Posted on Monday, July 29th, 2019 at 3:22 pm
In our continuing series of answers to frequently asked questions about work injury claims in North Carolina, here are more questions and answers. As with all workers’ compensation cases, the best course of action is to contact an experienced work injury attorney. Each state has different rules. All answers have some exceptions which depend on the facts of your case.
Mediation-also known as “alternative dispute resolution,” is an informal process where the parties to a case attempt to resolve the case, usually via negotiation of a full and final settlement. In North Carolina, the reaching of such an agreement has traditionally been known as a “clincher” agreement.
In North Carolina, about 70% of cases are resolved at a mediation conference which helps to save time and can save costs. If the case can’t be resolved, then the case is heard before a Deputy Commissioner of the Industrial Commission. Normally, your lawyer and the employer’s insurance carrier will choose a mediator from a list approved by the North Carolina Industrial Commission. If the two sides can’t agree on a mediator, then the North Carolina Industrial Commission will appoint one. Each side shares the cost of the mediator. As the NCIC says on its website, the employer’s insurance company will usually have a lawyer, so it’s in your best interest to have a lawyer fighting for you.
The mediation is held at a mutually agreeable location, which may be at either attorney’s office, the mediator’s office, or a third party’s office if all of those are inconvenient. Mediation is a relatively informal process. The mediator, usually an attorney familiar with workers comp, will begin by explaining the process, and what his or her role is.
Each side then gives a presentation, outlining what evidence they will present if the matter proceeds to hearing. The plaintiff does not have to testify and there are usually no witnesses.
Once those presentations are made, the parties usually then separate into two separate rooms and the process of negotiation begins. Depending on the size of the case and the willingness of the parties to resolve the claim, the mediation process can last from a half hour to an entire day. Your attorney may occasionally pull out pieces of evidence or medical records for the other side to review that might “loosen the purse strings” at various stages of the discussion, but other than that, the process is a bit like buying a car. A lot of back and forth on the numbers.
At the end of the negotiation, one of two things will occur. Either the mediator will prepare a mediation agreement, or he or she will declare an impasse. If an impasse is declared, that means the parties were unable to reach an agreement, and the matter will proceed to hearing at an upcoming date.
The Mediation Agreement.
The Mediation agreement is a short summary of what the parties agreed on at the mediation. It is drawn up by the mediator and signed by all parties before anyone leaves the location of the mediation. It is not the final agreement; however, what is advantageous about a mediation agreement is that in North Carolina, it is recognized as a legal document. In other words, should something happen to you, the agreement obligates the defendant to pay your estate as set forth in the agreement. If also puts into place an obligation of the defendants to send a completed clincher agreement for your attorneys’ review within 30 days. This is one of the reasons we like mediation in North Carolina. If the parties can resolve the claim, you leave the proceeding with a tangible, enforceable, legal document, not just a “promise.”
A clincher agreement is an overall settlement of a worker’s claims – past, present, and future. Once a clincher agreement is completed and signed, there’s no do-over. It is the document that the defense lawyer will send to your attorney if the mediation or other negotiation reached a successful conclusion.
The fundamental basics of a clincher agreement are:
The NICI will review the agreement to make sure it complies with Rule 502 which provides that approval requires that:
If the employee hasn’t returned to a job at the same or greater wage (as prior to the workplace accident or occupational illness), the clincher agreement should state whether the employee “has, or has not, returned to some other job or position, and, if so, the description of the particular job or position, the name of the employer and the average weekly wage earned.”
The clincher agreement should then also “summarize the employee’s age, educational level, past vocational training, past work experience, and any impairment, emotional, mental or physical, which predates the current injury or occupational disease. The parties will be relieved of this duty only upon a showing that providing such information creates an unreasonable burden upon them.”
“This subsection (the part about returning a job or new position) of the Rule shall not apply where the employee is represented by counsel or, even if the employee is not represented by counsel, where the employee certifies that partial wage loss due to an injury or occupational disease is not being claimed.”
The proposed clincher agreement is typically drafted by the defense attorney in North Carolina, and emailed to your lawyer.
A skilled North Carolina work injury lawyer will explain all of the items set forth in the clincher agreement and also make sure that certain language is included to protect you—for instance, if you wish to file for Social Security Disability, certain language must be in the clincher agreement or you could be prevented from obtaining your SSDI benefits for a very long time.
