When Are Workplace Injuries Not Covered by Workers’ Compensation?

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. 

Pre-existing conditions

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.

Personal risk

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. 

Deviations from work

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 injuries

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:

  • Was the participation in the recreational activity mandatory? If everyone at work has to partake in the activity, that suggests that the employer should be responsible if you’re hurt while participating in the recreational activity.
  • Does the participation affect your employment? If the employer makes clear that participation makes you seem like a team player and that participation can help you be promoted, then those factors indicate that the activity was work-related
  • Did the employer provide the source of the recreational activity? These days, many companies offer gyms where employees can work-out. If the employer provides the ability to do the recreational activity – and encourages you to work out for your health – those factors suggest the activity is work-related.

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. 

Willful Misconduct, Intoxication and Violation of a Safety Rule

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. 

What is Maximum Medical Improvement?

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: 

  1. It enables your doctor to refer you for a Functional Capacity Examination to determine whether you have any permanent, physical restrictions due to your injuries; 
  2. It enables your doctor to refer you for a Functional Capacity Examination to determine whether you have any permanent partial impairment in any specific body parts you may have injured in your accident;
  3. It is generally a signal to all parties that a potential settlement may be on the horizon; 
  4. It is generally a signal to the defense that they may want to engage you in a program of vocational rehabilitation after the results of your FCE come in. 

MMI evaluations

When workers reach MMI, several evaluations need to take place.

  • The first evaluation is whether you have reached the point of MMI. Often employers will argue that you’ve reached MMI in order to force an early settlement or try and force you back to work or to try to cut off your right to your 2/3rds share of your average weekly wages. You have the right to challenge any claim you’ve reached MMI if you still think medical treatment can improve your health. Normally, the doctor who is treating you makes the initial determination of when you’ve reached MMI. 
  • The treating doctor, in some cases, may be a “company doctor” meaning  he/she does have some bias towards getting you back to work per the insurance company’s wishes. 
  • In North Carolina, if you disagree with a determination that you’ve reached MMI, you have the right (with the help of an experienced North Carolina compensation lawyer) request an independent medical examination (IME). The IME is a medical review done by another physician of your choice. Unfortunately, there are no such provisions in Virginia; however, if you can afford to see a different physician, you can pay for the examination yourself. 
  • After the MMI determination by your physician, the second step is usually for that physician to order a Function Capacity Examination (FCE) by a licensed physical therapist’s office equipped for such exams. This evaluation is to determine if you can return to work with workplace restrictions. A typical workplace restriction is that you can work but you can’t lift or move any objects that weigh more than 20 pounds. 
  • After the FCE occurs, some employers may decide to adjust or accommodate your work routine so you can work with these restrictions. This way, you can earn your salary; however, this accommodation does not come without risks. Note that If the employer reduces your pay because of the workplace restrictions, you should be able to continue to receive pay loss benefits – but the benefits are adjusted to reflect 2/3rds of the difference in pay between your pre-injury wages and your new wages. 
  • If the employer doesn’t have a job for you that you can do based on your work restrictions, then you can continue to receive your 2/3rds per week disability payments. In Virginia, if you are not under an Award for benefits, or if your claim in in North Carolina, if your employer cannot accommodate your restrictions, you must look for a job you can do with those restrictions. If you are under an Award in Virginia, then you are under no obligation to look for other work. The burden shifts to the employer in cases of an Award to find you work and if they choose to do so, this is done via vocational rehabilitation. 
  • Oftentimes, the FCE also includes a portion of the exam which is designed to decide whether you are eligible for permanent partial disability or permanent partial impairment (PPI) benefits. When you’ve reached MMI, the treating doctor, after reviewing this portion of the FCE report, will normally also assign an injured worker a Permanent Partial Disability (PPD) or Impairment rating (PPI). Here, the physical therapist is performing tests on your injured body part to determine if you there exists a permanent disability in the injured body part. Based on that evaluation, the physical therapist— and later your doctor– will assign a percentage rating to that disability (called an impairment rating). 


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. 

  • After you have reached MMI and these evaluations occur is typically a good time to determine whether you want to consider a lump sum settlement. If you are unable to return to your former job and so far you are unable to find alternate employment or the insurance company has not been able to find any for you, then you have the potential for a maximum of 500 weeks of payments ahead of you. These potential future weeks, along with the value of the medical side of your claim can then form the basis of a lump-sum settlement demand by your attorney. 

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.

Talk with a seasoned North Carolina and Virginia workers’ compensation lawyer today

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.

Hernia and Workers’ Compensation

Posted on Wednesday, December 9th, 2020 at 1:32 pm    

Hernias occur when a bodily organ pushes through your muscle or tissue. Muscles and tissues hold your organs in place. A common example is when a person’s intestines push through a weakening in the abdominal wall. Other common locations for hernias include the upper thigh, the groin, and the belly button. Generally, hernias don’t repair themselves with time. In severe cases, surgery may be required because the hernia can become life-threatening.

What are the different types of hernias?

According to the Cleveland Clinic, there are several types of hernias. These include:

Inguinal hernias. 

  • Inguinal hernia: “In men, the inguinal canal is a passageway for the spermatic cord and blood vessels leading to the testicles. In women, the inguinal canal contains the round ligament that gives support for the womb.” When an inguinal hernia occurs, part of the intestine or fatty tissue – pushes through the groin – at the top of the inner thigh. Men suffer from this disorder more than men.
  • Femoral hernia: This type of hernia, in which “fatty tissue or part of the intestine protrudes into the groin at the top of the inner thigh” affects women more than men.
  • Umbilical hernia: This type of hernia occurs near the belly button (navel) as the tissue or intestine pushes through the abdomen.
  • Hiatal (hiatus) hernia: Here, “part of the stomach pushes up into the chest cavity through an opening in the diaphragm (the horizontal sheet of muscle that separates the chest from the abdomen).”
  • Incisional hernia: This type of hernia is normally due to a surgery – where tissue pushes through the site of an abdominal scar “from a remote abdominal or pelvic operation.”

The strong majority of hernias are inguinal or femoral.

Other types of hernias include:

  • Epigastric hernia
  • Spigelian hernia
  • Diaphragmatic hernia

Why do hernias occur?

Some hernias are due to conditions that have existed since birth. Hernias are often caused to do aging. Repeated strains on the abdominal and groin area can also cause a hernia. These strains can be due to physical exertion, frequent coughing, constipation, obesity, and pregnancy. Surgeries can also cause hernias. 

What are the symptoms of a hernia?

According to the Cleveland Clinic, common symptoms include a noticeable lump or bulge in the groin or abdomen – that can be pushed back in. Activities such as laughing, coughing, bowel movement strains, crying, or physical activity can make the hernia noticeable. Other symptoms include:

  • Pain while lifting
  • An increase in the size of the bulge
  • Pain at the edge of the bulge
  • “A sense of feeling full or signs of bowel obstruction.”

Can hernias be work-related?

Yes. Hernias may be due to a specific incident or to cumulative trauma. A lifting accident can cause the muscle of the abdominal wall to tear. Repetitive lifting over time can also cause a hernia; however, it must be remembered that generally, a repetitive trauma that occurs as a result of lifting over time is generally held to be non-compensable. Meaning, that you must prove the hernia came from a specific, identifiable incident that occurred at a specific moment in time, for instance, attempting to lift an unusually heavy object. Hernias, as discussed, may be due to surgeries – and the surgeries may be necessitated because of a workplace accident that causes abdominal or groin injuries.

