BACK IN BUSINESS!!!

Posted on Tuesday, May 19th, 2020 at 8:56 am    

We are pleased to announce that consistent with the Phase 1 easing of COVID-19 restrictions,  Joe Miller Law/The Work Injury Center is back!

Although we never really went away, we know that the challenges of our staff working remotely and relying on our answering service for the fielding of most calls was an inconvenience for many of our clients, potential clients, and others.

Accordingly, we are pleased to announce that as of Monday, May 18, 2020, most of our staff has returned full time to our main office in Virginia Beach.  Our phones are now back to being answered by our staff from 9AM-5PM Monday-Friday.

That being said, consistent with the Governor’s Guidelines, and in order to maximize the safety of both our clients and staff,  we would ask that anyone coming to our office please abide by these precautions to help prevent the spread of the COVID-19 virus, which are the following:

  • Whenever possible, please try to conduct consultations or business with our office through the phone, email or internet
  • Please do not come into our office if you have a fever, have tested positive for COVID-19 or have recently been in contact with someone who has tested positive for COVID-19
  • Please practice safe social-distancing at all times if you are in our office
  • Please utilize a face mask when you come to the office
  • Please sanitize and/or wash your hands with soap and water both before and after visiting our office
  • Please do not expect to come to our office and use our bathrooms unless you need to remain here for an extended period of time

Of course, depending on the progress of the fight against the COVID-19 virus, the above is subject to swift change at any time.

Thank you so much for your support during these unprecedented events and please be safe and stay healthy.

-Joe Miller, Esq.

Updates to the North Carolina Work Injury Process Due to COVID-19

Posted on Monday, May 18th, 2020 at 8:55 am    

The COVID-19 healthcare crisis is causing a lot of changes to the way that workers’ compensation in North Carolina are handled Some of the many changes the North Carolina Industrial Commission is making include the following:

Mediations conducted before June 1, 2020

Chief Justice Beasley ordered on April 2, 2020 that all mediations of workers’ compensation cases in North Carolina will be conducted remotely. Alternatively, the mediations will be scheduled for a date on or after the first of June 2020. All parties must consent to a remote mediation – or the mediation will be rescheduled to the later date.

Hearing policies through May 31, 2020.

Chief Justice Beasley also announced the following changes to the workers’ compensation process – in order to protect the health and public safety of North Carolina residents:

    • Full Commission Hearings. Oral arguments for full commission hearings will be conducted through a conference call. The parties will be given a toll-free number and an access code in order to phone into the conference. A court reporter will still continue to record the court proceeding.
    • Non-medical motion hearings held before a deputy commissioner. Any Deputy Commissioner hearings which would have been heard by May 31, 2020 will be rescheduled except for medical motions (under General Statute 97-25(f) or unless the parties are notified about other conditions

 

  • Medical motions before a deputy commissioner. These hearing are generally required to be heard within 30 days from the motion or appeal filing date. Instead, these hearings won’t be postponed. Instead, they will be hard remotely. The parties may be excused from attending the remote hearing by the Deputy Commissioner if the parties and the Deputy Commissioner agree that:
  • Lay witnesses aren’t needed
  • The parties stipulate to the facts and the exhibits

 

In the case of hearings without lay witnesses, the parties should obtain the relevant expert medical testimony that is needed to resolve the issues.

  • Executive secretary hearings. These informal telephonic hearings, conducted by the “Executive Secretary’s Office will be by conference call.”

COVID-19 Policy Update Regarding Electronic Signatures

The North Carolina Industrial Commission will now accept agreements that are:

  • Signed by one or more parties through DocuSign
  • Singed by one or more to the parties through a vendor similar to DocuSign that “provides a graphic image of a signature placed on a document using secure software that verifies the identity of the user.”

Requests by the NCIC to workers who work remotely


The NCIC is requesting that the lawyers (for the employees and employers) who are working remotely either advise their legal assistants when NCIC orders have been sent or provide the Executive Secretary’s Office with the emails of both the lawyer and the legal assistant

Secured Leave Policy during the COVID-10 crisis

The NCIC will consider motions by lawyers who have to reschedule vacations, non-emergency medical procedures, and other plans – for which secure leave was already filed.

DocuSign and agreements

To encourage social distancing, the NCIC is allowing employees to sign agreements through DocuSign, a legal industry standard. These agreements include:

  • Compromise Settlement Agreements
  • Form 26As and other Form agreements,
  • Consent Agreements

There is one important caveat/condition. The employee must sign through DocuSign. The lawyer for the employee cannot “sign via DocuSign on behalf of an employee.”

COVID-19 Response: Industrial Commission Filing Deadline Policy

The NCIC hasn’t agreed to any “automatic, blanket extension of filing deadlines for the following reasons:

  1. Parties can take advantage of the NCIC’s Electronic Document Filing Portal (“EDFP”) to electronically file a variety of legal documents such as forms, briefs, and proposed orders. 
  2. “The Industrial Commission continues to allow pro se plaintiffs and pro se non-insured employers to file all documents by facsimile, U.S. Mail, private courier service, or hand delivery”
  3. “Any party wishing to obtain an extension of a filing deadline for a reason related to COVID-19, or otherwise for good cause, may file a motion for an extension of time as allowed by applicable rules and statutes.”

