New Workplace Safety Applications for Wearable Technology

Posted on Friday, April 26th, 2019 at 1:28 pm    

In a previous article, we discussed some of the overall pros and cons of wearing workplace technology. In this article, we address some of the specifics.

According to Lanier Upshaw, a company that focuses on business risk, many businesses are exploring how wearable workplace technology can help employers and employees reduce the number of workplace accidents and the severity of workplace injuries. In addition to wearable technology, mobile applications, and sensors are becoming part and parcel of future workplace safety strategies.

Wearable technology is being used in many different professions and industry sectors including healthcare, police, firefighting, construction, and manufacturing.

Some of the benefits that makers of these wearable technologies say can help workers include:

  • Warnings. The technology can warn employees that noise levels are excessive which can harm an employee’s hearing, the temperature is too hot or too cold which can directly affect a person’s health, and the existence of chemical toxins. Toxins that are ingested can cause breathing and respiratory problems. Toxins that come in touch with the skin can cause itching, burns, and infections.
  • Body movement. Wearables can help identify when a worker isn’t lifting an item properly which can place excess strain on the back and spine. Back and spine injuries can lead to a lifetime of chronic pain.
  • Collecting data. Wearable technology devices use sensors to collect lots of data about work performance. The data can be analyzed to focus on increasing productivity while at the same time helping the worker avoid or reduce the risk of injury. The data can be used, for example, to help design ergonomic equipment and workplace environments that place fewer stresses on the body.

Various types of wearable technology

Some wearable technology is already helping workers in the following ways:

  • Warehouses are using wearable technology, which is worn on the wrist or arm, that gives workers an interface to managers and supervisors to discuss any issues that arise
  • Wearable technology can include barcode scanners to let workers minimize the time and stress of handwriting product and delivery information
  • In the manufacturing sector, workers wear headsets that let them communicate while keeping their hands-free to hold on to work with tools and equipment. Wristbands with software can also enable hands-free communication
  • Backpacks with sensors can include cameras that can scan and capture any environment. These devices can be useful in the construction arena where the landscape continually changes as the work is completed
  • Some workers are wearing smart glasses that have microprocessor and optics to get a 3-dimenisional view of an area
  • Sunglasses and smart-glasses can be used for mobile computing, video and photo recording, data collection, and “waveguide optics.”
  • Helmet clips with sensors can help workers and supervisors increase their knowledge of whether there are dangerous gases, the worker’s locations, and what the vital signs of the worker are
  • Footbeds with sophisticated technology are being used to collect biomechanical and physical data which can reduce the risk of “musculoskeletal injuries”
  • Smart wearable technology can help determine whether a worker is getting tired and needs a rest break or should even stop working until they get enough sleep. This can be especially useful for truck drivers who can easily get fatigued if they push their limits – by driving too many hours without getting proper rest. In one example, wearers have a “smart cap,” which alerts a remote operator to the fatigue. The remote operator then sends an alarm to the wearer. These devices detect brain signals through tiny EEG sensors.
  • Some companies have their workers wear “smart compression suits” to track the worker’s body movements. In some industries where the worker works in dangerous conditions, this technology can be valuable
  • There are holographic devices which give the user a better field of vision by including high-definition holograms to increase their understanding of the view around them.
  • There are devices which expand the viewing perspective so that workers can see things at a 75-degree angle. These devices even include earbuds for a broader audio experience.
  • Some devices can be used to examine the wearer’s perspiration level – specifically, the amount of alcohol in the perspiration
  • Workers who work in mine are using “wearable devices for geolocating personnel and equipment”
  • Shirts can help keep surgeons, pilots, firefighters and others cool through the use of “portable CO2 tanks.” These devices can help reduce the risk of death and heat stroke when the weather gets too hot.
  • Watches can transmit safety alerts
  • Glasses are being combined with Bluetooth technology to transmit emails and other notifications.
  • Bracelets with GPS systems can send data about a worker’s location to a supervisor
  • Some devices have point-of-view devices attached to helmets, headgear, and collars. This technology can help law enforcement be more aware of dangerous situations

There are concerns about all this wearable technology. There are privacy and security issues. Employees should have the right to raise questions about their effectiveness. Are they really helping the worker be safer or are they just being used to help a business make a profit or worse yet, spy on their employees?

Is the focus on protecting the worker or on gather data? There needs to be a balance between helping the employee and helping the company, but in all cases, the safety and security of the worker should always be the #1 priority. The wearable technology may improve worker morale but it may also inhibit worker morale because the devices can be cumbersome. Workers may also tend to over-rely on the sensors instead of their own instincts.

At the Virginia Law office and North Carolina office of attorney Joe Miller Esq., we understand that the workplace environment is constantly changing. While we appreciate devices that can help improve worker safety, when injuries happen (for any reason), we demand that employers and their insurance company take care of their workers. This includes making timely payments for medical expenses and wage benefits. We’ve helped thousands of employees get their full workers’ compensation benefits.  For help with your Virginia or North Carolina workers’ compensation case, call us today. Initial appointments are free. You can reach attorney Joe Miller at 1-(888) 667-8295 or by completing my contact form.

Wearable Technology and Workplace Safety

Posted on Friday, April 19th, 2019 at 3:10 pm    

New technology is helping workers avoid work-related injuries in many ways. Companies should always be on the lookout for ways to improve worker safety. They should understand and follow the latest guidelines and regulations from the Occupational Safety and Health Administration (OSHA). They should keep current with latest safety standards.

Businesses should know that providing workers with the best tools possible, the best equipment possible, and the best education possible can help reduce how often work injuries occur. The best way to avoid a work injury claim is to avoid the accident in the first place. When accidents at work do happen, workers should speak with experienced workers’ compensation lawyers to get the best advice possible.

The positives

Most new technology has some computer component and some data component. The wearable technology gathers the data by reading relevant responses from the worker who wears the technology. This new type of technology is often good at measuring things such as fatigue, work-related stress, ergonomic issues, proximity to danger, and other factors.

The overall goal of the technology is two-fold. The first is to improve the safety for the individual worker. The second is to improve the safety of the whole workplace organization.

According to, these are some example of the desired benefits of wearable technology:

  • “Caterpillar Inc. demonstrated a solution it created to reduce accidents involving collisions between heavy machinery and construction personnel. Using a small beacon that fits inside a hardhat and a receiver mounted in the cab of a vehicle or machine, the solution can detect when a worker is dangerously close to the equipment and alert the driver with an alarm.”
  • Two analysts explained how new technology could be used in construction sites, one of the leading industry sectors for workplace accident claims. The new technology would give supervisors the ability to warn workers, through visual and audible alarms to the device they’re wearing – to stay away from certain unsafe areas. The technology was “a worker positioning system using wireless beacons placed around the room and safety vests outfitted with transmitters that allowed software to track their movements throughout the aisles and among audience members in real time.”
  • The analysts touted other wearable devices that could alert supervisors to accidents. Quicker response times could prevent harm to other workers and help the injured worker get more timely help. Workers could be notified when an evacuation of a dangerous site was necessary.

