Posted on Wednesday, February 17th, 2021 at 11:06 am
Orthopedists are medical specialists who help to correct bone and muscle deformities such as fractures. They treat the musculoskeletal system. Orthopedists are surgeons who also provide a range of non-surgical medical care. Workers often need the help of orthopedists when they fall, when a body part is crushed (such as in a forklift accident), when something drops on them such as tools from a scaffold, or due to a host of other reasons. In some cases, there is some overlap as between orthopedists and neurosurgeons, most typically in the case of spinal injuries. This is because in addition to bones, the spinal processes that make up the spinal column contain, surround, and protect the spinal cord, which is the main “trunk” or nerve which provides the body with feeling and function. Then again, there are orthopedists who specialize in spinal surgery.
In any event, some of the common reasons workers need orthopedic care include the following:
The human body has more than 200 bones. The human hand, alone, has 27 bones.
Bone fractures, such as leg fractures, are generally categorized in the following ways according to the Mayo Clinic:
Another type of fracture, called a greenstick fracture, is more common in children who are less likely to be employees. With this type of fracture, “the bone cracks but doesn’t break all the way through.”
Doctors will normally conduct an oral and physical examination if they suspect a fracture. They’ll use X-Rays to locate where the break is, the type of break, and the severity of the break. In some cases, an orthopedist may order a CT scan or an MRI.
The treatments vary depending on the type and severity of the break. A common initial step, according to the Mayo Clinic, is to use a splint to immobilize the leg. If a worker has a displaced fracture, the orthopedist may need to “manipulate the pieces back into their proper positions before applying a splint — a process called reduction. Some fractures are splinted for a day to allow swelling to subside before they are casted.”
A splint or cast helps to immobilize the broken bone. Broken bones, such as broken legs, may require six to eight weeks to heal. During this time, the worker may need to work with a physical therapist to learn how to use a cane or crutches. It’s important not to put any weight on the broken bone and to restrict the movement of the bone so the bone can heal properly.
An orthopedist may recommend over-the-counter pain medications, “such as acetaminophen (Tylenol, others) or ibuprofen (Advil, Motrin IB, others) or a combination of the two. If you’re experiencing severe pain, your doctor might prescribe stronger pain medications.”
Depending on the location of the break, the type of break, and the severity of the break; workers will likely need physical therapy after the cast or splint is removed. The full rehab process can take months or longer.
Orthopedists may need to use rods, screws, plates, or other devices to ensure the bones stay in the proper position while the fracture heals. Usually, this type of surgery is known as an “Open Reduction Internal Fixation” (ORIF) surgery. Many of our clients undergo these types of surgeries. The recovery period after these surgeries can be long. These devices, according to the Mayo Clinic, are generally used for:
Joe Miller Esq. has been fighting for injured workers for more than a quarter of a century. He works with and reviews detailed medical records experienced orthopedists, physical therapists, and other healthcare provides to properly assess your workplace injuries, the need for surgeries or other medical care, and the time and treatments you’ll need to return to good health. To discuss y our North Carolina or Virginia work injury case, call me at 888-667-8295. or fill out my online contact form to make an appointment.
Workers can also complete our New Electronic Case Review. It’s a new type of communication method for our clients that we’re offering – to allow workers to reach us remotely.
Posted on Tuesday, February 16th, 2021 at 10:51 am
Virginia and North Carolina Workers Compensation Attorney Joe Miller here breaks down, in simple, easy-to-understand terms, the basics of Medicare Set-Asides (MSA’s)–What is it and why do you need one in your workers comp settlement? You just received some kind of authorization for a company you have never heard of that you are being asked to sign. The Authorization gives this company the authority to obtain all of your medical records and submit them to something called CMS. What the heck is going on? Joe Miller explains all in this comprehensive explainer video on MSA’s.
Posted on Monday, February 15th, 2021 at 11:04 am
Most employees who suffer a workplace accident begin their medical treatment with a visit to their local ER. Workers who suffer a spinal cord injury, a traumatic broken injury, compound fractures, and other serious injuries often need immediate surgery. Workers with chronic pain or acute pain often need to visit with a pain management doctor. In addition to treatment by physicians, these workers and most injured workers also need to treat with physical therapists.
One of the aims of physical therapy is to strengthen some parts of your body to minimize the pain in other parts of your body. Experienced physical therapists can workers select the correct exercises for their injuries and help workers manage their pain and recover from their injuries.
Physical therapy is a rehabilitation process in which therapists evaluate your physical abilities and limitations. Physical therapists generally have some medical training but they are not physicians. Physical therapists respond to your concerns by developing a plan of exercise, massages, and other methods to help you recover from your injuries.