Once your attorney says it’s ok, he will review the agreement with you and have you sign it. After that, the signed agreement is returned to the defense attorney for filing with the NCIC, along with your attorney fee agreement with your lawyer.
If the clincher/settlement agreement is approved by the NCIC, they will issue and typically fax to both parties a settlement Order, setting forth the amount agreed upon and the attorneys’ fees.
After that, the worker’s comp carrier has up to 47 days to mail out your settlement check to you. A separate check is made out for your portion and the portion representing attorneys’ fees.
Attorney Joe Miller understands that you may be anxious to settle all your claims at once. He’ll guide through the settlement/clincher process if you have reached your maximum medical improvement. He’ll review your past and future medical expenses and your past and future wage loss issues. For help filing and resolving your workers’ compensation case, call attorney Joe Miller at 1-(888) 694-1671 or use my contact form to schedule an appointment.
Posted on Wednesday, January 9th, 2019 at 5:01 pm
In this video, Attorney Joe Miller explains why you should NEVER obtain a side job or other “under the table” job while receiving workers’ compensation benefits:
Posted on Monday, September 24th, 2018 at 4:07 pm
Not every accident is equal. At one extreme are rear-end collisions which rarely kill someone. In most cases, the car accident victims suffer whiplash and soft tissue issue injuries. At the other extreme, are head-on collisions and broadside collisions. These latter types of injuries often kill a car occupant or cause the driver or passengers to suffer very serious injuries.
According to the North Carolina Department of Transportation, for the year 2016:
Experienced North Carolina car accident lawyers guide families of the deceased and guide the survivors through each phase of the trial process.
In this type of a crash two vehicles collide front to side. This means the front of one car, usually the car at fault, drives into the side of another car. Broadside crashes are also called T-bone crashes because the position of the cars on impact looks like the letter “T.” Because the cars strike at right angles to each other, there’s a strong likelihood that one or both cars will spin out of control which can cause a multi-vehicle accident.
The occupants of the car whose side is struck often suffer the most harm because the side of a car offers virtually no protection – unlike the hood of the other car. Side airbags are also less likely to deploy than front air bags. The occupants of both cars are likely to be thrown about the car, if the airbags don’t deploy. The occupants in the car whose front strikes the other car are also likely to be thrown into the windshield or the dashboard. Occupants of both cars are likely to be thrown into each other.
How broadside car crashes happen
Generally, the car whose front strikes the side of the other car is the car at fault. The driver and the owners of this front car should be held accountable for any injuries or deaths they cause. Some of the reasons for broadside accidents are:
The worst-case scenario is that a driver or passenger will be killed. When someone dies, experienced North Carolina and Virginia car accident lawyers file wrongful death actions on behalf of the estate of the decedent and the surviving family members.
Survivors of broadside collisions can suffer traumatic brain injury, paralysis, broken bones, acute and chronic bone, damage to ligaments and muscles, damage to the spinal cord, internal bleeding, and any many other injuries. Some injuries may resolve with months or years of medical care. Other injuries can completely alter a person’s life. Flying glass, striking other car parts, knocking into passengers, and even being stuck on the steering column are common broadside injuries.
In addition to killing or injuring passengers, T-bone crashes often destroy the vehicles involved or require extensive repairs. Generally, if the cost to fix the car is more than the value of the car, the damage is considered a total loss. In total loss cases, owners are entitled to demand payment from the responsible drivers/owners and applicable insurance companies for the value of the car.
Head-on car crashes are often deadly. Survivors often suffer catastrophic injuries which require a lifetime of care. Many victims often need the jaws of life tool just to be extricated from the vehicles. In most cases, one driver is clearly in the wrong because he/she was in the wrong lane of traffic. But this is not always the case. Sometimes a vehicle may be knocked into the oncoming lane by a vehicle headed in the same direction, in which case the fault would originate with the vehicle who slammed into the car that was thrust into the oncoming lane. Some reasons why a driver might go the wrong way down a one-way street, drive on the wrong side in a two-lane road, or go the wrong way on a road ramp are:
In head-on collision cases, the personal representative for the estate of someone who was killed can hold the driver who was going the wrong way and/or other at-fault drivers accountable for wrongful death damages. In North Carolina, the Estate of the deceased should sue the irresponsible driver for all their damages such as physical pain of the deceased, loss of service and society, as well as the emotional suffering of the beneficiaries, lost wages, and medical bills. Medical bills include surgeries, hospital stays necessary to attempt to save the life of the decedent.
