Psychiatric or Psychological Treatment in a Worker Compensation Case

Posted on Wednesday, July 29th, 2020 at 1:19 pm    

Workers Compensation Attorney Joe Miller explains the advantages of not ignoring significant psychological issues that may be related to your severe, catastrophic work injury. Getting the right psychiatric treatment, and not being ashamed to do so, could mean the difference between getting a small settlement, or substantial settlement in your workers comp case.

Additional Mistakes Employees Make In Their Workers’ Compensation Cases

Posted on Wednesday, July 22nd, 2020 at 9:54 am    

In addition to the errors of judgment we reviewed in the first part of our discussion on employee mistakes in workers’ compensation, employees also need to avoid the following workers’ compensation mistakes:

  • Not filing a claim within the statute of limitations. The North Carolina and Virginia state workers’ compensation claims require that all claims within a specific time period – typically two years. If you fail to file a claim within this statutory period even if you have a lifetime disability, your claim will be denied. In Virginia, this is done with a Claim Form, and in North Carolina, a Form 18.  An experienced workers’ compensation will review your claim and work to ensure it is filed in a timely manner. As a general rule, workers should consult with legal counsel immediately after a workplace accident occurs or a workplace illness prevents them from working. The earlier a claim is filed; the sooner you may receive medical treatments and the sooner you may begin receiving your fair share of wage losses.
  • Nor reporting all your symptoms. Your physician can only respond to your complaints. He/she can’t run a computer scan of your whole body. The more you tell your doctor about each and every little thing that is hurting you as a result of your work injury, the better the doctor can prepare a treatment plan to treat all your injuries. Also, when the time comes to file your claim, if the employer agrees to accept the claim, they will typically only agree to those items which you complained about to your treating physician that are part of the medical record. If you failed to mention it, they will not agree to make it part of the claim.  
  • Not getting the names of witnesses. Even though fault should not be an issue in workers’ compensation cases, there are times when it becomes critical to have witnesses who will support your claim, particularly if the employer disputes the way the accident occurs. You do still need to prove that an accident occurred while you were doing your job. For example, if the employer claims that you violated a known safety rule by not following directions, then if anyone was present while those directions were given to you, then that would be someone you or your attorney would want to speak with. Also, if you have witnesses who say that the “safety rules” were non-existent or not followed that would be help as well in such a case.  Injured workers should aim to get the names and contact information of the witnesses to their accident, or other witnesses who can help fight whatever defenses the employer is trying to bring to bear in your case. 
  • Posting about your injury or case on social media. Workers need to understand that insurance companies will review your Facebook, Twitter, Instagram, and other social media accounts. The moment they find a post or picture that shows you are healthier than you claim or that the injuries were due to causes other than your job, the insurance company will seek to terminate your benefits. Better to post nothing in relation to your injuries at all. 
  • Handling your workers’ compensation claim on your own. An experienced workers compensation attorney understands how to process your claim. 
    • The lawyer will work your physicians do fully document your medical condition, sometimes ordering opinion letters from your doctors containing the “magic words” that need to be recited for the Commission to be persuaded by your doctor’s opinions;
    • The lawyer will contest efforts by the insurance company to force you back to work before you are sufficiently recovered from your injuries;
    • The lawyer may be able to help you change physicians when the company doctors aren’t fighting to improve your health;
    • The attorney will explain your rights and obligations if the employer hires a nurse case manager;
    • The workers’ compensation lawyer will explain what types of disability payments you’re entitled to;
    • The attorney will work to show you have a permanent disability if you do;
    • The attorney will explain that cases shouldn’t be settled until you have reached maximal medical improvement and will follow your progress to take appropriate action when that point is reached; 
    • The attorney will explain the role of the vocational rehabilitation counselor and guide you through that difficult experience;
    • The work injury lawyer will negotiate a strong settlement which ensures that you are receiving all the benefits you deserve, that any Medicare Set-Aside issues are addressed, and that many other settlement issues are negotiated properly on your behalf;
    • The attorney will explain the difference between a workers’ compensation case based on an accident and a case based on an occupational disease;
    • The work injury lawyer will explain that once you settle your claim, you can’t renegotiate the settlement if your medical condition worsens;
    • The workers compensation lawyer will file a motion for penalties against the workers compensation carrier and employer if your workers compensation check is legally considered to be “late.” 
    • A skilled workers’ compensation lawyer will help you with many other issues depending on your injuries, the type of work you do, your medical condition, and any other issues
  • Thinking that workers’ compensation benefits are discretionary. Both North Carolina and Virginia require that employers carry workers’ compensation benefits for their employees. We’ll explain which employees are covered (generally most employees are covered). 
  • Thinking that you don’t qualify because the employer labeled you as independent contractor and not an employee. The employer does not have the final say on whether you are an employee or an independent contractor. You do have the right to challenge your employment status even if the employer pays you by giving you a 1099 instead of a W-2. Whether you are an employee or an independent contractor depends on many different factors. The main factor is whether the employer has the right to control when and how you do your work. Employees have the right to file a workers’ compensation claim in both North Carolina in Virginia. Injured independent contractors must generally file a personal injury claim.
  • Thinking that fault is a factor. In workers’ compensation cases, you do not need to prove the employer was negligent or careless. There is a trade-off. Workers who are eligible for workers’ compensation are not entitled to pain and suffering and they only get about 2/3 of their lost wages. The trade-off is that that they don’t have to prove fault. There are a few exceptions that an experienced workers’ compensation lawyer can explain. For example, you may not be entitled to workers’ compensation benefits if:
    • You were drunk or under the influence of narcotics at the time of the accident and your impaired state caused the accident.
    • You intentionally caused the accident.
  • Thinking you can see the doctors of your own choosing. Workers are normally required to treat with a doctor that the employer chooses. More specifically, employers have the right to provide a panel of doctors. The worker then picks one doctor from that panel. There are some exceptions to this requirement. If you need emergency medical care, a worker has the righto to go the nearest hospital or emergency medical care center. If you have been treating with the company doctors for a sufficient period of time and there is no improvement, you generally have the right to ask for an independent medical review. Based on that review, you may be granted the right to treat with doctors you choose.

North Carolina and Virginia workers’ compensation attorney Joe Miller Esq. works with your doctors to help document your injuries. He guides injured and ill workers through each stage of the claims process. He understands the arguments and positions insurance companies and lawyers for the employer usually assert. To pursue your workers’ compensation case with an experienced work injury lawyer, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295. or complete our online contact form to schedule an appointment.

Common Mistakes that Can damage Your North Carolina or Virginia Workers’ Compensation Case

Posted on Wednesday, July 22nd, 2020 at 9:53 am    

Workers have the right to file for workers’ compensation if they are an employee, if they are hurt on the job, and if the injuries they suffer stop them from working. Workers may also be entitled to work injury benefits if they suffer an occupational illness due to their job. There is no requirement to prove the employer was at fault. The claims process is normally easier than in a personal injury case. Still, there are many mistakes employees can make that can hurt their case. Just one key mistake can affect your entire claim or your ability to get all the compensation you deserve.

