Frequently Asked Workers’ Compensation Questions

Posted on Monday, July 1st, 2019 at 10:29 am    

Workers have the right to ask questions about their workers’ compensation claim. Experienced work injury lawyers are happy to answer all your North Carolina and Virginia workers’ compensation questions.

Anyone who is injured while working on their job has questions about their rights. Anyone who suffers an illness due to workplace conditions needs to understand their rights. The best advice for any employee who becomes injured or ill working is to make an appointment with an experienced North Carolina or Virginia workers’ compensation lawyer. He can answer your questions, guide your through the workers’ compensation process, and advocate on your behalf.

Some of the more common questions, employees have about workers’ compensation include:

Who can benefit from workers’ compensation?

Generally, only employees of a company can file for work injury benefits. Independent contractors are typically not eligible. The good news is that the employer does not get to decide who is an employee or an independent contractor. The work relationship is determined by a variety of factors. The main factor is whether the employer controls the work performance of the worker or if the worker controls how he/she does their job. Some of the additional factors that determine whether a worker is an employee or not are who provides the tools to do the job, who controls the hours of performance, and how the worker is paid.

Employers with only one or two employees may not be required to carry workers’ compensation insurance. Larger workers normally must have workers’ compensation insurance for each of their employees. As with most laws, there are some exceptions.

Must I show the employer was negligent?

No.  Workers’ compensation in both North Carolina and Virginia is a compromise. The employee only must show that an accident happened at work or that an illness is due to unique workplace conditions. The employee does not even need to show the employer failed to follow normal business safety standards. The trade-off is that the employee cannot make a claim for “pain and suffering” damages. Also, workers generally only get 2/3rds of their average weekly wages during the time they can’t work – and not the full 100%. There are also caps on how much an injured or ill worker can receive, typically up to 500 weeks.

There are a few exceptions. In Virginia, employers may challenge the right of a worker to demand work injury benefits if the worker intentionally caused his or injures – such as through getting into a fight with a coworker or getting into an accident while intoxicated. In North Carolina, any such showing will reduce the recovery by 10%. 

Also, in North Carolina, there was once an exception if the employer could be found to be guilty of intentional misconduct that caused the accident. The misconduct has been interpreted as meaning that the employer must have been substantially certain that the conduct that the employee was ordered to engage in would result in injury or death.  In those circumstances, there was once some possibility that the employer in North Carolina could be sued directly. This was known as a Woodson claim, named after the poor gentlemen who was ordered to his death by his employer, straight into a ditch the employer knew was about to collapse. 

Unfortunately, in more recent times, it has been widely recognized that the North Carolina Court of Appeals has essentially eliminated any possibility that one of these Woodson claims will ever see the light of day. 

What are the standard work injury benefits?

Injured workers typically receive two types of benefits:

  • Medical compensation. The goal of workers’ compensation is to help the worker return to his or her job. Workers who are injured often start their medical care by going to the local emergency room. If there is a severe problem, they may be admitted to a hospital for tests and for surgeries. Patients then can treat with their family doctor and any specialists who might reasonably help them heal. Specialists include pain management physicians, orthopedist, neurologists, cardiac care doctors, psychologists, psychiatrists, and other doctors. 

 

Patients who are injured at work also usually treat with chiropractors, physical therapists, vocational therapists, and other health care providers.

 

These medical care providers should submit their bills to the employer’s workers compensation insurance carrier. The insurance carrier has a duty to pay these medical bills if they are reasonable, medically necessary, and related to the injury.

 

Other types of care that the insurance company should cover include the cost of medications and medical devices.

 

  • Wage loss compensation. Workers typically in both North Carolina and Virginia are entitled to receive 2/3rds of their average weekly wages during the time they can’t work. This is generally referred to as temporary total disability (TTD). There are caps on the amounts so that workers who earned too much money will only receive the cap limit. There are also limits on how long benefits can be paid –up to 500 weeks in Virginia and North Carolina. 

 

Workers who have a partial temporary disability and who can return to work receive at a lower-paying job receive 2/3rds of the wages they lose by accepting the lower paying job. This is called temporary partial disability (TPD). 

 

Workers who are no longer receiving TTD and have a permanent disability in a specific body part may be entitled to pay based on the type of disability they have in that body part. This is referred to as permanent partial impairment (PPI). Payments are made according to a percentage disability rating and a scale of weeks set forth via statute, depending on the type of disability (such as hearing loss or the loss of use of a hands, feet, arms or legs) and the degree of impairment.

Injured and ill workers may also be entitled to vocational rehabilitation; however, although this is technically a benefit it is usually not helpful to an injured workers case. It is typically utilized by the workers compensation insurance company to “trip up” the injured worker or apply pressure to settle the claim, or reduce the liability of the workers comp insurance company by finding a job-ANY job—for the injured worker. Voc Rehab is typically employed with workers who aren’t expected to return to the same type of job they did before the injury. 

Which doctors must I see? 

Normally, in Virginia, the employer will have a panel of three doctors for each type of injury or illness – starting with a list of family care doctors. Employees must choose one of the physicians on the list of doctors – for their type of injury or illness. If a referral is needed to a specialist such as an Orthopedic or Neurosurgeon, then additional panels must be provided by the workers compensation insurance company. 

In North Carolina, unfortunately, there are no panels, rather, the insurance company usually chooses a treating physician. 

If there is a good reason, then employees can seek permission from the Commission to see a doctor of their own choosing. A good reason may be that it is clear the doctor isn’t helping the injured worker get better he or she is still in pain – and still can’t work. Experienced North Carolina and Virginia work injury lawyers often have working relationships with a variety of physicians. The lawyer may be able to seek approval to switch to one of these doctors – or to an independent new doctor. 