Hernias may be secondary to other types of injuries or conditions which may render the hernia non-compensable. For example:

  • Coughing and sneezing may be due to occupational illnesses or due to exposure to dust and chemicals; however, this would likely not be a compensable claim, or at least be extremely difficult to prove.
  • Constipation. People who have orthopedic surgeries such as surgery on their back may need to take medications which, in turn, can cause constipation. The straining during constipation can cause a hernia. Again, this would be very hard to prove, since the constipation is generally something the public is equally exposed to and not a condition of work; 
  • Gaining weight. Injuries such as back injuries can cause inactivity which can cause weight gain – which can then cause a hernia; however, this would also likely be very difficult to prove, since weight gain is also a result of other factors such as overeating. 

How are hernias managed?

You must report the hernia condition to your employer. Once you do, the employer will refer you to a physician (or give you a list of qualifying doctors in Virginia) who will examine you to confirm the hernia. Often a hands-on physical examination can confirm the hernia. If the physician recommends surgery, then you will be referred to a general surgeon. Early intervention for a hernia is strongly advisable.

The type of surgery required depends on your age and the type of hernia you have. The common types of hernia surgery include:

  • Open surgery. In this procedure, the surgeon makes a cut into the body at the site of the hernia. The tissue that is protruding is “set back in place and the weakened muscle wall is stitched back together.” Some hernias use mesh implants to give more support.
  • Laparoscopic surgery. The repairs are generally the same as for an open surgery hernia operation – but “instead of a cut to the outside of the abdomen or groin, tiny incisions are made to allow for the insertion of surgical tools to complete the procedure.”
  • Robotic hernia repair. This hernia operation “uses a laparoscope, and is performed with small incisions.” In a robotic surgery procedure, the surgeon handles the surgical instruments from a console. “While robotic surgery can be used for some smaller hernias, or weak areas, it can now also be used to reconstruct the abdominal wall.”

Hernia surgeries are a fairly common procedure. Some hernias do reoccur. If the original hernia was work-related, then the subsequent hernia may also be work-related.

Other treatments may include losing weight, changes in lifestyle, a better diet, and medications.

What happens if the hernia isn’t treated?

Failure to treat a hernia can cause:

  • Obstruction (incarceration): “Part of the intestine becomes stuck in the inguinal canal, causing nausea, vomiting, stomach pain, and a painful lump in the groin.”
  • Strangulation: “Part of the intestine is trapped in a way that cuts off its blood supply. In such cases, emergency surgery (within hours of occurring) is necessary to prevent tissue death.” I am personally aware of at least one person who failed to get appropriate treatment in time and died as a result of this type of hernia. Within 36 hours after he sustained this hernia, almost the entirety of his intestinal tract was necrotic, i.e. dead tissue due to the loss of blood flow to those tissues. There was nothing the surgeons could do. He died shortly thereafter.  Take this type of hernia VERY SERIOUSLY. 

 If you suffer a work-related hernia, then you should have the right to:

  • Payment for all reasonable and necessary medical expenses including the cost of a hernia surgery
  • Lost income based on your temporary work disability at 2/3rds of your average weekly wage so long as your doctor opines that you are unable to work– until you have any necessary surgeries (including time to recover). Depending on the outcome of the surgery, in some cases, you may also be entitled to permanent disability benefits.

Talk to a premier North Carolina and Virginia workers’ compensation lawyer today

North Carolina and Virginia workers’ compensation attorney Joe Miller Esq. has helped thousands of workers get the workers’ compensation benefits they deserve. He’s been fighting for injured workers for more than 31 years. He’ll work with your doctors to help verify a hernia or any other injury is work-related. To speak with an experienced North Carolina and Virginia workers’ compensation attorney, call lawyer Joe Miller, Esq., at 888-667-8295. or complete my online contact form to make an appointment. You can use complete our New Electronic Case Review. It’s a new way we’re offering workers to contact us remotely, particularly after business hours.

Workers’ Compensation and Cold Weather

Posted on Tuesday, December 8th, 2020 at 1:32 pm    

We’ve written before about some of the types of accidents workers have when the weather gets cold – Worker’s Compensation and Winter Safety | Joe Miller Law, Ltd. (joemillerinjurylaw.com). Some of the major types of cold-weather accidents and injuries for workers include. Probably the most common type of injury is a slip and fall due to ice, melting water, and slippery surfaces. Cold weather cause potholes and pavement cracks which can also make falls likely.

Common cold weather injuries include frostbite, hypothermia, and back injuries. People who work outside such as construction workers, agricultural workers, and roadway maintenance crews are most at risk of suffering from the cold. 

Unfortunately, the notion of a worker’s compensation claim for injury such as frostbite or hypothermia is not as easy as a normal type of “accident” such as a slip or fall. This is because usually, frostbite and injuries like it occur over a span of time, sometimes days, and not in a particular moment. Generally, with very few exceptions, workers compensation law in both Virginia and North Carolina do not permit recovery for repetitive trauma injuries. In other words, if you cannot pin down your injury to a very specific period of time as well as conditions and assignments, you will have no case. 

A review of the case law tends to indicate that in, for instance, a frostbite situation, if the frostbite is brought on over several days or months in the cold weather, it may be difficult to bring a workers’ compensation claim for an injury by accident. If, however, the frostbite occurs as a result of a very limited, say, four or five hour uninterrupted exposure to extreme cold due to a set of tasks that the injured worker is required to perform, that may satisfy the requirement that the injury occur during a specific, identifiable period of time. Of course, this must be backed up with a qualified physician’s opinion. 

All that being said, there may be another option that is revealed by a review of the case law. Frostbite, hypothermia and other such cold-induced conditions could also be considered to be an occupational disease. To bring such a case, one would have to show, through clear and convincing evidence, that the unique conditions of work brought about the injury. Again, one needs to be prepared with a very clear physicians’ opinion that the specific injuries were a result of exposure to extreme cold at work. 

Best cold-weather practices for employers and employees

Many cold weather injuries are preventable with proper planning, training, and safety protocols. Some of these common strategies include:

  • Being prepared for cleaning snow and ice when it occurs
  • Having backup generators, heaters, and other equipment so workers can do their jobs and stay warm when the temperature drops
  • Having plans for stopping work when it gets too windy. For example, ladders and scaffolds are especially dangerous when the winds are too high.
  • Having the proper clothing and work gear for workers so they can work outside if it’s too cold. This includes protective equipment so that cold and rain doesn’t get in the worker’s eyes. Proper clothing should also include footwear to provide better traction and to prevent the worker’s feet and toes from getting too cold. Workers should have gloves, hats, thermal wear, and other protective clothing.
  • Hiring and using maintenance crews to inspect outside areas and entrances to inside areas for wet, cold, and slippery surfaces. Until the repairs can be done, the employer should place warning signs around all the dangerous sites.
  • Being vigilant about salting and de-icing any means of ingress and egress into work buildings. 

What steps should a worker take if a cold-related injury is suspected?

Workers have two priorities if a cold-weather injury such as frostbite or hypothermia is suspected: The first is to get immediate help. If the employer has in-house health care, they can help there. Otherwise, it’s advisable to call 911 or contact your emergency room. Workers may be in shock. The worker may not be aware of the extent of their injuries. Emergency medical personnel should be able to advise the worker and a supervisor whether the worker can be moved safely to the hospital or if emergency on-site care is needed.

The second priority is that workers who are physically able to need to notify their employer (usually a supervisor or manager) that they can’t work anymore due to the cold. If you can’t tell your employer immediately, you should inform your employer as soon as possible after you receive emergency medical treatment.