The insurance companies for the employers will be looking to take advantage of any mistake to deny your claim or reduce your benefits. The best course of action is to speak with an experienced workers’ compensation lawyer as quickly as possible. An experienced work injury lawyer will guide you through each stage of the litigation. 

Key mistakes workers should avoid

Some of the key errors experienced North Carolina and Virginia workers’ compensation lawyers help their clients avoid are:

  • Waiting to get medical help for any injuries. Employees shouldn’t try to be heroes by refusing medical treatment. Many minor injuries have hidden symptoms. Delay can make a minor injury become more serious. 

Employees should seek help so the injury can be examined, diagnosed, and so a treatment plan can be implemented. Seeking medical help also verifies the injuries. Insurance adjusters may try to argue that the delay means the injuries aren’t that serious. They may also argue that the injuries were due to some other medical condition or some other accident.

Bottom line. Doctors should evaluate your medical condition as soon as possible after an accident.

  • Waiting to report your injury to your employer. Both North Carolina and Virginia require that the employer be given prompt notice of any injuries, actually, in written form, within 30 days of your accident. Most of the time, reporting the injury to your supervisor is sufficient, but ideally, an accident report is much better. This is in part to verify your claim. It is also so the employer can investigate the underlying causes and work to fix those causes so other workers aren’t injured.

In addition, if you suffer a workplace injury, your private doctor may not be able to help you. If your injury is severe and a true emergency that requires surgery or other corrective measures, than the surgeon who treats you in the hospital will usually become your treating physician by default. 

In other scenarios, employers have their favorite providers, usually some type of franchise medical provider such as Patient First, where they will direct you first. 

In Virginia, that is actually not appropriate. Workers’ compensation rules require that employees who are not in emergency situations be provided by the workers compensation insurance company with a list or “panel” of three different health care providers for the employee to choose from. Again, barring a severe, emergency situation, failure to treat with a doctor on the panel in Virginia can affect your rights to workers’ compensation if you later decide to pursue your work injury claim. 

Your choice in treating doctors in North Carolina is unfortunately more restrictive than Virginia.  Unless the injury is severe enough to require immediate hospitalization, the employer and workers compensation carrier typically exercise complete control over your medical treatment. There is no requirement for a panel of doctors in North Carolina; however, North Carolina does have some other provisions allowing for an independent medical examination with an agreed-upon physician that Virginia does not. 

Failing to utilize an authorized doctor can have other negative repercussions. If you attempt to treat for a work accident utilizing your own health insurance, your insurance company may deny coverage on the basis that your employer should be paying for the medical care. 

In North Carolina, the Industrial Commission will typically pay no attention to the opinion of any doctor with whom you treat who was not approved or authorized to treat you by either the workers compensation insurance company or the Industrial Commission itself. 

In Virginia, non-authorized physician opinions carry less weight than the opinion of your authorized treating doctor, but the Commission will consider those opinions nonetheless. 

  • You assume the employer and the insurance carrier have your best interests at heart. It’s a mistake to assume your employer and insurance carrier will automatically pay you if you are injured – even if it’s 100% clear that you were injured while doing your job. It’s also a mistake to assume that – if the insurance company pays you – that it will continue to pay you. The insurance company is only obligated to pay you in Virginia when there is an Award Order approved by the Virginia workers’ compensation commission. If the employer is paying you without a formal order, they can stop paying you as soon as you are released to light duty.  You’ll then have to seek legal counsel and engage in several steps, including a Hearing, to obtain the formal order. It’s better to seek legal counsel right away – even if the employer and insurance carrier sympathize with you.
  • You fail to keep proper medical records, especially work notes. You can’t be paid if there aren’t medical records to support your claim. You can’t successfully counter any effort by the employer to deny your benefits such as arguing you’re fit and can return to work – unless you have proper medical records, which most importantly include the doctor’s note which either gives you an excuse to be out of work completely, or provides you with physical restrictions what allow you to work only within those physical restrictions due to your injuries.  While your doctors will have their own records, it’s up to the employee to have those records as well. When the time comes to file your claim, along with those filings must be records which act as proof of your injuries on the job as well as your ongoing inability to return to that job due to your injuries. Without those records, you have no case.  You should also keep records of the cost to get to and from the doctors if you take public transportation or use a private service such as a taxi or rideshare. You should also document all your symptoms and questions so that you can review the symptoms and questions with your health providers each time you see them.
  • You don’t follow your doctor’s orders.  There are two primary reasons you need to follow your doctor’s medical advice – as best as you can:
    • Your doctor is trying to help you. If you don’t follow his/her advice, your recovery may be in jeopardy. If there is a reason for not following the advice, such as that the treatments are increasing your pain, you should review those concerns with your doctor.
    • The insurance company may try to deny your claim. Insurance companies routinely argue that employees should lose their workers’ compensation wage benefits and that their future medical bills should no longer be paid by the insurance company – if you stop following the doctor’s orders. Insurance companies generally have the right to assume the medical advice you are getting is competent. Any failure to follow a doctor’s orders (unless there is a very good reason) can result in a request to terminate your benefits. 

To make things worse, insurance companies often hire nurse case managers who basically act as spies for the insurance company to check to see if you are indeed following the medical advice of your doctors. I always tell my clients—don’t give them the satisfaction of messing up your case by you not following your doctor’s advice. 

Now sometimes, there are exceptions. The doctor may actually be incompetent, or  otherwise not providing you with a proper standard of care for your work injuries. In those rare situations, there are remedies and things that can be done to change treating physicians. This would have to be discussed with a competent workers compensation attorney. 

  • You think that you are going to get away with be secretive or about a previous injury to the same body part. One of the worst things you can do is lie to your doctor and/or your attorney about previous injuries or accidents to the same area of your body you injured in your work accident. You must understand that the workers compensation insurance company has vast resources at its disposal to discover all of your previous medical care, and the law gives them the right to investigate all of that when you bring a workers comp case. Doctor-patient privilege does not apply. So, one of the worst things you can do is be untruthful to your treating doctor. It will ruin your credibility with the doctor, and even more importantly, with the Deputy Commissioner who will hear your claim. Moreover, by lying about your medical treatment, you make it almost impossible for your attorney to present a “clean case” to the Deputy Commissioner for a decision. Before you even enter the Hearing room, you already have several strikes against you. 

 

Also, understand that unless you were still in active treatment for a previous injury to the same body part at the time of your work accident, it is extremely rare in workers compensation cases that a prior injury or other pre-existing condition will derail a case. The law recognizes that an aggravation of a pre-existing injury is considered a new injury. Your case will likely be fine. That is, unless you try to cover up that pre-existing injury by lying about it. Then you have created a problem in your case where none existed before. 