In addition to standard damages, experienced North Carolina trial lawyers will often seek to punish the driver’s bad behavior through an award of punitive damages. Punitive damages can be awarded in North Carolina, if a defendant acted recklessly, wantonly, or maliciously. A case can be made that a drunk driver, a distracted driver, or a speeding driver was acting recklessly and without any regard for the safety of passengers and the occupants of other vehicles.
Of course, if the deceased or injured driver was acting in the course of employment, an additional claim must be made for workers compensation benefits. If there is a death, then there are additional workers compensation death benefits available to the dependents of the deceased worker under the Workers Compensation Act. It is very important, particularly in Virginia, that the injury case against the other driver NOT be settled, as long as there is a pending workers compensation case. If this occurs, it could wipe out any workers compensation benefits available to the dependents of the deceased or the ongoing workers compensation case of the injured worker.
Make the call to a respected North Carolina and Virginia accident lawyer today
At the North Carolina and Virginia Law office of Joe Miller Esq., we have the experience and resources to hold irresponsible and reckless drivers accountable for the physical pain and emotional harm they cause. Attorney Joe Miller has been fighting for injury victims for more than 30 years. To schedule a free consultation, please call (888) 694-1671 or complete my contact form.
Posted on Friday, June 15th, 2018 at 10:13 am
Car accident cases aren’t simply a matter of “here’s what happened, pay me a large sum of money.” Experienced Virginia car accident lawyers are skilled at each phase of the trial from the initial client consultation through a trial before a jury. Once your medical diagnosis is clear, the lawyer will work to try to settle your case. To get the best results, the lawyer prepares your case as if it is going to go to trial.
Since car accident lawyers usually take your case on a contingency fee basis, the client does not need to rush to make a quick settlement. Contingency fee means the car accident lawyer only gets paid if your case settles or if you obtain a jury verdict. So you will not have to stroke a check to hire the attorney.
There are several steps a car accident victim should take before speaking with an attorney. For more detailed information on what to do and what not to do if you’ve been in a car accident, please download my book 23 Simple Rules to Follow if You’ve Been in a Car Accident, or call our office for a hard-bound copy. Also, remember that if you were on the job at the time of your accident, there will be a Workers’ Compensation element to your claim as well which we can handle for you.
Victims should also understand that both Virginia and North Carolina have a strict contributory negligence laws. This means if a jury finds that the other driver was 90% at fault and you were just 10% at fault, then you get nothing. You don’t get 90%. You don’t get 50%. You get zero. So, admitting or implying fault in any way can cause you to lose your case.
Now if you were on the job at the time of your accident, generally, fault does not affect workers comp entitlement, unless you were grossly negligent, or failed to follow a company safety rule. For instance, if company safety rules require that you wear a seatbelt, and you were not wearing one and this increased your injuries, you would not be entitled to workers comp coverage.
While some injuries such as a broken arm are treated and then heal in a few months, there are often exceptions. When your arm heals, you may lose some range of motion. There still may be a persistent pain. If you settle too early, you can’t come back and ask for more money. That’s why it’s good to wait until your medical condition has stabilized.
Along with the physical pain is the emotional worry about when and if your injuries will heal. You worry that you’ve become a burden to your family. Physical pain is often accompanied by depression, anxiety, fear, and other emotions.
Your doctors can summarize some of your pain and suffering. Family members can testify as to your sadness, your crying, and other symptoms. Often, the best witness for showing pain is you, the victim. An experienced lawyer will usually value the pain and suffering part of your claim based on his experience and knowledge of the jury pool and what other juries have awarded in the past.
How long will all of this Take?
So, this sounds like an awful lot to do. You may ask how long all of this will take? And this really depends on how long your treatment takes and many other factors that are too numerous to get into here. I suggest you download the book How Long Will My Case Take? where attorney Joe Miller provides the detailed answers to that question.
