, for the spine, pelvis, cervix, coccyx, and for ruptured lumbar (back) discs are as follows:

Cervical Spine

Please know that the statutes, as written, refer to the back, not the spine. When rating impairment to the spine, doctors should always refer to it as the back (percentage of the back, not percentage of the spine.)

CERVICAL SPINE FRACTURES
• Single, healed, with little or moderate anterior compression and without neurological findings
o Body = 10%
o and/or posterior elements—arch, transverse process (additional) = 5%
• Two or more vertebrae, each additional = 50% of above
• Add, for neurological
o Quadriplegia = 100% of man
o Nerve root, one arm, or both arms: Functional rating is added to cervical spine percentage.

CERVICAL DISC
• Anterior discectomy, with or without fusion—free of neck and arm pain—no weakness = 5%
• Postoperative—with recurrent episodes of significant cervical and arm pain associated with objective findings = 10-15%
• Posterior laminectomy—removal of ruptured disc—free of neck and arm pain—no weakness = 5%
• Postoperative—with recurrent episodes of significant cervical pain associated with objective findings = 10-15%

Thoracic Spine
• THORACIC SPINE FRACTURES (Treat As CERVICAL SPINE, A) (Correction, July 8, 2016)
• THORACIC DISC (rate as Ruptured Lumbar Disc)

Lumbar Spine
LUMBAR SPINE FRACTURES (including lower three dorsal vertebrae)
• One body = 10%
• and/or posterior elements (arch and/ or transverse process) = additional 5%
• (Two or more) = 50% of above
• Add for loss of motion
o Mild (0%-25% limitation) = 5%
o Moderate (25%-50% limitation) = 10%
o Marked (50% or more limitation) = 20%
• Add for neurological changes: (paraplegias are established)
o One or both legs, functional rating.
B. INVERTEBRAL DISC (rate as Ruptured Lumbar Discs)

*This Section clarified as of February 15, 2000*
What happens if you have more than one back injury?
If a claimant has two injuries to the back and has separate impairments, these ratings should be calculated separately and then combined. Do not add the percentages of impairment. A few examples follow:

FIRST EXAMPLE: 40% (A) & 20% (B)
• In this example, the first percentage of impairment, 40% (A) is subtracted from 100%.
o 100% – 40% = 60% (C)
• The second percentage of impairment 20% (B) is calculated from the remaining percentage (C), which in this case is 60%.
o 20% of 60% = 12% (D)
• The total percentage of impairment is the sum of 40% (A) plus 12% (D).
• 40% + 12% = 52% total percentage of impairment

SECOND EXAMPLE (When total exceeds 100%): 70% (A) and 40% (B)
• In this example, the first percentage of impairment 70% (A) is subtracted from 100%.
o 100% – 70% = 30% (C)
• The second percentage of impairment 40% (B) is calculated from the remaining percentage (C), which in this case is 30%.
o 40% of 30% = 12% (D)
• The total percentage of impairment is the sum of 70% (A) plus 12% (D).
• 70% + 12% = 82% total percentage of impairment
Pelvis (ate as percentage of spine unless acetabulum is involved)
• SYMPHYSIS SEPARATION = 10%
• ILIUM
o With pelvic ring intact = 0%
o With pelvic ring displaced 1″ or more = 10%
• ISCHIUM
o Healed, no deformity = 0%
o Healed, deformity and pain = 5-10%

• FRACTURED ACETABULUM-(evaluate on basis of hip disability-see hip section)
• PELVIC RING DISPLACED PLUS SACROILIAC JOINT DISPLACED (if leg shortening, add that) = 15%
Sacrum
• Healed, no pain = 0%
• Healed, with significant residual deformity = 10%
Coccyx
• Healed, no pain = 0%
• Healed, deformity and significant objective signs = 5-10%
• Excised (as above under healed fractures)

