What To Do If You’re Injured On The Job

Posted on Friday, July 28th, 2017 at 9:17 am    

Learn more about what to do if you’re injured on the job from The Workplace Injury Center and attorney Joe Miller.

 

What Is Workers’ Comp?

Posted on Saturday, July 22nd, 2017 at 6:00 am    

Learn more about what workers’ compensation is from The Workplace Injury Center and attorney Joe Miller.

Independent Contractor versus Employee Status in Workers Compensation Cases

Posted on Friday, March 24th, 2017 at 2:00 pm    

One of the most complex parts of any workers’ compensation case is determining whether the employee is eligible for workers’ compensation benefits. In both North Carolina and Virginia, one key test is whether the worker was an employee or an independent contractor. Generally, workers who are employees can receive workers’ compensation benefits Generally, independent contractors are not eligible for state workers’ compensation benefits.

Workers should understand that the determination of employee status is not one that the employer makes. The decision is made by the Deputy Commissioner of the Workers Compensation Commission or Industrial Commission.

Many employers try to classify their workers as sub-contractors vs. employees to avoid having to provide work injury insurance for them, paying payroll taxes, and/or to avoid having to purchase health insurance under Obamacare for their employees. This is called “misclassification” by the employer is actually a crime.

If you were injured while working, you should definitely consult with an experienced work injury lawyer like Joe Miller Esq. He will review many different factors which affect your real job status. In the right case, he can persuade the Deputy Commissioner that you were really an employee and should get full workers compensation injury benefits. We have been successful in several of these kinds of cases.

Some employers will also settle these kinds of cases to avoid a hearing in order to avoid their “business model” of misclassifying employees as subcontractors from being exposed in a public forum, which might subject them to IRS scrutiny.

The key work status factors

Some of the important workplace factors the determine if a worker is an employee or an independent contractor are:

  • The type of business involved. Many workers are presumed to be employees based on the type of work they do and who the hiring company is. Municipal workers such as police officers and firefighters are normally presumed to be employees and not independent contractors. Public school teachers who teach full time are also generally presumed to be employees. The terms of the collective bargaining agreement often dictate whether there should be a change from employee to independent contractor if the worker works less than full-time.

 

Because the construction industry contains so many trades that are brought in to complete jobs, we often see the most contentious battles of this employee vs. subcontractor issue take place when there is a work injury on a construction site.

 

Workers can be considered employees even if they are day laborers, borrowed employees, or part-time workers.

 

  • The right of the business or organization to control the worker. This is a major factor. If the hiring company has some ability to control the tasks the worker does, when the worker performs those tasks, and how those tasks are done – that indicates the work status is an employee and not an independent contractor. Other control factors can include whether a work permit or operating permit is required to do the job and who has that permit, whether the business provides the equipment necessary to do the job, whether workers are required to wear uniforms, and the manner in which the worker is paid.

 

  • The type of work being done. If the worker is doing the same type of work that that the hiring business does, that may tend to indicate that the worker is an employee. For example, a trucking company that hires on another trucker for a shipping assignment is likely responsible to pay for that trucker’s injuries during the shipment. A retail store that sells clothes and hires an electrical contractor is probably not going to be liable for workers’ compensation benefits if the electrical worker is injured while doing repairs at the retail store.

 

  • How the worker is paid. While the payment method is not determinative, workers who are paid on a regular basis (bimonthly, weekly, by day, or by hour) are normally presumed to be employees. Workers who are paid by the job—i.e. through an invoice— are normally presumed to be independent contractors. Employees typically get employee benefits such as vacation time, sick leave, and health insurance. If the paystub deducts these items or FICA taxes, or unemployment insurance, then the worker will likely be ruled an employee. Workers who get a W-2 vs a 1099 are also presumed to be employees.

 

Any reverse situation (the worker doesn’t get benefits, and doesn’t have pay deductions) may tend to indicate the worker is an independent contractor. But again, this is certainly not determinative. Some employers pay in cash and the folks who work for them can be employees. The key factor is control over the means and methods of the work.
Many employers try to use the payment method to try and convince workers that they are independent contractors – because the employer then doesn’t have to pay for the benefits, pays less taxes, and has less administrative work.

As mentioned previously, though, many times, the employer position is just self-serving, as a means to operate the business on the cheap.

Some employers will even go so far as to have their employees sign “contracts” where the employee declares an understanding that he or she is an independent contractor and not an employee.

You should know that such agreements are usually not worth the paper they are written on.

 

The Virginia Workers Compensation Commission and the NC Industrial Commission will ignore such documents IF there are “facts on the ground” that indicate that the worker is treated as an employee.

 

For instance, are there rules and procedures that are enforced about how, when and where the job is to be performed? Does the employer demand strict adherence to those rules on pain of the “termination of the contract”? If so, that is indicative of an employer/employee relationship and not a subcontractor relationship.