COVID-19 Response: Telehealth Coverage and Billing

A few Q and As provided by the NCIC about telehealth visits include the following:

  • Are Telehealth Visits Allowed by the Industrial Commission in Workers’ Compensation Cases? Nothing in the NCIC rules or the Workers Compensation Act disallows telehealth services
  • Can Evaluation & Management Telehealth Visits be Billed under the Industrial Commission’s Workers’ Compensation Fee Schedule? Yes. The same Evaluation and Management codes should be used that are used for in-person visits “except that “02” should be used as the “Place of Service” code.” “For any services with CPT codes that do not have a specific fee schedule amount, the charges would be paid per agreement between the carrier and medical provider.”
  • What if a Carrier or Third-Party Administrator Refuses to Authorize a Telehealth Visit? If there is a dispute, the injured employee may file a medical motion with the NCIC to seek an order authorizing the telehealth visit and authorizing payment for the telehealth visit.

COVID-19 (Coronavirus) Response: Industrial Commission Mediation Policy

“Effective immediately and continuing until further notice, the Industrial Commission will liberally grant the following types of motions:

  • Motions for an extension of time to complete a mediation to allow all mediation participants to safely appear in person at the mediation; and
  • Motions to allow one or more parties to participate in a mediation via telephone or video conference.”

IC Staff Working Remotely; Email Communication Encouraged

The NCIC is encouraging its staff to work remotely as much as possible. The NCIC is encouraging parties to contact the NCIC by email instead of by phone because many staff employees are working remotely where they can easily access their email and because, with email, employees can respond when they are ready. Also, many voicemail messages to office phones don’t get forwarded to personal phones. 

The NCIC provides a list of email addresses for staff members.

North Virginia workers’ compensation attorney Joe Miller Esq. has been fighting for injured workers and workers with occupational illnesses for more than 25 years. He is keeping current with the new requirements for handling cases during the COVID-19 pandemic. Cases are still be being heard. So, if you can’t work due to workplace conditions or a workplace accident, please phone Joe Miller, Esq., at 888-694-1671. or use my online contact form to speak with an experienced work injury lawyer.

Filing a COVID-19 Workers’ Compensation Claim in North Carolina

Posted on Friday, May 15th, 2020 at 8:42 am    

The COVID-19 pandemic is affecting every type of worker. Some work such as healthcare and delivery service work has been deemed essential by the Governor of North Carolina. Other work has been categorized as non-essential. Governor Cooper has issued a new  Executive Order essentially placing North Carolina into Phase 1 of Re-opening, while still  engaging in social distancing, testing, and possibly contact tracing.

Meanwhile, the pandemic is spreading through the state and the world. It is affecting nursing home residents and the elderly more than any other groups. Nurses, doctors, EMT personnel, ambulance service workers, and other health care professionals are at high risk for contracting the virus because they work with so many patients who already have the disease and because the disease is easily transported. Workers who deliver products to our homes are also at risk every time they touch a doorknob, pick up a package, or come into contact with other people.

I recently covered this issue in a couple of short, informal cell phone videos I did for Virginia Workers’ Compensation benefits, namely, if a healthcare worker gets ill from COVID-19 on the job, does he or she have a valid workers compensation case? 

The answer, unfortunately for Virginia Workers, is while technically they may have a case, the real answer is that the level of proof required for an “ordinary disease of life” such as becoming ill from COVID-19 is so high that it will result in all cases being denied by insurance companies. So while a sick healthcare worker may be gasping for air on a ventilator, unable to work and facing thousands in healthcare costs, assuming he survives, the worker’s compensation insurance company will be denying payment for the claim, saying the sick worker has contracted an “ordinary disease of life,” cannot prove it came from work, and has therefore no case. 

And of course, this is an outrageous situation, and that is why I did another video urging all citizens to call and email their State Representatives to get legislation passed that will protect our most cherished heroes—our healthcare workers who are battling this terrible virus. 

Occupational Illnesses in North Carolina

So is the situation any better in North Carolina? Workers in North Carolina are entitled to work injury benefits (partial pay and medical bills among other benefits) if they are injured while doing their job. Workers are also entitled to benefits if they meet the statutory definition of an occupational illness. 

Whether a worker who develops COVID-19 can request North Carolina workers’ compensation benefits is currently an open question, but unfortunately, it does  Eligibility may depend largely on whether the worker was an “essential” worker and on other factors.

Occupational illness presumptions

The North Carolina statute provides in North Carolina General Statute Section 97-53 that many specific diseases are considered occupational diseases. A few of these specific examples include anthrax, various types of poisoning (brass, zinc, lead, and manganese to name a few), bursitis due to intermittent pressure in the employment, and other illnesses listed in the statute.

If an injured worker contracts one of the specific diseases listed in the statute, then the injured worker is generally going to be able to obtain work injury benefits when a disease or illness is specifically listed such as lead poisoning. If a disease is listed, then there is a presumption (which can be rebutted) that the worker developed the occupational disease through work.

One possible avenue for recovery for workers’ compensation benefits for any worker who develops COVID-19 would be for the Legislature in Raleigh to consider adding COVID-19 to its list of specific diseases, or simply to create a special presumption that any healthcare worker who becomes ill from COVID-19, has a compensable claim. 

Showing that the worker contracted the disease through work

But under the current law, COVID-19 is not specifically listed in the statute; however, the statute also has a broad definition that may cover COVID-19:

Item 13. “Any disease, other than hearing loss covered in another subdivision of this section, which 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.”

This definition in my opinion is slightly more liberal than Virginia; however, because it would still term COVID-19 an “ordinary disease of life,” the burden would remain on the worker to show not only that he or she was at increased risk of contracting the disease for the type of work performed but that the exposure at work was far higher than that of the general public. This may prove particularly challenging in light of the fact that we are in a pandemic, meaning that almost everyone runs the risk of exposure to the virus.  