Ruptured Lumbar Discs

The following guide is suggested for use in rating of patients with ruptured lumbar discs from the standpoint of permanent partial impairment to the back, as recommended by the North Carolina Orthopaedic Society and the neurosurgeons of North Carolina:
• Typical episode of back and leg pain that completely recovers without neurological defect on conservative therapy = 0%
• Same as (1) with recurrent episodes of significant back pain associated with objective findings = 5-10%
• Postoperative-removal of ruptured disc-free of back and leg pain-no weakness = 5%
• Postoperative-with recurrent episodes of significant back pain associated with objective findings = 10-15%
• Postoperative-removal of ruptured disc and spinal fusion. Same as (3) = 25%
• Postoperative-removal of rupture disc and spinal fusion. Same as (4) = 25-30%

We should mention one final note on impairment ratings, which is also discussed in Joe Miller’s Video on impairment ratings. If your work injuries prevent you from returning to work, you should not really get too caught up in an analysis of the ratings. Unless you have at least two ratable body parts severely injured, the ratings are not going to be much of a factor in valuing your case. This is because you are limited to 500 weeks total TTD. The ratings cannot add to that total. So in most cases, if you are unable to return to work, the future potential TTD that you may draw is going to be far more significant than anything that a rating can provide you.

Make the Call to a Strong North Carolina Work Injury Advocate Today

The treating doctor is often one that is on a list of doctors chosen by the employer or the employer’s insurance company. To help this doctor make as objective a decision as possible, it helps to have an experienced North Carolina work injury lawyer on your side. An experienced lawyer explains to workers that they need to inform the doctor of all their complaints. The lawyer reviews the medical reports to see if the doctor is following the North Carolina Industrial Commission guidelines. For strong legal counsel phone North Carolina Workers’ Compensation attorney Joe Miller now at 888-667-8295 . You can also complete his contact form.

Rating Guidelines for Upper Extremity Impairments in North Carolina

Posted on Monday, August 22nd, 2016 at 2:00 pm    

Here are more impairment rating guidelines for physicians to use in North Carolina work injury cases. The guidelines are meant to be a starting point. Doctors should also factor into their impairment ratings the oral examination, functional tests, diagnostic tests, and the prognosis for the injured worker.

For a deeper understanding of why the impairment ratings can impact directly the amount of benefits you deserve, watch this video by attorney Joe Miller. He has been a tough advocate for injured workers for over 25 years. His counsel includes working with workers and doctors to fight for the right rating for each worker’s unique set of physical problems.

Upper Extremities

Many of the decision points for doctors are medical terms of art. A few that can help guide the discussion are:
• Ankylosis is stiffness of the joint(s) due to abnormal adhesion and joint bone rigidity.
• Arthroplasty is an orthopedic surgical procedure performed to help restore function of the joints.

The upper extremities means the thumbs, fingers, hands, wrist, elbows, shoulders, and the arms. Doctors should use the follow guidelines to decide if the digit, hand or arm should be rated:
• If damage is limited to the digits (fingers) distal to the metacarpophalangeal joint, then the digit itself should be rated.
• If there is anatomical damage proximal to the metacarpophalangeal joint, a rating for the hand should be given, including any consideration for the digit as a percentage of the hand.
• If anatomical damage includes an area proximal to the elbow joint, the disability rating should be for the arm and include any percentage which would have otherwise been credited for the hand or digits.
“ANKYLOSIS” AND “LIMITED MOTION WITH PAIN.”
Fingers
• Ankylosis of distal IP joint (in optimum position) = 35% of digit
• Ankylosis of proximal IP joint (in optimum position) = 50% of digit
• Ankylosis of metacarpal-phalangeal joint (in optimum position) = 45% of digit
• Any of the above in malposition = up to 100% of digit
Wrist
• Ankylosis in optimum position = 35% of “hand”
• Ankylosis in malposition = up to 100% of “hand”
o Limited motion, mild = up to 10% of hand
o moderate = up to 20% of hand
o severe = up to 25% of hand