Wearable technology benefits typically, according to the article, the following three goals:

  • Collect data about the worker on certain activities such as bending and then comparing it to a benchmark or threshold. The hard part is determining the benchmarks and thresholds.
  • Change the worker’s individual behavior. Much of the analysis of this type of benefit has shown that it doesn’t help workers that much. In fact, in one study at the University of Pittsburgh, PA, an experiment was done to determine if wearable devices that monitored diet and physical activity helped or hurt with weight loss. The study actually found that the people who didn’t wear the devices lost more weight than those with the devices. The analysts in the article concluded that behavior is affected more by “organizational culture and systems that try to reinforce desired behaviors and discourage deviations.
  • Make changes to organizational behavior, “such as changing workflows or processes to make work safer or more efficient.”

The negatives

There are concerns with wearable technology. Most wearable technology focuses on collecting data about a worker’s performance. Some of the concerns raised by those who oppose these technologies include:

  • A lack of privacy. The collection of large amounts of data can affect the psyche and well-being of the workers. The information gathered may be used against the worker in various ways such as in the evaluation of the worker’s job performance. The worker’s privacy is impacted.
  • An improper focus. Focusing on the data often means missing many other parts of job performance. Doing a job well depends on experience, ambition, creativity, imagination, an ability to be a team player, and many other factors. Focusing on just physical and emotional responses can miss some of these crucial factors. Often, there are much better, more efficient, and more creative ways to improve worker safety and worker job performance.
  • Digital breaches. Some transfer of information might violate various laws such as the Health Insurance Portability and Accountability Act (HIPAA) which regulates access to medical health records.
  • A waste of time. All of the data collection isn’t worth the time to collect it if there’s no ability in the technology to assess and evaluate the data.

Wearable technologies should focus on things that can’t normally be evaluated by the human eye or human experience. How much bending a worker is doing can usually be assessed by just looking at the worker. Technology can be useful, for example, in determining (through a glove with sensors) how much “force a worker uses” while gripping.

General guidelines

Education matters. Workers should be told more than just how to use the technology. They should understand how the technology is being used to make for a safer and better work environment.

Employers tend to like wearable devices because the devices may help reduce their premiums while also helping to avoid workplace accidents. Employees may like them if they really help keep them safer.

At the Virginia Law office and North Carolina office of lawyer Joe Miller Esq., we’ve helped thousands of injured workers get justice. We fight to get employees all the benefits they deserve including payment of all their medical bills and their lost wages. We understand that holding employers accountable for workplace injuries is one way to force employers to focus more on workplace safety. For help with your Virginia or North Carolina workers’ compensation claim, call attorney Joe Miller at 1-(888) 667-8295 or complete my contact form to schedule a free appointment. Initial consultations are free.

Employee Versus Independent Contractor in Workers’ Compensation Claims

Posted on Friday, April 19th, 2019 at 8:50 am    

Workers can file for workers’ compensation in both Virginia and North Carolina if they are an employee. They cannot file for workers compensation injury benefits if they are an independent contractor. The main factor in determining whether a worker is an employee or an independent contractor is how much control the employer has over the worker’s performance. More control means an employee status. Less control means an independent contractor status.

Independent contractors, if an accident occurs, can generally only file a personal injury complaint. Unlike workers comp claims, in a personal injury complaint, the plaintiff must prove that the party at fault was careless or negligent. In workers’ compensation cases, the worker does not have to prove any type of fault. The employee is entitled to workers’ compensation if the accident was work-related.

The difference between an employee status and an independent contractor status is often a fine line. Employers often try to assert a worker was an independent contractor so they don’t have to pay the worker his/her wages and medical bills. Fortunately, for workers, the employee does not have the final say on the work-relationship status. The workers’ compensation Commissioners decide the status – and thus the eligibility to file a claim.

Many times, it is easy to determine whether the worker is an employee or independent contractor. If a retail store hires a full-time employee who also gets vacation pay, health insurance, and retirement benefits – and the employee reports to the same store and the same office manager and has set hours – then the worker is most likely an employee. If the retail store hires someone to come into the store and fix a broken tile in one hour – and that’s all the worker does – that suggests an independent contractor status.

The key factors in deciding the work relationship

Again, as noted above, the main factor in determining whether a worker is an employee or an independent contractor is how much control the employer has over the worker’s performance. More control means an employee status. Less control means an independent contractor status. The Internal Revenue Service uses the following key factors to decide the work-relationship question. Workers’ compensation Commissioners look to a very similar set of factors to decide whether the worker is an employee or an independent contractor.

  • Behavior. Behavior refers to the way the employer guides and manages the worker’s performance.
    • Employee behavior. Workers who do their job under the direction of a manager or supervisor and according to a handbook of company rules during set hours are likely to be considered employees. Workers who wear company uniforms, use company tools and company equipment, and who work exclusively at the company site are generally labeled as employees.
    • Independent contractor behavior. Independent contractors generally inform the employer how they are going to do their job. Often the employer hires the independent contractor because he/she has some unique and special expertise. Independent contractors usually use their own equipment. They do their work with minimal guidance from the employer. The employer will have a set of requirements but the work is done using the independent contractor’s methods. Independent contractors are more likely to decide which tasks get done in which order and have no set hours. They come and go from the worksite as they please.
  • Financial. Financial considerations focus on how the worker is paid. It should be noted that these factors are not decisive.
    • Employee finances. Employees are more likely to be paid on a regular basis – such as by hour, by week, biweekly, or bimonthly. They are usually paid with a W-2 form. Pay raises are usually made after a performance review and after a set time has expired – usually a year. Employees are usually reimbursed for company expenses such as the purchase of tools or for paying for computer charges.
    • Independent contractors. These workers are more likely to paid in-full when the job is complete or in installments. Installments are often, ½ when the job is ½ done and the other ½ on full on completion. Independent contractors are usually paid with a 1099 and not a W-2. Independent contractors usually buy their own supplies and tools. They are not reimbursed by the company. Instead, the independent contractor adjusts the initial offer to reflect his/her expenses. Independent contractors generally don’t undergo a performance review. If the employer is satisfied with the job the independent contractor did, then the employer will likely hire the independent contractor again – if the need arises. If the employer wasn’t happy with the job performance, the employer will normally hire a different contractor or vendor.
    • The reason the 1099 form is generally not decisive is that many employers think they can get around the workers compensation laws or not have to pay payroll taxes by simply deciding to call all their employees independent contractors and pay them via a 1099. And then when you examine the actual relationship, you find out that in every other respect, the workers are, in fact, treated as employees and not as independent contractors. So just because someone is paid via 1099 is not determinative of whether or not that person is an employee or independent contractor.
  • The Work relationship. This factor looks at standard long-term benefits
    • Employee work-relationship. Employees are usually offered what other employees are offered based on their skill level and time of service. Workers who are given a pension, matching IRA benefits, vacation pay, sick leave, health insurance, and other yearly or long-term benefits are usually considered to be employees. Employees generally don’t advertise for other work. They generally don’t work for other employers.
    • Independent contractors. These workers generally get little or no benefits. They are self-employed and must pay for their own health insurance, take vacation on their time, and set up their own pension and retirement plans. Independent contractors usually need to establish working relationships with many different employers. They usually have an expense account for advertising and marketing – so they can get new work.