For COVID-19, coronavirus cases, under the current statutory scheme, the employee would need to focus on showing that the there was a greatly increased risk of contracting the disease for the type of work the employee did – as compared to the risk to the general public. Since everyone is at risk for contracting the disease, the focus will need to be on showing the worker’s job created a significantly increased danger.

The problem is, of course, that just like Virginia, as a practical matter, this places an immediate burden on the employee and most likely guarantees that virtually anyone bringing a COVID-19 Workers Compensation case is going to be denied by the insurance company and have to head to hearing. This is certainly not something that anyone struggling to breathe on a ventilator is going to be able to deal with. 

Moreover, you need look no further than the marketing efforts of defense firms in North Carolina to see how difficult this will prove to be for workers who contract COVID-19 illness. 

At least one well-known North Carolina Defense Firm has already laid out its legal strategy for defending any COVID-19 Claim, online, stating “In a pandemic, regardless of the employee’s employment, it seems unlikely that an employee will be able to establish, through lay evidence, where COVID-19 was contracted, or that the employee will be able to rule out, through lay evidence, where COVID-19 was not contracted.” This means they will force employees to prove that the disease was not contracted in just about every location except work, essentially an almost impossible task. 

How the Governor’s Order affects workers’ compensation claims

One of the ways experienced North Carolina occupational illness lawyers may use to help provide the worker’s job included and increased risk is through the Governor’s Order which identifies some jobs as “essential”. Any work that is essential means workers are also going to likely have more contact with people, packages, and items that may be contagious.

Some of the jobs identified by Governor Roy Cooer as essential, in his March 27, 2020 Executive Order are:

  • Healthcare and public health workers
  • Workers in essential infrastructure operations
  • Workers in stores that sell medicines and groceries
  • Workers in the food, beverage, production, and agriculture sectors
  • Human service operators
  • Financial and insurance institutions
  • Charitable and social service organizations
  • Home improvement, supply and hardware stores
  • Postal workers, delivery workers, shipping workers, and pick-up service workers
  • Professional services
  • Supply chain workers
  • Military and defense contractors

That being said, in my opinion, under the current statutory scheme, the only workers who have a shot at prevailing would be healthcare workers whose jobs put them at extremely high risk insofar as exposure to COVID-19, such as those testing people for COVID-19,  those treating positive COVID patients, and possibly  workers in nursing care facilities which are known to have very high rates of infection. 

Still, the current statutory scheme will likely guarantee that the claim be denied, although the employer will have the option—if they are feeling generous—of paying some parts of the claim on a non-prejudicial basis, meaning they can choose to deny it later. 

Is that unfair? Of course it is! How can we possibly treat our heroes this way? 

But there is GOOD NEWS

The North Carolina General Assembly is Considering a Proposed Bill to Fix the very unfair Situation 

The good news is that the North Carolina Legislature has followed a number of other states and currently has under consideration House Bill 1057, which would provide a presumption that not only first responders and other healthcare workers, but anyone considered “essential” by the Governor’s Order, due to a pandemic disease would be entitled to workers compensation benefits. The presumption is rebuttable only by clear and convincing evidence. 

At this writing, the bill is not yet in its final form, but hopefully, the Legislature in Raleigh will act with speed and pass this very important law. See the current version of House Bill 1057

If COVID-19 is ultimately covered, what benefits can be paid to a North Carolina worker?

Workers who develop an occupational illness are generally entitled to the following work injury benefits:

  • Wage loss. Generally, 2/3rds of their average weekly wages based on the worker’s earnings before they contracted the disease
  • Medical costs. All reasonable and necessary medical expenses. In the case of COVID-19 victims, these expenses can include weeks and weeks in an intensive care unit of a hospital. Medical costs can also include medications, emergency services, and other expenses. Additional medical expenses may be due depending on how long it takes a person to recovery and whether there’s any permanent damage to the workers’ body.
  • Death benefits. If a worker tragically dies due to the disease, and many people are tragically dying, then the dependents of the worker (usually the spouse and dependent children) should be eligible for the following benefits (if COVID-19 is covered):
    • Up to $10,000 to cover the costs of the burial and funeral
    • Payment of the average weekly wages for at least 500 weeks until the dependent dies or until a minor dependent reaches the age of 18. Some minor dependants may be entitled to fewer than 500 weeks if they reach majority in less time than 500 weeks.

Just one day and one night in an ICU unit can run tens of thousands of dollars. The amount of the payment for medical costs may be adjusted depending on whether the employee has other health insurance benefits.

North Virginia workers’ compensation lawyer Joe Miller Esq. is keeping current with the changes to state work injury laws due to COVID-19. He is working (often, remotely) to speak with clients and to process work injury claims. He has helped thousands of injured workers and workers with occupational illnesses get the just benefits they deserve. For any questions about COVID-19, please phone Joe Miller, Esq., at 888-694-1671 or fill out my online contact form to speak with an experienced work injury lawyer.

Warehouse injuries and Workers Compensation – Part Two

Posted on Tuesday, May 5th, 2020 at 4:46 pm    

In addition to injuries caused by forklifts, overexertion, loading dock injuries, being struck by an object, and being pinned – warehouse workers can suffer slips and falls and other serious accidents. Right now, the country is relying on warehouse workers, medical staff, retail staff, and many others for our survival. Many are deemed “essential” workers and are therefore a heavy burden is placed on them as they serve the needs of the rest of our citizens, who may be confined to their homes. Workers in all these industries have the continuing right to file workers compensation claims if they are injured while doing their job. The right to file for work injury benefits applies to employees in North Carolina and Virginia. (Click here for a video explaining whether you have a right to workers compensation if you become ill from COVID-19 exposure at work as of May 2, 2020 )

Slip, trip, and fall injuries

Warehouse workers can slip (or trip) and fall for many reasons including the following:

  • Uneven surfaces—this is particularly common when loading or unloading trucks, where there may be a significant gap or difference in height between the loading dock and inside of the truck. 
  • Surfaces that are slippery due to water, snow, oil, ice, and other weather conditions and products. Metal surfaces can also be very slippery.
  • Slips because the worker didn’t have the right footwear for the job
  • Loose inventory or tools
  • Wires, cords, and other long thin materials that aren’t properly placed
  • Broken tiles
  • Loose railings
  • Torn carpets and rugs
  • Poor lighting preventing the worker from seeing properly
  • Falls from ladders, scaffolds or other products that lift a worker above the ground
  • Stairs where the non-slip tread has worn off from overuse. 