Elbow
• Ankylosis in optimum position = 50% of arm
• Ankylosis in malposition = up to 90% (Straightened position not as disabling as marked flexion).
• Limited motion and pain
o Flexion and extension (accounts for 60% of elbow function)
 20º motion in middle range = 35% of “arm” (80 to 100%)
 40º motion in middle range = 30% of “arm” (70 to 100%)
 120º motion in middle range = 5% of “arm” (45 to 160%)
o Pronation and Supination account for 40% of elbow function
 Total loss in neutral position = 25% of hand
 20º motion each way from neutral 20% of hand
 60º motion each way from neural 5% of hand
 Arthroplasty of elbow using prosthesis = 40% of arm
Shoulder
• Ankylosis in optimum position = 50% of “arm”
• Ankylosis in malposition = up to 80% of “arm”
• Resection end of clavicle (distal to coranoid and trapezoid ligaments) = 5% plus limitation
FRACTURES
• Fingers and Metacarpals. Mal-alignment, shortening, stiffening, etc., rated according to function of finger. Express as “percent of digit” if loss is distal to MP joint; otherwise, as “percent of hand,” calculated from the sum of each involved digit, reduced to its known percent of hand.
• Carpals: Rated according to function of wrist.
• Forearm fractures
o Mal-alignment. Rated primarily on limited motion in wrist joint. Add for angulation, shortening, weakness, etc. Express as “percent of hand.” Occasionally the elbow must also be rated for loss of motion, expressed in “percent of the arm” and the total impairment calculated from the sum of the parts reduced to their relative percent of the whole.
o Excision of fractured radial head. Full motion with no pain = 10% of arm. Otherwise rate on basis of loss of motion and pain in elbow and wrist.
o Excision of distal end of ulna. Rated on basis of adjacent joint function with minimum loss of 10% of hand
• Fractures of humerus
o Mal-alignment. Rated primarily on basis of limited motion and pain in shoulder and elbow joints, and expressed in “percent of arm.” Add for angulation, shortening, weaknesses, etc., not reflected in loss of joint function.
• Fractures of shoulder girdle. Rated according to function of shoulder joint. Add for pain and weakness in non-union.
• Fracture into a joint. In general, add 10% if minimal displacement, and more if joint surface is irregular. Any time a joint is entered surgically for repair or excision of a part, the minimum impairment is to be 10%
LACERATION OF THE HAND (TENDON, NERVE, JOINT, ETC.)
• Loss of sensation (complete and noticeable) (exclusive of tendon damage)
o ½ of distal phalanx = 25% of digit
o ½ of finger = 100% of digit
• Division of flexor sublimis with full extension of finger
o Tendon only = 10% of digit
• Division of flexor profundus
o Tendon only = 75% of digit
• Division of both profundus and sublimis tendons.= 90% of digit
• Arthrodesis of distal IP joint = 35% of joint
• Arthrodesis of proximal IP joint = 50% of digit
• Arthrodesis of MP joint = 45% of digit
• Above ratings are for arthrodesis in optimum position. Add for malposition.
• “Contractures” of joints or “limited motion and pain.” Impairment determined on basis of severity as compared to arthrodesis of the joint.
PERIPHERAL NERVE INJURIES:
(Rated on basis of loss in the “hand.” If lesion is high and involves structures above biceps insertion, then loss is rated on the “arm.”)
• Ulnar nerve injury
o Complete motor and sensory = 60% of “hand”
o Complete motor and partial sensory = 50% of “hand”
o Motor only = 40% of “hand”
• Median nerve injury
o Complete motor and sensory = 90% of “hand”
o Complete motor and partial sensory = 60% of “hand”
o Motor only to thumb = 35% of “hand”
• Radial nerve injury
o Motor and sensory = 75% of “hand”
• Above estimates are given prior to any reconstruction and may be reduced considerably by reconstructive surgery.
• If contracture has occurred in the digits, additional impairment should be added.