In addition to addressing your pain issues, physical therapists focus on your range of movement and your ability to functionally use various parts of your body. Physical therapists also focus on helping you regain strength and endurance. Once there’s a clear plan (which may be adjusted as you work with the therapist) – you may work with the therapist as his/her location. You will likely also be able to do some exercises and activities at your home.
Many therapists include stretching exercises among other exercises. The therapist may also provide hands-on treatments in addition to continually encouraging you to stay with the treatment plan.
According to Medical News Today, physical therapy is used to treat many different types of conditions (many of which may be due to work) including:
Some of the benefits of physical therapy include:
Physical therapists help you regain movement and functionality through exercises that generally strengthen your joints and muscles and stretch them so you can move more freely. While you’re exercising and receiving treatments, your physical therapist may also help you with assistive devices. For example, a physical therapist may help you walk using a cane or crutches.
Physical therapy is often used when workers suffer chronic pain or repetitive stress injuries.
According to Medical News Today, other benefits of physical therapy include:
Physical therapists may also help with arthritis.
Most employers understand that workers do need physical therapy to help them recover – so workers can do their job again. Unfortunately, most insurance companies for employers often fail to appreciate just how many sessions an employee needs with a physical therapist to see improvement. Many insurance companies, after a specific number of visits (such as 10 visits) or a specific period of time (such as 3 months) will request that the worker undergo a defense independent medical examination (IME). Usually, the doctor who conducts the IME is a company doctor who will quickly say that your injuries have healed well enough that you should be able to return to work.
Experienced workers’ compensation lawyers help injured workers who need continual physical therapy when employers try to terminate their medical care and force them back to work – in two ways.
In some cases, your physician may allow you to return to work – but with restrictions. These restrictions can include such things as not being required to lift items that weigh more than 20 pounds. The restrictions may also be conditioned on your right to continue your physical therapy visits.
One of the things that can ruin a workers’ comp case is where an injured worker treat his or her prescribed physical therapy in a casual way, by missing physical therapy appointments and failing to re-schedule. This is a huge mistake and could lead to an Application to Terminate Benefits in Virginia or a Form 24 in North Carolina from the defense due to your failure to follow your doctor’s medical treatment plan and that could mean the end of your case. Accordingly, please make sure you attend all of your PT appointments to the best of your ability.
North Carolina and Virginia workers’ compensation lawyer Joe Miller has been fighting for injured workers for 31 years. He’s helped thousands of employees obtain full recoveries including payment of the medical bills they need to recover. In many of these cases, the workers need to treat with a physical therapist. To discuss your work injury claim with a seasoned workers’ compensation lawyer, call lawyer Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment.
Employees in North Carolina and Virginia can also now fill out our New Electronic Case Review. The link is a new way of communicating with clients that we’re offering – to allow workers to contact us remotely during the pandemic.
Posted on Wednesday, February 3rd, 2021 at 3:55 pm
Virginia and North Carolina Workers Compensation Attorney Joe Miller explains why it is so critical to your case to obtain a current work note or disability slip after each and every appointment with your primary, authorized treating physician. Failure to present valid work notes at your hearing could mean you will be unable to prove you are entitled to weekly checks.
Posted on Friday, January 8th, 2021 at 12:17 pm
Hand injuries are common in many different types of jobs. Workers who do outside labor such as construction or agricultural work often suffer injuries due to the machines/tools they work with and thy types of tasks they do. Workers who work inside can suffer injuries due to repetitive use. Workers in almost every field from industrial workers to healthcare workers at some point in their career are likely to injure their hand – often severely enough that they can’t work until (and if) their hand mends.
Some of the machines that can cause severe hand injuries include saws, hammers, and assembly equipment.
Some of the common types of hand injuries that occur during work include:
Other hands injuries include rashes and irritations of the skin
According to MedExpress:
There is no requirement that an injured worker prove that an employer was negligent or that the employer failed to follow federal, state, or local safety protocols. If you are injured at work, you have the right to seek work loss and medical benefits – whether the employer was at fault or wasn’t at fault.
Still, nobody wants to lose time from work and seek medical help if they can avoid it. Some of the many ways employers can help ensure the safety of their employees – when it comes to avoiding hand injuries include:
All workers who suffer hand injuries are entitled to work loss benefits if you injury you hand due to a workplace accident or due to an occupational illnesses. Your North Carolina or Virginia workers’ compensation lawyer can explain when you can file a claim for a repetitive stress injury to your hand.
Temporary work loss benefits for hand injuries generally include payment of all your medical bills and about 2/3 of your average weekly income while you can’t work.