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands the ins and outs of filing a workers’ compensation. For more than 31 years, he has helped thousands of injured workers get just recoveries. To speak with an experienced North Carolina and Virginia workers’ compensation lawyer, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295, or fill out our online contact form.

Workers Compensation Case – Nurse Case Manager

Posted on Friday, July 17th, 2020 at 4:14 pm    

Workers Compensation Lawyer Joe Miller here explains the role of the Nurse Case Manager, particularly in Virginia. According to the law, they are supposed to help facilitate your treatment with your doctors. In reality, at least in Virginia, the Nurse Case Managers tend to act as proxies for the workers compensation insurance companies, and their primary interests are therefore aligned with them–which means–get you back to work even before you are ready, get you to the insurance-friendly doctors that they want you to see. and to the facilities that will skew your case in the insurance company’s favor.

The Occupational Injury and Illness Classification System (OIICS)

Posted on Tuesday, June 23rd, 2020 at 8:55 am    

According to the Centers for Disease Control and Prevention, “the Bureau of Labor Statistics (BLS) developed the Occupational Injury and Illness Classification System (OIICS) to characterize occupational injury and illness incidents.” There are been several revisions to the original system. The OICS breaks down workplace injuries and illnesses into the following four categories:

  • Nature of the injury or illness. The principal physical characteristic(s) of the injury or illness.
  • Part of Body Affected by the injury or illness. The part of the body directly affected by the previously identified nature of injury or illness.
  • Source and Secondary Source of the injury or illness. The objects, substances, equipment, and other factors that were responsible for the injury or illness incurred by the worker or that precipitated the event or exposure.
  • Event or Exposure. The manner in which the injury or illness was produced or inflicted by the source of injury or illness.

Each of the four categories is broken down into further subcategories. The categories include definition and examples. Some of the relevant sections, that may be used to assess workplace injuries and illnesses are the following. In many cases, an injury or illnesses may be categorized in another part of the OICCS

Event or Exposure

 

  • Violence and Other Injuries by Persons or Animals

 

    •  This category covers “violence and other injuries by persons or animals.” It includes intentional injuries, injuries with weapons (such as firearms and tools designed to be used as weapons) – regardless of intent. It also includes “injuries involving direct physical contact with persons, animals, or insects regardless of intent.” Unfortunately, this has become more of an issue these days, due to workplace violence and mass shootings. 
    • The category doesn’t include injuries due to overexertion or bodily reactions such as running after a suspect or being unintentionally hit by a box thrown or dropped by another person. It also doesn’t include unintentional drug overdoses and “exposures to infectious agents unless intentional or transmitted by an insect or animal bite.”
  • Transportation Incidents. The category includes transportation vehicles, powered industrial vehicles, powered industrial equipment involving at least one vehicle (or mobile equipment) –“and the injury or illness was due to collision or other type of traffic incident; loss of control – or a sudden stop, start, or jolting of a vehicle regardless of the location where the event occurred.”
    • There are additional requirements for transportation accidents involving pedestrians, roadway workers, and other non-passengers struck by a vehicle or other qualifying vehicles or powered equipment.
    • The category applies to many different vehicles including railway vehicles, animals and other non-motorized transportation, aircraft, water vehicles, roadway accidents, and pedestrian accidents. The category includes cars, trucks, RVs, motorcycles, buses, amusement park rail vehicles, canoes, fishing boats, Segways, snow mobiles, forklifts, and other listed vehicle types.
    • Falls “on or from vehicles are transportation incidents if the vehicle was in normal operation.”
    • This category doesn’t include events such as injuries due to the vibration of a vehicle, carbon monoxide poisoning, spilling hot drinks where there’s no collision, gear slips, and other specified incidents.
    • Vehicles that doesn’t fall into this category include, “dollies, carts, wheelbarrows Nonindustrial, non-roadway mobile equipment Wheelchairs–motorized and nonmotorized, stretchers, and wagons.”
  • Fires And Explosions. This category includes cases where a person falls or jumps from a burning building, inhales harmful substances, or is pinned or struck by objects due to the explosion or fire. The category also includes “incidents in which the worker was injured due to being trapped in a fire or whose respirator had run out of oxygen during a fire.” It doesn’t include fires or explosions caused by transportation accidents or intentional actions – which are covered elsewhere. It includes a variety of injuries to firefighters such as injuries from lifting hoses, arson and falls in a parking lot of a burning building. 
    • Injuries due to direct contact with flames from controlled sources such as stove tops that someone in a restaurant kitchen might suffer; and burns due to touching ovens, grills, and burners – are covered elsewhere.
    • In addition, many times folks who come through such experiences, as well as workplace violence will still suffer terrible psychiatric effects long after the physical injuries have healed. Our firm deals with many cases like this, which typically involve development of Post Traumatic Stress Disorder, or PTSD
  • Falls, Slips, and Trips. These include “falls on the same level, falls and jumps to lower levels, falls and jumps that were curtailed by a personal arrest device, and slips and trips that do not result in a fall.”
    • Falls that are covered in other sections includestepping to a lower level (such as, off a ladder, out of a vehicle, or off a curb), falls through openings in floors, or falling into a body of water. 
  • Exposure to Harmful Substances or Environments. Over time, long-term exposures to noise or other harmful substances such as asbestos, silica, or trichloroethylene (TCE) can result in severe impairments, such as asbestosis, cancer, brain damage, and death. 
  • Contact with Objects and Equipment. This category applies to contact between the injured person and the source of injury unless the contact is covered in another category such as a fall or a violent act. The category doesn’t include workplace contact with other people or animals. It also doesn’t include exposures to hot or cold objects or substances, contact with electrical currents, exposure to toxins or allergic substances, and exposures to infectious agents. Those contacts are generally covered in other categories.
  • Overexertion and Bodily Reaction. This category applies generally to non-impact injuries or illnesses that result from “free bodily motion, from excessive physical effort, from repetition of a bodily motion, from the assumption of an unnatural position, or from remaining in the same position over a period of time.”
    • Further subcategories include:
      • Overexertion and bodily reaction, unspecified. Examples include lifting, pushing, pulling, turning, holding, carrying, wielding, throwing, and catching
      • Overexertion involving outside sources
      • Repetitive motions involving microtasks 
      • Other exertions or bodily reactions 
      • Multiple types of over-exertions and bodily reactions 

North Carolina workers’ compensation lawyer Joe Miller Esq. has helped thousands of workers in North Carolina and in Virginia get just recoveries for a wide variety of workplace injuries. He’s been fighting for employees for more than 31 years. He has the experience and resources to fully document your medical expenses, your lost wages, and any other related work injury costs. He’ll fight to get you a strong recovery. To schedule an appointment with a respected work injury lawyer, is please phone Joe Miller, Esq., at 888-667-8295. or fill out my online contact form

Wounds, Bruises, and Workers Compensation Claims

Posted on Monday, June 22nd, 2020 at 8:46 am    

The Occupational Injury and Illness Classification System (OIICS) of the Bureau of Labor Statistics classifies surface wounds and bruises according to several categories. Surface wounds are a form of traumatic bruise or injury that occur on the surface of the body and “generally do not involve open wounds.” “Generally, a traumatic injury or disorder is the result of a single incident, event, or exposure over the course of a single shift.” 