The employee versus independent contractor question can often arise when workers are seasonal or temporary workers. Many times, these workers are employees because they work solely at the control and direction of the employer.

If an employer suggests that a worker is an independent contractor, that worker should speak with an experienced workers’ compensation lawyer. The difference between the two types of work relationships can mean the difference between getting workers’ compensation benefits and being denied benefits.

Unfortunately, we come across this issue quite a bit, and we have prevailed in cases where the employer attempts to save money by mischaracterizing the employment relationship to get out of paying payroll taxes, insurance, workers compensation, and other benefits.

Please also see our previous article on Independent Contractors vs. Employees for additional information.

At the North Carolina and Virginia Law office of Joe Miller Esq., we’ve been fighting for injured workers for more than 30 years. We aggressively fight to have workers evaluated as employees instead of independent contractors. We understand and defend against the common arguments that employers try to make to deny you coverage by saying you don’t really work for us an employee. To speak with an experienced workers’ compensation lawyer, call 1-(888) 667-8295 or complete my contact form to schedule a free appointment.

Types of Small Reimbursements in Workers’ Compensation Cases

Posted on Friday, April 5th, 2019 at 3:06 pm    

The bulk of the payments in a North Carolina or Virginia workers’ compensation claim are the wage loss benefits and the medical expenses. Wage loss benefits are generally paid at the rate of 2/3rds of the worker’s average weekly wages (prior to the accident) – up to preset maximums. The wages are paid until the employee can return to work. Additional payments may be made if the worker has a full or partial permanent disability.  Adjustments to the pay are usually made if the employee can return to work but at a lower paying salary.

Medical payments cover surgeries, doctor visits, psychological counseling, and a variety of different therapies. The payments are made by the employer’s insurance company as long as the treatments are helping the worker get better. Even when an employee has reached maximum medical improvement (no additional medical care will improve his/her condition), the worker is still entitled to have the medical bills paid so that the condition doesn’t worsen. In other words, the worker is entitled to medical coverage to maintain his/her health.

Vocational rehabilitation

Some workers may not be able to return to their prior work because of the severity of their injuries. North Carolina and Virginia allow these workers to explore the option of vocational retraining. The employer may be required to pay the cost of training the worker or helping the worker get an education – up to certain limitations. Helping workers acquire new schools often means they can work in new jobs at somewhat similar pay. Speak with a skilled North Carolina or Virginia workers’ compensation lawyer to learn if you are entitled to vocational rehabilitation expenses.

Mileage reimbursement to the doctors

Workers often need to treat with many different doctors. Additionally, they may be required to see a doctor or health provider multiple times. Many workers, for example, can see their physical therapist several times a week for months at a time.

The cost to get these doctors can add up quickly. In North Carolina and Virginia, workers are entitled to be reimbursed for the cost to see their own doctors, to travel to an independent medical examination when requested, and for vocational rehabilitation support and schooling. The mileage reimbursement expenses continue for health care even if the worker has returned to the job – provided the worker needs the medical treatments to stay healthy.

The mileage expenses are calculated as follows:

In North Carolina, workers can claim mileage reimbursement if the round trip to the doctor or therapist is 20 miles or more. The amount the worker will receive is generally set by the North Carolina Industrial Commission. The NCIC, in turn, sets its rates based on the Standard Mileage Rate that is annually prepared by the IRS.

According to the NCIC, the mileage reimbursement rates are as follows:

“If employees travel 20 miles or more round-trip for medical treatment in workers’ compensation cases, they are entitled to collect for mileage at the rate of 25 cents a mile for travel prior to June 1, 2000;

  • 31 cents a mile for travel between June 1, 2000 and January 17, 2006;
  • 44.5 cents a mile for travel between January 18 and December 31, 2006;
  • 48.5 cents a mile for travel between January 1 and December 31, 2007;
  • 50.5 cents a mile for travel between January 1 and June 30, 2008;
  • 58.5 cents a mile for travel between July 1 and December 31, 2008;
  • 55 cents a mile for travel during 2009;
  • 50 cents a mile for travel during 2010; 51 cents a mile for travel between January 1 and June 30, 2011;
  • 55.5 cents a mile for travel between July 1, 2011 and December 31, 2012;
  • 56.5 cents a mile for travel between January 1 and December 31, 2013;
  • 56 cents a mile for travel between January 1 and December 31, 2014;
  • 57.5 cents a mile for travel between January 1 and December 31, 2015;
  • 54 cents a mile for travel on or after January 1, 2016.”

According to the IRS, the rates for 2017 are 53.5 cents per mile and for 2018, the reimbursement rate is 54.5 cents per mile.

The costs are meant to cover expenses for gasoline as well as wear and tear on the vehicle.

“The Industrial Commission has given the self-insurers and insurance carriers permission to pay drug and travel expenses directly to the employee without approval from the Commission.” This means that, normally, the worker will keep a record of the mileage and then submit the record to the employer’s insurance company. The record should include the date of the visit to the health provider, the identity and location of the healthcare provided, and the total distance traveled. North Carolina actually provides a form, called a Form 25T, upon which the worker should submit his or her mileage information to the employer.  It’s generally a good idea to mark down the odometer amount before the trip starts and at the end of the return home. The distance from your home to the health care provider can also be tracked by using Google Maps.

Generally, workers should be reimbursed within a few weeks from the time they submit their form but unfortunately there is no rule that sets for the time frame by which the employer/insurance carrier are required to reimburse the employee. Unfortunately, some carriers are delinquent in this regard and we sometimes have to file a motion with the Commission if an unreasonable amount of time has passed before payment has been received by the injured worker.  Depending on the amount of medical and/or vocational travel you are engaging in, it’s a good idea to submit mileage reimbursement requests on a monthly basis

Workers who take public transportation are generally allowed to be reimbursed for the cost of the public transportation. Workers who use their car to see their health care provider should also add in the cost of parking – if there is any.

The mileage reimbursement rates in Virginia are based on the same principles.  Virginia likes workers to:

  • Indicate the dates traveled and the addresses (the workers and the health care providers)
  • Attach a MapQuest or Google Maps printout of the directions and mileage
  • List any parking, bridge tolls, or public transportation costs. This can include the cost of a taxi.
  • In Virginia, mileage is reimbursed at 55.5 cents per mile.


Reimbursement includes the mileage reimbursement and the other miscellaneous costs – tolls, public transportation, and taxi. Workers should also include a statement from the healthcare provider to confirm they were at the appointment on the scheduled dates. Virginia does not have the 20-mile round requirement that North Carolina does.

At the North Carolina and Virginia Law office of Joe Miller Esq., we’ve been fighting for injured workers for more than 25 years. We fight to get our clients every amount they deserve – large and small. We’ll fight to get you approved for worker’s compensation benefits and explain which forms you need to complete to get paid. To speak with an experienced work injury lawyer, phone 1-(888) 694-7994 or fill out my contact form to schedule a free appointment.