Workers who slip for any reason or stumble for any reason can suffer a range of injuries including:

Injuries due to truck accidents

Part and parcel of every warehouse is having trucking companies drop off their cargo and pick up shipments to be delivered. Trucking accidents, especially backing up accidents, can occur in the loading docks and the parking areas. Injuries can happen to the drivers and to any workers in the path of a truck. Many drivers work long hours which can cause them to make carless mistakes because they’re tired. 

Warehouse accidents can involve forklifts and trucks. While they often work in tandem – the forklift operator takes the truck loads and begins to move the load into the warehouse – accidents can occur if each operator isn’t looking out for the other driver.

Injuries due to chemicals and hazardous materials

Some warehouses work with toxins and other hazardous materials. Any spill can cause serious injuries which can damage a warehouse worker’s lungs or skin. Lung injuries can cause breathing difficulties. Inhaling dangerous chemicals can also cause cancer and other injuries. If the spill comes into contact with the skin, the warehouse worker can suffer severe burns. Chemical injuries require immediate medical attention. Workers may suffer permanent injuries and disfigurement.

Treatment by in-house clinics – an example

Warehouse worker at big companies like Amazon are often required to treat with in-house clinics such as AmCare. According to one report, “In 2014, a National Association of Worksite Health Center study found that 43 percent of surveyed companies had an onsite or near-site clinic in place.” Amazon began using AmCare clinics in 2009. These clinics are generally staffed by licensed EMTs. Amazon’s website claims that one of AmCare’s purpose is to “participate in the Worker’s Compensation process.”

The EMTs at the company site generally have broad discretion in deciding whether a worker should be sent to see a physician or if they should be treated in-house for 21 days, after which Amazon does require that AmCare refer the employee to an outside physician. AmCare is generally designed for quick relief. Some workers, according to the report, say that – while AmCare has broad discretion in referring workers to doctors, the company doesn’t have physicians on site – which is just part of the difficulty warehouse workers face. They claim Amazon has high production pace requirements which affect worker health.

All that being said, please understand that under Virginia law, unless and until an injured worker has established an ongoing pattern of care with a particular physician, he or she would be entitled to choose from a three-doctor panel of physicians. An employer who simply shuffles an employee off to a “company-designated” physician is not following the law. If you have only seen such a physician or other healthcare provider once after a work injury, and for whatever reason, you are not satisfied, you need to file a claim form and thereafter also claim your right with the Commission to your three-doctor panel immediately. Do not let time go by wherein you continue to treat with the “company doctor,” otherwise, that doctor will be deemed your authorized treating physician. On the other hand, you must not unjustifiably refuse to see a physician being offered you. When asked why you are not seeing the “company doctor” you must tell the adjuster you are exercising your right to a three-doctor panel and you would like to choose your doctor from that panel. 

Treatment by outside physicians

Warehouse workers will seek treatment with many different doctors and therapists depending on the types of injuries they suffer. Some of these health care providers might include:

  • The worker’s family doctor
  • A pain management physician who may prescribe medications or treatments (such as steroid injections) for their pain
  • Neurologists for any type of nerve damage
  • Orthopedists for any bone fractures or displacements
  • Physical therapists
  • Vocational therapists
  • Occupational therapists
  • Many other healthcare providers

Workers who suffer emotional injuries along with their physical injuries may also need to treat with psychologists and psychiatrists.

Steps warehouse workers should take if they are injured at work

Any North Carolina or Virginia warehouse worker who is injured on the job:

  • Has the right to seek immediate medical attention. Typically, this means seeing a company health care provider, nurse or doctor if there is one on staff. In the most serious cases, cases, particular those who must undergo emergency surgery, it means treating with whatever surgeon operated on you in the hospital. In less severe cases, it should mean choosing a doctor from a three-doctor panel
  • Should inform their supervisor of the accident and their injuries. Employees are required to inform their supervisor of any accident or injuries due to an accident as promptly as possible
  • File a workers’ compensation case. Employees shouldn’t rely on the warehouse company to do right by them – even when they say they’ll pay for your medical bills. The best course of action after any injury is to make an appointment with an experienced workers’ compensation lawyer. The lawyer will help you file a claim form. He’ll help you see the right doctors for your injuries. A skilled North Carolina or Virginia warehouse lawyer will also help you obtain work loss benefits, help ensure that you’re not forced back to work too soon, explain and demand your right to have all your medical expenses explained, and guide you through each phase of the workers’ compensation process.

Virginia and North Carolina workers’ compensation lawyer Joe Miller Esq. understands how dangerous warehouse jobs are. He’s helped thousands of injured workers get just work injury companies. He explains that there is no need to prove fault. Employees who are injured while working for their employer should generally be compensated for their lost income (up to the amounts allowed by law) and for all their necessary medical expenses. 

To speak with an experienced workers’ compensation lawyer call Joe Miller, Esq., at 888-694-1671 or fill out my online contact form to schedule an appointment. Cases are handled on a contingency fee basis.