The OIICS guide is a useful resource for classifying a wide range of workplaces injuries and diseases. Cases that are categorized as traumatic bruises or injuries don’t need to be “consistent with the Occupational Safety and Health Administration (OSHA) recordkeeping definition of an injury or whether the employer reported the case as an injury or illness on the OSHA log.”

Some surface wounds such as mosquito bites and foreign object in the eye are categorized elsewhere in the OICCS. The subcategories for surface wounds are the following:

 

  • Unspecified wounds and bruises. 

 

  • Abrasions and scratches. This group includes “traumatic injuries where the skin, mucous membrane, or superficial epithelium have been removed or marked, usually as a result of rubbing, scratching, or scraping.” 
  • Blisters. This category includes “the localized collection of fluid in the epidermis associated with friction or impact.” The category includes blood blisters and friction blisters but doesn’t’ include blisters associated with burns which are categorized elsewhere. 
  • Bruises and contusions. This category includes “injuries that produce capillary hemorrhaging with the skin remaining intact.” Examples include bruises and contusions (with or without swelling), hematomas, “black eye, ecchymosis, hyphema, and contusions resulting from nonvenomous animal bites, bruised bones.” It doesn’t include concussions, non-traumatic and traumatic cerebral hemorrhages, and other related injuries which are categorized elsewhere.
  • Multiple surface wounds band bruises. This category includes multiple injuries and disorders of equal severity.
  • Surface wounds and bruises, n.e.c. This category includes mosquito bites and other minor nonvenomous insect bites

Other wound injuries may be categorized as

  • Traumatic injuries to bones, nerves, spinal cord
  • Traumatic injuries to muscles, tendons, ligaments, joints, etc.
  • Open wounds
  • Burns and corrosions
  • Intracranial injuries
  • Effects of environmental conditions 
  • Multiple traumatic injuries and disorders
  • Other traumatic injuries and disorders 

Many workers in a variety of industries suffer surface wounds and bruises. While surface wounds and bruises may not appear serious on first inspection, they can become serious if not treated properly. Surface wounds and bruises can cause a worker to miss significant time from work.

What causes surface wounds?

Surface wounds and bruises are common work injuries. If they result from a workplace accident, an employee has the right to seek workers’ compensation benefits, in North Carolina and in Virginia. These benefits include ER care, follow-up medical care, and generally 2/3 of any income loss because the employee can’t do his/her job. Some workers may need to treat with a plastic surgeon. If the abrasions or wounds become infected or cause other related harm, the worker may need to treat with pain management doctors, infectious disease specialists,  nerve and ligament specialists, and other specialists. Workers may also need to treat with psychologists or mental health professionals if the wounds lead to scars or to unsightly physical damage which, in turn, cause emotional harm.

Some of the causes of surface wounds, bruises, abrasions, and related injuries include:

  • Car, truck, or vehicle accidents
  • Accidents due to handling or mishandling of machines, tools, and sharp objects. This includes machines that don’t have proper guards, tools, and machines that aren’t used properly, or if the safety equipment is faulty.
  • Accidents that cause a worker to slip and fall – causing the worker to hit/her head or to injury their arms or legs in an attempt to catch or reduce the impact of the fall

What jobs have a higher danger of causing surface wounds or bruises?

Some of the job categories that have a higher risk for traumatic injuries such as surface wounds or bruises include:

  • Police and security work
  • Firefighting
  • First responders and EMT responders
  • Workers in any type of construction trade
  • Agricultural workers
  • Workers who work in the oil and gas energy sector
  • Mining workers
  • Worker who work on assembly lines or work in manufacturing

Types of injuries that wounds and bruises may bring about or cause

Employees who suffer a wound or bruise may:

  • Develop infections
  • Suffer from internal bleeding
  • Go into shock
  • Develop a fever
  • Have nausea
  • Have some type of skin loss that will need to be treated
  • Have permanent scarring

Your rights if you have surface wounds or bruises

Generally, you must notify your employer or manager about any injuries of any kind as soon as possible. Workers with surface wounds and bruises normally begin their medical care by going to the local emergency room or by going to their family doctor. Whether the worker can return to work may depend on the type of job the employee has. Workers who have jobs that require a fair amount of physical labor may not be able to return to work promptly. Workers who have desk jobs often can return to work unless the wound prevents them from using their hands or eyes. A key factor is whether any complications result.

In all workers’ compensation cases, there is no requirement to prove the employer was at fault for the  injuries. Fault is not a factor in workers’ compensation cases. As long the accident happened at work, happened to an employee during the course of the employee’s job, and the accident caused the injuries – then they employee has the right to file a state work injury claim.

Scarring or Disfigurement

One thing that is important to note is that workers compensation does not compensate injured workers for pain and suffering. Compensation is generally limited to the effect the work injuries have on the injured worker’s ability to work and the medical bills. There may also be some recovery for permanent impairment in a particular body part. 

 One exception to those limits is if there is visible, permanent scarring on disfigurement on a body part that the injured worker hurt in the accident. It must be a body part that the injured worker is not otherwise claiming for impairment. For instance, if there is severe scarring from lumbar (back) surgery, and the injured worker wants to claim a permanent impairment in the lumbar spine in North Carolina (spine impairment is not available in Virginia), he or she would not also be able to claim scarring or disfigurement due to the surgical scars. 

What are the amounts that are available to be recovered? According to N.C.G.S. 97-31 (21) For serious facial scarring or disfigurement, an injured worker can recover up to $20,000.00.  For serious disfigurement to any other part of the body, up to $10,000.00. 

This may not seem like much, but it must be remembered that the workers compensation statutes are primarily concerned with how an injury affects one’s ability to work. So if someone is so severely injured that he or she is unable to return to work, that injured worker would be entitled to up to 500 weeks of benefits at 2/3rds of their average weekly wage, until he or she was able to return to work. 

If the injuries are sufficiently severe, and involve certain categories of injuries that prevent return to any gainful employment, depending on the nature of those injuries, the employee may qualify for lifetime weekly benefits. Even if the employee did not suffer injuries in those categories, if the employee can prove that the work injury has caused a total loos of wage-earning capacity, then after 425 weeks of benefits, that employee may apply for extended benefits, which is some cases may result in lifetime compensation. 

North Carolina workers’ compensation lawyer Joe Miller Esq. works with your doctors and independent doctors to help document your injuries. He fights to get full compensation for all medical expenses for all workplace injuries and illnesses. He also fights to get workers the amount they justly deserve for lost income, for vocational rehabilitation costs, and for any incidental expense. For help with any workers’ compensation claim, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to speak with a skilled work injury lawyer.