Many Construction, Transportation, and Manufacturing Workers Compensation Claims are Due to Fatigue

Posted on Monday, April 1st, 2019 at 9:14 am    

According to a report cited by the National Safety Council, 69% of employees say they suffer from fatigue at work. The report is titled “Fatigue in Safety-Critical Industries: Impact, Risks and Recommendations.” The report is based on several studies – one of workers and another was of a more mathematical survey. The NSC studied the utilities sector in addition to the other named work sectors.  

Fatigue at work can cause numerous types of accidents. The report noted that 90% of employers said that fatigue was impacting their businesses. Fatigue, employers understand, also decreases productivity in addition to causing workplace accidents. 72% of workers said they thought workplace fatigue was a safety issue – indicating a disparity between employer and employee views. Fatigue is especially dangerous in industry sectors where machines vehicles, equipment, and tools are part of the job.

Tired truck drivers for example can easily crash into other vehicles, lose control of their vehicles, run red lights, speed, or driver off the highway. These type of truck accidents often cause death. Survivors may suffer catastrophic injuries that leave them permanently disabled. Even workers who eventually can return to work need months or years of medical help.

Some of the other findings from the NSC report

  • In the transportation sector, 97% of employers thought that fatigue impacted their workers. This figure was the highest of all the sectors that were surveyed. 68% of workers admitted to sleep loss and 42% admitted to working long shifts – both are risk factors for fatigue.
  • In the utility sector, 95% of employers agreed that is not safe to drive while tired. Only 2/3rds  of the employees said they agreed that tired drivers make for dangerous drivers
  • In the construction industry, all surveyed workers said they had at least one risk factor for fatigue. 46% of the workers said they worked during times that were high-risk for fatigue – namely at night and early in the morning.

The NSC’s mission is to help prevent deaths at work and elsewhere. Founded over 100 years ago, in 1913, the NSC works with businesses, government, elected officials, and others to help prevent deaths. The fatigue report found that lack of sleeps results in $410 billion yearly in “societal expenses.”

Common accidents where fatigue plays a factor

In the construction industry, fatigue can easily cause a tired worker to slip and fall. Workers can be electrocuted if they don’t follow safety rules. They can be hurt from falling objects. They can fall from scaffolds. They can be struck by moving equipment.  

In the manufacturing sector, tired workers use many different types of heavy machinery. If they’re tired, these workers pose a risk to themselves and everyone in the workforce.

Tired drivers aren’t paying attention to the traffic in front of them. They’re slow to recognize emergencies and too slow to respond. For example, they don’t apply the brakes quickly enough. They don’t steer out of trouble. Many tired drivers are also easily distracted because they’re grabbing for the coffee, rolling down the windows for fresh air, or doing other things to try to stay awake such as taking amphetamines – when they should just get off the roadway.

It is precisely because tired truck drivers are dangerous drivers, that the Federal Motor Carrier Safety Administration (FMCSA) has federal regulations. Drivers can only drive a maximum of 11 hours after 10 hours of rest. There are limits on how many hours truck drivers can work during a 60-hour week and during a 70-hour week.

Some of the symptoms of workplace fatigue

Common fatigue symptoms that workers and employers should be on the lookout for include:

  • Lack of energy
  • General tiredness and fatigue
  • Constant yawning
  • Slow reaction times
  • Impaired decision making
  • Short-term memory loss
  • Lightheadedness or dizziness
  • Needing stimulants to stay awake

Common causes of driver fatigue

  • Working too many days in a row
  • Working night hours
  • Being deprived of sleep due to lifestyle choices
  • Being deprived of sleep due to the need to take certain medications
  • Heavy labor places a lot of wear and tear on a body and can tire people out
  • Doing boring repetitive tasks all work day long
  • Working different shifts in the same week
  • Being absent from work
  • Reduced productivity
  • Getting into more accidents of any type
  • Making mistakes in job performance

How employers can address driver fatigue

Employers should consider making the following workplace changes so that employees are energized so they can better focus on their job duties:

  • Avoid double shifts – day work and night work
  • Avoid multiple night shifts
  • Monitor the hours the employee is working better so they have time to get the rest they need
  • Make sure workers who do strenuous work and who do work long hours are able to take longer work breaks. Breaks should include time to drink, get a bite to eat, and to rest if needed.
  • Job assignments should be rotated so that workers with monotonous jobs can do more interesting work to balance out their work time.
  • Workers who do heavy lifting, use heavy machinery, or do any job which puts a lot of pressure on the body – should be given some assignments that are less strenuous
  • Employers should understand the OSHA and industry safety standards and apply them to reduce the likelihood a tired worker will get into an accident.


In workers’ compensation cases, an injured worker is not required to prove that the employer was at fault for the accident. There’s no need to prove the employer made the employee work harder or longer than necessary. There’s no need to show the employer failed to follow proper safety laws.

In North Carolina and in Virginia, if an employee suffers an accident in the course and scope of employment, regardless of fault,  the worker is entitled to state workers’ compensation benefits. Standard work injury benefits include 2/3rds of the worker’s average weekly wages while he/she is unable to work and payment of all reasonable medical bills. Attorney Joe Miller has helped thousands of injured workers in both North Carolina and Virginia get the pay and medical benefits they deserve. For help now, please call me at 1-(888) 888-694-1671 or complete my contact form to schedule a free consultation.

Can I Choose My Own Doctor in a Workers’ Compensation Case?

Posted on Thursday, March 21st, 2019 at 12:48 pm    

Most workers who are hurt on the job make arrangements to go their nearest emergency room – or someone makes the arrangements for them. The ER facility takes your history and may conduct some initial diagnostic tests such as taking an X-Ray. They then make an initial diagnosis. In serious cases, they’ll then advise you whether they think you should be admitted – or not. If you are admitted, then your local hospital generally performs whatever procedures are necessary.

After the visit to the ER, or if you never went to the ER, the next normal step is to see the physicians who can help you. These doctors include family doctors, orthopedists, pain management doctors, neurologists, psychiatrists, psychologists, cardiologists, and many other types of doctors. You may also need to treat with physical therapists, vocational therapists, and other health care providers. Some workers also find that working with a chiropractor can help.

Unfortunately, in a worker’s compensation case, you typically don’t get to make the initial choice as to which health providers you see. You can’t choose your own doctors and therapists. Instead, in Virginia, unless you have a catastrophic injury that requires immediate surgery—in which case whatever surgeon is on call at the hospital typically becomes your treating physician—the workers comp insurance company will give you a list of 3 of their preferred doctors for each type of doctor or health provider you want to see. This is known as a “panel” of doctors. For example, the employer may give you several pain management doctors and give you the right to choose one of the several doctors listed.

Employees should understand that most, if not all, of the doctors on the list were chosen by the employer for a reason. The employer wants doctors who will get you back to work as soon as possible. While company doctors are duty-bound to help employees, company doctors tend to certify patients as ready to return to work (or to work with restrictions) much more readily than non-company doctors. These doctors will be looking to see if you have any pre-existing injuries that might disqualify you from work injury benefits. They will be aware if you state that the you’re not really hurting that much. They’re less likely to recommend long-term or expensive treatments than everyday doctors.

That being said, on most of these panels, it is our experience that there is at least one doctor who is “less bad” or even helpful, as compared with the other two on the panel.