 

The other listed factors can flip the employer’s decision so that the worker is formally considered an employee.

 

  • Who provides the work tools? If the hiring company provides the equipment, the vehicles, the forklifts, the trucks, the computers, etc. that indicates there is an employee relationship. If the worker uses his/her own tools, that implies the worker is an independent contractor. Who takes any tax deductions for the purchase of the equipment can also be considered. Hiring companies generally reimburse employees for business-related expenses but generally don’t reimburse independent contractors.

 

  • Who can terminate the relationship? In an independent contractor relationship, the worker has just as much right to dictate when the job is done and how it is done as the hiring company. The worker can also decide, in accordance with the contract terms, when to terminate the work relationship. In an employee setting, the hiring company controls the manner of the work, the work performance, and when the work relationship ends.

 

A typical example of an independent contractor is a painter who has all his own ladders, paint and equipment, and is hired by a contractor on a house to come in and paint. The painter comes when he wants and leaves when he wants. The contractor provides zero equipment or supplies. The scope of the painter’s work and the price is determined by a contract drawn up by the painter and signed by the owner or general contractor. The painter controls when he begins the work and is finished when the job is complete.

 

Training. Generally, employers train their employees but they don’t train or educate independent contractors. Just because a worker does his/her job away from the office doesn’t mean the worker is an independent contractor. For example, many employees are allowed to telecommute.

The bottom line for the state workers’ compensation Deputy Commissioner is to look at the entire work relationship, not one specific factor.

Contact a skilled North Carolina or Virginia workers’ compensation lawyer now

Attorney Joe Miller has been fighting for injured workers for over 25 years. He has helped thousands of workers get strong recoveries. For advice on your work-relation status and all other work injury issues please make an appointment with Joe Miller Esq. by phoning him at (888) 694-1671 or using his contact form.

Workers Compensation for Policemen and Security Professionals

Posted on Wednesday, March 22nd, 2017 at 2:00 pm    

Law enforcement officers and other security and safety professionals put their lives and careers at risk every day. These professionals who protect the community deserve to be paid promptly and justly when the suffer an injury while doing their job. North Carolina and Virginia work injury laws protect law enforcement staff by providing that officers and safety personnel who suffer workplace injuries should have their medical bills paid and should receive 2/3rds of their lost wages for the period of time they are out of work, as well as payment of medical bills related to the injury. Security professionals should also be entitled to lost wage benefits if they suffer permanent injuries. When tragedy strikes and a security worker dies, the families of these heroes should be compensated in according with state workers’ compensation laws.

Common security injuries

Police officers and safety staff are at risk for many different types of injuries. When an assault or accident occurs, it is not necessary for the officer/security member to prove fault. If the injuries or death were due to a workplace incident, then benefits should be payable. Some common security injuries are:

  • Physical assaults. Police officers can be shot, stabbed, forced to defend themselves in physical fights, or attacked in a variety of ways.
  • Vehicle accidents. Police officers are often involved in car, motorcycle, and other vehicle accidents in the pursuit of those who commit crimes
  • Many officers and security staff personnel work long hard hours. At the end of the day or the shift, these workers are susceptible to slips and falls and a host of other problems that can result in lost time from work.
  • Many offers burn out or suffer emotional harm as a result of their work. If their depression or anxieties can be related to a specific workplace incident that is far outside the normal realm of what can be expected in the job, their psychological care may be compensable through a workers’ compensation claim.

Some law enforcement and security personnel may also suffer harm due to exposure to narcotics, radiation, and other dangerous job-related problems.

Common security- related injuries

Many officers and security personnel suffer deadly injuries. Survivors often can never return to work again or need to be retrained because they can no longer do police work. Common enforcement injuries include:

  • Death
  • Traumatic brain injury
  • Spinal cord damage including paralysis
  • Broken bones
  • Gunshot wounds
  • Respiratory damage
  • Bruises and lacerations
  • Heart attacks
  • Burn injuries

Officers and security personnel who suffer any type of injury need to get a proper medical evaluation to determine if they can ever return to work.

Unfortunately, if you are police officer employed by a City in the Commonwealth of Virginia, it has been our experience—and that of most workers compensation lawyers in Virginia—that for whatever reason, Virginia Cities do not settle workers compensation cases. If an officer is released to light duty, Cities are much more likely to accommodate an officer with alternate employment as opposed to continuing to pay workers compensation benefits.

The reason for this reluctance of cities to settle claims in Virginia is assumed to be due to the lack of budget line-items in City Budgets for settlement reserves.

In North Carolina, we have seen cities and counties that set aside funds in the their annual budgets for potential workers compensation settlements. It all depends on the budgetary restrictions of the particular city or county.

