OCCUPATIONAL DISEASE: PRESUMPTIONS FOR FIREFIGHTERS, POLICE, AND OTHER FIRST RESPONDERS

Normally, injuries and accidents that occur under Virginia Workers Compensation must consist of a specific traumatic event that caused a sudden anatomical change in the body to the injured worker; however, there are a whole class of cases that do not follow that approach and these are cases which involve an occupational disease.  Sometimes these can be hard to prove, but the Virginia legislature has made it easier for police, firefighters, sheriffs, and other first responders and public law enforcement officers to prove occupational disease claims. 

Without getting into all the specifics of proving an occupational disease, which is covered in other articles, suffice it to say that an occupational disease means a disease arising out of, and in the course of employment, but not including an ordinary disease of life to which the public is equally exposed. 

What this definition means is the oftentimes, even though someone may be suffering from a disease that was directly caused by exposure for instance, to hazardous chemicals on their job, if it is the kind of disease not specifically recognized as arising directly out of the employment, and therefore an ordinary disease that the public may also get, such as a form of cancer, then the disease is not going to be recognized as an occupational disease.  It will be considered an ordinary disease of life and the standards of proof for that are much higher than for a regular occupational disease. 

The good news is that the Virginia legislature carved out an exception to this rule for police, firefighters, sheriffs, and other first responders and public law enforcement officers. 

What this law says is that if you are a firefighter, police officer, or other first responder, then for certain diseases, such as respiratory diseases, hypertension or heart diseases, and certain types of cancers, it is to be presumed that the disease in question is in fact an occupational disease suffered in the line of duty.   

Now this presumption can be overcome by the defense if, for instance, they can prove that the disease came about for exposure to something completely unrelated to work, and that the first responder was not in a position to be exposed to anything that might give rise to the disease in question. 

Unfortunately, insofar as firefighters are concerned, the law as it stands contains some barriers and defects that make it hard to prove some occupational diseases. 

The statute lists a number of presumptions for cancers that firefighters and other first responders are entitled to and they are for the cancers of leukemia, pancreatic, prostate, rectal, throat, ovarian, or breast cancer.  The problem is that the law as it stands now also requires that the International Agency for Research on Cancer (IARC) recite in their listings that whatever the injured worker was exposed or came into contact with to during their job actually causes, or may cause the type of cancer the injured worker is suffering from.   They also require that the first responder with one of these types of cancer have completed 12 years of continuous service. 

The good news is that according to the case law, the injured worker need only prove one instance of exposure to the toxic chemical during his or her career that may cause cancer as identified by IARC. 

The bad news is that at least one form of cancer on the list specifically has no known cause and that is pancreatic cancer. 

Pancreatic cancer is one of the few cancers where medical science currently simply has no idea as to the cause.  Apparently, the only thing that might contribute to it is cigarette smoke. 

Because of this, many agree that the law as currently written, in this regard, for lack of a better word, is ridiculous. The current law in Virginia actually says that pancreatic cancer is one of the presumptive types of cancer that is considered to be contracted in the line of duty, but at the same time, the law also says you have to prove there was exposure to something that might cause it, and as we just said, nothing is known to do that except possibly cigarette smoke. So basically, the Legislature has drafted a law that—at least with respect to pancreatic cancer—is completely useless. 

Moreover, a State Review Board has also noted that the law is lacking as it currently stands. The Joint Legislative Review Commission (JLARC) Audit Report of the Virginia Workers Compensation Commission that was released on Monday, December 17, 2019 says on page 3, in the headline: “Requirements to establish cancer presumptions are unreasonably burdensome and not supported by science.” 

The JLARC specifically talks about firefighter benefits and how many claims are denied because the firefighter failed to prove proper exposure to the carcinogen that caused his or her type of cancer.  The JLARC then suggests that all an injured firefighter should have to prove is that he or she fought fires and was exposed to smoke. They say that should be sufficient, given the toxic soup of chemicals that any scientist and industrial hygienist knows is released by any house or industrial fire. I certainly could not agree more. 

We rely on our first responders to protect us. They put their lives on the line for us every day. Can we not make it as easy as possible for them to make a claim in the event they suffer because of the years of dedicated service to this cause? 

Hopefully, plans are afoot in Richmond to change these laws so this never happens to any firefighters or other first responders who in the future develop cancer or any of the other diseases given a presumption in the law. 

In the meantime, if you have been advised that you are suffering from an occupational disease, please do not wait to contact a worker’s compensation lawyer to assist you. You only have two years from the date that the diagnosis was first communicated to you by a physician to file a claim form with the Virginia Workers Compensation Commission. 