In North Carolina, there is no such ability to choose even from a panel. The insurance company gets to choose which doctor the employee sees. That being said, as will be further explained, North Carolina has a mechanism in place to request either a change in treating doctors or an Independent Medical Examination to be paid for by the defense. Virginia has no such provision.

When it comes to the initial visit to doctor, therapists, and others – particularly in North Carolina—there isn’t much the employee can do.

How to make the switch to a doctor you prefer

Most workers feel more comfortable working with a doctor of their own choosing. The lines of communication are usually better. Workers understand that the doctors they choose will be looking out only for their interests and not the interests of the company or organization that hired you.

There are several ways that a switch can be made

  1. You have the right, under North Carolina’s workers’ compensation laws, to get a second opinion. Injured employees can make a written request to have a doctor in the same specialty or area of care examine you – at the expense of the employer. The request is first made to the employer. If the employer denies the request, you can appeal to the state industrial commission. There are a few things to keep in mind if you get a second opinion through the employer. The original treating doctors can review the report and contest the findings. The employer and the employer’s insurance company also have the right to review the second doctor’s report.
  2. You can, normally with the help of an experienced North Carolina work injury lawyer, request permission to switch doctors or to switch health care providers. If the doctor who gives you a second opinion thinks that you need treatment or care that the first original doctor is not providing, then you can make a formal request to switch to the new doctor. The North Carolina Industrial Commission will have to approve the switch. An experienced North Carolina lawyer will explain what situations will likely result in an approval of the switch. He’ll fight to show the switch is necessary. Generally, the switch has a greater chance of success if some or all of the following factors apply:
    1. Sufficient time has elapsed to show the treatments from the original doctor aren’t working
    2. You can show some inherent bias against you from the first doctor
    3. The original doctor isn’t using reasonably available treatments
    4. Other factors depending on your health condition

There are some situations where the employer will be required to pay for a doctor who wasn’t pre-approved or for a hospital that wasn’t pre-approved. The main situation/exception is in response to an emergency. Emergencies include the initial injury. They can also include an emergency that appears during your treatment phases – such as an allergic reaction to a medication that requires immediate attention.

How an experienced workers’ compensation can help increase the likelihood of seeing a different doctor

Insurance carriers and defense lawyers will normally fight any request to switch doctors or health care providers. An experienced lawyer will help you in several ways. A skilled North Carolina workers’ compensation lawyer normally works with many different work injury doctors. He’ll help you make an appointment with a doctor who has trained for your type of injury. A good work injury attorney will understand what objections the insurance company will likely make and what objections or responses the original treating doctor will make.

The law on second opinions and switching health providers can be found at N.C.G.S. §97-25. Medical treatment and supplies. Some key considerations in the law, in addition to the above summary, are:

  • The employer must respond to your request for a second opinion within 14 days of your written request.
  • “If in an emergency on account of the employer’s failure to provide medical compensation, a physician other than provided by the employer is called to treat the injured employee, the reasonable cost of such service shall be paid by the employer if so ordered by the Industrial Commission.”

Virginia—No Independent Medical Exams for injured workers…. But….

Unlike North Carolina, Virginia has no provision with regard to the payment by the insurance company for an Independent Medical Exam if the worker is being mistreated by the current treating doctor; however, Virginia is less restrictive in terms of choosing a doctor and paying for it on one’s own. In other words, if the injured worker has private health insurance, and he or she is dissatisfied with the care of the authorized treating physician, then the worker can go to whatever doctor he or she wants to, provided that individual is able to pay, either through private health insurance or with his or her own funds. If that new physician should have a clear and reasonable opinion that the authorized treating doctor is incorrect, or engaging in inappropriate treatment for the injured worker, then the Virginia Workers Comp Commission may very well side with the physician chosen by the injured worker.

In North Carolina, unless the injured worker takes advantage of the laws that permit either a change of treating physician or an authorized Independent Medical Examination, then the Industrial Commission has said it will ignore the opinions of any unauthorized treating physicians. In other words, seeking privately paid treatment would likely do little to change the course of one’s case in North Carolina.

Experience matters. North Carolina and Virginia lawyer Joe Miller is a strong advocate with a track record of success. He’s helped many clients get second opinions and has helped many clients switch physicians. To make an appointment now, please call 1-(888) 667-8295 or fill out my contact form

What Are Workers’ Compensation Compromises and Releases?

Posted on Wednesday, March 13th, 2019 at 3:45 pm    

A compromise and release (C&R) is a way to settle your worker’s compensation claim. In Virginia, these are commonly called Full and Final Settlements, whereas in North Carolina, these are commonly called Clincher Agreements. These kinds of settlements are generally used for workers who are disabled from their pre-injury job and will likely need future, long-term medical care. There can be settlements even when the worker returns to his/her former job – based on the understanding that the worker will need continual funds for medical treatments.

These full settlements mean that the entirety of the case—both the future indemnity (some portion of the value of the future compensation checks the worker would likely receive), and the future medical value of the claim (some portion of the value of the future work injury care that the injured worker will likely receive for the remainder of his or her life) are completely resolved. In exchange for a lump sum which represents these two sides of the injured worker’s case, once the final settlement Order is entered by the Commission, then all of the ongoing benefits for both weekly checks and medical stop, permanently.  

General considerations

There are many considerations that you will need to review with an experienced North Carolina or Virginia work injury lawyer depending on where your claim is:

  • Have you reached maximum medical improvement? Workers should usually not consider any lump sum settlement until they know the seriousness of their injuries. Typically, workers should continue treating with their doctors until it’s clear additional medical care won’t improve the worker’s health.  Once the worker has reached his/her maximum possible health, then a compromise and release may be advisable. Also, workers who reach MMI may still need to treat with doctors so their condition doesn’t get worse, or to simply assist with ongoing pain management.
  • What is the level of your permanent work restrictions? There is a continuum of SEDENTARY, LIGHT, MEDIUM, HEAVY or some combination thereof. Usually these restrictions are determined via a Functional Capacity Exam (FCE). Then within the FCE, there are sometimes some additional specific restrictions as to the injury itself. (e.g., no overhead work).
  • What is your lifelong job skill set prior to your work injury? For instance, if you have spent your entire life in manual labor, and you are now permanently restricted to sedentary (desk or sit-down work), it may be very difficult for anyone to find you a job. This will make it more likely that you will finish out the entirety of your Award and that you should receive a larger portion of your potential future payout in lump sum. On the other hand, if you have numerous skills outside of manual labor and you are highly educated, and you have physical injuries, your physical injuries will likely have less effect on your future job prospects. In that circumstance, the settlement value of your claim would be lower.
  • What is your pre-injury average weekly wage? (AWW) It’s important to know this as your wage determines the amount of your comp checks each week (2/3rds of your AWW) and hence, the higher the AWW, the higher the comp checks, and also the higher the settlement value.
  • How old are you? We all know that typically, severe injuries take longer to heal or may not heal if an injury occurs at age 57 vs. age 27. In addition, it is much harder to begin a new career with restrictions at an older age than it is when a worker is young.  
  • What type of work injury do you have? Is it a partial disability or a full disability? If it’s a partial disability, you may be able to work at another job but for lesser pay. Full disability generally means you won’t be able to work again at your pre-injury job, and you are either 100% disabled, or restricted to such a degree that you have not been able to find a job within our physical restrictions.
  • Does your injury qualify for additional compensation above and beyond being unable to work? Some injuries such as loss of vision, serious disfigurement, or an amputation may qualify for additional benefits. Your attorney will help you obtain a proper medical evaluation so you can claim this additional pay.
  • Are you eligible for Medicare or will you be eligible soon? If so, then you will likely have to enter into a Medicare Set Aside agreement so it’s clear what workers’ comp will pay for your medical bills and what Medicare will pay.