In Virginia, this process is not easy. It really depends whether the authorized treating doctor has indicated that he or she no longer wants to see the injured worker. If the authorized treating doctor has not released the injured worker from care, for instance by saying “prn” in their office notes which means “patient may return as needed,” then it may be more difficult to seek a switch. 

Although there is no means to obtain a “second opinion” of a doctor formally through the Workers Compensation Commission by injured workers in Virginia, workers are free at any time to seek alternative care at their own cost. 

In North Carolina, there does exist a process to obtain an Independent Medical Examination—at the expense of the employer. 

Lawyer Joe Miller has helped thousands of injured and ill employees get their full workers’ compensation benefits. He represents workers in North Carolina and Virginia. He’ll answer your questions and explain the workers’ compensation process. He’ll work aggressively to help you get all the benefits you deserve. To review your case now, call  attorney Joe Miller at 1-(888) 667-8295 or use my contact form to schedule an appointment.

Vocational Rehabilitation Rights for North Carolina Workers

Posted on Thursday, June 27th, 2019 at 10:21 am    

Workers who can’t return to their old job may be entitled to vocational rehabilitation benefits. Vocational rehab benefits can include the cost of being retrained or to obtain additional education.

In most North Carolina workers compensation cases, injured and ill workers are compensated in two ways:

  • They are compensated for their medical bills. These are the hospital, doctor, and therapy bills the worker’s care medical providers are due – for helping the worker return to work to maximize their health. Medical bill payments also include the cost of drugs and medical devices.
  • They are paid for a portion of their lost wages. Generally, workers are paid 2/3rds of their average weekly wages up to 500 weeks. There are adjustments in the pay depending on whether the worker has a total or partial disability – i.e., whether the worker can return to a lower paying job with work restrictions, or remains totally disabled from work. 

Some workers, however, are not able to return to their pre-injury job because of their injuries or work-related illness. Sometimes, the worker’s doctor will authorize work with restrictions, otherwise referred to as “light duty,” – but the employer won’t be able to accommodate the restrictions. Since the goal of workers’ compensation is to help the worker earn an income, North Carolina offers another option called vocational rehabilitation.

For example, often workers who work in construction or industry depend on being physically fit to do hard physical labor. If a worker severely injures his or her back, loses function in a hand, or loses an arm; the worker can no longer do these jobs. With proper education, though, the worker could be re-trained to work in a clerical or administrative job. The worker might be able to learn technical skills that could be useful to many companies in the same job sectors or different job sectors altogether. 

Of course, the success of much of this depends on the age and current educational level of the injured worker. A 29-year-old worker is far more likely to be capable of re-training than a 59-year old laborer without a high school education. Usually, the injuries are more severe and pronounced in the older worker, and as they say, it is harder to teach an old dog new tricks. 

How vocational rehabilitation is defined

Worker’s compensation includes services that are designed to help a worker obtain suitable employment. These services typically include:

  • An assessment of the workers job skills, education, and abilities.
  • Determining what type of new job the worker could do if he/she was properly trained.
  • Reviewing the skills, degrees, and certifications that could help the worker obtain work in a new field.
  • Identifying the problems that restrict a specific worker from doing certain physical or mental tasks in a job.
  • Understanding what community college or other classes might help the worker learn new skills.
  • Understanding what college programs could help the work.
  • Providing counseling for workers looking for a new job – such as how to interview, where to apply, and how to prepare a resume.

Generally, the way it works is in accepted claims, when the worker reaches maximum medical improvement and is provided with permanent work restrictions by his or her doctor, if the employer is unable or unwilling to accommodate the injured workers’ restrictions, a vocational rehabilitation assessment will be ordered by the workers comp insurance company. 

Although these services one would think are a benefit, usually, the carrier will avoid paying for items that might truly assist in improving the worker’s skills and their ability to get a new job, such as education from a Community College or a degree from one of North Carolina’s many great universities. When Vocational Rehabilitation was classed as medical treatment back in 2011, many thought this would indicate a change in the way Voc Rehab could be used in North Carolina. 

Alas, this change has not come to be. This is because the true purpose behind most vocational rehabilitation situations is to stop benefits to the injured worker based on the injured worker’s failure to comply with the plan, or otherwise to apply pressure on the injured worker to settle his or her case as soon as possible. Often, the vocational counselor can be extremely annoying, sending seemingly endless streams of emails and calls and constantly hounding the injured worker to engage in job searches. This is by design. 

Who provides the Vocational Rehab Services

Normally, an approved vocational rehab specialist must be approved to work on behalf of the injured worker. Vocational rehab specialists are generally paid for their services in the same way doctors paid. The specialist helps identify the workers’ abilities, skills, the type of new skills needed, and course selection. This is typically done in an initial assessment, which is usually attended by the injured workers’ attorney as well. There may be written testing to determine the skill level of the employee with regard to the worker’s math and/or language skills. 

Subsequently, the vocational rehab specialist also assists monitors the worker’s success in applying for jobs and attending interviews. In some cases, this may include providing job leads to be followed up on by the injured worker, as well as scheduling actual job interviews. 

Technically, vocational rehab specialists do not work for the employer – though the progress the worker is making will be reported to the employer and the injured worker. But they do work for the workers compensation insurance company and this needs to be understood.  

If the vocational rehabilitation specialist is not helping the worker obtain suitable skills or suitable employment by, for instance, continually requiring the injured worker apply for jobs that are no longer available or which are clearly beyond the physical capability of the worker–the employee can seek to have a new vocational rehab specialist appointed. 