Warehouse injuries and Workers Compensation – Part One

Posted on Tuesday, May 5th, 2020 at 4:39 pm    

As of December 2019, more than 1.1 million people worked in the warehousing industry, according to data from the Bureau of Labor Statistics. Warehouse jobs include industrial truck operators; people who move and handle freight stock, and materials, clerks in shipping and receiving; stock clerks; people who complete orders; and storage and distribution managers. 

As the COVID-19 pandemic is altering the lives of everyone; more and more people are depending on efficient warehouse operations for their Amazon delivers, groceries, and a range of essential products. In addition to thanking these workers for essentially helping to save our lives, we also appreciate that all the work (often including extra hours now) can result in serious injuries in the workplace. 

The Bureau of Labor Statistics recent reports confirm that for every 100 warehouse workers, 5.1 workers were injured during the work year. Which is generally higher than the average workplace injury rate for all work sectors. (click here for a video on whether you can obtain comp benefits if you get sick from COVID-19 on the job). 

How do warehouse injuries occur?

Any employee who is injured while working at a warehouse has the right to file a workers’ compensation claim for 2/3rds of their average weekly wages and for all reasonable medical bills related to the injury. Some workers may also receive vocational rehabilitation benefits. 

Some of the more common ways that injuries occur while working in a warehouse include the following.

Forklift injures

These devices are small trucks used to move, store, raise, lower, and move inventory, pallets, boxes, and other items. Generally, forklift operators drive these trucks throughout the warehouse. These trucks can result in injuries or death for many reasons. Some workers aren’t properly trained in how to use forklifts. Many injuries occur when workers take incorrect turns, their loads drops, the forklifts run into or pin other workers, or for other reasons. 

According to Safety and Health Magazine:

  • The Occupational Safety Health Administration (OSHA) estimates that each year 35,000 serious forklift injuries occur and 62,000 non-serious injuries occur.
  • Untrained forklift operators are as dangers as unlicensed car and truck drivers.
  • OSHA requires that workers have written training and practical hands-on training.
  • Forklift operators should inspect their truck before each time they use it. These checks include such parts as the tires, seat belts, horns, backup warnings, and other forklift features
  • There are crucial differences between driving a forklift and a standard four-wheel vehicle including:
    • The driver is not fully enclosed
    • The weights are much different
    • Forklifts are designed to move slower than cars
    • They have 3-point suspension
    • They have a tight turning radius
    • Spotters should be considered for backup operations
  • The center of gravity of the truck is different than for a vehicle. Forklifts are more prone to tip over – whether they are loaded or not loaded. For this reason, loads should be secured. Loads should be kept “low to the ground during operation.” Forklifts that tip over are a leading cause of forklift injuries. We have represented clients with very serious injuries who were ejected from a forklift when a heavy load caused the forklift to rise and then abruptly fall when the load abruptly fell off the forks. 
  • Operators should know the load basics. “Move squarely in front of the load and move the forks apart as far as possible before driving them under the load. Make sure to not overload and that the load is centered.”

Overexertion injuries.

According to Safety and Health Magazine, overexertion is another leading cause of injuries and deaths for warehouse workers. These injuries are due to using too much force or stress in doing tasks such as lifting, carrying, pushing, and pulling objects. Workers who suffer overexertion injuries often need to time off from work to treat injuries to their neck, shoulders and backs. Other injuries due to overexertion include harm to the wrists, arms, and knees. Overexertion injuries can lead to acute pain. They can also lead to chronic pain which can require weeks, months, or even a lifetime of continual treatment.

Overexertion injuries include strains and sprains, torn ligaments, joint damage, tissue injuries, and nerve injuries. Overexertion can also cause heart attacks and heart disease.

Employers can help reduce overexertion injuries by:

  • Providing training on lifting and other physical techniques
  • Allowing for reasonable breaks
  • Shifting the workers assignments
  • Enlisting the aid of other workers for very heavy objects

Injuries at the loading dock

Loading dock injuries can occur for different reasons. Often, the injuries or deaths involve forklifts and trailers that fall off the docks. Workers can also be knocked off the docks or suffer serious slip and fall injuries if they are knocked down by a forklift or trailer. Warehouse workers who work near these vehicles for long stretches of time may suffer carbon monoxide poisoning. Other common injuries occur when there is an uneven surface between a truck and loading dock such that a dolly may get stuck or fall into a space and thereby cause injury to whomever is pushing the dolly. 

Being struck by an object

There’s a lot of moving activity at a warehouse. Forklifts are in constant motion, Workers are pushing and pulling carts and other devices to move the loads around too. Many workers can easily be struck be loads from the forklifts or from the shelves if the inventory is not properly loaded and secured. Warehouse workers can be injured if the company requires that items be stacked very high. 

Workers who are struck by objects, especially heavy ones, can suffer traumatic brain injuries, head and neck injuries. back injuries, broken bones, and a range of other serious injuries that require time off from work to properly treat.

Being caught between objects

Many warehouse injuries are due to a worker being pinned between a forklift and a wall and between different pieces of equipment. Sometimes the injures affect the whole body. Often, a warehouse worker’s hand or fingers are pinned. Workers who are caught between objects can suffer:

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands how much every-day hard workers are now putting their lives on the line to serve others, particularly now, when many warehouse workers are deemed “essential” in Virginia to keep goods and services rolling to quarantined consumers. It’s only just and proper that if warehouse employees are injured while working, that they should receive all of the worker’s compensation that the law allows. Joe Miller has been helping workers get the recoveries they deserve for workplace injuries for over 30 years. To discuss your workers’ compensation claim, call us at 888-694-1671, or use our online contact form to schedule a free consultation.