Additional questions include:

  • What are the tax consequences of a settlement?
  • How do you determine what medical expenses you will have for the rest of your life?
  • How is the amount of your claim adjusted because you are getting the money in a lump sum instead of payouts through the rest of your life?

Some of the answers to these questions are general. Most depend on the individual facts of your case.

When a settlement is truly a compromise rather than just paying a lump sum for certain benefits later.

The employee and employer may have different ideas on how much medical treatment you will need in the future. The amount that will be included in the settlement needs to be artfully negotiated so that the worker gets the best amount. Experienced work injury lawyers understand the legal arguments. They also work very carefully with your doctors to fully understand what treatments, medications, and other health care costs you’ll have. In some cases, it can be fairly clear that the worker will need to see a physical therapist several times a month. In other cases, where the health effects of the work injuries may deteriorate over time (such as when he/she has a disease), it can be harder to determine what care is needed. In other situations, the injury may be so severe that it is clear that as the worker ages, home healthcare or attendant care will be required, with potential significant future costs.

At the end of the day, unless dealing with a Medicare situation, the portion of the claim and any settlement that deals with future medical care comes down to the comfort level and a frank discussion between the injured worker and his or her attorney. How likely is it that the injured worker will require future surgery? How likely is it that the injured worker will return to employment and obtain health insurance to cover the cost of such surgeries? Are the contemplated future medical costs based in reality or are they just “worst case scenario” medical costs?

There are several reasons for entering into a compromise and settlement

  • First, it means you control the funds instead of the employer. If there’s a settlement, you can decide which doctors you will see – you don’t have to see the company doctors. You get to pay the doctors directly which means you don’t have to argue about the bills with your employer or the insurance company.
  • Second, you’re not on the defensive. You don’t have to worry about the employer constantly trying to say that you can return to work or that you’re not looking for work if you can work with restrictions.
  • Third, it means you won’t need to work with a nurse case manager. While the manger can be useful, at times, the case manager is often trying to find a way to terminate your benefits by showing you’re not complying with the medical advice you’re given. It also means more privacy. In a settlement, it’s just you and your health care providers.
  • You won’t have to work with the Vocational Counselor anymore. Let’s face it, although vocational rehabilitation is supposed to find you another job within your restrictions, the real game is to impair your case by tripping you up when you forget to come to meetings or follow up on some stupid job lead that you have no interest in. Then they drop the hammer and try to cut you off of benefits. Settlement gets you out from under those folks.
  • It also means that you can invest the funds if you get a lump sum payment. With a long-term payout, you don’t have access to the funds now. With a compromise and release, you can use the lump sum to make wise choices such as paying off a mortgage or starting a business.
  • It means your family has an inheritance if something should happen to you. If you were to die during receipt of your workers comp funds from an unrelated cause, in most cases, all payments would cease. By getting a lump sum, now that money is in your account, available for your use, or to pass on to your loved ones in case something should happen to you.

It is also important to understand that full settlement means just that—it settles all aspects of your case. It is possible to use the C&R to just settle just settle the wage issues (indemnity-only settlements),  but leave the medical payments open. The second scenario is useful, for example, when someone’s future healthcare costs are so extremely high or at this point unknown that it makes a full settlement impractical. In such cases, settling the indemnity side alone—providing a lump sum to the injured worker—while leaving the medical portion open, may make sense.

Then again, many insurance carriers simply refuse to engage in such settlements and insist on an “all or nothing” approach. Either the entire claim is resolved, or not at all.

There may be additional factors

Injured workers need to review what other benefits they may be entitled to with time or due to a disability. Some workers may be entitled to Social Security Disability. (SSDI) Workers may also be entitled to Social Security retirement income when they reach age 62. They may also be entitled to Medicare, Medicaid, or other government benefits.

Experienced lawyers will also review the workers’ family situation. Who can the employee rely on for support? The education and ability to earn another type of income needs to be considered. The severity of the injuries needs review. The more doctors and healthcare providers the patient requires, the harder it becomes to make an evaluation of how much money is needed for long-term health problems. If a worker has mental health difficulties, it can be extremely difficult to know how much psychiatric and psychological help the worker needs.

At the North Carolina and Virginia Law office of Joe Miller Esq., we have helped thousands of workers get just recoveries for workplace accidents and illnesses. We’ve been fighting for clients for more than 25 year. We’ll explain when you should consider a settlement and what the terms of the settlement should be. For help now, 1-(888) 667-8295 or complete my contact form to schedule a free appointment.

Recent Workers’ Compensation Statistics

Posted on Tuesday, March 5th, 2019 at 5:14 pm    

Workers’ compensation is a no-fault system. Any employee who suffers injuries due to a workplace accident is entitled to demand work loss benefits regardless of whether there is any fault on the part of the company. These benefits typically include 2/3rds of the worker’s average weekly wages for the length of time he/she cannot work. It also includes payment of all reasonably necessary medical bills including surgeries, doctor visits, time with therapists, medications, and the cost of medical devices.

Insurance-based statistics

According to the Insurance Information Institute, the workers’ compensation industry had the following interesting statistics for the years 2008-20017.

The industries with the most worker’s compensation claims between 2008-2017 were:

  1. Laborers 64,410 claims
  2. Truck drivers (tractor-trailer and heavy trucks) 47,860 claims
  3. Janitors and cleaners 35,580 claims
  4. Nursing assistants 34,210 workers compensation claims
  5. General maintenance and repair workers 30,580 work injury claims
  6. Retail salespersons 25,200 work injury claims
  7. Registered nurses 24,540 worker claims
  8. Store clerk and order fillers 23,990 workers’ compensation claims
  9. Construction laborers 23, 290 work injury claims
  10. Light truck and delivery service drivers 22, 830 work injury claims

There are some surprises in these numbers for the average work. The first is that construction work is only ninth on the list. Construction workers can be electrocuted, suffer serious burns, can fall from scaffolds and other heights, can be hit by vehicles such as trucks and cranes, can be struck by equipment, and often suffer back and neck injuries due to heavy lifting.

It may seem surprising that the nursing sector is so dangerous. Nurses can easily be infected. They must constantly move and manipulate patients and beds. Some patients may not be able to control their hostility. We represent and have represented numerous nurses and certified nursing assistants (CNA’s) who have been injured when heavy patients suddenly shift their weight and an injury occurs. We have also represented and continue to represent several nurses and other health care workers, particularly in the mental health field, who have been violently attacked by patients and suffered severe injuries.