If you can’t use your hand (or any fingers or your thumb) at all, or in part, after you’ve reached the point of maximum medical improvement (no additional medical care is likely to improve your hand) – you may be entitled to permanent disability benefits according to North Carolina or Virginia law. For example, if your hand is amputated, you can seek permanent disability benefits in both states.
An experienced work injury will work with you and your doctors to help ensure that the employer doesn’t force you back to work before you can do your job.
Virtually every worker needs functioning hands in order to do their job. Our experienced North Carolina and Virginia work injury lawyers have been fighting for employees for more than 25 years. We’ll explain your rights and fight to get you all the compensation and medical care you deserve. To reach lawyer Joe Miller, Esq., call me at 888-667-8295. or fill out my online contact form to schedule an appointment. Workers now can also complete our New Electronic Case Review. It’s a new way of communicating with clients that we’re offering – to allow workers to contact us remotely.
Posted on Wednesday, January 6th, 2021 at 12:17 pm
There’s good news finally about the COVID-19 pandemic which has affected workers and everyone in numerous ways. More than 350,000 Americans have died due to the disease and nearly 20 million Americans have become infected.
The good news is that the Food and Drug Administration has approved two COVID-19 vaccines developed by Pfizer and by Moderna. The vaccines use mRNA technology. Everyone who receives these two vaccines which helps their immunity system fight the disease – will require two doses.
According to the Raleigh News & Observer, North Carolina health officials are setting the priorities for when different classes of people (depending on their work activities, health risks, and age) should be eligible for the vaccine. The December 31, 2020 article outlines the priorities. Dr. Mandy Cohen, the secretary of the North Carolina Department of Health and Human Services, stated at a press conference, that the state will have a four-part rollout of the vaccines. The plan, which was developed through North Carolina Governor Roy Cooper’s office, will prioritize older people and frontline essential workers.
The North Carolina priorities match the vaccination priorities set by the Centers for Disease Control and Prevention.
How are “frontline essential workers” defined
North Carolina uses the CDC definition of a frontline essential workers. These people are employees who are at the “highest risk for being exposed to the coronavirus” “This phase is expected to begin in early January.” Frontline workers, according to the published article, include:
How are essential workers defined?
“Essential workers are defined by N.C. DHHS and the CDC as”
The vaccines are being given to residents just as North Carolina announced likely increases in “COVID-19 cases and hospitalizations expected due to Christmas and New Year’s gatherings.”
According to the Fayetteville Observer, the issue of whether employers can or can’t mandate that their workers be vaccinated is fast becoming a reality – and not a hypothetical. Health officials in North Carolina expect that the general adult population will have enough vaccines during the first half of 2021.
“The N.C. Department of Health and Human Services told the USA Today Network it has no plans to mandate vaccinations. But private sector employers can require workers to get them, labor law experts say.”
According to UNC School o f Law professor, Jeffery Hirsch, the private sector can manage employee vaccinations because the “private sector is at-will employment.”
Already, health care providers do mandate that members of the provider’s staff get immunizations for mumps, polio, the yearly flu, and other preventable diseases. According to Duke University School of Law professor, Dan Bowling, “jobs that feature significant customer and coworker interactions often have vaccine requirements.”
Generally, employers need to show that mandating the vaccine is a job-related necessity and “would pose a ‘direct threat to the health or safety of others’ if skipped according to the Americans for Disabilities Act.”
Workers whose job is terminated for noncompliance to these mandates may file EEOC (Equal Employment Opportunity Commission) complaints – but “experts say the law favors employers, even when workers seek medical or religious exemptions.” “While Title VII of the Civil Rights Act says employers must reasonably accommodate workers’ religious practices, the law allows employers leniency if these accommodations pose an ‘undue hardship’ on their business. “
Employers are likely to mandate the vaccines for two reasons. The first reason is to help prevent the spread of COVID-19 within the employer’s business. The second reason is because a large number of people (about 60 to 90%) need to have the vaccines or have been infected – to reach herd immunity. There are concerns that many people will not get the vaccine – even when it becomes clear the vaccines are working.
Health officials in North Carolina are working to assure residents that the COVID-19 vaccines are safe. Some employers are expected to offer financial incentives (similar to company incentives for insurance rate breaks for non-smokers) to encourage workers to take the vaccines.
So far, hospitals have been hesitant to mandate the vaccines for their staff. “Given the limited experience with the vaccine, there are no current plans to make the COVID-19 vaccine mandatory for UNC Health employees,’ a UNC Health statement said.”
According to the president of the N.C. Nurses Association, most health care workers are welcoming the vaccine.