If you have been exposed to toxic chemicals in your line of work, and your doctor supports that your disease came from that exposure, and you’re a member of a Union, know that your Union should be able to steer you in the direction of an expert such as an industrial hygienist, or other such expert, who can assist in proving your exposure to the relevant chemicals in your claim. You may very well need his or her testimony in order to win. 

Joe Miller has been representing victims of on-the-job injuries and occupational disease for over 30 years. If you or a loved one has been injured on the job or suffered an occupational disease, please do not hesitate to call us toll free at 888-667-8295. or complete our online contact form 

Truck drivers are prone to many different types of injuries due to being on the road for long stretches of time and the heaviness of the semi, rig, or whatever commercial truck they’re driving. Often drivers are asked to help out with loading and unloading trucks. Many drivers are involved in truck driving accidents. According to the Insurance Institute for Highway Safety, 4,136 people died in trucking accidents in 2018. 

The Federal Motor Carrier Safety Administration regulates the hours truck drivers can be on the road because of concerns that tired drivers are likely to get into a truck accident. Drivers who carry any type of cargo must follow the following regulations:

• Drivers can drive a maximum of 11 hours after 10 hours of not driving

• Truck drivers “may not drive beyond the 14th consecutive hour after coming on duty, following 10 consecutive hours off duty. Off-duty time does not extend the 14-hour period.”
• Drivers must take rest breaks of at least 30 minutes if they have driven 8 hours or more since their last off-duty or sleeper berth period.
• Truck drivers cannot drive more than 60 hours during 7 consecutive days and cannot drive more than 70 hours during 8 consecutive days. “A driver may restart a 7/8 consecutive day period after taking 34 or more consecutive hours off duty.”
• “Drivers using the sleeper berth provision must take at least 8 consecutive hours in the sleeper berth, plus a separate 2 consecutive hours either in the sleeper berth, off duty, or any combination of the two.”

Causes of truck driver workplace injuries

Truck drivers need to do more than just drive long distances. Some other truck safety concerns include:

• They should follow the traffic laws for each state that they drive in. Accidents on the highway can occur if the driver or any other driver speeds, drives while distracted, takes a turn too fast, fails to merge properly, runs through a stop sign or red light, or for many other traffic violations. Truck accidents can:
  • Cause a truck to rollover
  • Cause a truck to jackknife
  • Cause a truck to veer off the highway
  • Result in a truck colliding with other vehicles
  • Result in an accident for many other reasons
• Load their cargo securely or work with the companies shipping the goods to load the cargo securely. This can include lifting, pulling, carrying, and moving cargo which can easily cause injuries. Workers also need to exert energy and force to properly tie down their cargo.
• Unload the cargo safely. Just as loading cargo can cause workplace injuries, unloading the cargo can cause all types of muscle pulls, aches, and pains. Workers who load and unload cargo can also fall or can be pinned by equipment such as forklifts while helping out with the loads
• Truck drivers may also be asked to use ropes, chains, and blocks to secure the loads and to place tarps and covers over the loads. During these tasks truck drivers can easily strain and pull muscles, develop cuts and bruises, wrench their backs, and fall.
• Inspections. Trucks need to be inspected before each delivery for any signs of trouble such as brakes that won’t work, windshield wipers that need replacement, tires than need replacement or need to be pumped with air, and many other tasks. These inspections can easily cause a variety of truck-related injuries. Normally, workers need to conduct similar inspections after they’ve delivered their loads.

Trucks with heavy loads or shifting loads can be especially hard to control

Truck drivers are most prone to musculoskeletal disorders of the back, neck, and shoulders. They are prone to falls which can cause broken bones and soft tissue injuries. Some falls can result in spinal cord damage or a traumatic brain injury. Truck drivers who are hurt in a motor vehicle accident can die, suffer permanent disabling injuries, including but not limited to severe burns, as well as other injuries that can take a long time to heal. Truck drivers who work with forklifts, especially the Moffett types that are carried on the back of a flat-bed truck, run the risk of a loss of limb and many other serious injuries.

Workers’ compensation benefits for truck drivers

Truck drivers who are injured on the job are entitled to medical payments for any necessary surgeries, doctor visits, physical and occupational therapy, psychological care if needed, the cost of medications, and the expense of any medical devices.