Speak with an Experienced North Carolina Workers Compensation Attorney Today

A slight variance in an impairment rating can be a huge difference in a worker’s wallet, particularly if the injured worker has returned to alternate employment and is earning the same as pre-injury. To help you get the right rating, it is crucial that speak with a knowledgeable North Carolina injury lawyer who understands the complex medical jargon and who has worked with work injury doctors. For help now, call North Carolina Workers’ Compensation attorney Joe Miller today at 888-667-8295. You can also fill out his contact form.

Lower Extremities Guidelines for North Carolina Workers’ Compensation Cases

Posted on Wednesday, July 27th, 2016 at 11:30 am    

These are the guidelines for doctors and physicians who have the task of determining the impairment rating for a North Carolina work injury cases. The guidelines are different than the American Medical Association guidelines. Physicians should use the North Carolina guidelines and not the AMA guidelines are their starting point.

Doctors and physicians should use their own evaluation of the patient and their own experience in making their final impairment ratings decisions.

What must be remembered is that usually, unless the employee has returned to full duty or a job paying the same or more as his or her pre-injury job, the impairment rating is seldom the most significant aspect of a seriously injured worker’s case. Many lay people get caught up in this and believe that the rating is the most important thing. It is not.

What is most important is what your doctor says about your future ability to perform work. Will you be able to return to your pre-injury job? If not, what other kind of work will you be able to do? These are usually the most important questions which will determine the value of your claim.

To see a video regarding impairment ratings generally, please click here.

General Lower Extremity Guidelines

Where a joint of the lower extremity has reparative, reconstructive surgery and a part of the joint removed or repaired with resultant osteoarthritis or traumatic arthritis anticipated, consider a minimum of 10% impairment of the joint.

Evaluation of impairment following fractures of the femur and/or the tibia and fibula is done by first evaluating any shortening and assigning impairment resulting from this; then determining the function of the adjacent joints and arriving at the impairment of these joints. The impairment is then the combined total resulting from shortening, deformity, and the impairment of the adjacent joints.

Malrotation and angulatory deformities that persist following injuries will be considered in evaluation of permanent impairment.

More Specific Lower Extremity Guidelines

  1. Shortening of Leg
Shortening      AWW Impairment to Whole Leg
·       ½ inch      4%
·       1 inch 8%
·       1½ inch 16%
·       2 inch 24%
·       2½ inch 32%
·       3 inch 40%

 

  1. Hip—Percentage of Impairment of Whole Leg
  • Ankylosis of the hip in optimum position (in less satisfactory position, appropriately higher percentage) = 50%
  • Arthroplasty of hip using prosthesis or cup (optimum results) = 40%
  • Limitation of motion of Hip
    • Mild Deformity = 15%

Example: AP motion: between 0 degrees and 80 degrees flexion

Lateral motion: 15 degrees adduction to 15 degrees abduction

Rotation: 20 degrees internal to 20 degrees external rotation

  • Moderate Deformity = 30%

Example: AP motion: 20 degrees flexion to 70 degrees flexion

Lateral motion: 10 degrees adduction to 30 degrees abduction

Rotation: 0 degrees internal rotation to 20 degrees external rotation

  • Severe Deformity = 60%

Example: AP motion: 30 degrees flexion to 50 degrees flexion

Lateral motion: 30 degrees adduction to 40 degrees abduction

Rotation: as much as 10 degrees internal rotation to 30 degrees external rotation