Generally, the rehab specialist will begin by preparing a return-to-work plan. The return to work plan should review all possible job options including:

  • Keeping the current job with the current employer
  • Getting a new job with a current employer
  • Job training with a current employer
  • Suitable employment with a new employer
  • Job training with a new employer
  • Vocational rehabilitation to get ready for a new job
  • Other possibilities including self-employment

Workers who refuse to comply with a vocational rehab plan ordered by the North Carolina Industrial Commission  may lose their compensation benefits until they do comply with the plan.

Most workers comply with new training requirements. They may object to unreasonable demands by the specialist – such as applying to jobs they have no chance of getting.

Experienced North Carolina workers’ compensation lawyers understand when it is likely that a vocational rehabilitation expert will be hired and how to prepare the injured worker in dealing with the often rigorous demands of vocational rehabilitation.  

As with most laws, some exceptions may apply – some severely injured workers may not be required to learn a new trade or skill – because there’s no reason to expect they will be hired. In other words, if it would be futile for the injured worker to be required to engage in vocational rehabilitation, due to their level of impairment, lack of education, and age, then a motion may be made by the attorney to excuse the injured worker from having to participate in vocational rehabilitation. 

The employee does not have to reach maximum medical improvement in order to be required to engage in vocational rehabilitation. Generally, employers or employees can ask for vocational rehabilitation if the worker hasn’t returned to work or if he or she is earning less than 75% of his/her average weekly wages and are receiving other approved benefits.

The vocational rehabilitation plan should be in writing and tailored to the individual worker’s needs.

Attorney Joe Miller fights for all injured workers. He has decades of experience working with vocational rehabilitation specialists. He understands when employers and insurance companies are truly interested in helping an employee get a new job and when the employer (or insurance company) is just trying to terminate a worker’s benefits or apply pressure to settle.  To learn if you are likely to end up in vocational rehabilitation, call attorney Joe Miller at 1-(888) 667-8295 or use my contact form to make an appointment.

Why You Should Call a Workers Compensation Attorney

Posted on Tuesday, June 25th, 2019 at 2:05 pm    

Attorney Joe Miller explains why you need an attorney if you are injured or hurt at work:

Read the full video transcription here.

Regenerative Medicine, PRP Therapy and Workers’ Compensation Claims

Posted on Tuesday, June 25th, 2019 at 10:21 am    

Many new regenerative medical treatments are being used to treat pain by using the body’s own repair mechanisms. Regenerative medicine is helping injured workers return to better health – when standard health remedies just don’t see to work.  Many athletes in a wide variety of sports are already using regenerative medicine so they can get back to the basketball court, tennis court, or playing field earlier than they usually could. 

Regenerative medicine has been used in the past. It’s been used for organ transplants and bone marrow transplants. Newer sciences and technologies are helping regenerative medicine expand the possible solutions to helping individuals, including workers, with serious health problems.

Regenerative medicine is a methodology that helps the human body regenerate, replace, and even engineer human cells, tissues, and organs. The key behind regenerative medicine is that the body uses its own repair methods to heal parts of the body that were previously thought to be incapable of healing. Regenerative medicine now includes helping tissues and organs grow in a laboratory so they can be later implanted inside humans. In this way, regenerative medicine can reduce the dependence on relying on foreign donors and the complications with the body accepting a foreign tissue or organ.

Regenerative incorporates many sciences including computer science, genetics, chemistry, biology, and robotics.

Different types of regeneration

There are different types of regenerative medicine:

  • Rejuvenation. The aim with this type of medicine is to help the patient’s body heal itself. A common example is when you suffer a cut and the skin heals around the cut. Scientists are now using a person’s own cells to help nerves and even organs self-heal
  • Replacement. This type of regenerative medicine uses cells, tissues, and healthy organs from a donor (living or recently deceased) to replace the damages cells, tissues, or organs. Some transplants, such as liver and heart transplants, are fairly common. Regenerative is more than just the transplant. It is the goal to help the transplants work better by minimizing complication such as rejection or infection.
  • New regeneration. Here, cell-therapy is the mechanism for delivering cells to diseases parts of the anatomy. The cells then help restore the damaged areas of the body. Stem cells are used for this type of regenerative medicine. Stem cells can be developed/used to regenerate brain cells, lung cells, skin cells, and other cells.

The most common types of stem cells are adult stem cells (the worker/patient uses his/her own cells) and embryonic stem cells. Stem cell sources can be used from blood, bone marrow, fat, skeletal muscle, and other sources. Some stem cells are more versatile than other stem cells. New methods and techniques are constantly being developed and refined.

Another type of regenerative is platelet-rich plasma (PRP) therapy

Another type of regenerative medicine is the use of PRP therapy. PRP is usually combined with diet and physical therapy.

The idea behind PRP therapy is that you blood includes plasma (the red liquid part), white and red cells, and platelets. The platelets help blood clot. They also have proteins which are a key ingredient in helping injuries health. The PRP technique aims to enrich the plasma with the beneficial platelets. The enrichment method uses your own blood – which works much better than using somebody else’s blood.

The main steps used to enrich the plasma with the platelets are:

  • Blood is taken from you (in the same way it is taken when you have a blood test).
  • The blood is then prepared. The platelets are separated so their concentration level can rise. A process called centrifugation is used to separate and improve the concentration level of the platelets.
  • The PRP combination is then used to treat the part of the body that needs repair or help. Doctors generally use a fluoroscope to guide the PRP injection into the correct spot
  • The doctor usually injects the PRP with a local anesthetic to reduce the initial discomfort.
  • It can take a few weeks before the patient begins to experience improvement.

PRP is also sometimes used after a patient has a surgery to improve the ability of the patient to heal.