Leading writers of workers’ compensation insurance policies

The top writers of insurance coverage for workplace injuries were the following companies. Employers are either required to have insurance for worker’s compensation claimants or they are required to self-pay if a workplace accident occurs.

  1. Travelers Companies Inc.
  2. Hartford Financial Services
  3. AmTrust Financial Services
  4. Zurich Insurance Group
  5. Berkshire Hathaway Inc.
  6. Liberty Mutual
  7. Chubb
  8. State Insurance Fund Workers’ Comp (NY)
  9. American International Group
  10. Old Republic International Corp.

Leading Causes of Workplace Fatalities

The U.S. Department of Labor keeps statistics for workplace deaths. In 2015, logging caused the most workplace deaths – 132.7 deaths per 100,000 full-time employees. The next occupations as to highest workplace death rates were:

  • Fishing workers
  • Aircraft pilots and flight engineers
  • Roofers

On average 3.4 of out of every 100,000 workers died due to a workplace accident or illness.

When a worker dies in a workplace accident or due to an occupational illness, the family (typically the spouse and children, i.e. the dependents of the deceased) is entitled to some benefits. These benefits generally are:

  • The reasonable cost of the funeral and burial up to a preset amount.
  • A lump sum payment based on the remainder of the Award pertaining to the deceased worker.


The leading causes of work-related deaths for 2015-2016 were as follows:

  1. Transportation deaths including vehicle crashes 2015. 2,054 2016. 2,083
  2. Just vehicle crashes 2015. 1,264 2016. 1,252
  3. Slips and falls 2015. 800 2016. 849
  4. Assaults and acts of violence 2015. 703 2016. 866
  5. Contact with equipment and objects 2015. 722 2016. 761
  6. Exposure to harmful substances and environments 2015. 424 2016. 518
  7. Fires and explosions 2015. 121 2016. 88

In addition, there were 417 homicides in 2015 and 500 homicides in 2016 that were work-related. The source for this set of data comes from the U.S. Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries.

Employer-based statistics

According to

  • Data from the US Bureau of Labor Statistics confirm the staggering number of workplace accidents. In 2012, for example, there were 3 million nonfatal claims for workers compensation – about 3.5 of every 1,000 full-time workers filed a work injury claim. Statistically, about 19 in 20 of these workers’ compensation claims were for workplace accidents. The other five percent were for occupational illnesses.
  • As might be expected, police work was the most dangerous type of work. The risk of a workplace accident for police officers was, on average, five times more than for other job categories.

Workers’ compensation and fraud

There are two types of fraud. Fraud committed by employees and fraud committed by employers

Employee fraud

The main types of employee fraud were the following:

  • Workers who claimed they were hurt on the job when they were actually hurt away from the job.
  • Building up a minor work injury into one that is far more severe than it is – allowing the worker to collect more wage loss benefits and stay home from work for a longer period of time.
  • Faking injuries altogether. For example, claiming a soft-tissue injury of the neck or back even though the worker isn’t hurt.

Employer fraud

Employers also do things that are fraudulent or dishonest to falsely deny a valid worker’s compensation claim. Common examples include:

  • Claiming that a worker actually worked in a less hazardous job in order to pay the worker lower wage loss benefits.
  • Trying to claim that a worker was an independent contractor and not an employee. Employees are generally entitled to file a worker’s compensation claim for wage loss and medical expenses. Independent contractors are not entitled to file workers’ compensation claims. That being said, the employer does not have the final say as to a worker’s status. Whether a worker qualifies as an employee or an independent contractor depends on a variety of factors such as who has the right to control how the worker does his/her job and when the job is done. Unfortunately, we see this “misclassification” defense frequently. It is clearly fraudulent and done by employers for many reasons. One is they obviously do not want to pay for workers compensation insurance, but in addition, by classifying workers as independent contractors, they can avoid payroll taxes and paying for health insurance as well.


Additional workers’ compensation findings

According to the Social Security Administration, in 2013 the total amount of worker’s comp benefits nationwide was $63.6 billion. This total was based on the following:

  • Payments for medical benefits – $31.5 billion
  • Payments for wage loss compensation – $32.0 billion. This sum includes payments to workers who are disabled and to the survivors of deceased workers.

The amount employers pay for workers’ compensation varies depending on the following factors, among others,

  • The risk of injury
  • The industrial classification
  • The experience rating

At the North Carolina and Virginia Law office of workers’ compensation lawyer Joe Miller Esq., we fight to get injured workers all the compensation they deserve. We are strong advocates for injured employees. Our office has helped thousands of injured and ill workers get the compensation they deserve. To speak with an experienced attorney, call 1-(888) 667-8295 or complete my contact form to schedule an appointment.

How Does the Medicare Set Aside (MSA) Work?

Posted on Tuesday, March 5th, 2019 at 5:11 pm    

Some claimants, mostly older workers, are entitled to Medicare in addition to workers’ compensation. We all know that once you qualify for social security retirement, at age 65, you also qualify for Medicare. In addition, if you become entitled to Social Security Disability Benefits or SSDI, you will automatically become Medicare Eligible at 24 months from the date that Medicare deemed you to be completely disabled from all work. Since both Medicare and workers’ compensation can pay for medical expenses, a question arises – who should pay for your medical bills related to your work injuries? The workers comp insurance company or the U.S. Government? If both paid, the healthcare providers would either be paid twice, or you might get a windfall by pocketing the money for future treatment – so there needs to be some procedure to prioritize and allocate the medical bills. Generally, the employer’s workers’ compensation is the primary carrier and Medicare is the secondary payer.

The problem arises mostly when the worker and the employer are thinking about a long-term settlement (commonly called a full and final settlement or Clincher) and the worker is either already Medicare Qualified or is on SSDI currently, or otherwise expects to apply within the next 30 months.  The method used to protect Medicare from overpaying is called a Medicare Set-Aside (MSA) account.

How does the Medicare Set Aside (MSA) work?

The easiest way to think about a Medicare Set Aside is that it is a way of protecting the Medicare program from paying for something that private insurance has agreed to pay. In other words, it prevents “double dipping” by the injured worker receiving a sum of money for future medical care from the workers comp insurance company, and then turning around and using Medicare to pay for that very same medical care. (and pocketing the insurance money). That would not be fair to the Medicare system and would cost the taxpayers undue funds. So, what we are required to do is protect and consider Medicare’s interests by “setting aside” the money that is designated in any settlement to pay for future medical care related to the injured employee’s work injuries.

The Medicare Secondary Payer Act, 42 U.S.C. §1395y provides that other insurers, such as workers’ compensation, will pay for an injured person’s medical expenses in an accepted claim.  The compromise and release provides that a specific sum will be used for the employee’s medical bills. The Act then provides that when this specific set aside amount is used up, then Medicare will start paying for the reasonably necessary medical treatments. The Medicare-Set Aside estimate that is usually in the form of a detailed report and if the worker is currently Medicare eligible, the report must be submitted to the Centers for Medicare & Medicaid Services (CMS) prior to final settlement so they can review the patient’s needs and the amount of the set-aside.