Injured workers in North Carolina and in Virginia are generally entitled to 2/3rds of their lost wages until they are released to return to work by their doctor. This can happen either before or after an injured worker reaches Maximum Medical Improvement (MMI). Workers who reach MMI who have not returned to work will be evaluated to:

• See if they can return to work with any restrictions – such as doing returning to work but not lifting more than 10 or 20 pounds, or refraining from ladder climbing. This is typically accomplished through a Functional Capacity Examination. (FCE). 
• Determine if they have a permanent partial impairment. If so, the worker is assigned an impairment rating related to the body part or parts that were injured. If the employee returns to work, the rating is used to determine if the employee may be entitled to additional money based on the percentage rating of impairment for those body parts. 

Employee versus Independent contractor

A common issue in truck driving cases is whether the driver was an employee or an independent contractor. Generally, only employees are entitled to workers’ compensation benefits. As a general rule, the test in determining the status of a worker is whether the company or person that hired the worker had control over how and when the driver performs his/her duties. Drivers who only work for one company, are paid a W-2, are required to wear a company uniform, and drive trucks owned by the hiring company or person are usually going to be classified as an employee and not as an independent contractor.

On the other hand, truckers who own their own trucks and haul loads for numerous companies are generally going to be considered to be Independent Contractors. 

Virginia and North Carolina Workers’ Compensation Attorney Joe Miller Esq. works with truck drivers and all types of workers to help them get just recoveries. He’s helped thousands of North Carolina and Virginia workers get the full benefits they deserve. He works with your doctors and independent physicians to determine the severity of your injuries and when and if you can return to work. To schedule an appointment, call lawyer Joe Miller at 888-667-8295. or complete my online contact form

In Virginia in 2018, according to the DMV, there were about 819 overall fatalities due to motor vehicle crashes. Out of those, 262 deaths, or about a third, were due to drunk driving. 

Drunk Driving Kills. Period. 

Perhaps you, a loved one or someone you know has been injured or killed in a car accident caused by a drunk driver.  

First of all, if that is the case, I am very sorry this is happened to you.  

Maybe part of you feels that you would like to make sure that this person– this idiot– who decided to break the law in such an egregious way by getting into a multi-ton automobile and drive while drunk should be not just sued, but punished.   Punished beyond the normal way that people are punished when a claim is made against them for damages for injury or death. Not just with a slap on the wrist. 

So that perhaps people will hear about this and be deterred from driving drunk.

Well, our lawmakers here in Virginia were well aware of this feeling and passed laws that make it easier for you or your loved ones who were injured to recover more damages than usual in a case where the defendant was driving drunk at the time of the accident.

The law says that in certain circumstances, in addition to regular damages, a jury may award something called punitive damages. These damages are in addition to the normal damages that a jury might award an injury case, such as for medical bills, lost time from work, and pain and suffering.

Punitive Damages are awarded where the defendant’s conduct is so bad that it shows a conscious disregard for the rights of others. This bad conduct is referred to in the law as “willful and wanton” conduct.   What does that mean?

The good news is we don’t have to worry about what that means, because the law sets it out by way of statute, by giving the injured person a series of presumptions they will be entitled to. 

What does that mean, a presumption? That means that if you’re injured, or a loved one has been killed and been hit by a drunk driver and you prove these particular things, you are going to be entitled to have the jury find an award in your favor against the defendant, for punitive damages. 

The bad news is that if you don’t get to the level of these presumptions, you’re probably not going to have a punitive damages case in Virginia. Why? Because the Supreme Court in Virginia is pretty picky about awarding punitive damages outside of drunk driving cases. 

What kind of presumptions are we talking about?

The first is that there is a presumption that the defendant acted willfully and wantonly, if, at the time of the accident, the defendant had a blood alcohol level of .15, either by blood or by the breath method.  Along with that, you must prove that the fact that the person was drunk at the time of the accident was a proximate cause of the accident. 

Of course, there must be a certificate of analysis presented according to the law in order to prove this blood alcohol concentration of .15 or above. 

Now many of you probably already know that the legal limit to be considered intoxicated in Virginia at this time is a blood alcohol concentration of .08.  But that’s not enough to get you this presumption in Virginia. That’s because generally in Virginia, as I mentioned a minute ago, punitive damages are not favored. In other words, the Supreme Court of Virginia does not like to grant them and will routinely strike down cases where people are trying to show punitive damages.

But once you can prove these presumptions, it should not be a problem getting to punitive damages, because once you get a .15 BAC, it’s also presumed that the person basically knew that if they drank and got in a car that their ability to operate that vehicle was going to be impaired. That means they were by definition engaging in willful and wanton conduct, and there is your punitive damages claim.

By the way, this also applies to someone operating a motorcycle or a locomotive, not just a car. 