Talk with an experienced security professional or police workplace accident attorney today

Police officers and security professionals deserve to be treated with respect. They should not have to worry about getting work injury benefits for doing their job. If you or a loved one suffered injuries while protecting the public, attorney Joe Miller has the experience to get you justice. He has been fighting for injured workers for over a quarter of a century. To review your case now, please phone Joe Miller at (888) 694-1671 or complete his contact form.

Teachers’ Compensation

Posted on Monday, March 20th, 2017 at 2:00 pm    

Public and private school teachers provide a valuable service to the residents of North Carolina and Virginia. Like any other workers though, there is a decent chance that they may suffer an injury at work during the course of their career that prevent them from working – either part time or full time.

Some of the ways teachers can get injured are:

  • Slips and falls at work. Teachers can slip on coffee or soda in the teacher’s lounge, muddy water and snow tracked in by students from of doors, or water spills on the school stairways.
  • Supervision accidents. While helping students wait for a bus or supervising after-school activities, teachers can be hurt by oncoming buses or cars or for slips and falls on ice, or for any reason.
  • Coaching. Many coaches participate in the sports they are teaching. Even if they don’t actively play the sport, they engage in athletics maneuvers which cause them to fall, pull a muscle, be struck by a ball, suffer a groin injury, or suffer a host of injuries while supervising the student-athletes.
  • Property accidents. Teachers can get hurt walking across lots or parking lots or any outdoor activity – in addition to doing any indoor activity.
  • Everyday teach activities. Teachers can get injured carrying paper or other heavy loads, climbing ladders, demonstrating how something works, running a science experiment, or for a host of teaching-related reasons.
  • Dealing with violent students. Teachers who suffer broken bones, bruises, bleeding, internal damage, or other harm while dealing with violent students or being the subject of a physical assault by a student or anyone on school property can file a workers’ compensation claim.
  • Exposure to chemical toxins. Teachers can suffer occupational illnesses due to exposure to asbestosis, dusts, molds, and other chemical toxins. Chemicals can cause severe respiratory problems, headaches, dizziness, rashes, cancer, and other short-term and long-term problems.
  • School security. Unauthorized persons on school property or even school shootings have unfortunately not become as rare an occurrence as they once were.

Stress and the teaching profession

Teaching is a very tough profession. Along with the daily chores of teaching and education students, many teachers are required to be disciplinarians and social workers. Memorable teachers are also mentors for their students. While some schools make these tasks easy, many teachers find that overcrowded classrooms, a lack of support for teachers, underfunding, and other problems create a lot of stress on the teachers. Compensation for emotionally-related (as opposed to physical stress injuries like carpal tunnel syndrome) stress-related work injuries in North Carolina and Virginia is complicated.

One of the main problems in psychological stress cases is proving that the stress was due to a specific incident as opposed to family factors, domestic issues, pre-existing mental problems, aging, or other daily stress factors. As a general rule, psychological injuries without some physical injury or some type of trauma outside the realm of normal experiences, such as a physical assault, terrorist attack, rape, or school shooting—are not compensable.

Stress that escalates into depression or post-traumatic stress disorder (PTSD) is more objective than general malaise and fatigue that goes with many jobs – but objectivity isn’t really the key requirement.

Stress or anxiety that is triggered by a specific incident is can be compensable, whereas stress from teaching unruly students is not. For example, if a teacher suffers depression as a result of trying to break up a fight between several students, then there might possibly be a case for work-related stress – especially if the teacher suffered some physical harm while trying to break up the fight.

Contact a skilled North Carolina or Virginia workers’ compensation lawyer now for clarification in the area of teacher-related injury. Attorney Joe Miller has been fighting for injured workers for over 25 years. He has helped thousands of workers get strong recoveries. For advice on your work-relation status and all other work injury issues please make an appointment with Joe Miller Esq. by phoning him at (888) 694-1671 or by using his contact form that appears on his website at www.TheWorkInjuryCenter.com

How Do Pre-existing Conditions Affect Your Workers’ Compensation Claim?

Posted on Friday, March 10th, 2017 at 2:00 pm    

Just because your employer or the insurance carrier for the employer says you have a pre-existing condition, does not mean you cannot file a claim. While a pre-existing medical condition may sometimes defeat your right to collect work injury benefits, there are exceptions and there are defenses. The best course of action is to review your case with an experienced North Carolina or Virginia workers’ compensation attorney who can make sure you get the correct legal and medical analysis.

In North Carolina and Virginia, even if the work injury was partially due to pre-existing causes, if it can be shown that the work injury aggravated the pre-existing condition, then the employer and carrier is 100% responsible for the medical bills and temporary total disability payments that the workplace accident actually causes. Often the employer will try everything it can to show that your pain and symptoms are conditions you experienced before the accident date. This is especially true if the worker has a permanent injury.