FAQs about COVID-19 and Workers’ Compensation in North Carolina and Virginia

Posted on Friday, June 19th, 2020 at 8:45 am    

The National Council on Compensation Insurance (NCCI) has posted a number of questions and answers about how the novel coronavirus is affecting work injury cases across the country. Some of the questions and answers follow. For more information, consult with an experienced North Carolina or Virginia workers’ compensation lawyer to discuss your rights and your claim. The answers are updated through April 30, 2020.

Is COVID-19 compensable under state workers compensation acts?

This is an open question that is being litigated. Workers’ compensation generally covers occupational illnesses that happen through work. Occupational insurance coverage normally does not include illnesses that are just as likely to occur away from work. So, the question being litigated is whether COVID-19 is more likely to occur at work than away from work. Advocates for coverage assert that for essential worker, the question should be answer in the affirmative. They say the healthcare workers, delivery workers, first responders, and other essential workers are more likely to get COVID-19 while serving the public than at home. Some states are passing or considering passing legislation to answer this question. Until the state passes a law, the question will be resolved by the courts on a case-by-case basis.

Where can I find state-specific legislative activity related to COVID-19?

Each state, including North Carolina and Virginia, has passed either legislation, issued executive orders, or both in regard to a variety of COVID-19 business and employment issues.

 So far, as between the two states, only North Carolina has been moving forward with passing legislation to cover workplace illnesses or death of essential workers due to COVID-19. The orders mostly apply to how cases will be conducted. As of the date of this writing, those efforts are still pending. 

You can find a good overview of ongoing State legislative initiatives across the U.S. specifically with respect to coverage of employees exposed to COVID-19  here

An employer has limited operations due to COVID-19. As a result, some employees are placed into new roles for the duration of the pandemic. What classifications could be assigned to these employees?

Many businesses are shifting to online and curbside pickup services. The employees are shifting from working as waiters for example to helping with deliveries. Generally, the main issues will be whether they are considered employees and what their pay is. Employees are entitled to work injury benefits if they are injured while working. Independent contractors are generally not entitled to benefits for a workplace injury – through the state workers’ compensation system. A skilled work injury lawyer can explain what calculations (Pre-Covid 19 or Post-Covid 19) will be used to determine your average weekly wage and whether you qualify as an employee or an independent contractor.

Is there any guidance regarding data reporting and claims coding related to COVID-19?

Yes. New reporting requirements set forth by the Department of Labor and OSHA have been created for employees who contract COVID-19.

Has Congress or the administration taken any specific actions that would directly impact the state-based workers compensation system?

So far, no specific federal legislation or regulatory initiatives that would “impact the workers compensation system” have been acted. There are some indirect affects due to the passage of the CARES act to help employers keep more employees on their payrolls. “The House of Representatives Committee on Financial Services has proposed considering a Pandemic Risk Insurance Act (PRIA).” Other than that, as mentioned in previous blogs, many states either have passed or are in the process of passing legislation that would give first responders or in some cases, all essential workers a presumption that if they contract illness from COVID-19, that it was contracted on the job, and therefore compensable. 

Unfortunately, Virginia is not among those states and as I’ve said in a previous video, this is a travesty and must be addressed when the legislature goes back for its next session in Richmond. I continue to urge all residents of the Commonwealth to contact their state Representatives and urge that legislation is introduced that at a minimum, protects our frontline healthcare workers in the event they contract the virus and become sick. 

On the other hand, North Carolina is moving forward to address this problem with House Bill 1057. Please urge your North Carolina State Legislators to pass this bill into law. 

Does the Families First Coronavirus Response Act (FRCA) address workers compensation, including the treatment of payroll? Will payments by employers for qualified paid sick leave and qualified family and medical leave expansion under the Act be used in the calculation of workers compensation premium?

“None of the provisions of the Families First Coronavirus Response Act (FRCA) expressly apply to workers compensation.” “In March 2020, Congress passed the Act in response to the COVID-19 pandemic. In general, the Act expands food assistance, addresses unemployment benefits, and provides emergency paid sick leave, emergency expanded family and medical leave, and tax credits.”

Th FCRA does modify and expand family and medical leave coverage  (FMLA)– “by requiring employers with fewer than 500 employees to provide paid leave to eligible employees for a qualifying need related to a public health emergency.” “Qualifying need” generally applies to employees who can’t work (or telework) because they need leave care for a child under 18 – if the child’s school or place of care is closed or the childcare provider isn’t available – due to the public health emergency. “Public health emergency” means an emergency with respect to COVID-19 declared by a federal, state, or local authority. Previously, the FMLA only applied to employers with more than 500 employees. 

“The section in the Act on Emergency Paid Sick Leave (EPSLA) provides that an eligible employer will provide an employee with paid sick time if the employee is unable to work or telework for reasons stated in the Act such as:”

  • The employee must comply with a governmental quarantine or isolate order – due to COVID-19.
  • A health care provider has told the employee to self-quarantine due to COVID-19 symptoms.
  • The employee is caring for someone who is required (by a governmental order or a healthcare provider’s directive) to self-quarantine.

North Virginia workers’ compensation attorney Joe Miller Esq. has helped thousands of employees get just settlements and awards. He’s been fighting for injured workers and workers with illnesses for more than 25 years. If you develop COVID-19 or are informed that you need to self-quarantine or stay isolated – preventing your from working, call Joe Miller, Esq., at 888-667-8295. or use my online contact form to arrange to speak with a respected work injury lawyer.

Some States are Making Workers’ Compensation Benefits More Accessible for First Responders and Front Line Workers Who Contract COVID-19

Posted on Thursday, June 18th, 2020 at 8:44 am    

Every state is responding to the COVID-19 pandemic in different ways. One of the common priorities is to provide some protection for the first responders and front line workers who are helping to keep everyone safe and helping to treat those people afflicted with the disease.  You can find a good resource to keep up-to-date with those efforts across the U.S. here

First responders and front-line workers generally include:

  • Police workers
  • Fire personnel
  • EMTs – emergency medical technicians
  • Paramedics
  • Health care providers involved in patient care
  • Correction officers
  • Workers in “essential businesses and operations”

New legislation in Illinois to protect first responders, front line workers, and essential workers

Illinois, according to the National Review, has passed legislation that provides that during the state of emergency, workers who can’t work due to COVID-19 exposure don’t need to prove:

  • “That the exposure arose out of and in the course of employment” or
  • “That the injury or period of incapacity was causally connected to the hazards or exposure from employment.

The legislation, in the form of an emergency amendment, creates a rebuttable presumption that the exposure was employment related and that the incapacity was “causally connected to the hazards or exposure from employment.” The amendment doesn’t force workers in essential businesses and operations to distinguish between onsite work and remote work – even though the risk for onsite workers is logically greater. 