PRP therapy has been shown to help patients with muscle, tendon, and ligament injuries. It is helping patients with chronic pain. The ability of PRP to help with other injuries such as fractures is still being researched.

Many patients need multiple injections – two to six. Workers who undergo PRP therapy usually experience little pain with the process. The PRP process is minimally invasive. Often, it can be done in an ambulatory surgery center instead of a hospital. Often, if a worker does experience pain, an anti-inflammatory medication can help.

The good news is that when PRP works, the relief is long-term. Patients who have PRP therapy should generally avoid exercise until the healing process is finished (additional time isn’t making the patient feel any better). A key advantage to PRP therapy is that by using your own blood, patients shouldn’t experience allergic reactions.  There is a possibility of infection, bleeding, and nerve damage. PRP is not an initial remedy. It is usually recommended only after more standard treatments fail to work.

At the North Carolina and Virginia Law Office of Joe Miller, Esq. we work with your doctors to understand your medical problems, and to understand what treatments you need. Often, employers will try to force you back to work before you’re ready. We work with your physicians to show that you do more time to explore all the options available to improve your health for the long-term. For help with all parts of you workers’ compensation claim, call attorney Joe Miller at 1-(888) 667-8295 or complete my contact form to schedule a free consult.

Back Pain and Workers’ Compensation

Posted on Tuesday, June 25th, 2019 at 9:20 am    

Experienced work injury lawyers fight for workers with acute and chronic pain. Back injuries are a very common type of workplace injury. Back pain affects most every type of worker including nurses, construction workers, retail clerks, firefighters, police officers, anyone who stands for long hours, and anyone who moves any type of heavy object. Motor vehicle accidents can also cause back pain. 

Often, back pain is due to a specific accident such as a fall or lifting too heavy an object. Back pain can also be due to an event that makes an existing back problem worse. A few of the events that can cause back pain include:

  • Moving and shifting patients from a bed to another bed or a wheelchair
  • A slip and fall due to wet floors, a tool or object on the floor, poor lighting, or many other reasons
  • Lifting, pulling, carrying, or pushing heavy objects
  • Repetitive injuries

It should be pointed out that Workers Compensation generally does not pay for repetitive stress injuries and this rule applies to back injuries as well. Unless the injured worker can point to a specific, identifiable event that caused the back pain, or in Virginia, at least a discreet set of work that caused the pain during a very narrowly defined time frame, the back injury will not be deemed compensable. 

Chronic pain is generally pain that lasts for more than a few months. 

Back pain can be due to many different types of conditions including:

  • Sciatica
  • A narrowing of the disc space
  • A herniated disc
  • Bulging discs
  • Facet syndrome
  • Spondylolisthesis
  • Scoliosis
  • Sacroiliac joint dysfunction
  • Spinal cord damage

Back pain is often accompanied by muscle pain, nerve damage, and damaged tendons.

When a back pain injury causes you to stop working, be sure to inform your supervisor and arrange to speak with an experienced workers’ compensation lawyer. 

The most important thing is to think very hard about the precise moment that the back pain started. What were you doing? What were you lifting? Was it heavy? Unless you can narrow the cause of the pain down to a specific, identifiable event at a specific time, you will likely not be able to recover. 

Also, in Virginia, you need to know that normal movements that anyone would do such as bending down, twisting, or kneeling, will not lead to a good, or compensable claim. This is because they do not involve a risk of employment. In other words, the accident could have happened anywhere. The cause must be something that is a specific risk related to work, such as lifting a very heavy object, or person. 

Treatment for back pain

Some back pain improves with non-surgical remedies. Other types of back pain ultimately do require surgery. Workers with pain often work a variety of doctors and healthcare professionals including:

  • Pain management doctors
  • Neurosurgeons
  • Physical therapists
  • Chiropractors
  • Acupuncturists
  • Orthopedic doctors
  • General physicians
  • Gerontologists

Treatment can take weeks, months, or years. Some workers never recover from their back pain.

A few at-home and short-term remedies, according to Spine-Health, include:

  • Resting. Short-term rest can help. If your back doesn’t improve after a few days, you should seek medical attention. Too much rest can aggravate a bad back.
  • Modifying your activity. You should check with your doctor before starting any activity. Your physician may recommend gentle stretches and some walking.
  • Heat and ice therapy. Often heat from an electric heating pad, a hot water bottle, or a warm bath can help improve the flow of blood or relax muscles that are tense. Increasing blood flow helps bring oxygen and nutrients to damaged muscles. Cold packs or ice packs are usually used to reduce inflammation and reduce swelling. When applying heat or ice, it’s best to wrap the device or encase it some way say the heat or ice doesn’t come in direct contact with the skin. Your doctor can explain when its best to use heat and when you should use ice. Generally, heat is used before any exercise regimen or activity. Ice is used after the exercise or activity.
  • Over-the-counter medications. Anti-inflammatory medications can help reduce low back pain which is due to swollen muscles or nerves. Some common anti-inflammatory medications include ibuprofen, aspirin, and naproxen. Bayer is one type of aspirin. Advil is a brand of ibuprofen. Aleve is a type of naproxen. Another type of medication doctors use for back pain management is Acetaminophen, otherwise known as Tylenol.  
  • Muscle relaxants. These medications don’t directly reduce chronic back pain. They can help relieve muscle pain.
  • Narcotics. Doctors may prescribe narcotics if standard medications aren’t helping. This area of medical treatment has become more complicated because the dangers of such drugs as opioids are often much worse than the short-term benefits. Opioids can be addictive and cause abuse and overdoses.
  • Back braces. For some workers, a back brace, worn on a daily basis, when used with physical exercise can help reduce pain and increase the healing process. 
  • Epidural steroid injections. This is an outpatient type of injection often performed in an ambulatory surgery center. The procedure is done with the use of medical device called a fluoroscope. The fluoroscope guides the needle to the right spot where it delivers medicine and a steroid to the damaged nerves. The injection helps to reduce inflammation near the compressed nerve root. Often patients with back receive several epidural steroid injections spaced out over time. Usually, they are done in a series of three, and then another set is not done for at least another six months. 
  • Physical therapy. Trained therapists can help develop an exercise routine that can help strengthen parts of the body around the back so the back doesn’t need as much support.
  • Psychological and psychiatric care. Some patients with acute or chronic pain suffer from anxiety, irritability, and depression because they worry about how their pain is affect others and whether they will ever get healthy. Treatment sessions with psychologists can help workers cope with a reduced lifestyle and less ability to function.