As mentioned above, unless one suffered an accident such as slipping on ice, workers who suffer injuries due to cold weather conditions such as frostbite or hypothermia may find it more difficult to prove their claim. If they cannot prove that the frostbite or hypothermia was a result of a very defined and specific period of time of no more than a few hours of exposure to extreme cold, the only other option would be to attempt to prove their case through the means of occupational disease, which is more difficult. 

Assuming the injured worker could prove his or her claim, the worker would have the right to file for workers’ compensation. Many injuries can take weeks or months to heal. During the time period where the worker is unable to work, the worker is entitled to:

  • Payment of all reasonable and necessary medical expenses
  • A percentage (about 2/3rds) of the workers pre-accident average weekly wages for the time they can’t do their job

General winter tips for workers

Workers and employers should also advise and prepare their workers for cold weather by:

  • Making sure they stay properly hydrated. Hydration can help manage dry skin and the itching and irritation dry skin causes
  • Making sure to focus on keeping the extremities warm – ears, finger, and toes
  • Eating plenty of fruits and vegetables to balance all Holiday carbohydrate treats
  • Getting some sun and fresh air when possible. Even before the pandemic, it was and still is important to spend some side outside
  • Keeping in shape. Get plenty of exercise.
  • Minimizing contact. As we all know now, shaking hands and close contact spreads germs and the flu. 
  • Washing your hands regularly
  • Knowing the signs of frostbite and hypothermia

Some ways to keep warm (and things to avoid) include:

  • Making sure your smoke detectors are working
  • Being extra careful when using candles
  • Turning off any portable heat-soured device when you go to sleep and when you leave home

A few winter driving safety tips

Many workers such as truck workers and delivery workers are entitled to workers’ compensation benefits if they are injured as a result of an accident while making deliveries. Salespeople and other workers may be entitled to work injury benefits too – if they have a vehicle accident AND if the accident occurs during the scope of their employment. With some exceptions, commuting back and forth to work is not considered within the scope of employment.

A few common safety tips for cold weather driving include:

  • Keeping longer distances between you and other drivers especially the driver in front of you
  • Being prepared to leave the road if the snow, sleet, hail, wind, or rain gets too intense to make driving safe
  • Allowing for much longer stopping distances
  • Allowing for more time to achieve your tasks
  • Having weather-related tools in your vehicle such as shovels and salt to help melt the ice
  • Making extra sure your windshield wipers work, your mirrors are clear, and your window defrosters work
  • Making extra sure your headlights are in good working order

According to Business Insurance:

  • Businesses may consider less formal dress codes – so people are encouraged to wear boots and stay warm.
  • Installing signs to warn people of cold-weather dangers
  • Making sure to inspect the property more often for uneven or slippery surfaces
  • Having more dry mats for people to wipe their feet

“Construction and utility, postal carriers, delivery personnel and employees in other similar positions may be negatively affected by improper protective clothing and training in the bitter cold, which could lead to hypothermia and/or frostbite, noted Ms. Roth.”

Employers who fail to take necessary precautions may be subject to OSHA violations.

Speak with an experienced North Carolina and Virginia workers’ compensation lawyer today

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands the many reasons why workplace accidents occur. It is not necessary to prove your employer was at fault in order to receive workers’ compensation benefits. The focus on considering safety measures in cold weather or any weather is to try to avoid the accident from happening. For help with any work injury claim, contact a seasoned 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. You can use complete our New Electronic Case Review. It’s a new way we’re offering workers to contact us remotely, particularly if they are awake after normal business hours. 

Permanent Partial Impairment (PPI) Ratings – Definitions and Physician Involvement

Posted on Monday, November 16th, 2020 at 12:13 pm    

This article defines when impairment ratings are required and how the rating is determined. The proper impairment rating may help to maximize the total amount of weekly benefits you’re entitled to after medical treatments can no longer improve your medical condition.

In the context of a workers’ compensation case, a permanent partial impairment rating  will typically be a measure of any permanent damage or restriction that is objectively measured in a specific body part, such as the upper extremities, lower extremities, hands, or feet. In North Carolina (not in Virginia) this can also include permanent impairment to the spine.  These partial impairment ratings are expressed in terms of a percentage of permanent impairment. 

AMA definition of maximum medical improvement (MMI)

 The Department of Labor’s AMA guidelines (North Carolina’s is comparable) states that MMI is the medical condition/time at which the worker’s health is not likely to improve – with our without- any further medical treatment. The AMA has an exception for a terminal employee who is undergoing medical treatment for an “illness that has not reached MMI.” 

A permanent partial impairment rating cannot be made until the worker reaches MMI.

The claim becomes more complicated if a worker has multiple illnesses or conditions – one of which has reached MMI and the others haven’t reached MMI. An experienced North Carolina workers’ compensation lawyer can then explain what happens.

The impairment rating is typically measured via a Functional Capacity Exam (FCE), which will usually include narrative text – to state and support the opinion of the therapist as to the percentage of impairment. Then the treating doctor will review that opinion and either sign off on it, or add his or her own modifications, often with a descriptive rationale to support any such modifications. 

Which physician conducts the impairment rating?

Your treating physician should also be the doctor who “signs off” on the percentage impairment and assigns a percentage rating to the impairment. As noted previously, that is usually done via a Functional Capacity Examination that your physician will have to review. The insurance carrier for the employer has the right to review this assessment. If the insurance company agrees with the assessment, then, depending on whether you are still receiving TTD benefits, they may forward an Award Agreement which you will sign, indicating how much you will receive for your PPI benefits. 

Alternatively, the rating money may be incorporated into a full and final settlement as negotiated between your work injury lawyer and the insurance company, obviously, in consultation with you.  The settlement can:

  • Award the payments for your permanent disability to be paid over time – for example, 35 weeks.
  • Alternatively, your lawyer and the insurance company can also discuss a lump-sum payment.  Here, you receive one check to cover the amount you would receive over time (for example, 35 weeks). 
  • If your attorney and the insurance carrier, in consultation with you, opt to engage in negotiations for a full and final settlement, where the PPI money is incorporated into that settlement, then there  are some considerations  and issues that will need to be resolved such as:
    • Ensuring that the settlement will cover any outstanding past and potential future medical expenses which are related to your work injuries. Even though an impairment rating means you’ve reached maximum medical improvement, workers often need extensive physical therapy, additional treatment such as injections or even possible future surgery to address any worsening of their injuries over time.  This is often addressed by your attorney asking your treating doctor for an opinion letter where the doctor may provide information as to your potential future care. 
    • Adjusting the amount because you’re getting all of it now instead of having to wait for it. This is called reducing the future projections to present value
    • Addressing any issues involving Medicare or Social Security.’
    • Addressing future potential medical transportations costs. In some cases, depending on the likely frequency of care and the location of your residence, these can be significant. 

If the insurance company does not agree with the impairment rating, they have the right to ask for an independent medical examination. In North Carolina, if you are unsatisfied with your doctor’s impairment rating, you can also request an independent  ratings examination with a doctor of your choice at the expense of the defense. (This option is not available in Virginia). The Workers Compensation Commission or Industrial Commission can then choose to accept:

  • The impairment rating of the treating physician
  • The impairment rating of the doctor who provides the independent medical examination
  • The average of the two different ratings

What tests and evaluation methods does the physician use to make the impairment rating?

The tests and evaluation methods vary depending on the nature of your injury. Treating doctors and independent medical examination doctors can perform these tests and methods – using the AMA guidelines or state guidelines – depending on the state. 