  1. Knee—Percentage of Impairment of Whole Leg
  • Ankylosis in optimum position (Ankylosis in less favorable position increasing impairment up to 90% with the knee in a non-weight bearing position) = 50%
  • Arthroplasty of knee using prosthesis or cup (optimum results) = 40%
  • Limitation of motion of Knee
    • Motion between 0 degrees to 60 degrees = 30%
    • Motion between 0 degrees to 90 degrees = 15%
    • Motion between 0 degrees to 110 degrees = 5%
    • Motion between 45 degrees to 135 degrees = 45%
  1. Ankle and Foot—Percentage Impairment of “Foot” (Leg below the Knee)
  • Ankylosis of ankle in favorable position (10 to 15 degrees equinus) with normal motion of foot = 40%
  • Ankylosis of foot (subtalar) in optimum position with normal ankle motion = 25%
  • Ankylosis in less favorable position up to = 90%
  • Ankylosis of foot and ankle (pantalar arthrodesis) in favorable position (10 or 15 degrees equinus) in neutral position of foot = 60%
  • Ankylosis of any toe = 50% impairment of the toe
  • Limitation of motion of ankle
    • Motion between 90 degrees and 120 degrees = 10%
    • Motion between 100 degrees and 115 degrees = 25%
    • Motion between 105 degrees and 110 degrees = 50%
  • Limitation of motion of foot
    • Motion of inversion of 20 degrees to eversion of 20 degrees = 10%
    • Motion of inversion of 10 degrees to eversion of 10 degrees = 20%
    • Motion of inversion of 5 degrees to eversion of 5 degrees = 40%
    • Fixed varus position = up to 90%
  • Ankylosis of subtalar joint = 25%
  • Triple arthordesis of foot = 30%
  • Displaced tarsal fractures considered as having a minimum of 5% impairment of the foot with optimum reduction. In the case of this portion of the foot, impairment is determined mainly upon the general position of the longitudinal arch and/or weight bearing position of the metatarsal heads with respect to the transverse arch rather than by evaluation of motion of the adjacent joints.

A few medical terms

Ankylosis is also known as anchyloses. It is joint stiffness due to abnormal adhesion and joint bone rigidity. It can be caused by injury or disease. The doctor will examine to see if the rigidity is partial or complete.

Arthroplasty is an orthopedic surgical procedure. It is done to relieve pain and restore joint function. In the procedure, the articular surface of a musculoskeletal joint is remodeled, replaces, or realigned.

Get a Professional North Carolina Work Injury Attorney on Your Side

The employer and the employer’s insurance company will have a lawyer fighting to terminate or minimize your benefits. You need a strong advocate that understands that small differences, such as a 20% impairment rating vs. a 10% impairment rating, could mean a significant difference in money for you. To speak with an experienced and aggressive North Carolina work injury lawyer, call for help now. Please contact North Carolina Workers’ Compensation attorney Joe Miller today at 888-667-8295 . You can also complete his contact form.

 

Rating Guide Criteria for Doctors in NC Workers’ Compensation Cases

Posted on Monday, July 25th, 2016 at 11:00 am    

The North Carolina Industrial Commissions provides guides to physicians for determining how to rate the impairments for specific types of injuries. The guidelines are just a starting point and not a precise definition. Doctors who are making an evaluation of the impairment rating of a worker can use the guides but they should also factor in the intangible factors such as the amount of pain the worker can endure, how weak the employee is, the dexterity of the worker and other factors.

The guides are for injuries to the upper extremities, lower extremities and the spine. In North Carolina work injury cases, the doctor examines the affected body part and then assigns an impairment rating based on how well or how poorly the worker can use that part. Oftentimes, the doctor defers to a functional capacity examination (FCE) to help determine the level of loss of function. For example, the doctor may say the worker has 20% permanent impairment in his or her right upper extremity (arm). The impairment rating is just one factor in the amount of wage loss benefit the employee will get and the length of those benefits.

The final impairment rating should be based on the physicians’ knowledge, the clinical examination of the patient, and the doctor’s experience.

Some Recent Concerns by Doctors about the North Carolina Impairment Requirements

Some of the more recent issues that doctors and lawyers have raised about when and how to do their impairment ratings are:

Rating and Release

Due to some changes in the law, impairment ratings are becoming more and more important in North Carolina work injury cases.