Car accident victims shouldn’t wait to speak with a lawyer. Memories fade. Evidence such as skid marks can disappear. Injuries usually worsen if you don’t see your doctor. As a respected car accident lawyer, Joe Miller will guide you through each phase of your case. He has been fighting for injury victims for over a quarter century. To make an appointment, please call (888) 694-1671 or complete my contact form.
Posted on Tuesday, May 22nd, 2018 at 12:22 pm
According to the Centers for Disease Control and Prevention, nearly 9 people are killed and 1,000 people injured by a distracted driver – each day. Distracted driving is dangerous for three fundamental reasons:
Common examples of distracted driving including
Drivers who are tired or who are under the influence of alcohol are also unable to anticipate, control, and respond to emergencies.
A momentary lapse of even a second can be fatal or cause catastrophic injuries. A car travelling at 60mph is travelling 88 feet per second – which is about 4-5 car lengths.
The CDC reports that teenagers have an especially high likelihood of driving while distracted:
North Carolina enacted a strong texting while driving ban that applies to all drivers though it is especially tough on novice drivers. The law provides that adult drivers can speak on their cell phones while behind the wheel but they can NOT text while the car is in motion. The texting while driving ban applies to reading, sending, or composing a text message. It is not illegal to text if the car is stopped or is parked. Violators can be stopped by a police officer and ticketed even if they haven’t committed another traffic offense.
Drivers under the age of 18 (novice drivers) can’t text while driving. They also can’t use a cell-phone (even a hands-free phone). Novice drivers can also be stopped if they haven’t committed another traffic offense.
Bus drivers are also banned from using a cell phone while their bus is in motion – in addition to the texting while driving fan.
Texting while driving in Virginia
In Virginia, it is unlawful for any person to operate a moving motor vehicle on the highways in the Commonwealth while using any handheld personal communications device to:
Fines are $125.00 for the first offense and $250.00 thereafter.
Nearly 20 percent of all fatal car crashes are caused by a driver who is too tired – as reported by the AAA Foundation for Traffic Safety, The foundation also found that young drivers, those between 19 and 24, were the most likely to drive while fatigued. While nearly all drivers understand the dangers of driving drowsy, most drivers still drive – even though it puts their lives, the lives of passengers, the lives of other car occupants, and the lives of pedestrians at risk.
Drivers and occupants of the cars need to know when they need to avoid getting into the car if they’re tired or when to get off the ride if they’re getting sleepy. They’re no reason to risk a life to get somewhere a little faster. Drivers should plan to take regular rest stops. They should know where the hotels are where they can stop and sleep. Some of the signs of drowsy driving include:
Some recommendations for sleepy drivers include:
Some automakers who are aware of the dangers of drowsy driving are working to install technology that senses when a driver is tired. The cars sound alarms and even force the car to stop. Alas, that technology does not currently exist with any reliability. All drivers are responsible for any deaths or injuries they cause due to drowsy driving.
In many cases, when a teenager or young driver causes death or injury, the young driver is not the owner of the vehicle. Attorney Joe Miller Esq. can explain when you can also sue the owners of the vehicle in North Carolina under the “Family Purpose Doctrine.” The car owners are generally the people who have liability insurance to pay for all your damages if the driver caused your injuries or the death of a loved one. If there is not enough insurance to cover you claim, you may be entitled to payment for your pain and suffering and economic losses from your own uninsured or underinsurance policy.
In addition, if you were on-the-clock for your employer or your travel was connected to a business trip at the time of your accident, we can, of course, handle any Workers Compensation aspects to the claim as that is also a specialty of our firm. To make an appointment with an experienced North Carolina car accident attorney, please phone (888) 694-1671 or fill out the contact form.
Posted on Friday, May 18th, 2018 at 8:07 am
Drivers and passengers suffer many different types of injuries. In the worst cases, the car occupants die. In severe cases, victims may suffer catastrophic injuries such as a traumatic brain injury or a in injury to their spine. Spinal cord damage may result in partial or full paralysis. Catastrophic injuries can change the quality of accident victim’s life forever. Many victims suffer broken bones, nerve damage, cuts from windshield glass, and burns. Some victims suffer amputations, disfigurement, and scarring.