Today, as mentioned previously, most physicians send the patient to another healthcare analyst who specializes in functional capacity examinations (FCEs). These are usually physical therapy facilities with qualified personnel to perform the examination. There are two types or phases of an FCE exam. 

One part of the FCE exam focuses on the worker’s ability to do his/her job. This portion of the exam will typically rate the injured worker’s ability to perform work on a scale or continuum of ability as defined by the U.S. Department of Labor as Physical Demand Characteristics.  It ranges from no ability to work, on to sedentary, all the way up to very heavy work. 

Those parameters for the physical demand characteristics of workers are defined as follows: 

          Occasional Frequent       Constant 

          (0-33% of    (34-66% of                       (67-100% of 

          Workday)   Workday)                         Workday)

Sedentary        10 lbs. negligible negligible 

Light             20 lbs 10 lbs negligible 

Medium            20-50 lbs 10-25 lbs 10 lbs

Heavy             50-100 lbs 25-50 lbs 10-20 lbs. 

Very Heavy       over 100lbs 50 lbs 20 lbs  

 Another portion of the FCE is focused on the relevant injured body parts and is used to determine the permanent partial impairment in that body part and assign an impairment rating to that body part. 

Insofar as the portion that assesses whether the worker can perform his or her job, the FCE can also address what rehabilitation steps and what work modifications steps might help the worker who has a disability or medical condition – that otherwise prevents him/her from working.

The FCE examiner will evaluate the worker’s physical abilities. The evaluations provide data for the physician to make an impairment rating determination. The FCE examiner will typically assign an impairment rating and it is the treating doctor’s job to either “sign off” on that rating, or make modifications. 

Some of the tasks an FCE examiner may review include the worker’s:

  • Ability to lift
  • Ability to push or pull
  • How long the worker can sit or stand without discomfort
  • Ability to reach
  • Flexibility range
  • Ability to grasp and hold an object
  • The ability to bend
  • The worker’s balance
  • The ability to follow directions
  • The ability to communicate and organize
  • Walking on a treadmill
  • Crouching and kneeling

The FCE examiner will:

  • Conduct an intake examination
  • Review your medical records
  • Take an oral history
  • Conduct a physical examination

The tests are often done over a four to six-hour time frame. Some examinations are conducted over a two-day period – if stamina and tolerance to pain need to be examined. Many workers who are on workers’ compensation may be trying these exercises/routines for the first time since they stopped working. 

FCE exams are usually conducted by occupational therapists and physical therapists – in their own facility.  Both professionals require training, education, and certification.

If at all possible, our office tries to exercise some control over your doctor’s referral to the specific FCE facility where you will be evaluated. Sometimes, as in where your physician will make a direct referral to a facility, there is little we can do. But in other cases, the doctor will simply make a general FCE referral, in which case we try to convince the workers’ compensation insurance company to allow the evaluation to be performed at certain facilities that, in our experience, will conduct a fair examination. 

Unfortunately, as is the case across the medical treatment and evaluation landscape, there are certain providers and facilities whom we have come to know as being  very biased in favor of the insurance companies. These facilities will almost always come back with very low ratings on their FCE evaluations, and either find that the injured worker is 100% capable of returning to work, or that the injured worker is malingering, or faking his or her disabilities and that therefore, the results of the FCE are not reliable. 

How does the impairment rating work?

The impairment is generally assessed according to the loss of unction of a body part – such as limbs, muscles, joints, the brain, the spinal cord, and nerve damage.

In North Carolina, the state essentially uses a two part determination method:

  • Part one is categorizing the type of disability. For each type body part,  North Carolina law and Virginia Law sets forth the maximum  compensation (at the workers’ compensation rate, which is  2/3rd’s of the injured worker’s average weekly wage ) the worker would receive if he/she had a 100% permanent impairment in that particular body part.


For example, the maximum permanent loss of use of an arm is payable for 240 weeks in North Carolina.

  • Part two is assigning a percentage. The percentage is essentially a multiplier of the maximum figure that is presented in the statute. So, for example, if as in the above example, a worker has an arm injury, then we know the maximum is 240 weeks in North Carolina. 


 If the impairment rating is 20%, then the injured worker is entitled to 48 weeks of payments. That is 240 x 20%=48 weeks. So then you would take the TTD or compensation rate (let’s assume it’s $500.00) and multiply it times the weeks. In our example 48 weeks x $500.00=$24,000.00 in PPI money that the injured worker would be entitled to.  

Attorney Joe Miller, Esq. is a respected North Carolina and Virginia workers’ compensation lawyer. He’s been helping injured employees obtain just recoveries for more than 30 years. He’ll work with your doctors to ensure your impairment rating is judged correctly. He’ll explain which tests the doctor or an FCE examiner is likely to perform. He’ll fight to make sure you aren’t forced back to work if you can’t work. He’ll also work to ensure your medical bills are aid. To talk with an experienced work injury lawyer, call North Carolina and Virginia attorney Joe Miller, Esq., at 888-667-8295 or fill out my online contact form  or our new online case evaluation tool

The American Medical Association Guidelines and State Workers’ Compensation Guidelines – for Determining a Worker’s Permanent Impairment Rating

Posted on Thursday, November 12th, 2020 at 12:10 pm    

Different federal agencies and different states use the AMA guidelines (either directly or indirectly) to assess a worker’s permanent partial impairment. In the context of a workers’ compensation case, a permanent partial impairment rating  will typically be a measure of any permanent damage or restriction that is objectively measured in a specific body part, such as the upper extremities, lower extremities, hands, or feet. In North Carolina (not in Virginia) this can also include permanent impairment to the spine.  These partial impairment ratings are expressed in terms of a percentage of permanent impairment. 

The United States  Department of Labor has guidelines for evaluating medical evidence necessary to show a “ratable permanent impairment” for certain federal workers. Generally, workers who have a ratable permanent impairment are entitled to additional pay after they have reached the point of maximum medical improvement. 

States, such as North Carolina and Virginia, generally use comparable guidelines in determining how much, if any, additional compensation injured or ill workers should receive due to a workplace injury or disease. In Virginia, the guidelines are not specifically mentioned by statute, but are often utilized by doctors and rehabilitation professionals to assign permanent impairment ratings to the injured body parts of claimants.  Others use their own guidelines. For example, North Carolina has its own rating guide for impairment

Before we go further, one important note about impairment ratings generally: If we have an accepted claim or a claimant who is under an Award in Virginia, and the injured worker is injured to the extent that he or she cannot return to job he/she held prior to their injury, and the employer is unable to accommodate the employee’s physical restrictions, then really, except in  rare circumstances,  the impairment rating is not a very important item to consider.

 Why? Because first, if it is an accepted or awarded claim, and one cannot return to his or her pre-injury job, and the employer is not able to accommodate, then the employee will continue to receive TTD for potentially up to 500 weeks. So long as an injured worker is receiving TTD, then the law says he or she cannot simultaneously receive payments for permanent partial impairment (PPI) and TTD.  In other words, one cannot ADD to the 500- week maximum with PPI payments. 

Those PPI payments would only be available if, and when the injured worker returned to work at any job.   

In addition, in the scenario of an accepted claim, we are often looking at a potential settlement of the claim. The value of the indemnity or “weekly TTD checks” portion of the claim in a case where one cannot return to the pre-injury job is usually far higher than any payment that one would be entitled to for PPI. 

Accordingly, the only time PPI usually becomes more important is the scenario where the injured worker has returned to work in some capacity. Once that happens, we are going to factor those available payments into any potential settlement. In the above scenario, where the injured worker continues to receive TTD, and we are looking at a potential 500-weeks maximum of payout, we do not care as much about the ratings in any settlement scenario. 