All employees are valuable workers. It’s critical that all workers have access to vaccines so they can work on-site instead of remotely. Once workers do return to work at their regular job locations, they will still be at risk for many types of physical injuries and occupational illnesses. If you’re hurt at work for any reason, our experienced North Carolina and Virginia workers’ compensation lawyers are ready to help you jet the benefits you deserve. Call attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment. Employees can now also complete our New Electronic Case Review. It’s a new way of communicating with our clients that we’re providing this service to allow workers to contact us remotely.
Posted on Tuesday, December 29th, 2020 at 1:33 pm
Today, people can connect to the Internet and with each other in many different ways – desktop computers, laptops, smartphones, and tablets. This technology is now being used to connect doctors and patients remotely – in place of in-office visits. The trend of using telemedicine in workers’ compensation cases is expected to continue through 2021 and beyond.
Electronic communications are being used for consultation, monitoring of a patient’s condition, management of chronic conditions, management of medication, and other clinical services – provided the video and audio connections are private and secure. Telemedicine usually includes a video consultation, after an injury, where the doctor can hopefully make a diagnosis of the workers’ injuries – though the worker may need to go to a lab to have certain medical tests done. The physician can then conduct follow-up examinations remotely instead of in-person.
“According to a representative from Kaiser Permanente (KP), a leader in telemedicine services, In 2015, of KP’s 110 million interactions between physicians and members, 56% were virtual, surpassing physical visits for the first time.”
The US Department of Veterans Affairs, which operates the country’s largest healthcare system, is using telemedicine for many veterans nationwide.
During the pandemic, the use of remote technology has been a life-saver for many workers. Workers who use telemedicine can do so from home so they don’t need to be in contact with anyone who might have the disease – other than their own family members. Physicians and healthcare providers are using telemedicine to consult with their patients.
There are some advantages to using telemedicine for all types of injuries. Telemedicine is useful for the following situations:
Telemedicine is useful for post-surgery care and second medical opinions. Telemedicine makes it easier to connect with specialists who may not be locally available.
According to the National Council on Compensation Insurance (NCCI), “In certain situations, where accessibility to immediate medical care may be limited, one type of telemedicine service—24/7 tele-triage—may be an invaluable resource for initial assessment and evaluation.
Telemedicine also helps workers and employers because it saves on the time and expense of transportation to and from the doctor’s/healthcare providers’ office. Telemedicine also makes it easier to see specialists and to reduce delays in getting medical treatment.
Generally, telemedicine is only advisable for non-critical situations. Many workers do need to be treating in an emergency room or a doctor’s office so the physicians can properly and fully examine the patient.
There are many legal issues involved with telemedicine such as that physicians can generally only give advice to patients they’ve seen in person at least once and can only give advice to patients who live in the same state as the doctor.
Some of the downsides of using telemedicine for work injury patients include:
According to NNCI, some of the other risks of telemedicine include:
As telemedicine expands, medical practitioners and patients will need to develop a balance between in-person visits and the use of telemedicine.
States and federal agencies, such as Medicare, are working to keep current with the advances in technology. According to NNCI, “In early 2018, Texas proposed a rule that would expand injured workers’ access to telemedicine services by lifting a restriction in the Medicare-based reimbursement policy that limits the use of telemedicine to underserved areas—typically rural regions with few healthcare providers.” Other restrictions, depending on the state, require that telemedicine could only be provided to a patient in a doctor’s office, hospital, or clinic, but not at a patient’s home.
Generally, the types of telemedicine services that are covered by workers’ compensation insurance, the provider requirements, and how reimbursement works vary from state to state. Some states require that doctors even have a special telemedicine license.
It is likely that the use of telemedicine will expand even when the pandemic is over. Because telemedicine helps reduce costs and may improve the outcomes for the worker (because the worker has access to specialists and his/her medical care is monitored electronically), telemedicine should be advantageous for both the worker and the employer’s insurance company. In addition, as telemedicine expands, workers may find that they enjoy it even more because of the reduced need for travel while they’re not feeling well and for the other advantages that we’ve described.
Attorney Joe Miller has been a strong advocate for injured and ill workers in North Carolina and Virginia for more than 30 years. He works with your physicians and the company doctors to help ensure you are receiving the medical care you need and deserve. To discuss your North Carolina or Virginia workers’ compensation claim with an experienced and caring work injury lawyer, call attorney Joe Miller, Esq., at 888-667-8295. or use my online contact form to schedule an appointment. Workers can also use our New Electronic Case Review. It’s a new way of communicating with clients that we’re offering – to allow workers to contact us remotely.