Protecting Our Frontline Healthcare Workers Who are Battling COVID-19

Posted on Tuesday, May 5th, 2020 at 8:43 am    

Virginia Workers Compensation Attorney Joe Miller here urges all citizens of the Commonwealth to contact their State Senators and Delegates and urge them to pass legislation that enables any Healthcare worker who gets sick with COVID-19 to seek benefits under the Virginia Workers Compensation System. We need a law that creates a presumption that any Healthcare worker who is exposed to COVID-19 as part of their job got it at work and therefore has a compensable claim. Under the laws in Virginia as they exist now, it is virtually impossible for a Healthcare worker who becomes ill from COVID-19 to obtain any benefits under our workers compensation system. This is because it is a virus and therefore considered an “ordinary disease of life.” Isn’t this the least we can do for these brave heroes who put themselves and their loved ones at risk each day by helping us battle this terrible, invisible enemy? Please contact your State Delegate and Senator NOW while they are in session. The Governor could also issue an Executive Order.. Several other states have already recognized this problem and provided workers compensation presumptions for their Healthcare workers. Virginia needs to get on board.

A Note For Our Clients: CoronaVirus Update

Posted on Tuesday, March 31st, 2020 at 5:03 pm    

To all our Clients and Friends:

As many of you know, yesterday, Monday, March 30, 2020, due to the increasing spread of the COVID-19 Virus, Governor Northam of Virginia issued Executive Order 55, which Orders all Virginians To Stay at Home, with a few small exceptions, which include traveling to and from work; however, all Virginians are also encouraged to work remotely if at all possible. That Order is effective through June 10, 2020.

(more…)

Will I Lose my Comp Checks if I’m Laid Off due to the Coronavirus?

Posted on Thursday, March 26th, 2020 at 11:10 am    

Clearly many folks are concerned right now about the effect on their weekly compensation checks of any potential layoff of themselves and their fellow employees at work or company closures due to the severe economic downturn and mandatory closures related to the Coronavirus. 

This is a very important question right now and also this particular question regarding layoffs happens to be an evolving and very active area of VA Workers Comp law.

The short answer is if you are currently under an ongoing, finalized Award for benefits, meaning an Award for weekly checks for either Temporary Total or Temporary Partial Disability, then NO, you will not lose your benefits; however, if you are NOT under an Award yet and your position is permanently eliminated or the layoffs are clearly permanent with no chance of re-hiring, then you will likely have a very difficult time of trying to obtain comp check benefits from the date of such layoff forward. You may only be able to claim benefits up until the date of the layoff.  It’s not impossible to prove ongoing benefits in a permanent layoff situation, but you will be required to rise to a very high level of proof to show that your inability to obtain a job is due to your disability and not just to your job being eliminated permanently. 

That being said, if the layoff is only temporary—as many will likely be in our current situation—then if you are not under an Award and on light duty, you would still be able to claim benefits; however, you would need to engage in active marketing of your residual capacity to work in order to prove your inability to find a job.  And of course, you will likely end up at a Workers Comp Commission Hearing to prove you engaged in adequate marketing. 

Of course, those held out of work 100% by their doctors due to their work injuries and have the physician’s work notes to prove it would not need to prove marketing.  

If this all seems confusing, I encourage you to first see my video on the importance of being under an Open or Ongoing Award for benefits in Virginia. It’s important to understand what an Award accomplishes for you in Virginia.  

So why is someone under an ongoing or Open Award in a better position compared to someone who is not in a layoff situation?  

It’s because when you’re under an ongoing Award, that Award is a proclamation or Order by the Virginia Workers Compensation Commission that you are entitled to the weekly benefits stated in that Order on an ongoing basis, until proven otherwise by the defense.  In other words, you have met your burden and you have won your case. Many times, the Award occurs due to an Award agreement, but the result is the same—once that Award has been entered by the Commission and the 30 day appeal period has passed, the Order is Final and you have won. 

When you have an ongoing or Open Award for weekly benefits, it becomes the defense’s burden to prove you’ve been returned to full duty and that you are capable of performing your pre-injury work if they want to get out of paying you those weekly benefits.  There are a few other ways for them to stop the Award, such as failure to comply with medical treatment or vocational rehabilitation, but they’re not relevant to our discussion right now. 

If the defense cannot prove you are capable of a return to full duty, then you are going to remain under your ongoing Award and they still have to pay you your ongoing, weekly benefits  even during the layoff and even if the layoff is permanent.  

Now what about folks who are not under an Award yet, but are trying to prove one?  

The case law is clear that for folks who are not yet under an Award, the difficulty of proving you are entitled to benefits really depends on whether the layoff is temporary or permanent. 

This is because an injured worker who is not yet under an Award has no Order from the Commission regarding anything. Nothing has yet been proven, so the burden of proof remains on the injured worker to show he or she is entitled to benefits. 

In a temporary layoff situation, if you are on light duty, assuming your employer does not accept you back at light duty status, so long as you are able to prove sufficient marketing of your residual capacity to work (i.e. looking for work elsewhere within your physical restrictions) during the temporary layoff, you should be able to prove you’re entitled to benefits. Of course, you will likely have to go to Hearing to prove that. 

Again, if you are in a temporary layoff, and your authorized treating physician has you out 100% due to your injuries, then since you currently have no residual capacity to work per your doctor, you do not have to market or look for work.  You would only need to prove your total incapacity with your doctor’s work notes and office notes. 