North Carolina rating guide

North Carolina distinguishes between an evaluation of permanent physical impairment and permanent disability. It references the AMA guidelines as follows:

The Disability Committee of the American Medical Association (AMA) has pointed out that the evaluation of permanent disability is twofold:

  • The medical evaluation of the permanent physical impairment.
  • The rating of the disability according to the administrative bodies.


Physical impairment is a purely medical condition. Permanent physical impairment is any anatomical or functional abnormality or loss after maximum medical rehabilitation has been achieved and which abnormality or loss the physician considers stable or non-progressive at the time the evaluation is made.”

  • Permanent disability is not a purely medical condition. A patient is ‘permanently disabled’ if ‘under a permanent disability’ when his actual or presumed ability to engage in gainful activity is reduced or absent because of ‘impairment’ and no fundamental or marked change in the future can be expected.
  • Medically, disability is physical impairment and inability to perform physical functions normally.
  • Legally, disability is permanent injury to the body for which the person should or should not be compensated.

In workers’ compensation cases in North Carolina there are four types of disability:

  • Temporary partial disability. (TPD) The worker can return to work – but with restrictions. The worker receives treatments to try to improve his/her condition during this period. This is also available in Virginia, and in such circumstances, if the injured worker is working under reduced pay because of the physical restrictions, then he or she is entitled to 2/3rds of the difference between the pre-injury wages and the wages in the new, light duty job. 
  • Temporary total disability. (TTD) The period of time when the worker can’t do any work at all per the treating physician and is receiving medical treatment. TTD payments are 2/3’s of the injured worker’s average weekly wage.  To obtain an accurate number for TTD,  we multiply the average weekly wage x .66667
  • Permanent partial disability or impairment. (PPI) This term applies to a worker who has some permanent physical damage or some loss of use of a body part – after he/she has reached maximum medical improvement. Again, these impairments are expressed in terms of a percentage. Using the percentage, one would reference the law that sets forth the maximum permitted recovery for the body part in question. That recovery is expressed in terms of weeks of TTD. Then one uses the percentage to determine the available payment for one’s impairment rating. A quick example: In North Carolina, the maximum payment for the back or spine is 300 weeks. (no such impairment for the spine is available in Virginia). The treating doctor rates the injured worker as having a 20% permanent partial impairment to the spine. 20% of 300 is 60 weeks. If the injured worker’s TTD rate is $500.00, then $500 x 60 weeks= $30,000.00. The injured worker would be entitled to a payment of $30,000.00. Some discounts to that amount typically apply if the injured worker wants to receive the amount in lump sum vs. over 60 weeks. 

North Carolina’s rating guide for impairment is just meant to be a guide for physicians in their rating exams – since many injuries involve intangible factors such as “pain, weakness, and dexterity.” The doctor’s job is to assign a percentage to the impairment. The doctor should use hie/her independent judgement based on experience, a clinical examination, test results, and other factors to set the percentage. The North Carolina industrial Commission then uses this percentage, among other factors, to determine what award, if any, should be paid to the worker.

That being said, usually, ratings are determined within the context of rigorous testing of the injured worker at a physical therapy facility by a qualified professional known as a functional capacity examination (FCE). The doctor will usually rely on the results of the FCE to determine permanent partial impairment. 

American Medical Association definition of impairment

The Department of Labor guidelines reference the 5th edition of the AMA impairment guidelines. The 5th edition defines an impairment as “a loss, loss of use or derangement of any body part, organ system or organ function.” In addition, the 5th edition states: 

“Impairment percentages or ratings developed by medical specialists are consensus-derived estimates that reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common Activities of Daily Living (ADL)excluding work. (Emphasis in original).

The AMA guidelines rate various organs and bodily functions by category – such as respiratory, cardiac, nervous system, endocrine, etc.

According to Insurance Journals, the AMA guidelines for the 5th edition (2000) were updated by a 6th edition (2007). Research from McMaster University in Ontario and the Netherlands showed that the 6th edition “resulted in significantly lower impairment ratings than the 5th edition,” according to research from McMaster University in Ontario and the Netherlands. Their findings, which were published in the Journal of Occupational and Environmental Medicine, stated that the difference in the impairment ratings is that the focus on impairment ratings shifted from pain and range of motion – to direct measures of function. “For example, in an earlier guide they may have measured whether a person could lift their arm above their head without discomfort, but now they look at whether the person could put a box on a shelf.”

“The results showed the median whole person impairment rating was seven per cent for 131 claimants assessed with the fifth edition of the AMA guides, and four per cent for 118 claimants assessed with the sixth edition.”

The study made another startling finding- that the state workers’ compensation boards throughout North America are not consistent with which AMA guides they use. 

According to Lexis, as of July 1, 2019, the count of  States Utilizing various guidelines broke out as follows: 

AMA Guides, 6th Edition 14 states 

AMA Guides, 5th Edition 10 states 

AMA Guides, 4th Edition 6 states 

AMA Guides, 3rd Edition Revised, 2 states 

State-specific guide used instead 16 states (although 15 states say AMA Guides may be consulted)

Comparison of the 5th and 6th AMA editions

Disability is defined as follows:

  • The 5th edition defines disability as – “Alteration of an individual’s capacity to meet personal, social or occupational demands or statutory or regulatory requirements because of impairment.”
  • The 6th edition defines disability as – “Activity limitations and/or participation restrictions in an individual with a health condition disorder or disease.” 

Impairment is defined as follows:

  • The 5th edition defines impairment as “a loss, loss of use or derangement of any body part, organ system or organ function.”  
  • The 6th edition adds the word “significant” to the definition. 

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. is a premier workers’ compensation lawyer. He’s helped thousands of injured employees obtain strong recoveries. He works with your doctors and independent doctors to properly assess your disability and your impairment rating. He’ll fight to ensure you are required to work only if you are physically able to work. To speak with an experienced North Carolina and Virginia workers’ compensation attorney, call attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form , or utilize our new online case evaluation form.

CDC Recommendations for Hearing Protection During Your Lifetime

Posted on Monday, November 9th, 2020 at 10:39 am    

Several doctors published a report on the website of the Centers for Disease Control and Prevention (CDC) in 2018 explaining how hearing affects workers during their lifetime.

Across the globe, one in three people have a measurable loss of hearing. “1.1 billion young persons are at risk for hearing loss attributable to noise exposure.” Some of the occupations that place people at risk of hearing loss including manufacturing, construction, and mining. “Loud noises can cause permanent hearing loss through metabolic exhaustion or mechanical destruction of the sensory cells within the cochlea.”

Whether loss of hearing constitutes a disability is based on the worker’s communications needs and ability to perform his/her job tasks. Workers such as police and air traffic control workers need high and middle level frequencies to do their hearing-critical jobs.

Occupational Noise-Induced Hearing Loss

“A recent analysis of 2011–2012 National Health and Nutrition Examination Survey (NHANES) data estimates that approximately 14% of U.S. adults aged 20–69 years (27.7 million persons) have hearing loss. After adjustments for age and sex, hearing impairment was nearly twice as prevalent in men as in women; age, sex, ethnicity, and firearm use were all important risk factors for hearing loss. “

About 22 million workers are exposed to dangerous noise levels at work according to the CDC’s National Institute for Occupational Safety and Health (NIOSH). The prevalence of hearing loss can be as high as 25% of the workforce depending on the job types. Some sectors such as forestry, agriculture, warehousing, transportation, fishing, hunting, and utility work seem to have benefited from hearing protection where the risk decreased according to comparing studies from 2006-2010 to studies for 1986-1990.