Most injuries are due to the car driver or passenger being thrown around the vehicle. Occupants may strike the windshield, the dashboard, or the steering wheel. Many car crash victims collide with other car passengers. Some victims are thrown from the vehicle. Occupants may also be hurt when their air bag inflates.
Depending on what type of injuries the driver or passenger suffered, victims need to get medical help from many different types of doctors. North Carolina and Virginia car accident lawyer Joe Miller works with the following type of physicians:
Some patients may need a medical device such as a prosthetic or wheelchair. Most car accident victims need to take prescription medications
Victims who suffer or think they might have internal damage are usually transported by ambulance or by emergency medical care to the closest emergency room. There, the doctors will conduct a battery of imaging tests, a physical exam, and an oral exam to help make a medical diagnosis.
Examples of internal injuries include:
Many patients with internal injuries often have to cope with internal bruises.
Most whiplash injuries occur when a front car is struck in the rear by a distracted or careless driver. It is often made fun of comedically in TV sketches; however, it can actually be a serious, and in some instances, permanent injury. Whiplash involves a tearing of the muscles and ligaments that surround the cervical spine.
The symptoms of a whiplash can take a day or few days to appear. So, anyone in a rear-end collision should avoid saying they feel fine until they’ve waited to see if they do have a whiplash. Most often, you will feel it when you wake up the next day. Common symptoms include:
A whiplash injury happens when the neck and head suddenly move backwards and then forward. (Hyperextension). This unusual motion puts a great deal of stress on the cervical/neck spine. Some car accident whiplash victims may even lose their memory due to the brain being slammed up against the interior of the skull. Whiplash injuries damage the muscles, discs, nerves, joints, and bones around the neck.
Physicians will conduct an oral exam and a physical examination. In addition to listening to you explain your symptoms, the doctor will feel or palpate your neck to see if there is muscle spasm. The doctor will see if anything isn’t aligned properly and determine your range of motion. The doctors may analyze your reflexes and how strong or weak your neck muscles and nerves exiting the spinal column in that area are.
Imaging tests include CT scans, MRI exams, and X-Rays – especially if they suspect a fracture. Whiplash injuries are graded depending on their severity. One of the most common effects of whiplash is a straightening of the spine or cervical lordosis. This can actually be seen on X-ray, and in some cases, digital motion x-ray. This happens when the muscle spasm is so severe it pulls the neck out of it’s normal curvature, and into a straight, “beanpole” configuration, where there is no curvature at all.
Self-help whiplash treatments include:
Cervical collars used to be a standard recommendation for whiplash but now there is some thought that these collars may actually weaken neck muscles.
Doctors may recommend the following treatments:
Most patients with just whiplash return to reasonably normal lives in a few months. In severe cases, some car accident victims may have a lifetime of chronic pain due to the scar tissue left over from the whiplash. Older victims usually have a more difficult time fully recovering than younger victims because the tissue is not as resilient. Women are also more prone to long-term whiplash damage than men.
Both North Carolina and Virginia are fault-car accident states. This means injured victims need to prove that another driver or another responsible party caused your injuries. Victims who can prove fault are entitled to payment of their reasonable medical bills, lost wages and pain and suffering. Proving fault and getting a just recovery requires the help of a respected lawyer. And of course, we know car accidents also occur while people are ‘on-the-clock’ for their employer. Because we also specialize in workers compensation in both Virginia and North Carolina, we can help with that portion of your claim as well. Joe Miller Esq. has been helping injury victims get justice for more than 30 years. To arrange a free consultation, please phone (888) 694-1671 or fill out my contact form.
Posted on Tuesday, May 1st, 2018 at 10:48 am
Car crashes can be frightening. It’s hard to know who to call, what information you need, what evidence is needed, or how to care for the injured. Certainly, nobody wants to get into an accident – but it helps to have a plan in case a crash does occur. Almost everyone will have an accident in their lifetime.
The best plan is to contact an experienced car accident lawyer as soon as possible. The attorney will explain your rights and guide you through each stage of the claims and litigation process. A second plan is to make sure you have your cellphone with you. The phone should be charged and should have access to the Internet. With your smartphone, you can review our blog for general suggestions.