Unfortunately, for those of you whose positions are eliminated and are fully and permanently laid off along with your coworkers, if you are on light duty and not yet under an Award, you will  unfortunately find it much more difficult to be able to claim ongoing weekly workers comp benefits. The case law in such circumstance requires a higher level of proof to show that your economic loss is due to your injury and not the elimination of your job.     

The Commissioners and Judges have reasoned in the case law that since you don’t yet have an Award, and your job has been eliminated, the burden is on you to prove economic loss due to your work injuries. And since the burden is on you for proof and since the reason you don’t have a job is because your job was permanently eliminated, then you need to prove your economic loss is actually related to your work injuries and not just the fact that your job does not exist any longer. In such cases, just doing the marketing/looking for light duty work as usual is probably not enough. There needs to be proof that not only can you not find a job, but the reason you cannot find a job is because of your work restrictions as set forth by your treating doctor. If you don’t have such proof, then the Commission will find that the loss is not related to your work injury. They will find that it is related to the fact that your job no longer exists. 

Such proof may be through the hiring of an expert such as a vocational rehabilitation expert, and/or through some kind of testimony or other evidence from one or more of the potential employers where you applied that you could not be hired because your work restrictions could not be accommodated. 

We think that the decision by the Court of Appeals back in 2016 which raised the standard of proof for permanently laid off employees was wrong and a harsh result, and in fact there were strong dissents by Judges on the case, but unfortunately those Judges were outvoted and that is the law in Virginia. 

The only good news is that in many of the Full Commission decisions that have followed this 2016 Court of Appeals Case, the Commission has gone to great lengths to say it does not apply to the situation at hand. Clearly, the Full Commission also feels the Court of Appeals went too far and takes every opportunity to try to limit the harsh effects of that decision. 

Also, just to be 100% clear, it is very important to distinguish between an Open or Ongoing Award and a Closed Award. A Closed Award is for some past period of weekly payments that has now ended because you have returned to work. Although such an Award contains a lifetime medical benefit and is also evidence that your claim is compensable (meaning there is no longer a defense that you did not have a legitimate, on-the-job injury) in terms of attempting to get your checks started again because you have been laid off, it’s almost like have no Award at all.  In other words, if you’re on light duty, you would have to prove it’s a temporary layoff and you would have to prove marketing just like the folks with no Award at all. And just like those folks, you would not be able to prove any entitlement to ongoing checks if your layoff became permanent. 

We hope this article has been helpful. 

From all of us here at Joe Miller Law/The Work Injury Center, please stay safe, please follow the CDC COVID-19 Guidelines for prevention,  and God Willing we will all get through this safely together. 

Attorney Joe Miller has been representing injured workers in Virginia and North Carolina for over 32 years. If you have any questions about a worker’s compensation injury incurred by you or a loved one, please do not hesitate to reach out to us at 888-694-1671 or fill out our online contact form

Please do not wait to contact us, as there are time deadlines for filing your claim. If you fail to meet those deadlines, your right to benefits will be forever lost. 

Important Joe Miller Law COVID-19 Update

Posted on Tuesday, March 24th, 2020 at 4:45 pm    

As many of you know by now, Virginia Governor Ralph Northam has recently issued an Executive Order closing all public schools for the remainder of the Academic Year and has put in a host of other restrictions on certain businesses and other activity in the Commonwealth in an attempt to reduce the rate of infection among humans of the COVID-19 Coronavirus.

Although at this writing, the Executive Order does not mandate our office’s closure, due to the closure and restrictions of so much commerce, many businesses, including ours, are experiencing decreased call volume, decreased income, and other disruptions in the normal course of operations. This is besides the strain on our employees with children who are now home from school for the remainder of the academic year.

Due to these disruptions, and to help insure that we all make it through this crisis intact to the other side, like many other small businesses, we are moving to a part time schedule beginning tomorrow, March 25, 2020.  This will help us decrease operation expenses as well as decrease the hardship on our employees of caring for children who are now home from school, but at the same time, help us maintain the focus of our mission to serve our clients.

Please not that we are NOT accepting in-person visits to our office at this time; however, during our new part time hours, myself and our staff remain available through email, telephone and fax. The new hours are as follows, until further notice:

                              Monday: 9:00 AM-12:30PM

                              Tuesday: 9:00AM-5PM

                              Wednesday CLOSED

                              Thursday: 9:00 AM-5PM

                              Friday: CLOSED

We thank you in advance for your understanding during this difficult time.

We WILL get through this together.

NOTE: If you are a current client under an Award and receiving checks, you should know that we have asked insurance companies and most have responded that they have contingency plans in place to insure that your weekly checks continue.

In addition, we have heard from several insurance companies that you will not be penalized for lack of cooperation due to your inability to attend physical therapy or other doctor visits due to healthcare office closures or restrictions related to the Coronavirus.

Please note that the above schedule is subject to change, particularly if the Governor or U.S. Government should follow the pattern of several other Nations and issue a full lockdown Order for the entire U.S.

Even under those circumstances, we have contingencies in place for continued operation and communication, albeit at greatly reduced capacity.

In the meantime, please stay safe and stay healthy!

The Details Behind the JLARC study on Virginia Firefighters and Presumptions

Posted on Saturday, March 21st, 2020 at 2:18 pm    

The JLARC’s review of Virginia’s workers’ compensation laws focused on a variety of issues including the relationship between firefighting and 10 different types of cancer to determine what presumptions should apply. They study was performed by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health

We discussed some of these issues in a previous article. The general findings of the study were as follows:

  • Current presumptions. 40 states have presumptions for firefighting and cancer. 34 states have presumptions for firefighting and heart disease. 15 states have presumptions for law enforcement and heart disease.
  • Virginia’s current presumptions for first responders:
    • Cancer. There are presumptions for breast, leukemia, ovarian, pancreatic, prostate, rectal, and throat cancer
    • There are proposed exemptions, as of 2019, for brain cancer, colon cancer, and testicular cancer
    • There was another proposed exemption for post-traumatic stress syndrome (PTSD)
    • Cardiovascular disease
    • Respiratory disease. Workers generally don’t’ seek to establish this presumption.
    • Infectious disease. Workers generally don’t seek to establish this presumption.