Watch a video from attorney Joe Miller about pre-existing conditions in Virginia Workers Comp Cases.

An attempt to deny you benefits

One of the key arguments our legal team makes in pre-existing condition cases—when the comp carrier is attempting to deny the claim— is to argue that the accident at least partially aggravated your medical condition. In Virginia, the standard is that the work accident must have caused a “mechanical change in the body.” We take it upon ourselves to make sure your doctors are educated that the standard for causation in Virginia is actually very, very low.

So long as your doctor can say that your current disability and treatment were caused, even to a slight degree, by the work accident, then 100% of the condition is compensable. That means the pre-existing condition really does not matter.

For example, the most common place where we see the pre-existing condition claims is on back injuries. Particularly if you have been employed in labor most of your life and you are over 50, even if you have not been hurt, an MRI of your lumbar spine is likely to reveal a basket of horrors such as bulging discs, osteophytes, foraminal stenosis, cord compression, and all sorts of other issues. Of course, you can have all kinds of things like this going on in your spine and feel perfectly fine, until………

When a trauma occurs, those asymptomatic conditions suddenly become very symptomatic, in some cases so much so that you may be unable to walk. Although it is true that many of these conditions took years to form and develop, so long as the treating physician can say that more likely than not the work accident caused a mechanical change in the body that worsened a condition that is now causing you disability and necessitates treatment, then that injury is 100% compensable. The fact that there were pre-existing conditions that were not causing you pain or interfering with your ability to work on a daily basis is irrelevant.

Prior injuries that have not healed

The real problems in proving your case may come when you have a condition that WAS causing you pain and you were treating for that is now aggravated by a work accident. The ability to prove such cases are really going to depend on the level of treatment you were engaged in leading up to the accident, the severity of your previous symptoms, whether you had already recovered from those issues prior to the accident, and whether you were continuing to lose time from work as a result of the prior accident.

If the prior pre-existing condition arose through another workers’ compensation claim, then sometimes it is appropriate to file more than one claim and sometimes it is appropriate to leave it alone and blame everything on the first accident, assuming the evidence supports that. This is really something that you must strategize together with experienced counsel, as every case is different.

Additional considerations

There are a few other considerations that you will need to review with an experienced North Carolina or Virginia (depending on where the accident happened) lawyer.

  • Multiple injuries. A more complicated scenario is if you have had multiple injuries to the same body part. Here, lost most other pre-existing cases, the medical evaluation is determinative. As with the worsening scenario, the workers’ compensation commission will review the status of your condition prior to the new workplace accident and what your status is now.
  • Prior awards. If you received a personal injury award for the accident that caused the pre-existing condition that generally should not affect your ability to collect new worker’s compensation benefits except that any statements you gave about the personal injury may be used by the employer’s insurance carrier to try to reduce your claim.

If you are receiving Social Security disability income or private disability income, those also should not affect your ability to get new worker’s compensation benefits. The key issue will still be how much did the new workplace accident contribute to and worsen your condition. Still, it is a good check to review any other payments with your work injury lawyer. Similarly, it’s wise to review any other benefits such as retirement benefits you get with your work comp lawyer.

  • Permanent vs. temporary injury. Another complicated area is how the pre-existing injury affects your right to have your new injury qualify as an additional permanent partial impairment. We work with your current medical doctors and other doctors we may direct you to – to determine if the new injuries worsened your condition so that your injuries are now so severe that you can’t work again or can’t do the same type of work anymore.

Get strong advocacy from a long-time workers’ compensation lawyer

Virginia and North Carolina workers’ compensation lawyer Joe Miller Esq. is ready for the arguments defense lawyers and insurance adjustors will try to make to reduce or deny your claim based on pre-existing conditions. He understands the counter-arguments that can help you get justice when you suffer a work-related injury. Attorney Joe Miller has helped thousands of injured workers get strong settlements and awards. To speak with an experienced workers’ compensation lawyer, please phone at (888) 694-1671. You may have a sizable recovery coming to you.

How are Workers’ Compensation Cases Different than Personal Injury Cases?

Posted on Wednesday, March 8th, 2017 at 2:00 pm    

Workers’ compensation cases have several key differences from personal injury cases. At the Work Injury Center, we are experienced work injury lawyers who understand these key differences. We do everything we can to help workers get all the work injury benefits they deserve and to also preserve their personal injury rights.

Before the North Carolina and Virginia worker’s compensation laws were enacted, employees had to bring personal injury cases against their employer. These lawsuits put a lot of pressure on the work relationship. Eventually, State legislators realized these lawsuits hurt more than helped both sides. The workers’ compensation laws were compromises to help workers get paid and return to work when they are able, while reducing the demands on the employer to defend the lawsuits and risk having to pay large awards.