Workers such as firearm and aircraft workers can be exposed to as much as 140 decibels above pressure level (dB SPL). They require noise reduction devices of 30-50 dB. Even though there are occupational guidelines for hearing protection, many workers suffer hearing loss because their earmuffs and earplugs don’t fit properly.

Nonoccupational Noise-Induced Hearing Loss

Insurance companies for the employers may argue that a workers hearing loss is due to non-occupational causes. Recreational hunting, shooting, personal music players, loud noises at concerts, woodworking, and motorsports are known to have high-risk noise levels. 

“Persons with normal hearing can detect sounds equally soft at all frequencies. When hearing is damaged by noise, the hearing test will show a loss of acuity in a narrow range of middle to high frequencies (3–6 kHz) with better hearing at both lower and higher frequencies. Often, the earliest sign is a notched configuration in the audiogram.”

Many workers and people with hearing loss due to non-work causes actually think their hearing is excellent or good – which means they’re not aware of their hearing loss. Sadly, while much hearing loss is preventable, many workers and nonworkers fail to take preventive steps. The report states that “70% of persons exposed to loud noise in the past 12 months had seldom or never worn hearing protection.”

Worldwide hearing loss statistics

According to the World Health Organization (WHO), about 360 million people have a disabling (unable to work) hearing loss. About 328 million adults are affected. 56% of males are affected. “It is estimated that approximately 320 million persons aged >65 years will have hearing loss by 2030 and approximately 500 million by 2050.”

American prevention efforts

The CDC report states that hearing loss programs should go beyond traditional services – such as diagnosis, treatment, and research.” The initiatives should also “focus on epidemiologic surveillance, health promotion, and disease prevention.” This type of approach can lead to better prevention strategies and better ways to manage hearing loss.

One such program is called: Dangerous Decibels. This program has helped people with both hearing loss and tinnitus (ringing in the ears). The program’s three main strategies are:

  • Turn it down
  • Walk away
  • Protect your ears

The program, which began for just youths, now works for adults and members of the military. A study of children in the US, New Zealand, and Brazil affirmed the effectiveness of the program. The program is used in all 50 states, the four US territories, and 41 nations. The program includes online games such as Jolene – a program which measures “music-listening sound levels and aids in educational outreach for hearing health.

The CDC has its own hearing loss and communication products. “NIOSH promotes the Buy Quiet and Quiet-by-Design programs, designed for employers to take an inventory of their potentially harmful loud tools and replace them with quieter ones.” NIOSH also developed the Safe-in-Sound Excellence in Hearing Loss Prevention and Innovation Award which recognizes individuals and companies for successful hearing loss programs. In 2015 United Technologies was one of the companies recognized – for reducing the rate of employee exposure to hazardous noise by 80%.

“NIOSH recommends an 85-dB limit for an average daily 8-hour exposure and a 3-dB exchange rate, which means that each increase of 3 dB in exposure level reduces the recommended exposure time by half. Thus, an 88-dB exposure limit is recommended for up to 4 hours and a 91-dB exposure limit for 2 hours.”

Two World Health Organization (WHO) hearing loss initiatives are:

  • World Hearing Day. This day is observed on March 3. It aims to increase the awareness of hearing loss amount professionals, communities, and policymakers.
  • Make Listening Safe Initiative. This initiative focuses on personal audio systems.

Some of the ways workers can protect themselves for noise include:

  • Lowering volumes
  • Taking breaks
  • Using better quality consumer products
  • Reductions in time of exposure to loud noises
  • Hearing protection devices which fit properly 

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting for workers who suffer occupational illnesses or workplace accidents for more than 25 years. He works with experienced hearing physicians to verify your inability to work due to hearing loss or your inability and/or your need to use hearing devices for work and for your daily activities. He’ll fight to ensure your hearing loss is fully compensated and the cost for medical care and protective devices is paid. To review your rights with an experienced work injury lawyer, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295. or complete my online contact form to or our online case evaluation form to see if you may have a compensable workers compensation claim. 

Factors in Selecting the Correct Hearing Protection at Work

Posted on Saturday, November 7th, 2020 at 10:38 am    

Many workers, especially those in construction, agriculture, and industry, work in conditions where it is extremely noisy. After months or years of exposure to loud sounds, workers may lose part or all of their hearing. This hearing loss is often covered as an occupational illness under the North Carolina and Virginia workers’ compensation laws. In some cases, just one loud explosion can cause a worker to have a justifiable workers’ compensation claim based on a workplace accident. 

In Virginia, under VA Code 65.2-503 (15), a total loss of hearing due to workplace conditions or accident can pay up to 50 weeks of temporary total disability compensation (2/3rds of the injured worker’s average weekly wage). The percentage of hearing loss is determined by the degree permanent loss in terms of decibels. This is set forth in the Hearing Loss Table. In Virginia, injured workers are not entitled to any compensation for hearing loss that is less than a reduction of 27 decibels. 

In North Carolina, under North Carolina General Statute 97-53 (23), a total loss of hearing in both ears can pay up to 150 weeks of compensation; however, the law relating to the percentage of compensation for less than 100% loss is somewhat complex. One rule that is different is that unless there was pre-existing hearing loss in one ear, hearing loss is only compensable if there is a hearing loss in both ears. Tinnitus, or ringing in the ears, is not compensable in North Carolina. 

It should be noted that this permanent partial impairment mode of compensation (the percentage of hearing loss x the maximum number of weeks) does not take into account an injured worker who suffers a severe hearing loss that would prevent him or her from returning to his or her pre-injury job. In that circumstance, one could conceivably negotiate a settlement based on based on the remaining weeks under an Award for benefits, which can be for up to 500 weeks. 

Whether loss of hearing constitutes a disability from work is based on the worker’s communications needs and ability to perform his/her job tasks. Workers such as police and air traffic control workers, for instance, need high and middle level frequencies to do their hearing-critical jobs. A severe hearing loss might accordingly prevent them from returning to that occupation and result in a potential significant recovery in a settlement scenario. 

There are numerous ways workers and employers can help reduce the risk of hearing loss or tinnitus which is a ringing in the ears. Choosing the right hearing protection device can be difficult when there are so many choices – by style, color, size, and materials. The doctors recommend that workers consider the following factors:

Several physicians posted a report on the Centers for Disease Control and Prevention website explaining hearing protection choices when the volume can’t be turned down or the time you’re exposed to the loud sounds can’t be limited.

In addition to hearing loss, difficulty communicating when its noisy can lead to communication errors which can lead to accidents. 


Understand how much notice reduction protection you need

Most exposures to industrial noise are lower than 95 dBA (a decibel level)– “which means most workers require no more than about 10 dB of noise reduction to meet the NIOSH Recommended Exposure Limit of 85 dBA.” Most hearing protection devices that fit correctly can meet this 10 dB requirement. Workers can measure the decibel levels at work with an app for their smartphone- such as the NIOSH Sound Level Meter.

If the noise level is more than 95 dBA, then greater noise reduction devices are required – though workers should be concerned about reducing the noise level too much. “Too little sound can make you feel isolated and less aware of your surroundings.” Workers who are overprotected may regularly feel the need to remove the hearing protection device just to hear a co-worker or supervisor speak. The aim should be to bring the noise level down to 75-85 dBA.