Posted on Monday, December 28th, 2020 at 1:33 pm
There are many 2020 developments that will affect workers’ compensation for both employees and employers in 2021 and the coming years. Many of these developments are related to COVID-19. Other developments, according to CMR Risk & Insurance , include the use of telemedicine, the rise of mega claims, and the rise of comorbidities.
Employers across North Carolina and Virginia are required to have workers’ compensation for their employees. The insurance should cover any accidents in the workplace regardless of fault and any occupational illnesses. The insurance should pay the workers’ medical bills and a large portion of their lost wages (generally, about 2/3rds) during the time they can’t work, or in many cases, if their employer is unable to accommodate their physical restrictions due to the work injury, for a maximum of 500 weeks. In addition, the insurance should pay for any permanent partial disability, even if the injured worker is able to return to employment. In some cases, payment for vocational rehabilitation may be required.
The COVID-19 pandemic has affected workers and employers in many ways. Key compensation factors are related to the nature of the business. Some professions such as healthcare and delivery services expose workers to a greater risk of contracting the disease. Other professions, such as professional services, have less risk because the professionals can usually work remotely by using the Internet.
Employers need to consider what safety precautions to take depending on the nature of their business. Employees need to understand that workers’ compensation claims for families of workers who died due to COVID-19 and claims by workers who become ill or had to quarantine due to the disease will be handled on a case- by- case basis. Some of the questions that arise in COVID-19 workers’ compensation cases include:
As we discussed in previous blogs, some states are enacting laws to cover workers who develop COVID-19. Some states are also creating presumptions as to what conditions indicate a worker who developed COVID-19 – developed that condition through work. Thus far, in Virginia, a bill which would have given such presumptions to health care workers, first responders, firefighters, and teachers who develop COVID-19 was defeated in the State Legislature earlier this year. North Carolina is still wrangling with the particulars of a similar bill before the State Legislature in Raleigh.
Meanwhile, the Virginia Workers Compensation Commission in Virginia and Industrial Commission in North Carolina are still deciding COVID-19 workers’ compensation cases on an individual basis, under the standards of an ordinary disease of life, which are difficult, but not impossible, to meet. Mega Claims
According to CMR Risk & Insurance, another new trend is that many workers are filing “mega claims” which can result in payouts (for medical bills, wages, and other expenses) of millions of dollars.These claims are usually due to workers who have severe, and often, permanent injuries. Mega claims are often due to motor vehicle accidents, accidents where the worker was struck by an object, and falls.“In some cases, however, mega claims can develop slowly—particularly when caused by minor injuries that go untreated.”
CMR reports that, according to a recent study conducted by the National Council on Compensation Insurance (NCCI), these claims have reached a 12-year high—increasing in both frequency and severity. This increase has been attributed to several possible factors, such as changes in mortality patterns, medical advances, and a rise in health care costs.”
Employers are advised to take extra safety measures to help reduce the risk workers will suffer injuries that can result in mega claims.
Presumptions for first responders
According to M Power by Mitchell (a casualty and insurance company), “states are beginning to examine presumption laws for first responders and expanding coverage to conditions such as PTSD.” The issue of presumptions raises questions as to:
For instance, Virginia this past summer passed into law what is now VA Code 65.2-107, which provides that any first responders, fire fighters and police officers who suffer from Post Traumatic Stress Disorder (PTSD) will be compensated, provided the PTSD was caused by a “qualifying event.”
A qualifying event is defined as an event:
“A comorbidity is the simultaneous presence of two or more medical diagnoses for an individual.”
“Comorbid conditions are typically long-term health complications that have the potential to increase the severity of other injuries or illnesses that the affected individual may experience, making it more difficult to fully recover. Common comorbid conditions include obesity, diabetes, hypertension, depression, anxiety, and substance abuse.”
CMR states that an NCCI study found that work injury claims involving comorbidities have nearly tripled since 2000. In addition, the cost of workers’ compensation claims involving comorbidities is about twice that of other claims. This is generally because workers with comorbidities need more time to heal, are more likely to develop complications, and are at more risk of having a permanent disability.
In response to the concern about comorbidities, many employers are implementing wellness initiatives – to address chronic health problems and improve their staff’s overall fitness.
Another term to describe comorbidities are “pre-existing conditions.” The good news is that in most cases, if the work injury has even the slightest bit to do with causing the current disability, then the entire claim is compensable. The bad news is that if you are only partially disabled or on light duty, and a comorbid condition causes you to become completely disabled, that could essentially end your workers compensation claim, even if you are under an Award.