Here are some of the key differences:

  1. Fault of the employer. In a typical car accident case, a slip and fall case, or any other negligence case, the injured party making the claim must prove by a preponderance of the evidence that the defendant acted carelessly and that this carelessness caused the person’s injuries. It means the plaintiff must prove that the defendant did something wrong such as failing to inspect the premises, failing to make necessary repairs, failing to obey the traffic laws or relevant work safety laws, or failing in some other way.

In a worker’s compensation case, there is no need to prove the employer was at fault. The key requirements are that the worker show that the accident happened while the employee was performing his/her job and that the accident caused he worker’s injuries. There is no need to assign blame. There is no need to have co-workers testify or to cross-examine your boss as to what he may or may not have done wrong.

That being said, in North Carolina there are extremely rare circumstances where an employer’s gross negligence can permit a lawsuit instead of a workers comp case; however, this is almost never permitted. In North Carolina, if the employer can be shown to have violated an OSHA or other safety law which proximately caused the worker’s injury, there is a potential 10% increase in compensation available to the employee.

  1. Fault of the worker. Similarly, this lack of necessity to prove fault goes both ways. In a normal lawsuit such as a car accident or slip and fall case in either Virginia or North Carolina, as a litigant, even a slight amount of fault on your part will completely bar you from being successful in your case. This is known as contributory negligence. For instance, if you failed to watch where you were going and see an open an obvious condition and then fell over it, you are barred from bringing a lawsuit against those responsible for that condition.

That is not the case in Workers Compensation. In Virginia, unless it can be proven that you willfully ignored a known safety rule which caused you to get injured, your negligence or carelessness will not prevent you from bringing a worker’s compensation case.

In North Carolina, even if you violated a safety rule or OSHA rule, similar to the rule against employers, this would not bar your case, but may result in a 10% reduction in your compensation.

  1. The cost. In order to prove fault in lawsuit and negligence situations, an attorney is required to handle the case. Most lawyers take personal injury cases on a relatively high contingency fee basis. This means that if the injured person wins the case, the lawyer gets paid 33.33% to as much as 40% or 50% of the recovery, depending on the arrangement.

 

The contingency rate is much less in worker’s compensation cases, typically 20% in Virginia and 25% in North Carolina. Moreover, all such arrangements are subject to the approval of the Virginia Workers Compensation Commission and the North Carolina Industrial Commission.

 

In personal injury cases, it is often necessary to bring expert witnesses into court. Doctors charge high rates for testifying in court or via video deposition because they’re losing time away from the office.

 

In worker’s compensation cases, many times, the testimony of the doctor can be submitted through the physician’s medical reports or by taking a medical deposition, both of which are far less expensive than bringing the doctor live to Court. In personal injury cases, there also may be the need to bring in experts such as traffic reconstruction experts or economic experts who can be expensive too. Such experts are typically not involved in workers compensation cases.

 

  1. Before a personal injury case goes to trial, all sides are entitled to submit written questions, to make the parties and key witnesses testify at depositions. The sides often file legal motions, briefs, and counter-motions that can take weeks or months to decide. The time from the date of the accident to a trial is generally much longer in personal injury cases than the time for a worker’s compensation hearing. In addition, trials can take days or even weeks to complete. Most workers compensation hearings last a maximum of two hours.

 

  1. The risk. Trials are generally submitted to a jury of your peers. Worker’s compensation cases are heard before an experienced worker’s compensation referee. With a jury trial, the injured person doesn’t really know the jurors other than what the lawyers can reasonably guess at through the jury selection process. Most experienced workers’ compensation Deputy Commissioners understand the legal issues of the case. That difference makes personal injury cases more risky and costly.

 

  1. Damages. Another big difference is the damage amounts and types of damages you can claim in personal injury cases vs. workers compensation cases.

 

  1. Lost income. In personal injury cases, the injured party is entitled to claim 100 percent of his/her lost wages as part of damages. In workers’ compensation cases, the injured worker is entitled to 2/3rds of the average lost weekly wages subject to proof of the inability of the worker to do his/her job, find a job within his or her restrictions, or be held out of work completely by the treating doctor.

 

 

  1. Medical bills. In both work injury and personal injury cases, the injured worker is entitled to full compensation for all hospital surgeries, doctor visits, medications, and medical devices that are related to the work injury; however, in an injury case a jury awards money to pay these bills after hearing evidence of the amounts, while in a workers compensation case, there is no such evidence. There is merely a ruling from the Commissioner as to whether or not the defendants are responsible for paying all related medical bills. If the Commissioner so rules, then those bills are paid directly by the carrier. The money does not go to the injured worker.