Workers should consider fit-testing their device. “If fit-testing is not available at your workplace, you can check the earplug fit by counting out loud while slowly cupping and uncupping your hands over your ears; if you have a good fit, your voice should sound about the same as you cup and uncup your ears. NIOSH QuickFitWeb can also be used to check if you are getting more or less than 15 dB of sound reduction.”

Some workers who work where the noise levels are more than 100 dBA should wear another form of hearing protection such as earmuffs over earplugs. Chainsaws and jackhammers have noise levels more than 100 dBA. Some devices such as nail guns or weapons exceed the 100 dBA level too. 

Understand your worksite and the task your job requires

Workers need to consider what other protective devices they need to wear and how they may interact or interfere with the chosen form of hearing protection they use. Examples include:

  • Eye protection
  • Hard hats
  • Other head-level personal protective equipment (PPE)
  • A respirator

Some of these other devices can interfere with the hearing protector. For example, earmuffs can interfere with how hard hats or helmets fit. The hearing protection device should be compatible with the other types of protective equipment you need.

Workers should also review whether the noise is continuous – or is active sometimes and quiet at other times. Some devices are easier to adjust if you stay in the same place all the time – as opposed to moving to different locations. Some hearing protection devices are designed to adjust to intermittent noise exposures.

If your hands regularly get dirty, then it helps to avoid devices that require you to use your hands before inserting the device – unless it’s easy to wash your hands before inserting the device.

Workers should think how often they need to hear while wearing the hearing protective device. For example, musicians may need to wear “flat attenuation hearing protectors” while playing their instrument with others. “Special communication headsets can also improve speech communication in very loud environments.”

 Decide which hearing protection device is both comfortable and convenient

Hearing protection devices only work “if you wear them consistently and correctly every time you are exposed to hazardous noise.”

Many workers prefer earplugs to earmuffs – especially if they have to wear the device for long lengths of time or when it’s hot. Earplugs are generally easier to store, lighter, and easier to keep around for unexpected noise exposure. On the other hand, earplugs are often tougher to fit properly. Earplugs may come in different sizes – so, it makes sense to try them out. Additionally, earplugs often need to be replaced often. Some are even designed to be worn just once and then thrown away.

Earmuffs or headphones are usually one-size fits all devices. “Many people find them easier to fit properly and consistently. Earmuffs are easier to remove and replace quickly, so they can be preferable for intermittent use.” They’re generally less comfortable though, because they’re bulkier than earplugs. On the plus side, earmuffs are more durable.

Workers should take the time to choose the right hearing protection devices for their workplace before they begin working. The main key is to find the hearing device though you’ll wear every time you are exposed to any noise level at work that is above 85 dBA. 

Your employer may have recommendations. Your general physician or an audio specialist will have their own set of recommendations.

  1. North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. is a premier workers’ compensation attorney. He’s helped thousands of injured and ill workers in North Carolina and Virginia get just recoveries for occupational illnesses and injuries such as hearing loss. He’ll work with your physicians to document the severity of your hearing loss. He’ll work to determine the cost of the hearing devices that you’ll need for the rest of your life. He’ll also explain what permanent damages workers who lose part or all of their hearing are entitled to – even if they can return to work. To speak with an experienced work injury lawyer, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295. or fill out my online contact form or our new online case evaluation form to start the process of having your claim evaluated by Mr. Miller and his team. 

Carpal Tunnel Syndrome and Workers Compensation – Part Two

Posted on Friday, October 30th, 2020 at 8:52 am    

Carpal tunnel syndrome is painful and is likely to cause workers to lose time from their job. If your median nerve isn’t working you’ll have a lot of complications such as:

  • Not being able to use your thumb effectively
  • Not having the right feeling in your fingers
  • Not being able to hold objects well
  • Not being able to distinguish between hot and cold – on touch

How does your doctor diagnose carpal tunnel syndrome? 

According to the Mayo Clinic, your physician will conduct a series of tests and questions to determine if you have carpal tunnel syndrome. These tests and questions include:

  • Asking you about your symptoms. The doctor will take an oral history of the problems you’re having such as asking when the pain occurs and under what conditions it occurs.
  • Physically examining you.  The doctor will examine how well you feel with your fingers and how strong your hand muscles are. He/she will bend the wrist, touch on the median nerve, and/or press on the nerve to see if these efforts trigger pain.
  • Taking X-rays. Generally, X-Rays can’t diagnose carpal tunnel syndrome. X-rays can rule out other problems such as fractures.
  • Giving you an electromyography. This test measures the tiny electrical discharges produced in muscles. During this test, your doctor inserts a thin-needle electrode into specific muscles to evaluate the electrical activity when muscles contract and rest. This test can identify damage to the muscles controlled by the median nerve, and also may rule out other conditions.”
  • Taking a nerve conduction study. Here, two electrodes are taped to your skin. Then a small shock is directed through the median nerve – “to see if electrical impulses are slowed in the carpal tunnel.” The test can help diagnose carpal tunnel syndrome and also helps rule out other medical conditions.
  • Giving you a Tinel test. This test is a physical test to see if you develop a tingling sensation or if you are numb in certain areas of the wrist and hand. 

Imaging tests may also eliminate other problems such as diabetes.

What are the initial treatments for carpal tunnel syndrome?

It’s best to start treatments of carpal tunnel syndrome as quickly as possible. Early self-help treatments include:

  • Taking more frequent rest breaks
  • Avoiding any actions that make your symptoms worse
  • Using cold packs to help reduce any swelling

In milder cases, where your condition is less than 10 months old, splinting may help. If, however, your hands feel numb, you should treat with a doctor as soon as possible. As a general rule, you should see a doctor, even if you have a mild case, so he/she can diagnose the condition and recommend initial therapy.

Splinting the wrist helps keep the wrist still while you sleep. Patients use the wrist splint at night though it can help with daytime aches and pains.

Some stretching exercises may help. Some patients seek chiropractic care and/or acupuncture

What nonsurgical treatments may help?

Some nonsurgical therapy treatments include:

  • Nonsteroidal anti-inflammatory drugs (NSAIDs). These medications may help reduce carpal tunnel syndrome pain. NSAIDs include Advil, Motrin IB, and other medications. Generally, NSAIDs don’t improve your disorder. The aim of these drugs is to hopefully reduce the level of pain.
  • Corticosteroids. These are injections designed to help reduce pain. Sometimes your doctor uses an ultrasound to guide these injections.” “Corticosteroids decrease inflammation and swelling, which relieves pressure on the median nerve. Oral corticosteroids aren’t considered as effective as corticosteroid injections for treating carpal tunnel syndrome.”

What types of surgery are used for treating carpal tunnel syndrome?

The Mayo Clinic indicates that there are two types of carpal tunnel syndrome surgery:

  • Endoscopic surgery. “Your surgeon uses a telescope-like device with a tiny camera attached to it (endoscope) to see inside your carpal tunnel. Your surgeon cuts the ligament through one or two small incisions in your hand or wrist. Some surgeons may use ultrasound instead of a telescope to guide the tool that cuts the ligament.” This type of surgery, during the first few recovery weeks, may be less painful than open surgery.
  • Open surgery. “Your surgeon makes an incision in the palm of your hand over the carpal tunnel and cuts through the ligament to free the nerve.”

There are risks to surgery that your surgeon should explain to you before any operation. These risks include:

  • “Incomplete release of the ligament
  • Wound infections
  • Scar formation
  • Injuries to the nerves or blood vessels”

The healing process, after surgery usually takes a few months. During this time, “the ligament tissues gradually grow back together while allowing more room for the nerve.” Employees, who are entitled workers’ compensation, should receive temporary disability during the healing process. The employer’s insurance carrier should pay for the surgery.