Many employers are hiring workers who lack experience in order to fill their labor shortages. The problem is that workers who are inexperienced are more prone to accidents in the workplace. Part of the problem of inexperienced workers can be addressed through better training. Part of the problem, though, is that there’s simply nothing like experience to do jobs in a safer manner.
“According to a recent survey conducted by the Golden Triangle Business Roundtable in Texas, employees with less than five years of experience contribute to 43% of overall workplace injuries.”
Another labor trend that is affecting workplace accidents is that many workers are working later in life. Data from the US Bureau of Labor Statistics shows that “employees over the age of 55 in the labor force are expected to increase to nearly 25% by 2024 (up from 21.7% in 2014).” Older workers generally require more time to recover from an accident than younger workers. Older workers generally have poorer balance, hearing, and vision than younger workers. They also have slower reaction times.
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting for injured workers for more than 25 years. He’s helped thousands of employees get just recoveries for the injuries and illnesses which are work-related. He also keeps current with the new trends and new laws.
If you’ve been involved in any type of workplace accident or think your illness is related to work, speak with an experienced North Carolina and Virginia workers’ compensation attorney. You can reach attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment. Workers now can also complete our New Electronic Case Review. It’s a new way of communicating with clients that we’re offering – to allow workers to contact us remotely.
Posted on Wednesday, December 16th, 2020 at 9:53 am
Most people automatically assume if they are injured at work that they’re covered by their state’s workers’ compensation laws. And, for the most part, that’s true. If you slip and fall or suffer some other accident at work, in most cases, you should be covered. If you are loading very heavy items into a cart and wrench your back, you should be covered. If a forklift tips over or malfunctions, and you are injured, you should be covered.
In workers’ compensation cases, there is no need to prove fault. Generally, if you’re hurt while doing your job, you should be entitled to have all your medical bills paid by your employer’s insurance company and approximately 2/3rds of your wages while you are temporarily totally disabled for up to a maximum of 500 weeks, or if you become permanently or partially disabled. Permanent partial disability benefits are paid for a specific number of weeks.
As with every rule, though, there are many exceptions. There are a few situations where your injuries will not be covered – in some cases, because your employer is not required to be insured, in other cases because of some misconduct on your part, and in others, because the injury you suffered is not considered to have arisen out of your employment.
The Employer is not Required to Carry Workers Compensation Coverage
Unless the employer has more than three employees who are regularly employed in the business, then they are not required to carry workers compensation coverage.
The most common scenario where this issue comes up is with construction companies. The employer will actually have many more than 3 workers who regularly work for the employer, but the employer will claim that everyone is an independent contractor. Oftentimes, this is actually not the case. When you analyze the situation, you begin to realize that all of those “independent contractors” are treated no differently than an employee would be treated. They show up at a specific time every day. They are required to follow the rules and directions of the boss. They generally work nowhere else except the employer. The employer supplies all of the equipment for the job. No matter what they employer calls them, these workers are employees and must be covered.
So what happens if the employer has no coverage? In North Carolina, unless the employer was somehow at fault, you are out of luck, unless there was a general contractor over the employer who was insured. Sometimes you can find coverage there.
In Virginia, if there was no insurance with the general contractor, the Commonwealth of Virginia maintains something called the Uninsured Employer Fund which is designed for just such situations. They will stand in the place of the insurance company and pay the claim. Of course, after the fact, they will go after the employer and attempt to recoup their payments.
NOTE: Just because your employer does not have more than 3 employees in the business DO NOT ASSUME that he does not have coverage. IF the employer ELECTS to purchase coverage, then even though the employer was not REQUIRED to carry coverage, that coverage will invoke all of the rights of the Workers Compensation Act and if you are hurt on such a job, you will be covered by the Act.
We particularly tell construction workers who own their own business and do construction work themselves: Please, please buy coverage for yourself and your workers if you can find a way to afford it. We have seen too many lives ruined for failure to purchase coverage.
If a pre-existing physical condition is the sole cause of your injuries and it’s the pre-existing condition that causes the injury, then you may not be covered. For example, if an employee has severe osteoarthritis, that condition can damage and cause pain in various joints such as the hands, hips, knees, and spine. If you are working and your knee buckles – even though you didn’t fall or didn’t come into contact with any object – then a physician may conclude that nothing at work caused your knee pain – your knee pain is due to your arthritis and nothing else.
This situation is different than if you slip and fall because the floor is wet and then hurt your knee. A doctor might say that part of your pain in your knee is due to the osteoarthritis – but since the wet floor caused your fall, you can claim workers’ compensation benefits. The good news about pre-existing conditions is that it is rare that a claim will fail because of them. This is because in Virginia, so long as th the injury caused a sudden mechanical change in your body, then if any portion of your disability comes from that injury, no matter how slight, then the entire injury and treatment for it is compensable.