 

  1. Pain and suffering. This is a fundamental difference between the two types of claim cases. In personal injury cases, the injured party can claim damages for the physical pain, emotional suffering, and loss of life’s pleasures that they endure. In work injury cases, employees are not entitled to compensation for any of their pain and suffering or inconvenience. This is unfortunately one of the most difficult things to explain to clients, especially where a claim is denied and a client is suffering horribly as a result of lack of proper medical care as they wait for the case to get to hearing.

 

  1. Employee status. Only employees can bring a workers’ compensation claim. Independent contractors and non-employees must bring a personal injury claim in order to get any damages. That being said, caution must be exercised before assuming that one can bring a claim against another contractor on a job. Such a contractor could be considered a ‘statutory employer.’

In addition, the employee vs independent contractor relationship is complicated. Workers should not automatically assume they are an independent contractor just because that is what the employer says. In some cases, we can prove that the worker really was controlled by the employer and should be considered an employee who can demand work injury benefits, even if there is a contract that says otherwise. Click here for more information on this issue of employees vs. independent contractors.

 

  1. Most employers, unless they have less than 3 employees regularly employed in their business, are required to have workers’ compensation insurance or required to show that they can satisfactorily fund any work injury award. The same is not necessarily true in personal injury cases. Generally, vehicle drivers are required to have insurance up to certain minimal dollar amounts. In Virginia, an injured employee who worked for an employer who should have had workers compensation insurance and failed to may have access to compensation by filing a claim and obtaining access to the uninsured employer’s fund.

Whether it is appropriate to proceed in that regard depends on the size and assets of the employer. It is extremely rare that a large, well-financed employer fails to carry workers compensation insurance in Virginia; however, in the rare instance that it does happen, then a lawsuit may, in fact be brought against the employer by the employee and the employer waives all defenses to the lawsuit. Employees should seek competent counsel before deciding how to proceed.

 

Injured employees who do have a valid worker’s compensation claim may also, in some cases be able to bring a personal injury claim against a third party. For example, if the work equipment was defective, the worker can normally file a worker’s compensation claim and also bring a product liability claim against the manufacturer or seller of the defective product.

 

  1. The verdict and decision at hearing. Unfortunately, unlike jury trials, workers compensation hearing decisions are not rendered at the same day of the hearing. Decisions by the Deputy Commissioners can come as quickly as one day to six or seven months after the actual hearing. This of course does not include the right of the defendants to Appeal the decision to the Full Commission and also the Court of Appeals.

Speak with an experienced work injury attorney now

North Carolina and Virginia workers’ compensation attorney Joe Miller Esq. has been helping employees get justice for over 27 years. He is ready to explain your options, analyze and prepare your case, and plead your case with insurance adjusters and before workers’ compensation Deputy Commissioners . For answers to your questions and tough advocacy, please call at (888) 694-1671 to speak to a trusted workers’ compensation attorney or fill out our online form for more information.

Strong Representation for Injuries due to Construction Work

Posted on Friday, February 3rd, 2017 at 2:00 pm    

Construction work is one of the leading cause of workplace accidents and sadly causes of death, too. Many construction accidents leave a worker permanently disabled or needing extensive long-term medical care. Workers who can’t return to their job often need to retrained for jobs that involve much less physical labor. Construction work includes jobs at private residences, commercial buildings, industrial sites, road and bridge repair, and a variety of needs throughout both North Carolina and Virginia

Unlike office work, construction work is often at a temporary site which is a constant state of change because of the work being done. As with all workers comp injuries, there is no need to prove that the company that ran the site, a supervisor, or any other party was responsible or at fault for the employee’s accident. Any employee who is hurt while doing his/her job and suffers injuries that prevent an immediate return to work is entitled to payment for medical bills and 2/3rds of lost wages until a return is possible (with some exceptions).

Types of construction workplace accidents

Construction companies are supposed to comply with local building laws. If they don’t, accidents are much more likely. Even at sites that obey all the rules though, accidents are all too common. Some of the ways construction site accidents occur are:

  • Scaffolding falls and falls from high height. Many employees work on scaffolding that can be 5,10, or a 100 stories high. Others work on ladders and the top floors of buildings that are still being constructed. Falls can cause brain trauma, paralysis, and other serious injuries or death.
  • Slips, trips, and falls. It’s extremely difficult to keep floors, railways, lots and other surfaces clear of debris and spills. Construction sites are often a patchwork of hills, ditches, and holes. Accidents often happen because a construction worker falls on an uneven surface or over a tool that was left on the ground
  • Electrical accidents. These accidents can occur while employees are working with power lines, wiring, and any electrical work in progress.
  • Falling objects. Because upper levels aren’t complete; tools, equipment, lunch pail boxes, building materials, and other objects can fall and hit the worker on the head or body.
  • Crushing injuries. Workers can get stuck between a wall and forklift or pinned down between hard surfaces and work equipment or machinery.
  • Chemical exposure. Workers at construction sites can be exposed to dangerous chemical toxins which may entitle the worker to claim benefits because of an occupational illness.
  • Machinery failure. Any machine such as bulldozer, crane, nail gun, or other work equipment can cause violent injuries that can be deadly, life-threatening or permanent.
  • Vehicle accidents. Trucks are used to bring in and transport the building equipment needed for site construction. Workers who are focusing on their job are at the mercy of the truck drivers who aren’t always careful of their surroundings.
  • Dropping or shifting heavy equipment or supplies. One of the most common forms of injury is simply lifting something heavy suddenly shifts, either due to a co-worker dropping his or her end, or simply losing balance. These types of injuries typically result in back, neck or shoulder injuries.