According to the National Review, the media are not considered essential businesses and operations. The rebuttable presumption also doesn’t apply to non-essential businesses and operations – even where workers are required to work onsite to keep the business going. The Illinois legislation is stronger than comparable legislation in other states because it does include workers in essential businesses and operations – in addition to first responders and front line workers. Businesses, according to the National Review article, are not happy that the workers compensation coverage has been expanded beyond first responders and front line workers.

New legislation in Missouri to protect first responders and front line workers

According to Fire Rescue 1, Missouri has also passed workers’ compensation legislation to help first responders and front line workers. The new law creates a presumption that first responders who are either diagnosed with COVID-19 or quarantined due to COVID-19 were exposed to the disease through work. The law is an emergency rule announced by Missouri Governor Mike Parson. It applies to the police, to firefighters, and to other first responders (such as EMTs).

 

The rule takes effect on April 30,2020 but applies retroactively to “first responders who already have been diagnosed with the virus or are under quarantine.” Normally, workers need to prove that they acquired an occupational disease while – on the job.

Jefferson City police officer Jeremy Bowman said that COVID-19 has already affected 8 officers in St. Louis who have the disease and another 55 who are quarantined. Officer Bowman said that many other law enforcement and firefighter departments are have similar results. Officers and firefighters have no way of knowing whether the next person they help or arrest has the disease. 

“Mark Woolbright, with the International Association of Fire Fighters, said he knows of at least 10 firefighters who have tested positive for COVID-19 in the 70 fire districts, fire departments and ambulance districts he represents in St. Louis County and St. Charles County.”

Quarantines usually last for 14 days. Treatment of the disease can involve missed work for weeks or months and expensive medical costs especially if a patient needs long-term hospitalization.

“The St. Louis Police Officers Association, the union representing rank-and-file officers with the St. Louis Metropolitan Police Department, said the emergency rule was a ‘game changer.’”

New legislation in Minnesota to protect first responders, front line workers, and essential workers

EMS1 reported on April 13, 2020, that Minnesota’s legislature passed a workers’ compensation bill for first responders which provides occupational illness protection for certain workers who contract the novel coronavirus. The bill applies to paramedics, firefighters, police officers, healthcare workers, corrections officers, and others. These workers won’t need to prove that they acquired the disease through their work. Any worker who has a positive COVID-19 result will be “presumed to have an occupational disease, thereby making them eligible for workers’ compensation benefits under state law.”

North Carolina is considering changing workers’ compensation for frontline workers due to COVID-19

WCTI12 reported on May 13, 2020 that North Carolina leaders have bipartisan support to provide more workers’ compensation benefits, in the form of legislation, for frontline workers. The law, which has not been passed yet, would provide for a rebuttable presumption.  I referenced this very helpful move by North Carolina Legislators in my last blog on this subject. 

The rebuttable presumption means that police, firefighters, and other front line workers wouldn’t have to prove they developed COVID-19 while performing their duties. Instead, the burden would shift to employers to show the workers contracted the disease away from work. The shift In burden is often the difference between winning and losing a workers’ compensation case.

The legislators are also considering requiring that workers be tested before they can return to work. Workers who don’t test negative would not be allowed to return because they could affect co-workers and the general public. The bill applies to healthcare workers and essential workers in addition to first responders. The bill would also set aside $5 million away for workers’ compensation claims which are filed by employees of the government.

North Carolina workers’ compensation lawyer Joe Miller Esq. is keeping current with new rules and laws that help protect workers’ rights during the COVID-19 pandemic. He understands that many workers are heroes who are risking their lives to keep others safe. They should be protected if they contract the virus or need to be quarantined. To discuss your workers’ compensation rights during this health crisis, please phone Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to speak with an experienced work injury lawyer.

Health Care Workers and Workers’ Compensation Benefits – in the Age of COVID-19

Posted on Wednesday, May 27th, 2020 at 3:20 pm    

Nurses are on the front lines of the COVID-19 crisis, They are helping out in ICU rooms, emergency rooms, and the rooms where patients are trying to stay alive on ventilators. They’re helping out with testing patients for the coronavirus with swabs and by other means.

These new duties are in addition to their regular duties of helping to prepare patients for surgery and participating in surgeries. Nurses help patents recover by monitoring their systems and giving patients their medications, Nurses also provide a variety of physical and emotional tasks such as:

  • Moving the patients
  • Helping the patients walk and go to the bathroom
  • Repositioning patients in their beds
  • Changing the bed sheets

 

Other duties that nurses with more advance training and certifications perform include:

 

  • Speaking with family members
  • Treating the patient under a physician’s order
  • Helping with diagnostic tests
  • Recording the patient’s signs, symptoms, aches, and pains

 

In addition to certified nurses, there are registered nurses, nurse practitioners, critical care nurses, and other types of nurses.

Many nurses work in hospitals. Nurses also work in nursing home facilities, retirement facilities, assisted living facilities, a physician’s office, ambulatory surgery centers, and other outpatient facilities. Some nurses provide home health care

Nurses and workplace accidents

Nurses often suffer one or more of the following types of accidents during their lifetime”

  • Overexertion injuries. Nurses regularly lift patients move them, transfer them to other rooms, and push them while they’re in wheelchairs. They also reach for objects, handle and move medical equipment, and carry medical tools. All these exertions can cause a nurse to wrench a back, twist an ankle, sprain their neck, or cause fractures, soft tissue injuries, ligament damage, and other injuries that require time off from work.
  • Slips and falls. Nurses concentrate on their patients and their tasks. They don’t always look down at the ground as they walk or move. It’s easy to trip over wires, slip on wet surfaces, trip over objects, or slip and fall for a variety of reasons.
  • Violence. Some patients have severe emotional problems. Some patients are admitted because they’ve been shot or hurt due to force. Nurses are at risk of being attacked by a patient with psychological problems or by someone who is upset with the patient.

Injuries from overexertion, slips and falls, and violence include:

  • Fractures
  • Traumatic brain injury
  • Spinal cord damage
  • Back and neck pain
  • Strains of the knee, shoulder wrist, and ankle

Some injuries can force a nurse to lose time from work from months and months. Some victims suffer permanent injuries where they can never return to work or where they can only work with restrictions on how much they can lift, how long they can stand, or other restrictions.

Nurses and occupational injuries

Nurses, especially nurses who work in hospitals, are prone to many types of occupational infections, disorders, and diseases including the following:

  • Exposure to biological dangers, bloodborne risks, airborne diseases, and contagion. Patients are often in a hospital because they have some type of disease or infection. Nurses can contract those diseases and infections through direct skin contact, through blood or bodily fluid that contacts the nurse, through coughs and sneezes, and through other means. Nurses are especially prone to COVID-19. They need to take extra precautions such as wearing special masks, gloves, shoes, and uniforms to decrease the risk of exposure.
  • Exposure to equipment that isn’t sterile and to toxic chemicals used to sterilize medical equipment and medical tools. Ethylene oxide is used to sterilize instruments. It’s a dangerous chemical.
  • Radiation exposure. Nurses who help patients with X-Ray must wear protective gear to reduce the risk or radiation exposures.