83 studies on cancer, heart disease, respiratory disease, and PTSD among firefighters and police officers were analyzed and evaluated for quality and bias.

The findings of the John Hopkins University study

The epidemiologists made the following findings regarding the validity of Virginia’s current and proposed cancer presumptions:

Johns Hopkins University epidemiologists determined that the best available evidence provides some support for most of Virginia’s current and proposed cancer presumptions.

  • Firefighters are exposed to carcinogens. Firefighters can’t fully avoid exposure to these carcinogens – even when they are wearing protective gear.
  • Every type of fire releases toxic and carcinogenic substance
  • To what extent firefighters are exposed to these carcinogens depends on many factors. The main exposure routes are inhaling these toxins and skin absorption of the carcinogens.

The study found that the firefighters had an increased risk of the following types of cancer:

  • Prostate cancer
  • Throat cancer
  • Brain cancer (proposed in 2019)
  • Leukemia
  • Rectal cancer
  • Testicular cancer (proposed in 2019)

The Johns Hopkins study did not have enough evidence on the following cancer types:

  • Colon cancer (proposed in 2019)
  • Pancreatic cancer
  • Breast cancer

No research was done on ovarian cancer. This is interesting, since pancreatic cancer and breast cancer are specifically listed in VA Code 65.2-402 ( C ) among those cancers to be presumed to be an occupational disease. As mentioned in a previous article on this subject, the mention of pancreatic cancer is inherently contradictory since it is really impossible to know what caused any pancreatic cancer based on our current state of scientific knowledge. 

Cancers which should be added to the firefighter presumption lists

The JLARC report, based on the John Hopkins study, recommended that worker’s compensation laws in Virginia create presumptions for the following cancer types:

  • Brain cancer
  • Testicular cancer

The reports added that colon cancer could be added to the list though the evidence for adding it wasn’t as strong as the other two cancer types.

Recommendations by the JLARC regarding current cancer presumptions for firefighters

Current cancer presumptions which should be maintained or could be subject to a sunset provision depended on the following:

  • “Better data on firefighting-cancer associations will be available after new National Firefighter Registry is fully implemented.”
  • “The General Assembly could maintain all current cancer presumptions in statute, including those with less scientific evidence, but add a sunset provision. Cancers with weaker scientific evidence to support occupation-disease associations could be removed if new scientific evidence does not increase support for including them.”

Costs for adding the three extra cancer presumptions – brain cancer, testicular cancer, and colon cancer

Enactment of Virginia House bill 1804 (which adds several cancer presumptions) for firefighter should result in just about six new compensable workers’ compensation claims yearly – though the five year total is expected to be high.

  • Insurance premiums for workers’ compensation for firefighters are expected to rise $269 in the first year.
  • The insurance premium for the Line of Duty Act (LODA) are expected to rise $61 “per FTE in the first year.”

“Some additional liability would be created for firefighters no longer working with an employer and still within statute of limitations.”

Additional JLARC firefighting presumptions

The JLARC also found that the “requirements to establish cancer presumptions for firefighters are unreasonably burdensome and appear counter to the purpose of the presumption.” This is the same comment I had made in my previous article on this subject

Most disputed claims by firefighters for Virginia workers’ compensation benefits – between 2019 to 2018 – found that the firefighter would not be entitled to benefits – in large part because of the failure to prove exposure to the right substance.

Of the 20 firefighter/cancer cases heard during that timeframe:

  • 13 (65%) did not prove toxic exposure or a disability resulting from the cancer and denied benefits
  • 4 (20%) were denied benefits for other reasons
  • 4 (20%) did meet the occupational illness requirements and were awarded benefits

The “presumption covers firefighters who have had “contact with toxic substance encountered in line of duty.” A big part of the reason for these denials was that firefighters were required to “prove exposure to specific carcinogen suspected to cause their particular type of cancer.”  “Of 16 cases heard by VWC in which firefighters did not meet all requirements, the firefighter did not meet the toxic exposure requirement in seven.”

The Johns Hopkins scientists found that:

  • “Documenting exposure to carcinogens is extremely difficult and costly. Virginia firefighters are not equipped with technology to measure exposure” because the technology is expensive and requires expertise.
  • The strict requirements are “counter to the purpose of presumption, which is to relieve firefighters of need to prove work caused their disease.”

The study found that it would be sufficient if firefighters were required to show exposure to hazardous conditions that, in turn, exposed them to carcinogens.

Another finding by the JLARC study was that Virginia’s requirement for 12 years of continuous service was not supported by scientific evidence (studies have shown that less service time could cause cancer) and was the highest in the country (the next highest was 20 years). In fact, there is case law that says that assuming there is sufficient proof that a firefighter has a type of cancer caused by exposure to known cancer-causing toxins that match up to that cancer, he or she need only prove ONE SINGLE EXPOSURE to a fire to prove there was sufficient exposure.  In that context, the 12 continuous years of service makes little sense. 

Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting aggressively for injured workers and workers who suffer occupational illnesses – for more than 31 years. He understands how dangerous firefighting, policing work, and other types of first response work are. For help with any illness claim based on your work, please phone Joe Miller, Esq., at 888-694-1671 or use my online contact form to speak with a strong advocate.

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