Surgeries for back pain

Some workers require back pain surgery to relieve their pain. There are different types of surgeries depending on the location and severity of the pain. According to Spine-Health

“A decompression surgery removes whatever is pressing on a nerve root from the spinal column, which might include a herniated portion of a disc or a bone spur. There are two primary types of decompression for low back pain. 

  • Microdiscectomy is a minimally invasive procedure for patients with a lumbar herniated disc causing radicular leg pain (sciatica). 
  • A Laminectomy removes part of the layer of the bone or soft tissue that is compressing a nerve or multiple nerve roots.”

Other possible surgical options for back pain include:

  • Fusion surgery which “removes the soft tissues between two or more adjacent vertebral bones and replaces them with bone or metal. This procedure enables the bones to grow together over time—typically 6 to 12 months—and fuse into one long bone to stabilize and eliminate motion at those spinal segments.”
  • Replacing a disk with an artificial disc.
  • Spinal stimulator implants which allow the patient to use electrical impulses to monitor their pain.

    Compensation for Back Injuries: North Carolina vs. Virginia 

Insofar as back injuries, North Carolina and Virginia basically agree on what constitutes an “injury by accident” only in the area of back injuries. 

Normally, in North Carolina, an injured worker must first show what the Industrial Commission and Courts in North Carolina define as an “accident” that preceded the injury. An “accident” in North Carolina normally must occur through a “slip, trip or fall” in order for an injured worker to recover for any work injury. 

Virginia, on the other hand, is more liberal in this one area and only requires that the injured worker show an identifiable accident that occurred at a reasonably definite time and that a “sudden mechanical change” in the body occurred. There need not be any “slip, trip, or fall.” Virginia focuses more on the notion of whether the injury arose from a “risk of employment.” 

Yet with respect to back injuries, North Carolina has carved out an exception. For back injuries in North Carolina, the law is much like Virginia, and the injured worker need only show a “specific traumatic incident” that led to the back injury. 

Also, as is well known, when it comes to permanent partial impairment ratings, Virginia provides no ratings for the back, or any spinal injury. Yet for reasons that remain a mystery, in North Carolina, the “back” as it is referred to—which is interpreted as including the entire spine—actually has the highest potential impairment rating of any body part, up to 300 weeks. Why? You will have to ask the legislators that came up with those laws. 

 

Attorney Joe Miller has helped thousands of injured workers in Virginia and North Carolina get the compensation they deserve. Compensation includes obtaining the right amount of wage loss compensation and payment for all necessary medical bills. Compensation also means fighting for workers who have long-term health problems and problems that just don’t seem to have a cure. To review your claim now, call attorney Joe Miller at 1-(888) 667-8295 or use my contact form to schedule an appointment.

Joe Miller obtains $300,000.00 settlement for Virginia Workers Compensation PTSD Victim

Posted on Monday, June 24th, 2019 at 12:32 pm    

Alexandria, VA.  We are happy to report our recent settlement of this 45-year-old mental health workers’ claim.  The incident occurred near the end of our client’s shift. Suddenly, the injured worker was attacked by one of her patients with a knife. She attempted to run, but was caught by the patient, assaulted, and dragged around the workplace by her hair. She suffered multiple abrasions and contusions to the knees and in other areas of her body, but most significantly, suffered increased anxiety and depression as a result of the attack.

Although she recovered from her physical injuries, ultimately, our client was diagnosed by her psychiatrist with Post Traumatic Stress Disorder (PTSD) as a result of the attack at work.  Although she attempted to return to work, she was promptly taken back out of work by her psychiatrist, as her flashbacks and the re-living of the initial attack overwhelmed her. The psychiatrist eventually came to the opinion that our client was so debilitated that she was incapable of returning to work in any capacity due to the PTSD. 

What made things more difficult was that our client presented as a subset of PTSD patients who experience psychotic symptoms, which patients have an even more difficult prognosis than the standard PTSD patient.

We were able to obtain our client a full and final settlement of her claim of $300,000.00. 

Unfortunately, workers compensation does not include money for pain and suffering, so the settlement was based on her future potential indemnity payments and the future cost of ongoing treatment for her PTSD.

Using our Skills to Try and Keep a Horrific Tragedy from Getting Worse

Posted on Friday, June 21st, 2019 at 3:37 pm    

As citizens of the Hampton Roads area and many throughout the nation are now well- aware, on May 31, 2019, a gunman walked into Building Two of the Virginia Beach Municipal Center and opened fire, killing 12 Virginia Beach City Workers.

Since this horrific tragedy, many, particularly some of the families of the slain, have criticized the City for their alleged failure to be transparent in their investigation of the shooting. Others have been discussing whether Building Two should be demolished, while others argue that the building should be saved, but gutted and renovated. (more…)

Impairment Ratings and North Carolina Workers’ Compensation Claims

Posted on Tuesday, May 14th, 2019 at 11:11 am    

Even if an injured worker has returned to work, he or she may qualify for additional weeks of workers’ compensation pay if they lose function of a key body part. The benefits will be adjusted according to the injury impairment rating. The rating is given as a percentage rating by the injured worker’s authorized treating doctor.