Many other conditions may be caused by events at work that are personal to the worker and weren’t caused by work. In these cases, the employer will contest your right to workplace benefits.
There are some injuries that the workers’ compensation board or courts may consider non-compensable because they’re due to a personal risk that the employee assumes. For example, if a worker starts a fight with a co-worker, especially if it is over personal issues between them, then that worker will not be able to file a work injury claim for all the burn injuries and respiratory injuries he suffers. The victim of the assault, however, would normally have the right to file a workers’ compensation claim – provided that the reason for the fight was not personal, but work-related in some way.
Some employees who are working for their employer take time off to run personal errands. For example, a salesperson who is on the road may take time out to go shopping for something. If that worker is then injured (suffering bone fractures) by falling on the parking lot asphalt, the employee may not be able to claim worker’s compensation benefits to treat with an orthopedist to mend the broken bones– because he/she was injured while deviating from his/her work assignment. The trip to the retail store was not related to his/her work and thus would not be compensable.
Recreational activities include activities that are not generally considered part of a workers’ daily job requirements. These activities can include company softball games or outside picnics where workers mingle with other people. Injuries while playing a game or just serving food at a picnic do happen.
Whether the injury is considered related to work often depends on a few factors such as:
If, on the other hand, a few workers decide to get together for a few beers after work and one worker trips and falls while carrying the beers, that would likely not be considered to be in the course of employment.
Virginia Claims: Failure to Prove the Injury Arose from a Risk Associated with Employment-No Such Requirement in North Carolina
Virginia, unlike North Carolina, has an additional requirement that the injury must be caused by a risk associated with employment. The most classic scenario is a fall down the stairs. In North Carolina, this would be considered a compensable work accident.
In Virginia, a risk analysis is conducted. What was the employee doing at the time of the fall down the stairs that created a risk that was different from someone in the public who also fell down the stairs? If the answer is nothing, there is no risk of employment and no compensable case. On the other hand, if the employee had his or her hands full with work-related items that made it hard to see or grasp the railing? Or did the employee have some slippery substance on the bottom of his or her shoes that was from a factory floor? Were the stairs themselves somehow defective, such as worn out or missing anti-slip guards on the stairs? Those all would qualify as risks of employment.
Another example would be someone who wrenches his or her back while performing work duties, such as picking up a light item off of a shelf, turning around and placing it in a box. The worker is not lifting anything heavy, but suddenly feels a sharp, severe pain in the back resulting from that specific movement at work. In North Carlina, particularly with respect to back injuries, all that is required is that the injury occur as a result of a “specific traumatic incident” of the work required. Accordingly, it would likely be compensable.
In Virginia, such a case would not be found to be an “accident” or a result of a risk associated with employment. Anyone could lift a light item off of a shelf and suffer this same injury. It would therefore not be considered a risk of employment and therefore not a compensable accident in Virginia.
If you engaged in willful misconduct at the time of the accident such as intentionally inflicted injury, you may not recover. Also, if you were found to have been intoxicated at the time of the accident in either Virginia or North Carolina, you may not recover anything. Note that intoxication does not only mean being over the legal limit of .08 BAC in VA. If fellow employees or supervisors testify that they smelled alcohol on your person on the day of the accident and you were exhibiting signs of intoxication, then that may be sufficient to say you were intoxicated. The intoxication must be found to have been a proximate cause of your accident.
In North Carolina, the intoxication need only be found to have caused the employee to “lose the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.”
Insofar as violation of safety rules, to bar a claim in Virginia, the employer must show that the rule was one that was enforced across the board by the employer and that its violation was a proximate cause of the accident. So if the employer at a roofing company says you failed to follow the well-known rule about tying off with a safety rope and harness when working at heights, and yet that same morning your boss and co-workers also alighted and worked on the roof without tying off, that would be a rule that was not generally enforced. They cannot apply it for the first time to you, in order to prevent you from receiving benefits. Another commonly brought up rule is failure to wear seat belts in auto collision. If the employer had such a rule but never informed the injured worker about it, and never enforced it, that rule may not be used selectively against an injured worker.
In North Carolina, violation of safety rules by the injured worker will typically not bar or prevent a claim, but will reduce the weekly compensation payment to the injured worker by 10%.
Each case is different. You should not assume that you don’t have a case. There may be good reasons why you can assert a claim. The best course of action if you are injured at work or doing anything that might be work-related is to speak with an experienced North Carolina or Virginia workers’ compensation lawyer. Often, there is a very fine line between having a viable claim and not having a claim.