The workers’ compensation medical set aside, according to Atlas Settlement Group, Inc. should be submitted to CMS as follows:

  • If the injured claimant is currently on Medicare and the amount of the settlement is more than $25,000 or
  • The injured claimant reasonably expects to file for Medicare within 30 months of the compromise and release settlement – and the amount expected to be paid for future medical expenses and lost wages during the lifetime of the settlement is expected to be $250,000 or more.

There is a reasonable expectation of enrollment if any of the following applies:

    • The claimant has applied for Social Security disability
    • The claimant is 62.5-years-of-age
    • Other conditions that may apply

How is the MSA handled?

Generally, the funds for the medical set aside agreement are placed in an interest-bearing account.

Sometimes the amount of the account is paid to the injured worker by the insurance company in one lump sum and is administered by the injured worker. Other times, particularly when there is a large amount to distribute, the payment occurs with seed money for the first year, and then annual distributions over time from the insurance company or from an annuity purchased by the workers comp insurance company. Payments should be made from the account only for reasonable medical expenses that Medicare would otherwise cover that are related to the work injuries.  These medical expenses include hospital stays, doctor visits, treatments with different types of therapists, psychiatric help, medical devices, and medications. The person administering the MSA, if the account is self-administered, is required to provide CMS with a yearly accounting of distributions to the health providers. This is done on a simple form that Medicare provides once the MSA is approved. Again, this formal accounting is only required if the injured worker is a current Medicare recipient or is otherwise qualified to receive Medicare at the time of settlement. A final audit is prepared if and when all the available funds have been spent.

Sometimes, a medical management company is hired by the workers compensation insurance company to administer and monitor the MSA funds and in those cases that company would be responsible for the annual reporting.

Of course, it is possible that all the funds in the MSA will never be spent, and in that instance, whatever is in the account remains the estate of the injured worker upon his or her passing.

According to NCCI, the time to process CMS reviews is decreasing. In 2015, the CMS took, on average, about 70 days to review the average MSA. Large MSAs take more time to review than MSAs for smaller amounts.

CMS often responds to an MSA request in a settlement by stating that more money than is recited in the proposed report needs to be set aside. CMS needs to balance what the worker needs with what it thinks it should pay. When claims are large, more than $200,000, CMS on average requests that an additional six percent be set aside. When claims are small, under $25,000, CMS on average is requesting a 51% increase in the set aside amount. The main reason for CMS increases, at every amount, are that that more money is needed top pay for future drug costs which are constantly on the rise.

In general, the amount that workers’ compensation medical set asides need to budget for Medicare Part A and part B is fairly stable from year to year. NCCI claims that the amount for Part D prescription drug services is beginning to stabilize too.

Other NCCI findings

When there are large MSA compromises, more than $100,000, there is usually a corresponding severe injury. Severe injuries include brain injuries, back injuries that involve surgeries, burns, and the amputation of a body part. Workers with these injuries often need long-term treatment with pain management doctors for their chronic pain and treatment with emotional health doctors and counselors for their depression. These treatments often include high prescription medication costs.

Nearly 64% of workers’ compensation who need a Medicare set aside are already on Social Security Disability. 29% of claimants are eligible for Medicare because of their age. About 7% of claimants will become eligible for Medicare in the next two and half years.

Claimants generally need to wait until they have reached maximum medical improvement (MMI) before they consider a compromise and release – and the accompanying MSA. There’s no point in settling a work injury claim until you fully understand your medical condition and how much medical care you will need. Most MSA submissions take place about four years after the workplace accident happened. It’s not unheard of for an MSA to be prepared 10-15 years after the accident. Submission of MSAs in the same years as the accident are rare, although they do occur.

MSAs in general are about 42% of the compromise and settlement amount. The breakdown is typically in the following range for a compromise and release:

  • 22% for Part D, prescription drug coverage.
  • 20% for Parts A and B – the hospital stays, visits to the doctors, and other related services.
  • 58% for such things as medical costs not covered by Medicare, legal fees, and indemnity coverage.

More than half of the workers who submit MSAs use an experienced workers’ compensation lawyer. An experienced lawyer understands the need to work with your doctors to understand and verify your medical records and future needs. The lawyer will be sure to help you understand what you are looking at on the Medicare set aside, and also what future medical needs might not be covered by Medicare, (and hence need to be claimed as a separate future expense) such as long-term home care or attendant care, and how much it could cost. A skilled attorney understands what arguments the employer’s lawyer or insurance company will make to try to say everything should be part of the MSA. He’ll also explain tax consequences and other legal and practical matters.

Understanding CMS review trends helps understand what claims will be approved and which ones will need modification. The sooner a claim is approved, the sooner the payments from the compromise and release can be made. The payments include the wage loss payment and any permanent disability benefits – in addition to the medical expenses.

In cases where the claim is self-administered by the employee, we always recommend that the employee obtain a separate debit card for the account and use that card whenever he or she pays any work-injury-related healthcare costs. That way, at the end of each year, the worker has a bank statement that outlines all of the related costs and makes it very simple to do the annual report to Medicare.

Non-Obligatory MSA’s.  Oftentimes, workers engage in compromise settlements that do not meet the CMS threshold of review as set forth above. That means that the injured worker is not a current Medicare recipient and the settlement is not over $250,000.00. The problem is that the injured worker is not 100% sure about his or her future. The worker may be considering applying for SSDI within the next 30 months. Also, something could happen, such as a car accident or other unforeseen injury that completely incapacitates the injured worker. In those cases, if no attempt is made to consider Medicare’s interests, then the injured worker may run into problems when he or she qualifies for Medicare and attempts to utilize Medicare to pay for work-injury-related treatment. This could be the case, even though at the time of settlement, the worker was not a Medicare Recipient.

So in these “non-obligatory” cases, we often recommend that an “informal” Medicare Set-Aside be made, whereby some amount of funds is recited in the settlement documents to be set aside by the injured worker to protect Medicare’s potential future interests. There is typically no formal MSA report in these circumstances and of course, nothing needs to be submitted to CMS for approval. We merely come up with a very rough estimate of the amount of future funds that may be necessary to pay for the future medical care of the injured worker.  The injured worker is then advised to set up his or her own separate account for these funds and even call it an MSA account. Although there are no yearly accountings necessary in these cases, we also recommend the same thing as in a normal MSA, namely, that the injured worker obtain a separate debit card to make it easier to track expenses and utilize the funds in the MSA for nothing except healthcare for the work-related injuries.

That way should the injured worker bump up against any issues in the years following settlement whereby he or she should be forced to make use of Medicare, the injured worker will have ample evidence that Medicare’s interests were taken into account.

At the North Carolina and Virginia Law office of Joe Miller Esq., our experienced workers’ compensation lawyers understand when the right time is to consider an overall settlement. We fight to get you the correct sum for your medical needs and lost wages. For help now, call 1-(888) 667-8295 or complete my contact form to schedule a free appointment.

Only the Authorized Treating Physician Can Provide Work Restrictions

Posted on Monday, February 18th, 2019 at 5:43 pm    

Attorney Joe Miller explains why in a Virginia Workers Compensation Case or North Carolina Workers Compensation Case, only the authorized treating physician (ATP) can provide you with work restrictions:

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