There are different classifications of work injury disability in North Carolina. The main four are:

  • Temporary total disability. (TTD) Many workers are able to return to work after treatment with the doctors, therapists, and other health providers, but for now, are either held out of work completely by their doctors, or can prove that they are unable to find work within their physical restrictions;  
  • Total and permanent disability. Some workers are never able to return work at all on a permanent basis due to their injuries and are entitled to ongoing compensation for life.
  • Temporary partial disability. (TPD) In the middle, are the workers who can return to work with restrictions at a lower-paying job. They get 2/3rds of the difference between the lower-paying and pre-injury job
  • Extended compensation. A new category passed in 2011, once an injured worker reaches 425 weeks of compensation, if he or she can prove that the employee has sustained a total loss of wage-earning capacity, the employee may receive compensation beyond the 500-week limit; however, this Award can be challenged if the worker if the defendants can prove the worker is no longer disabled.

North Carolina generally pays these workers 2/3rds of their average weekly wage during the time they aren’t working. When workers return to their job with restrictions, they are paid a portion of their average weekly wages which is apportioned based on how much money they are earning at the lower- paying job.

There is one more type of condition that can result in additional wage loss payments (generally 2/3rds of the average weekly wage), even if the injured worker has returned to work. This condition is called a permanent partial impairment. Also called PPI or PPD payments.

The North Carolina Industrial Commission defines this category as follows: “Permanent disability is not a purely medical condition. A patient is ‘permanently disabled’ if ‘under a permanent disability’ when his actual or presumed ability to engage in gainful activity is reduced or absent because of ‘impairment’ and no fundamental or marked change in the future can be expected.”

Essentially, a doctor reviews the various parts of the worker’s body to see if there are any parts (such as the motion of an ankle) that the worker can’t use. The doctor then determines what percentage of that bodily function has been damaged and assigns a percentage (called an impairment rating) to the damage part of the body.

For example, if worker’s foot motion is limited due to the workplace injury, the doctor will assign the following percentages:

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%

The impairment rating evaluation by the doctor is not made until the employee has reached what is called – Maximum Medical Improvement (MMI). Workers do have the right to treat with all physicians and therapists to try to get healthy enough to return to work. There comes a time, though, when additional medical treatment won’t improve the worker’s condition. While the worker may still be entitled to medical benefits if the treatments prevent his/her condition from worsening, the worker’s right to additional wage loss benefits is re-evaluated. The re-evaluation requires a physical examination by a physician who typically refers the injured worker for an extensive workup with a physical therapist facility.

As mentioned, the physician reviews which body part or medically related part is not functioning. The physician than assigns a rating. Generally, today, physicians no longer perform the impairment rating. Rather, specialized physical therapists perform detailed testing on the injured body parts during an extensive test called a Functional Capacity Exam, or FCE.  These physical therapists do the impairment rating use guidelines established by the American Medical Association.  After the testing is performed, the results will be sent to the doctor and the doctor will decide if he or she is willing to sign off on the testing results. Most of the time, they do.

That being said, FCE’s and the AMA guidelines are just that – guidelines. The doctor can assign the impairment rating on his/her own – based on “the examining doctor’s independent opinion based on his own knowledge, experience and clinical examination.”

Usually, the employer’s insurance company will choose the FCE facility that does the initial impairment rating/FCE Testing. The employee, in North Carolina, does have the right to get a second opinion on the rating at an doctor of his or her choosing– paid for by the employer, not the employee.

The amount of pay due a worker with an impairment is based on the following three factors:

  • The number of weeks the state has preset as a maximum for that specific type of injury. These numbers are set forth in Section 97-31 of the North Carolina Workers’ Compensation Act.
  • That number is multiplied by the impairment rating percentage
  • The resulting number is then multiplied by the workers average weekly wage figure (adjusted by 2/3rds)

In the reduced range of motion of the ankle example:

  • Workers who lose the entire use of their ankle/foot are entitled to work loss benefits for up to 144 weeks.
  • If a worker’s impairment rating is 25%, then the number of weeks is cut to 25% of 144 weeks = 36 weeks.
  • The worker then receives 2/3rds of his/her average weekly wage for 36 weeks. So– if the average weekly wage were $1000.00, then 2/3rds of that figure would be $666.67. That is the compensation rate of $666.67 x 36 weeks, which gives us a payment to the injured worker of $24,000.00 for his or her permanent partial impairment to that body part.

Note that these payments ARE NOT in addition to the maximum of 500 weeks of benefits and one cannot receive these payments for. Unless the worker has been determined to be totally disabled per the rules or entitled to extended compensation, 500 weeks is the limit.

The permanent partial impairment benefit therefore really only becomes important where the injured worker has returned to work at the same pay as pre-injury. Then, with the help of an experienced North Carolina workers’ compensation lawyer, the worker may be entitled to a lump sum payment instead of having to wait the 24 weeks to get his/her physical impairment benefit.

Section 97-31 covers the loss of hearing or the loss of vision (one eye or both) in addition to the loss of use or the amputation of any limbs, hands, feet, finger or toes. Additional payments can also be made for disfigurement or scarring. The loss of use of important bodily organs is also covered.

Workers need to be careful. They should review their disability payment rights and overall workers’ compensation rights with an experienced lawyer.   Once the worker accepts a permanent partial disability, they can continue to receive medical benefits – provided the medical benefits are helping the worker. This could further form the basis of a potential settlement with the insurance company—even if the injured worker has returned to work.