Nurses can also be exposed to:

  • Dangerous drugs
  • Latex which may cause allergic reactions
  • Anesthetic gases. For example, nitrous oxide
  • Lasers which can cause severe burns
  • Being stuck by a needle that has dangerous contaminants 

In order to be eligible for workers’ compensation benefits due to an occupational illness, the nurse must show, with the help of an experienced work injury lawyer:

  • That they were an employee
  • That their illness was due to workplace conditions
  • That their illness or disease was more likely due to specific workplace conditions than to similar types of exposures when the nurse was at home or was away from her/his workplace.
  • That it was not caused by anything outside of the workplace

Nurses who are exposed to these diseases may die. Survivors may never be able to work again or may need extensive physical and emotional care to return back to their nursing duties.

Nursing, COVID-19, and workers’ compensation

There’s currently no definitive answer or definitive North Carolina or Virginia law that determines whether nurses who contract COVID-19 are entitled to workers’ compensation benefits. COVID-19 is not listed in the relevant state statutes which govern occupational illnesses and therefore it is going to be considered an “ordinary disease of life” which almost certainly means that any infected healthcare worker who makes a COVID-19 worker compensation claim is going to be DENIED by the insurance company.

The right of nurses and other healthcare workers under the current statutory claim workers’ to claim workers compensation benefits is very doubtful. 

One would think it seems relatively clear that nurses are exposed to COVID-19 through the work they do with COVID-19 patients or with even being near patients who have contracted the virus. On the other hand, nurses could also contract the virus at home, in a park, or anywhere outside their hospital or workplace environment. Generally, the likelihood of a nurse contracting the virus is much higher at work than away from work, but there is a reason it is called a “pandemic.” “Pan” means it’s everywhere. 

Even if a nurse does contract the disease, there are questions about what would be covered. Generally, workers’ compensation covers reasonable medical expenses and a percentage (typically 2/3rds ) of their average weekly salary. For COVID-19, medical bills should include payment for medical testing and any treatments that are required including medications and medical consultations.

But as noted above, under the current laws, all cases would most likely be denied by the insurance company and head to hearing. In fact, our office has already fielded such calls, and an as expected, the insurance companies are, in fact, denying COVID-19 claims

If the injured worker became severely ill and died from the disease, that death would likely occur well before any evidentiary Hearing to decide the matter. Because of the devastating impact of serious COVID-19 on the lungs, it is doubtful the employee could even provide any useful testimony before his or her death. 

In the worst cases, the healthcare worker could die from the disease. In both North Carolina and Virginia, the families of deceased employees are typically entitled to payment for the funeral and burial up to a preset amount and compensation for lost income up to a preset amount of time. For example, death benefits in North Carolina are paid for up to 500 weeks with some exceptions.

Does this situation not seem very unfair, particularly for our frontline healthcare workers who risk their lives for their fellow citizens? Should a nurse or doctor who is dying on a ventilator from COVID-19 have to worry that his or her family will get NO compensation whatsoever through that State’s Workers Compensation System? To further worry that they will have hundreds of thousands of dollars in bills hanging over their head, even if the healthcare worker should recover from the virus? 

The good news is there is an easy fix, which exists for some other diseases already, and that is to provide a presumption in the law for any healthcare worker who becomes ill from COVID-19 that their illness came from work and therefore is compensable as an Occupational Disease. 

Unfortunately, Virginia has seen fit to take no action thus far to provide any such presumption. 

See my video where I have pointed out this horrible situation and pleaded with my fellow Virginians to contact their State Representatives and Senators to pass a bill giving our healthcare workers battling COVID-19 a presumption for workers comp coverage. 

 Many states have recognized this terrible problem facing healthcare workers and other essential workers who become ill from COVID-19  and have taken action. 

Fortunately, in North Carolina two bills under consideration, House Bill 1056 will make COVID-19 or any Coronavirus a covered occupational disease for healthcare workers, and other first responders, and House Bill 1057 provides a presumption not just to healthcare workers, but all workers considered “essential” under Governor Roy Cooper’s Executive Order, that if they contract COVID-19, it will be presumed to be a compensable workers compensation illness.  

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting for injured workers for more than 31 years. He is available to speak with new clients about work injury claims during the COVID-19 health crisis. He understands the legal issues involved in filing claims for all types of accidents and occupational illnesses. For help now, call Joe Miller, Esq., at 888-694-1671 or use my online contact form to talk to an experienced workers’ compensation lawyer.

The Rights of Delivery Service Workers to Workers’ Compensation Benefits in North Carolina and Virginia

Posted on Wednesday, May 27th, 2020 at 3:18 pm    

As the COVID-19 pandemic continues to force the closing of numerous businesses and still requiring many people to stay in their homes, delivery workers have become essential to lives of everyone in North Carolina and Virginia. Homeowners and essential business rely on delivery workers to provide their medical products, their groceries, their entertainment, their clothes, and many other products. Executive Orders issued by the Governors of both Virginia and North Carolina consider such workers to be “essential” to our lives and therefore except from many of the lockdown rules. 

Some food delivery workers have their own vehicles and work for companies like Grubhub, Uber Eats, or others. Many delivery workers are employed by local restaurants. Other types of delivery workers use vehicles owned by retailers and big shipping companies such as Amazon or UPS.

What these workers all have in common is that they may be risking their lives by delivering products through the people they came into close contact with during their workday and the products, packaging, doorknobs, and other things they routinely touch. What they also have in common is that they risk being hurt on the job while getting their delivery items, transporting their goods, and making the delivery to the homes of customers who have made increasing demands on such delivery services due to the lockdowns.  

Unfortunately, in Virginia, as has been explained in a previous article and video, if such a worker contracts COVID-19, he or she will face a very steep uphill climb on denied claim that has little chance of success. 

In North Carolina, on the other hand, at this writing, at the end of May, 2020, there is are two bills currently under consideration by the Legislature in Raleigh which would give all workers deemed “essential” by the Governor to be entitled to a presumption that they contracted COVID-19 on the job if they become ill from it. 

If you reside in North Carolina we urge you to call your State Legislators and Senators to voice your support for House Bill 1056 and House Bill 1057

Why Virginia currently has no similar bill being sponsored or under consideration is a mystery, especially with a Democratic-Controlled Legislature. 