What if you are just shy of the amount? In other words, what if the certificate comes back and it says defendant’s BAC was .13 or .14? Does that mean you don’t have a punitive damages case?

The answer that is usually no, you still may have a punitive damages case. Why? Because you must remember that most of the time when the blood alcohol test is given, hours have passed since the defendant was hauled away from the accident scene by police. 

During that time, the alcohol in his or her system has continued to metabolize. 

Remember, the question is not what the blood alcohol concentration of the drunk driver was two hours later when their blood was drawn and the test given. The question is what was the blood alcohol concentration of the drunk driver at the time of the collision?

How do you prove that?  By obtaining the services of an expert such as a toxicologist, your attorney can prove in court that in fact, even though the certificate came back at a .13 or .14, that in fact the defendants BAC levels likely exceeded the .15 threshold at the time of the accident. There are several toxicologists out there who are very knowledgeable about blood alcohol concentrations, and routinely give their testimony in court. 

So– is the .15 blood alcohol level the only potential presumption in a drunk driving injury case?

No, there is also a presumption that if you can prove the defendant unreasonably refused to submit to either the blood or breath test, and you can prove they were drunk at the time of the accident by other evidence such as field sobriety tests conducted by the police officer at the scene, then you can get to punitive damages Award by the jury that way as well.

How much can you potentially get for punitive damages in Virginia? 

Currently, in Virginia there is a cap on the amount of punitive damages in VA, which is limited to $350,000.00

But remember, this amount is in addition to whatever award the injured person is given for their regular damages, which may consist of payment of medical bills, lost time from work, and pain and suffering.

Now just as a reminder-and this is so important that it bears repeating over and over again -remember that even though the damages from a drunk driving car accident or any catastrophic wreck might be horrific, as a practical matter, you are always going to be limited to whatever motor vehicle insurance coverage is available in the case. That means if the defendant is driving around with the minimum limits in Virginia of $25,000—which I can tell you many folks are– and your underinsured coverage does not exceed that amount, then that is all you’re going to get, even if you have $1 million in medical bills from the accident.

Please, please do not fall for these ridiculous commercials constantly on TV promising you lower rates. Sure, you may have lower rates, but what policy did you buy, what coverage do you have? Sure, they’ll save you 15% in 15 minutes if you’re going to buy a piece of junk policy, compared to something that gives you sufficient coverage.

I implore everyone, please buy as much car insurance coverage as you can possibly afford, preferably at least $300,000 in liability, uninsured, and UIM coverage.  That coverage is there to protect you in the event you are loved one or in your household is hit and injured severely by someone who was driving around with low or no insurance coverage. 

Joe Miller, Esq. of Joe Miller Law, Ltd, has been representing the injured for over 30 years in Virginia. He routinely helps victims of drunk drivers with these cases. If you are a loved one has been injured by a drunk driver please do not hesitate to call us at 888-667-8295 or utilize our contact form.  Also, if someone close to you has been killed by a drunk driver, we can help with that as well by representing the Estate of the victim to recover damages for those left behind, those whose lives have been shattered by a careless drunk driver. 

As North Carolina and Virginia get ready for lower temperatures, it helps to consider some of the causes of cold weather injuries. While many conditions are more severe in northern states; southern climates do experience snow, ice, frost, and winter chills. The effects of cold weather are most prominent among anyone who works outdoors – such as construction workers and agricultural workers. Other workers who are in danger of cold weather injuries include:

• Workers who build and maintain roads
• Airport personnel
• Dock workers
• Workers who work in food storage, processing, and packing
• Window cleaners
• Public safety workers such as police, firefighters, and emergency technicians
• Postal workers
• Trash collectors and sanitation workers

The good news for anyone who works in cold weather or is affected by cold weather is that that as long as the accident occurred during work, the employee should be able to file a work injury claim – without the need to prove an employer was at fault for not salting the ice, providing warning signs, or taking other precautions.

Causes of cold weather injuries

Some of the many different types of winter workplace injuries that occur during cold weather are:

• Slips and falls because snow and ice was not cleared from sidewalks, parking lots, and other outdoor sites
• Slips and falls because workers and visitors track melting snow water and dirt into the entranceways of the workplace building
• Vehicle accidents due to cold weather. Ice, especially black ice which isn’t readily visible, can easily cause a driver to lose control of his/her vehicle. Truck drivers who are injured while delivering goods, construction workers who use vehicles at construction sites, and salespeople who are on the road – all can claim workers’ compensation benefits if they are hurt in a car or truck accident while on company time.