Fatigue is another cause of construction site workers. Tired workers are easily injured by others and even by their own actions. Other accident causes include fires, explosions, and control of hazardous energy.

According to the Occupational Safety and Health Administration, one in five fatalities in the private sector were due to a construction site accident. The top four reasons (other than vehicle accidents) were falls, electrocution, being struck by an object, and being caught-in/between. Those four accident types accounted for over 60 % of construction site deaths in 2014 – over 500 workers.

Types of construction workplace injuries

Workers’ compensation does provide some additional benefits for some injuries such as the need to have a body part amputated. Attorney Joe Miller understands which injuries qualify for additional compensation and the amount of the compensation. He also explains to family members what benefits the family is entitled to if someone tragically dies. In addition to the strong possibility of a family losing a beloved relative, many workers suffer the following types of serious, sometimes permanent, construction site injuries

  • Work machinery accidents can easily cause an employee to lose an arm, leg, hand, foot, finger, or toe – either directly due to the accident or later in a hospital room. These injuries often prevent a worker from doing the same job he/she did before the accident.
  • Burns can be first, second, or third-degree burns. More serious burns often require multiple skin grafts. Even the best surgeries often leave disfiguring scars.
  • Spinal cord injuries. At best, these injuries cause acute or chronic pain. At worst, they can cause either partial or full paralysis which can leave a person a paraplegia or a quadriplegia, and often result in surgery.
  • Broken bones. Fractures typically take months to heal. During this time, the worker can’t do his or her job. Some fractures never heal quite right leaving the worker to cope with the pain and discomfort. Others frequently require external fixation with wires, screws and plates that are permanently implanted, and result in permanent partial disability to that body part.
  • Electrocution can result in a heart attack or thermal burns if there is direct contact with an electric source. Muscle, nerve, and tissue damage can be caused if electrical current passes through the worker’s body.

Other common construction work accidents include eye injuries, injuries to the extremities, and post-traumatic stress disorder

Special considerations

There are a few special considerations, your North Carolina or Virginia worker’s compensation lawyer will need to review if you are hurt at a construction site and want to file for workers’ compensation benefits. Workers generally need to be employees and not independent contractors. Whether you qualify is a decision for the worker’s compensation office to determine. Even if an employer says you are an independent contractor, you may still qualify as an employee.

The key issue is control. What level of control does the employer have over the worker? Does the worker have to report to the worksite at a certain time each day? Are there rules to follow that are set by the boss? Who supplies all the main work equipment? If it’s mostly the bossman, then in all likelihood, no matter what the employer tells you, you are an employee and not a subcontractor.

We see this issue come up again and again in construction cases. Workers compensation insurance can be expensive. So companies get bad advice from someone who says they can just call all their employees subcontractors, even though they are actually employees, and get away with it.

The worst part about that is that the employer will then fail to purchase workers compensation insurance. Then when the employee suffers a severe injury, the employer shrugs and says “oh, well, you know you’re a subcontractor, right?”

Sorry, Mr. Bossman, it does not work that way. The good news is that even in such situations, all may not be lost. If the employer was under another contractor or there was a general, the injured worker should be able to recover under the general contractor’s worker’s comp insurance. Also, in Virginia, assuming the employer had at least 3 employees regularly employed in the business, the injured worker may find relief from the uninsured employer’s fund.

In construction place accidents, the injured worker may have a direct personal injury claim against non-employers such as manufacturers of equipment that was improperly made or designed.

Make the call to an experienced work injury lawyer today

North Carolina and Virginia workers’ compensation attorney Joe Miller has the experience and tenacity that injured workers need. His dedication to detail, understanding of the relevant legal and medical issues, and his ability to argue the facts of your case have led to thousands of satisfied work injury clients. For immediate help and strong advocacy, please call attorney Joe Miller at (888) 694-1671. You can also schedule an appointment through his contact form.

Are Telecommuters Entitled to Workers’ Compensation?