Recent changes, for example, allow a worker to be forced to engage in ‘fake’ jobs if some residual disability prevents him from actually getting and keeping a job, and the doctor agrees it would help the injured worker, regardless of whether or not he has reached “maximum medical improvement”. This change has meant more litigation, between the employer and claimant, about the ability of the worker to perform the tasks in a given available job. The ratings, along with the analysis of the worker’s physical limitations can help or hurt the employee’s argument that he/she is not able to do the specific available job.

The rating can be given when the patient has reached maximum medical improvement even though the doctor may have already concluded that additional surgeries or additional medical treatments will not help the worker.

The North Carolina Industrial Commission guidelines for impairment ratings are not the same as the American Medical Association ratings. There is not a direct correlation between the two. Doctors, in North Carolina work injury cases, should begin with the Commission guidelines because those guidelines were designed to match the North Carolina Workers’ Compensation Statute.

The Right of the Worker to Get a Second Opinion as to a Rating

The employer is obligated to pay for the first medical opinion and treatment as to any permanent partial impairment. The employee can get a second medical opinion with a doctor of his choosing only as to the rating – at the employer’s expense, after the employer obtains a rating and where the worker is dissatisfied with the impairment rating offered by the worker’s original treating doctor. The employer and insurance carrier can also request that a second medical opinion be obtained. In some cases, such as where the worker does not have legal counsel, the Commission may recommend that there be an independent medical opinion. Litigation often centers around the situation where the two medical opinions contradict each other. Workers should review the right to a second opinion with an experienced North Carolina Workers’ Compensation attorney.

For a more in-depth discussion of your rights to a second opinion under NC Workers Comp Law, Click Here.

Medical Records

The medical provider should understand that the following people are entitled to medical rehabilitation records, the testimony of the doctor, and the opinions of the doctor – as a matter of course:

  • The patient if not represented by an attorney
  • The patient’s counsel
  • The employer or the insurance carrier, usually through their attorneys and/or nurse case managers or insurance adjusters.

If one side (employer or employee) has the records, then the other side should be able to get those records, without charge. In most respects, therefore, at least as to the employer and its representatives, the rules and laws on privacy and privilege as to your medical privacy do not apply.

The medical records, along with the history and patient notes, can often help determine if the work injury is compensable. For this reasons, workers should consult with their work injury lawyer before seeing their doctors. The lawyer can help explain what questions may be asked. Submission of the medical records and opinions can often mean that there is less of a need to depose the treating doctor – depending on how clear and concise the records are.

Rehabilitation Personnel

Insurance carriers often use nurse case managers to monitor the care the patient is getting, to help the employee keep scheduled appointments and take the prescribed treatments. These nurses may also help the employee return to a job they can manage. The Workers’ Compensation law does allow for these nurse case managers.

Many employees, employee counsel, and even the doctors have complained that the nurse case managers are not acting as facilitators. They are acting as advocates for the employer or insurance company. Doctors should understand that the nurses are to act only as facilitators. Nurse case managers cannot direct the worker’s treatment. Decisions with regard to the patient’s treatment always remain with the worker’s treating doctor. If the employer attempts to direct treatment in opposition to the worker’s doctor, the worker can and mostly likely should request that the Commission put a stop to such behavior.

Doctors should also understand that the nurse case manager does not have the right to be present in the examination room at all times. The patient is entitled to a private conversation with his or her doctor.

Call North Carolina Work Injury Attorney Joe Miller for Help Now

If you were hurt while working on the job, you need a lawyer who will fight for you. A strong advocate understands the legal and medical complexities of workers’ compensation Cases. Often the difference between a good result and a bad result can be the attention to detail and a full understanding of the law. To speak with a strong advocate today, please phone lawyer Joe Miller today at 888-667-8295 . You can also complete his contact form.

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