Besides COVID-19, common types of accidents that can occur during a delivery include:

  • Traffic accidents. Even though the roads may be less travelled these days, delivery drivers run this risk of being injured or killed by another driver who speeds, runs through a red light, or is negligent for any reason. The delivery driver can also be harmed if he/she loses control of his/her vehicle for any reason such as the driver’s own negligence, wet roads, potholes, or any condition. While it is critical that the driver be making a delivery for his/her employer when the accident occurs, there is no need to prove fault. There is also a risk as an injured worker crosses the street to deliver a package that he or she can be struck as a pedestrian by a moving vehicle. Fault is not required in workers’ compensation cases. The main requirements are that the employee:

 

    • Have a workplace “accident” and 
    • The accident causes the worker to become injured.

It is very important to also remember that if the injured worker is hurt due the negligence of another driver, he or she would also have what is referred to as a third party claim against the driver, in addition to the workers comp claim. 

At Joe Miller Law, we handle many cases where both types of claims—the Workers Comp and the Personal Injury—as both are necessary to pursue as a result of the same car accident. 

You need to know that the interactions between the realm of Workers Comp and Personal injury can be quite complex and you should definitely not attempt to resolve either claim without consulting an attorney familiar with the complex interplay between comp and personal injury claims.  Settling your PI claim, for instance, without notice to, and permission of the comp insurance company could have grave implications for your comp claim. 

  • Slips and falls. Delivery workers can slip and fall on loose or broken items in the store or company where they work. They can also be injured when they make a delivery because they trip on stairs, fall on slippery surfaces, on broken tiles.

 

  • Overexertion. Delivery workers may need to lift, push, pull, or place heavy objects and boxes while making a delivery and may injure themselves as a result of pushing or lifting an extremely heavy package.  

Other possible delivery service accidents that can cause a delivery worker to lose time from work include forklift injuries, dog bites, and repetitive stress injuries; however, repetitive stress is generally not going to be compensable unless it involves carpal tunnel syndrome. 

The employment status requirement

Generally, workers in North Carolina and in Virginia must be employed by the delivery service, restaurant, retail store, or another business. If a worker is an independent contractor, that delivery worker will likely not be entitled to workers’ compensation benefits.

Experienced workers’ compensation lawyers fight to show that a worker is an employee and not an independent contractor. It is not a determining factor that the employer says the worker is an independent contractor or even if they signed some kind of bogus “contract” or “agreement” that they are an independent contractor. 

Whether someone is classified as an employee or an independent contractor depends on various factors that the Commission will consider. 

At the core of these factors is the ability of the employer to control when and how the worker does his/her job. Some of the factors that help determine employment status include:

  • How the worker is paid. A W-2 implies employment status. A 1099 implies independent contractor status.
  • Who the employer is. Generally, workers who drive directly for a restaurant such as Domino’s or Pizza Hut are more likely to be considered employees than delivery workers who work for a delivery service such as Grubhub or DoorDash.  
  • The hours worked. The more hours a delivery worker works for one company, the more that suggests and employee work status.
  • The tools of the trade. Delivery workers who use company tools and equipment or are required to wear a company uniform provided by the employer are more likely to be considered employees and not independent contractors. If the company provides a delivery vehicle, vs the person using their personal vehicle to make deliveries, that is more indicative of direct employment. 

Occupational illnesses and COVID-19

Generally, workers are entitled to worker’s compensation benefits if they suffer an occupational illness. To qualify, the worker must:

  • Be an employee of the company
  • The illness must be due to workplace conditions
  • The illness or disease can’t be attributable to non-workplace conditions. 
  • The worker should be at increased risk of acquiring the illness due to the type of job he/she does and where the work is done. 

A common example of occupational illnesses that are covered by state workers’ compensation laws are:

  • Workers in coal mines who suffer black lung disease or other respiratory orders
  • Workers who work with asbestos as part of their construction job
  • Workers who suffer heart failure because of the stress of their job such as police work

Most likely delivery workers who develop COVID-19 would NOT be awarded workers’ compensation benefits based on an occupational illness under the current laws. First of all COVID-19 is not in the list of covered Occupational Diseases. Secondly, it would be considered an “ordinary disease of life,” meaning something that could be acquired anywhere, and something to which the public is also exposed. 

This is clearly a very unfair situation, particularly for our cherished healthcare workers fighting the pandemic on behalf of other citizens. How can this be fixed? 

The solution is for the states to pass laws authorizing benefits for COVID-19. Currently, North Carolina and Virginia authorize benefits for some specific occupational illnesses – but COVID 19 has not yet been added to the list; however, as mentioned previously, North Carolina has a bill proposing that it be added to the list of presumed occupational diseases for healthcare workers. 

For some workers, such as healthcare workers, one would certainly think that they are at great risk for contracting the coronavirus because they work with numerous infected patients. For food delivery workers and other delivery workers, a case can be made that they are at increased risk of developing the disease too; however, unless and until the Virginia or North Carolina Legislature remedies the situation by way of passing new laws, any such workers attempting to file a workers comp claim for COVID-19 infection will face a denied claim and a long path to a Hearing before the Commission.  By then, the worker suffering from a COVID-19 infection could very well be incapacitated on a respirator, or deceased. 

This situation is certainly terribly unfair, but there is an easy fix, which is for lawmakers to pass legislation to include COVID-19/Coronaviruses and/or Pandemic diseases in the list of occupational diseases, at least for healthcare workers. Another solution would be to provide a rebuttable presumption that anyone who works in an essential industry during the pandemic who becomes ill from COVID-19 has a compensable workers compensation case. 

As of this writing only North Carolina has under consideration two bills which will fix this unfair situation. House Bill 1056 would count Coronavirus as an occupational disease entitled to a presumption of compensability and House Bill 1057 ,would give a presumption of compensability from pandemic diseases not just to health care workers, but all workers deemed “essential” by Executive Order of the Governor during a pandemic. 

Right now, in our current situation, pursuant to Roy Cooper’s Executive Order, “essential workers”  would include many more workers than just healthcare workers, but also warehouse and delivery workers, and many others.   

Tragically, there is no such bill under consideration in Virginia. See my video pleading with citizens to contact their Virginia State Representatives to voice their concern about this very important issue. 

Should we not at least cover our frontline healthcare workers and give them workers compensation coverage in the event they become ill or die as a result of their exposure to COVID-19? Please call or email your Virginia State Representative or Senator and let him or her know that this is really a travesty and that you demand that this be fixed immediately. Tell them that North Carolina is already ahead of Virginia and tell them about NC House Bill 1056 and 1057. Why has Virginia not stepped up? All they need do is copy the language of the proposed NC Bills, and pass them into law here in Virginia. 

Problem solved! 

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has helped thousands of injured workers get the full benefits they deserve for workplace accidents and for occupational illnesses. He fights to show that you’re entitled to benefits and that you shouldn’t be forced back to work before you’re ready. He then demands payment for all reasonably necessary medical and the percentage of lost wages that you’re entitled to. He also negotiates long-term settlements. To discuss your work injury claim, whether you’re a food delivery worker or any type of worker, please phone Joe Miller, Esq., at 888-694-1671 or use my online contact form to speak with an experienced work injury lawyer.

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