Posted on Wednesday, February 1st, 2017 at 2:00 pm    

In today’s economy with its emphasis on technology, many North Carolina and Virginia workers are working from home. From home, they can access the Internet, download files from the cloud, have videoconferences when needed, and create or use company software. Some workers, such as nurses and salespeople do all their work from home and/or on the road visiting clients. Others work at the company office but take an occasional day to work from their house or apartment. While working with a computer or reading files may not seem like a likely place for an accident, home accidents can occur for many different reasons.

An employee can trip and fall over a wire, fall down the stairs, slip on ice while going to the car, or suffer a heart attack. A fire is just as likely to occur at home as it is at the office. It is generally not a requirement that the employer inspected the employee’s work environment – most employers do not bother to check. Many workers who do sit-down jobs suffer back aches, neck injuries, and repetitive stress injuries.

At the Law Offices of Joe Miller Esq., we have helped thousands of workers get justice when an accident happens. We have been providing this advocacy for over 25 years. Our legal counsel extends to all types of workers including at-home employees and workers who may be working from an offsite location. Part of our counsel is to explain that under the right circumstances, telecommuters are entitled to state workers’ compensation benefits, which includes payment for medical bills and 2/3rds of average weekly wages.

Why telecommuting is so popular

Both employers and employees like the advantages of telecommuting. For employers, it can be saving on expenses for office rooms, utilities, and office furniture, and generally the ability to expand into new territories without having to invest in “brick and mortar.” It also means a happier workforce because many workers enjoy the convenience of working from home. For employees, telecommuting means no need to spend hours on the road to report to a central office, less gasoline costs, the ability to sleep a littler later, and often a more relaxed dress code. Plus, homeworkers can listen to their own music and create their own work environment.

Statistics from Global Workplace Analytics confirm the popularity of telecommuting:

  • Half of all workers have a job where some telecommunicating makes sense and about a quarter of all workers do telecommunicate regularly
  • Over ¾ of all US workers say they would like to telecommunicate part of the week – with two to three days being the preferred amount of time
  • Many large companies are already transitioning to making teleworking viable
  • Many telecommuters are high-end salary earners
  • 7 million employees now telecommute at least half the week

How does Workers’ compensation insurance and working from home work?

First, it is important to remember that the injured worker does not have to prove an employer was at fault for the accident. The key requirements are to show that an accident happened that is work-related and that the employee’s injuries were caused by that accident. The trade-off is that employees can’t sue their employer for pain and suffering and they only get 2/3rds of their lost wages instead of the full amount of lost earnings, for up to 500 weeks.

When an accident happens at work it is usually clear that the accident was related to the employee’s work. Accidents at home require a little more proof that the accident was work-related. At-home accidents are more likely to be questioned by insurance companies and defense lawyers who will argue that that the accident was related to something personal the worker was doing instead of actual work. A worker at the office who falls while going to the bathroom is entitled to benefits. If the same type of accident happens at home, it may be attacked.

Did the accident happen during the course of the worker’s employment?

This is a different question than asking if the accident was work-related. Work-related means that some identifiable work task was being performed. During the course of employment means that the employee was working for the company or boss at the time of the accident. An accident that happens at 3 in the morning because a regular 9 to 5 worker decides to do some word processing because he can’t sleep may not be considered during the course of employment.

Many telecommuters login to a computer system and log out at the end of the day. Workers who were properly logged in and are hurt while logged in have a stronger case than other workers.

Another item that may be considered: Did the employee typically start the day with a conference call with his or her boss to go over the day’s assignments? If the worker was hurt subsequent to the morning meeting, this may be a good indication of being injured in the course of employment.

What was the worker doing at the time? Was he or she carrying items such as files or equipment related to the work to be performed? This would weigh strongly in favor of an injury occurring in the course of employment.

Independent contractor vs. employee

Many telecommuters are not full-time employees. Only employees are entitled to collect North Carolina or Virginia workers’ compensation benefits. There are a number of factors the states will review in deciding if the worker was an employee or independent contractor. The abilities of the employer to control the manner and time of work are key factors. Workers who use company software through the Internet may be more likely to be considered employees than workers who use their own software.

As mentioned previously a daily, scheduled meeting to discuss the day’s planned activities is also a good indicator of control. Also, does the employer require that the employee wear a company uniform or other clothing when going on appointments? Also, how is the worker paid? Is it per contract or job completed, or on a regular, weekly basis? Does the worker have to invoice the work?
As with any type of injury, the worker still needs to inform the employer that an accident has happened. Workers are not required to return back to work until they can do the telecommuting job they were doing before the accident.

Speak with an experienced telecommuting workplace accident lawyer today

The laws on telecommuting and entitlement to worker’s compensation are evolving. North Carolina and Virginia work injury attorney Joe Miller understands the laws and many of the practical issues involved in claiming benefits for at-home injuries. For help now, please call Joe Miller at (888) 694-1671 or use his contact form.

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.

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