Joe Miller Esq., understands when workers should claim the impairment disability benefits. We work to verify the injury and the impairment rating. We recommend settlement when it is in the worker’s best interest. We’ve been fighting for injured workers for over 31 years. For help with all phases of your workers’ compensation claim, call attorney Joe Miller at 1-(888) 667-8295 or complete my contact form to schedule an appointment.

Scaffolding Injuries and Workers’ Compensation

Posted on Wednesday, May 8th, 2019 at 4:50 pm    

Families of anyone killed due to a workplace scaffolding accident are entitled to death benefits. Survivors of scaffolding falls are entitled to full medical care and wage loss benefits, otherwise known as temporary total disability checks.

Scaffolding is a necessary requirement at many types of construction sites. Scaffolding is generally temporary. Stable scaffolding helps workers rise above the ground to do their job. Unstable scaffolding can easily cause death. Falls from scaffolding can also cause many types of injuries that leave the worker permanently disabled – such as spinal cord injuries which leave a worker partially or completely paralyzed. In the best of cases, workers with spinal cord injuries often live with chronic pain.

If a worker falls on his/her head, the worker can suffer a traumatic brain injury which affects the workers physical, emotional, and cognitive abilities. Workers with a severe brain injury often never return to work. Even workers with mild traumatic brain injury need to treat with neurosurgeons, neurologists, their family doctors, speech pathologists, physical therapists, psychologists and many other types of doctors.

Falls from a scaffold can cause broken arms which usually have to be set and placed in a cast. It takes months before broken bones heal. Other types of injuries include internal organ damage, muscle and ligament damages, severe cuts and lacerations.

OSHA scaffolding statistics

According to the Occupational Safety Health Administration (OSHA) nearly 2/3rds of workers who work in the construction industry work on scaffolding. That percentage translates to about 2.3 million workers. According to the Bureau of Labor, nearly 60 people tragically die from scaffolding falls each year. Nearly 4,500 are injured due to scaffolding each year. One Bureau of Statistics study shows that 72% of scaffolding accidents are due either the “planking or support giving way, or to the employee slipping or being struck by a falling object.”

Types of scaffolding

The two basic types of scaffolds, according to OSHA, are:

  • Suspended scaffolds. Here, at least one platform is suspended by ropes or other types of overhead support that is not rigid.
  • Supported scaffolds. Here, at least one platform is supported by rigid supports such as poles, frames, legs, and outrigger.

Other types of scaffolding that are usually classified as “supported scaffold” are scissor lifts and aerial lifts. Other types of scaffolding, according to OSHA,  include “catenary scaffolds, step and trestle ladder scaffolds, and multi-level suspended scaffold.”

Types of workers who work on scaffolds

There are three types of people who work on scaffolding. These are:

  • The workers who assemble and disassemble the scaffolding. These workers should be trained by someone who can identify predictable hazards and who has the authority to take steps to correct these hazards.
  • Scaffolds should be designed by people with proper degrees, such as engineering degrees, and professional experience. Minimum scaffolding design requirements include understanding:
    • The type of scaffolding necessary for a job
    • The maximum load level
    • How to assure a good foundation
    • How to avoid electrical hazards
    • Users of the scaffolding should be trained on the safety do’s and don’ts.

Employers should review OSHA guidelines or contact OSHA directly before allowing any worker to use the scaffolding.

Common safety tips for workers who use scaffolding

Workers should consult with any manufacturing manuals on proper setup and use before beginning any scaffolding work. Some of the many other practical tips for scaffolding work include:

  • Workers should avoid multitasking. When working on scaffolding, it’s best to work on one task at a time.
  • Workers should walk carefully, testing the stability of the scaffolding every step of the way.
  • Any loose objects or tools not needed for the job should be removed before the scaffolding work starts
  • The entire length of the scaffolding should be inspected
  • A key consideration is the weather. Construction companies and contractors should avoid having their workers work on scaffolding if the weather is rainy, it’s snowing, or if it’s too hot. Wind is an especially dangerous problem. Heavy winds are an extremely dangerous. Generally, the manufacturer and OSHA have strict guidelines that require that workers not be on scaffolding when the wind reaches a high level.
  • Fall protection devices should be set up around the scaffolding.  Fall protection includes wearing helmets and setting up padding or other materials to help cushion any fall. Workers should wear harnesses.
  • Proper storage of scaffolding as it’s being torn down or constructed is also important. Heavy scaffolding that is stored incorrectly can fall on workers and cause serious injury.

Workers compensation benefits for workers injured or killed due to scaffolding accidents

There are different types of benefits available depending on the severity of the injuries.

In death cases, the employer’s insurance company should pay up to $10,000 for the funeral and burial expenses. The dependent family members (generally the spouse and minor children) can claim two-thirds (2/3rds) of the worker’s average weekly wages for a maximum of 500 weeks. In a case of North Carolina death benefits,  minor children may be entitled for more than 500 weeks – up to the time they turn 18 years of age. Also in North Carolina, if the widow or widower of the deceased is disabled, she/he is entitled to benefits for the rest of their life or until they remarry.

When workers survive the fall, they are entitled to have all their medical expenses paid that are necessary to their recovery – for the rest of their lives.

Employees are also generally entitled to 2/3rds of their average weekly wages up until the time they return to work or up to 500 weeks. Workers with a total and permanent disability receive the 2/3rds average weekly wage for the rest of their lives.  If the worker has a permanent partial impairment in relation to a compensable, ratable body part, then an additional analysis is made to determine the length of the 2/3rds average weekly wage benefits.

Additional adjustments and conditions may apply depending on whether your claim is in North Carolina or in Virginia.