In some cases, your symptoms may not completely disappear after surgery.

Are you entitled to workers’ compensation if you have carpal tunnel syndrome?

Often, employees can show that they developed carpal tunnel syndrome due to their work. Still, that doesn’t mean you’re automatically qualified for workers’ compensation in either North Carolina or Virginia. Generally, injuries must either be due to a workplace accident or an occupational illness or disease.

In Virginia, Carpal Tunnel Syndrome is specifically not recognized as a statutory occupational disease the same way as something like asbestosis; however, it is probably the most commonly claimed “ordinary disease of life” that injured workers claim is due to have occurred due to exposure to specific work conditions. 

It is definitely not a given that a claim for carpal tunnel will be found compensable. In Virginia, any “ordinary disease of life” much meet the higher standard of “clear and convincing” evidence. This means that there must be very clear proof that the unique work conditions are such that they have caused the CTS, and also that the CTS is not due to factors outside of work. It must be “characteristic of the employment and was caused by conditions peculiar to such employment.”

Employers will typically argue that your carpal tunnel syndrome is due to other conditions – such as a second job or activities you do at home. They’ll also argue that you had a pre-existing carpal tunnel condition caused by other activities or conditions that pre-dated your work history with the employer.

North Carolina is similar in its proof requirements. CTS would fall under the “catch all” occupational disease claim found at N.C.G.S. 97-53(13)  which does generally allow a carpal tunnel syndrome claim to be filed if it is due to a repetitive stress injury – if it can be shown that the CTS is proven “to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.”

If you are able to prove your claim, while you’re out of work due to the CTS, you should be entitled to temporary disability benefits at 2/3rds of your average weekly wage and of course coverage for any and all treatment related to your CTS. If your hand doesn’t completely recover, and you end up with some kind of permanent impairment, you may be entitled to permanent partial disability (PPD) benefits.

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq has helped thousands of injured workers obtain just recoveries. He understands the unique coverage and treatment issues involved with carpal tunnel syndrome claims. To talk with a seasoned work injury lawyer, call North Carolina and Virginia attorney Joe Miller, Esq., at 888-667-8295. or use my online contact form or our new online case evaluation form to find out if you may have a claim. 

Carpal Tunnel Syndrome and Workers Compensation – Part One

Posted on Wednesday, October 28th, 2020 at 8:50 am    

Carpal tunnel syndrome is an injury due to stress. It happens when pressure on the median nerve and tendons that travel through the carpal tunnel (a passage in your arm). You feel the injury as you flex your fingers. The carpal tunnel can cause pain, numbness and tingling,  even with minor swelling.

What are the symptoms of carpal tunnel syndrome?

According to the Mayo Clinic, symptoms include:

  • Tingling or numbness. If you have carpal tunnel syndrome, you may notice numbness and tingling in your hand or fingers. The most affected fingers are the thumb and index, the ring fingers, and the middle fingers- but not your little finger. The sensation may even feel like an electric shock.

The feeling may extend from your wrist up your arm. The symptoms can appear while you’re driving or just reading a publication. They may cause you to wake from your sleep. Many people try to shake out the feelings. The numbness feeling may last a long time.

  • Weakness. You may not be able to grasp or hold onto objects – due to numbness or weakness. The inability to hold objects may also be due to the pinching muscles of the thumb.

What causes carpal tunnel syndrome?

Pressure on the median nerve causes carpal tunnel syndrome. The median nerve “provides sensation to the palm side of your thumb and fingers, except the little finger. It also provides nerve signals to move the muscles around the base of your thumb (motor function).”

Carpal tunnel syndrome can be due to anything that irritates or squeezes the median nerve. A fractured wrist can also cause the carpal tunnel to narrow. Rheumatoid arthritis is another cause of carpal tunnel syndrome. Often, there is no one singular cause. A combination of factors may cause he disorder.

What are the risk factors for carpal tunnel syndrome?

Many factors increase the risk of carpal tunnel syndrome though they may not cause the disorder. These risk factors include:

  • Anatomical factors. Examples include a fractured wrist, a dislocation of the wrist, or arthritis. These conditions can change the space within the carpal tunnel or place pressure on the median nerve.
  • If you have a smaller carpal tunnel than others, you’re more likely to have carpal tunnel syndrome.
  • Gender. Women are more likely to develop carpal tunnel syndrome than men. 
  • Nerve-damaging conditions. “Some chronic illnesses, such as diabetes, increase your risk of nerve damage, including damage to your median nerve.”
  • Inflammation. Inflammation, due to rheumatoid arthritis or other causes can place pressure on the median nerve and affect the tendon linings around the wrist
  • Medications. “Some studies have shown a link between carpal tunnel syndrome and the use of anastrozole (Arimidex), a drug used to treat breast cancer.”
  • Obesity. Being overweight is a risk factor
  • Changes in bodily fluids. Fluid retention can irritate the median nerve and “increase the pressure within your carpal tunnel.” Bodily fluid changes often occur during menopause and pregnancy. The good news is that once the delivery is complete, the mother usually feels better.
  • Other medical disorders. Examples include kidney failure, lymphedema, thyroid disorders, and menopause. Some diseases such as a tumor or diabetes can also increase the risk of carpal tunnel syndrome.

Of particular note, is that workplace conditions are a known risk factor. Examples include:

  • Working with tools that vibrate
  • Working on an assembly line which requires repetitive wrist flexing or prolonged wrist flexing – which can place pressure on the median nerve or affect existing nerve damage.
  • Age. Older people are more likely to develop carpal tunnel syndrome than younger people
  • Trauma. An injury increases the risk of carpal tunnel syndrome.

“Several studies have evaluated whether there is an association between computer use and carpal tunnel syndrome. Some evidence suggests that it is mouse use, and not the use of a keyboard, that may be the problem. However, there has not been enough quality and consistent evidence to support extensive computer use as a risk factor for carpal tunnel syndrome, although it may cause a different form of hand pain.”

Are there ways to prevent or reduce the risk of carpal tunnel syndrome?

Some of the ways to reduce stress on your wrists and hands include:

  • Use a relaxed grip. Reduce your force. If, for example, you use a computer or a cash register – try to hit the keys or numbers a little softer. If you write with a pen,, try using a large pen that has a large soft grip adapter – and ink that flows freely.
  • Take more breaks. During breaks – stretch and bend your hands and wrists. Try to alternate tasks – especially if you use equipment that vibrates like a jackhammer. A few minutes’ break every hour can make a large difference.
  • Watch your form. Try not to bend your wrist – all the way up or down. Use a relaxed position where possible. “Keep your keyboard at elbow height or slightly lower.”
  • Improve your posture. “Incorrect posture rolls shoulders forward, shortening your neck and shoulder muscles and compressing nerves in your neck. This can affect your wrists, fingers and hands, and can cause neck pain.”
  • Make sure you have a comfortable computer mouse.

You should also avoid working where it’s cold. If you can’t control the cold/heat, try using fingerless gloves. They may help.

What types of jobs are most at risk for carpal tunnel syndrome?

Some that we’ve mentioned include computer work or keyboard work, assembly line work, and using a cash register. Other risky jobs include:

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has helped thousands of injured workers obtain their full work injury benefits. He’ll fight to show your carpal tunnel syndrome is compensable under state workers’ compensation laws. He’ll work to show how much medical care and time off you need.To speak with an experienced work injury attorney, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to make an appointment or feel free to utilize our new online case evaluation form.

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