Employers should take extra precautions to:

• Ensure their workers are properly dressed for the cold
• Ensure that vehicles are inspected so they don’t break down on the roads
• If necessary, make sure vehicles are equipped with appropriate snow tires
• Ensure that machines and equipment are in working order if they are to be used outdoors or in cold conditions
• Make sure they review weather forecasts and plan accordingly

Hypothermia, Trench foot, and Frostbite

Hypothermia is a major risk for workers who work outside or who work inside where there isn’t a proper amount of insulation or heat. Often, it’s the inside workers who are at most risk for hypothermia because outside workers take steps to prepare for working in the cold starting with making sure they are properly dressed. 

Hypothermia is the falling of the body’s temperature below 95 degrees, 3.6 degrees below the body’s normal temperature of 98.6 degrees. Hypothermia, if not treated promptly, can be threaten a worker’s life. The disorder can cause cardiac failure and breathing difficulties. Survivors may suffer gangrene and frostbite – especially in their fingers and toes.

Some of the symptoms of hypothermia include:

• Shivering
• A pulse that is weak
• Speech that is slurred
• A lack of coordination
• A poor pulse rate
• A lack of energy
• Tiredness and fatigue

Some of the key risk factors for hypothermia in workers include:

• Being in the cold for long stretches of time
• Getting wet
• Inadequate clothing
• Poor heating systems

Wind is an extreme risk factor for hypothermia because it lowers the effective temperature and can remove the warm air at the skin level. Areas that aren’t properly protected are especially vulnerable to losing heat. Contact with ice and other cold surfaces can also increase the risk of hypothermia.

Other risk factors for hypothermia include drinking alcohol, the use of drugs, some medications, the age of the worker, and how tired the worker is. Workers who are exposed to cold should dress in layers, keep dry, and pay special attention to keeping their head, hands, and face warm. Employers should allow for extra break times in cold weather. Employers should also rotate their work force more often so no worker is in the cold for too long.

Trench foot. This condition occurs when the foot is wet. To stop any heat loss, the foot’s blood vessels constrict, which can cause circulation to be shut down. If not treated correctly and in a timely manner, the constrictions can cause tissue to die. Some of the symptoms of trench foot include blisters, redness of the skin, swelling, and numbness.

Frostbite. The disorder occurs when the skin and the tissues underneath the skin begin to freeze. Usually, frostbite occurs in the toes and the fingers – so that the body can keep the vital organs working. Any worker whose skin turns white or gray, whose skin becomes hard, or who develops blisters or numbness should be treated by medical professionals immediately.

Workers who suffer hypothermia, trench foot, frostbite due to direct exposure to the cold or suffer broken bones and other injuries due to workplace accidents have the right to file a work injury claim. The claim should include:

• Payment of all medical bills including doctor visits, hospital stays, and medications
• Compensation, primarily at the 2/3rds rate of their lost wages for the time they can’t work
• If any part of the body requires amputation, the worker may be entitled to statutory benefits for a permanent disability.

North Carolina and Virginia workers’ compensation Lawyer Joe Miller Esq. has been fighting for injured employees for more than a quarter of a century. He’ll fight the efforts of the insurance company to deny or limit your claim. He’ll contest every attempt to force you back to work before you’re ready. His priority is helping you get all the medical benefits and lost wages the state laws permit. To review your rights and to speak with a strong advocate, call attorney Joe Miller at 888-667-8295. or complete my online contact form

Workers Compensation Lawyer Joe Miller of the Work Injury Center explains the importance of giving a good, consistent history of your work accident to all of your health care providers:

Workers Compensation Attorney Joe Miller discusses what to expect after your settlement demand is sent off to the insurance company:

Workers Comp Lawyer Joe Miller explains three of the most common misconceptions surrounding workers compensation:

Workers Compensation Lawyer Joe Miller talks about the negative consequences to your case if you miss your doctor’s appointments or physical therapy appointments when you are under an Award in Virginia or an Accepted Claim in North Carolina.

Workers Compensation Lawyer Joe Miller warns anyone who has been seriously injured: Big Brother is Watching You! It is relatively inexpensive for the workers compensation insurance company to hire a private investigator to film you whenever you are outside your home, and even inside your home if the windows are open. If you are on work restrictions, you should always assume you are being videoed. If you are doing anything beyond your restrictions, the insurance company would just love to show that footage to your doctor and get you released to full duty. Be smart. Do not give them that opportunity. For more info, please visit us online at www.TheWorkInjuryCenter.com

Although he is not a doctor, Workers Compensation Lawyer Joe Miller explains what he observes as the the downside of rejection of all pain treatment and medication based on an irrational fear of getting “hooked.”