At the Virginia Law office and North Carolina office of attorney Joe Miller Esq., we’ve helped thousands of workers including numerous construction workers get the full workers’ compensation benefits they deserve. There is no need to prove fault in North Carolina or Virginia workers’ compensation cases. To speak with an attorney experienced at fighting the insurance companies for employers, call lawyer Joe Miller at 1-(888) 667-8295 or complete my contact form to make an appointment.

New Workers’ Compensation Trends

Posted on Wednesday, May 1st, 2019 at 3:08 pm    

Sometimes, we like to look at the broad trends in the workers’ compensation arena. These trends can help anticipate new changes to the North Carolina and Virginia worker’s compensation laws. They can help us understand what limits and expansions of benefits might apply – particularly for medical and vocational benefits. Trends help understand why workers get injured, what can be done to reduce the risk of injury, and what medical benefits may help the worker. Trends can also address the administrative end so that claims are filed faster and decisions are made on a quicker basis.

According to Managed OutSource Solutions Medical Record Review, these are some of the new trends and concerns for 2019:

  • Many states have adopted Medicaid Expansion. Medicaid expansion may help low-wage workers get medical treatment when workers’ compensation is untimely or when an accident isn’t covered by state workers’ compensation insurance.
  • As prescription drug costs continue to increase, new strategies are being developed to address the high cost of these drugs.
  • With each new election cycle, state administrations may change power. There may be changes in Governorships, state House seats, and state Senator seats. These officials help decide who the next workers’ compensation Commissioners will be. We saw this not long ago in North Carolina, which has turned decidedly Republican. As a result, the workers compensation system in North Carolina as well as the personal injury laws underwent a massive change toward less rights for injured workers in 2011. And in 2019, the Industrial Commission, as a result of republican appointments, has become far more conservative and company-oriented than in previous years.  But there are sometimes benefits to change. Many states, including Virginia, now have statutes to help first responders (police, firefighters, and emergency medical technicians) get their workers’ compensation benefits faster and to cover injuries such as post-traumatic stress disorder and heart disease. Some states are making payments to the spouses of first responders a priority in the case of the tragic death of a first responder.
  • A possible new trend is to focus more on the emotional and psychological scars of any workplace injury. New treatment plans may be compensable. Doctors may be encouraged to help workers get evaluations and treatments for this side of their pain. Workers may be more encouraged to seek treatment with psychologists and mental health professionals.
  • There will be more reviews of the American Medical Association (AMA) impairment guidelines. Doctors use these AMA guidelines to determine a worker’s level of physical impairment in a specific body part. The relationship between physical impairment and loss of earning capacity due to that impairment might become part of the analysis of an employee’s work injury claim and his/her permanent partial impairment rating, especially if there is a permanent and total disability.
  • Another trend will focus on such issues as safe housing, transportation access and other socioeconomic factors. For example, the review states that “Many insurers are already addressing these concerns by providing meal replacement delivery services after surgery and also caregiver services for food preparation and companionship.”
  • The use of telemedicine as a way of improving the patient’s health and providing access to more physician service will be explored. Telemedicine may be especially useful for workers who can’t get a ride to see their physicians. Telemedicine also gives employees a chance to speak with specialists who aren’t local to where the worker lives.
  • As claims adjusters are retiring, new claims adjusters will need be trained
  • Employers are now offering more leave of absence programs and more enticements for workers as the economy begins to rebound. Employers, according to the Review, claim that leave of absence programs are more than just an enticement. They help companies keep employees.
  • Newer workers are more likely to be injured because they don’t have the training and experience to handle complex tools, machines, and business requirements.

Insurance industry trends

Heffernan Insurance Brokers provides the following trend review for California. Some of their trends should be taken with a grain of salt as insurance companies favor the employers who hire them. Insurance companies are not the worker’s friend when there are disputes.

Many of these trends may become trends for North Carolina and Virginia:

  • “Evidence based-medicine” is helping workers get improved treatments, better medications, and better access to doctors
  • Some companies, such as Starbucks, are using self-reporting system that let employees self-report when they first have an accident rather than going through the company manager. The process involves more technology including a workers’ compensation call center, direct-deposit of workers’ pay, and other benefits.
  • Employers are recognizing they can help their employees through early intervention. Musculoskeletal ailments, according to the Bureau of Labor Statistics account for nearly 13% of all worker injury and illness claims. These disorders include back injuries, muscle strains, tendinitis, and carpal tunnel syndrome. Early medical care can help the worker get the care he/she needs and return to work sooner.
  • Like the Managed Outsource Solution study, Heffernan believes that telemedicine will be a major workers’ health trend. In addition to providing physical care, telemedicine is being used to provide psychological care. Workers with mental health problems find that speaking with a counselor or doctor directly through the Internet is more comfortable than driving to an office, seeing other patients, and having to work with office personnel. Telemedicine is available for desktops and smartphones.
  • Onsite triage programs. One California company uses an onsite triage program to make a quick diagnosis of a worker’s injuries and then arranges for a ride-hailing service to get the worker to the hospital as quickly as possible.
  • Robotics. Robotics are helping workers’ compensation insurance companies and doctors reduce costs while providing physical therapy, clerical help, and other services to the worker

 

Workers’ compensation lawyer Joe Miller Esq. has been fighting for injured workers for more than 30 years. We’ve helped thousands of injured workers get the wage loss benefits and medical compensation they deserve. We work to keep abreast of industry trends so we can better understand how workplace accidents happen and what medical options are possible. At the core, we are strong advocates for anyone who is injured at work for any reason. To speak with a strong experienced advocate, please  call attorney Joe Miller at 1-(888) 667-8295 or fill out my contact form to make an appointment. Initial consultations are free.

 

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