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands when injury accidents at or related to work are compensable. He’s helped thousands of injured and ill workers get the compensation they deserve. Attorney Joe Miller has been fighting for injured workers for more than 31 years. For help with any work injury claim, speak with an experienced North Carolina and Virginia workers’ compensation attorney. You can reach attorney Joe Miller, Esq., at 888-667-8295. or complete our online contact form to schedule an appointment. You can also complete our New Electronic Case Review. It’s a new way of communicating with clients that we’re offering – to allow workers to contact us remotely and submit a claim for consideration, even after hours.
Posted on Tuesday, December 15th, 2020 at 9:52 am
When you’ve been hurt at work, there comes a time when continuing to treat with your doctors doesn’t improve your medical condition. When additional medical treatments won’t improve your medical condition and the healing process is stopped – you’ve reached the point of Maximum Medical Improvement (MMI).
This does not mean that you no longer require medical treatment such as pain management. It just means that according to the opinions of your doctors, you are unlikely to improve your permanent outlook with additional treatment.
Workers have the right to get medical treatment for any injuries they suffer due to a workplace accident. Most workers start with a visit to an emergency room doctor or they see a physician designated by the workers compensation insurance company, or in some cases, their personal physician. Depending on the type of injury and the severity of the injury, injured workers may need surgery. They often need to see a specialist; maybe several specialists to address their work injuries. Injured employees often treat with physical therapists, occupational therapists, and/or rehabilitation therapists. Some workers also need to see a psychologist and/or psychiatrist.
Employees who are injured at work who suffer a compensable claim have every right to try to maximize their health and minimize the consequences of their injury at work. During the time they are working to improve their health, they are entitled to have the insurance company for the employer pay their medical bills and generally, 2/3rds of their average weekly wages for the time their authorized physician holds them out of work or for a maximum of up to 500 weeks. Some injuries completely heal with time – such as many minor fractures. Other injuries never completely heal and may require the insertion of hardware or other drastic methods of repair.
Maximum medical improvement is an important milestone in an injured worker’s case for a number of reasons:
When workers reach MMI, several evaluations need to take place.
An example of a permanent partial disability/impairment is the loss of function of a hand. An impairment rating is an assignment of the severity of that loss of hand such as 90%. This means you’ve lost 90% of the function of your hand. If you are entitled to permanent disability benefits, the amount of the benefits (a specific number of weeks such as the maximum of 200 weeks for the hand– what North Carolina law permits) is multiplied by the impairment rating. So, if you would normally be entitled to 200 weeks for a permanent disability and you have a 90% impairment rating, you will be entitled to 90% of 200 – or 180 weeks. Note that this is NOT in addition to any weeks you remain out of work.
If, on the other hand, you have returned to work at a job at or higher than your pre-injury wages, and you have been determined to have a permanent partial disability and an impairment rating, then the number of weeks as determined by that percentage, plus your future potential medical treatment would be the basis of your attorney considering and possibly negotiating a lump-sum settlement (called a clincher agreement in North Carolina). In a lump-sum settlement, you’re a negotiated portion of what potentially is due to you in the future (the 2/3rds’ wages and medical bills) in one payment to you, so you control the money. The risk, of course, is that there is no do-over if your medical bills are more than you anticipated. On the other side, the risk to the insurance company is that you will, in fact, get better, require little further treatment, and find a good job on your own, in which case would not have ended up paying you what they paid out in settlement.
An experienced work injury lawyer will advise you about the pros and cons of a lump-sum settlement in your particular circumstance.
It’s important to understand that you are still entitled to seek medical help – after you reach MMI – and to have the employer pay for that medical care. The key requirement is that the medical care must be needed to help ensure your medical condition doesn’t worsen. Many patients, for example, who have chronic back pain due to their workplace injury need pain management or orthopedic maintenance so their back pain doesn’t get worse.
You should also understand that if you are in an accepted claim or under an Award, the burden to switch from temporary total disability benefits to permanent partial disability benefits, or from temporary total disability benefits to a termination of benefits, is on the employer.
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands that many employers try to push workers to return to work before they’re healthy. He works with your doctors and independent doctors to help assess your medical difficulties and concerns. When you reach maximum medical improvement, he also works to assist your doctors in determining whether you have a permanent partial or full disability as you look to your future. To discuss your worker’s compensation case, call attorney Joe Miller, Esq., at 888-667-8295. or fill out our online contact form to schedule an appointment. You can also fill out our New Electronic Case Review. It’s a new way we’re offering so workers can contact us remotely.