When you speak with your lawyer, he can explain what information is not required to be exchanged. Generally, drivers shouldn’t discuss how the accident happened. NEVER admit any fault, or say you are “sorry,” even it sounds nice. That will be determined later. As a general rule, it’s not necessary to give your address and phone number, unless asked for by the police.
There are other precautions and plans drivers should consider. The car should be stocked with different items to handle different situations. A car should include:
When you get home, you should note the time and date of the accident and what the weather conditions were. Try to remember how fast each car was going and which directions they were going.
Proper planning helps determine who caused the accident. Planning helps verify your damages which include:
Attorney Joe Miller Esq. has been fighting for the injured for more than 30 years. He’s helped thousands of people get justice in both Virginia and North Carolina He’ll fight to get you the damage award you deserve through a strong settlement or a jury verdict. For hep now, please phone (888) 694-1671 or complete the contact form.
Posted on Friday, April 27th, 2018 at 10:20 am
Every car accident happens in a different way. How the crash happens is a strong indicator of which driver was at fault. For example, almost all read-end collisions happen because one car was struck in the rear by another driver who wasn’t paying attention. How the accident occurred also indicates what injuries are likely. Again, in a rear-end collision, the occupants of the car that is struck usually suffer whiplash and other soft-tissue injuries.
Attorney Joe Miller works with the police and investigators to determine how the crash occurred. If necessary, his team speaks to all relevant witnesses including the passengers in any cars and any bystanders. The good news is that in most circumstances, the rear-end collision scenario requires little investigation. Some of the other kinds may require more intensive investigation. What is most important is that you do not say something early on that you do not realize implicates you in some level of fault. In Virginia and North Carolina, that could mean the end of your case.
Most car crashes fall into one of the following categories:
Accidents happen for many other reasons:
In many car accidents, more than one person may be responsible. The owners of the car can be held liable if someone else used their car with their permission. In North Carolina, a Bar may be responsible if they served alcohol to someone they knew or should have known was intoxicated and who then caused an accident due to drunk driving.
Delay can hurt your case. It’s best to inspect the accident scene and speak to witnesses as soon as possible. Attorney Joe Miller Esq. has been fighting for injured residents for more than 25 years. He understands how to prove fault. He’ll demand the right amount of damages for your pain and suffering, medical bills, and lost wages. For help now, please call (888) 694-1671 or fill out the contact form.
Posted on Friday, May 19th, 2017 at 12:59 pm
Restaurant workers often suffer work-related injuries for a variety of reasons. Many service establishments are understaffed The work hours are irregular causing many workers to be tired. There’s constant commotion between the dining center and the kitchen. The quarters are typically quite tight. For many cooks and servers, getting hurt is almost a prerequisite for the job. Minor injuries can often become major injuries. Some injuries can be permanent and prevent the worker from ever working again.
It doesn’t matter if a worker works full-time or part-time as long as they are an employee. My office represents chefs, cooks, servers, bussers, dishwashers, hostesses and maitre’ d’s, delivery drivers, and anyone who works in any type of restaurant.
Restaurant workers can suffer the following types of injuries:
While there are many ways restaurant accidents can occur, these are some of the more typical causes and injuries.
Chemicals used in the restaurant profession can also cause injuries. Loud noises can cause hearing loss or damage.
Servers, food preparers, and busboys are constantly lifting and carrying plates and dishes filled to the brim with food. The constant movements can cause lifting injuries and repetitive stress injuries such as carpal tunnel syndrome. The argument that experienced North Carolina workers compensation lawyers use in repetitive stress injuries is that the repetition is covered as an occupational disease.
To be sure, these types of injuries are much more difficult to prove than a traumatic injury. That being said, North Carolina work injury lawyers can often successfully argue that a catch-all provision of the state’s workers compensation law applies. That provision holds that a worker can obtain benefits if he/she can show:
These two conditions generally apply in restaurant work. Members of the general public may clean their dishes three times a day. They don’t carry plates filled with seven servings and they don’t carry and clear items hundreds of times a day. Doctors can usually verify that the repetitive stress injury was due to the restaurant work.
Restaurants often employ delivery staff to transport meals to offices, homes, and venues where parties or celebrations are being held. Delivery personnel who get into a vehicle accident while traveling to these locations can suffer a full range of injuries such as broken bones, traumatic brain injury, and spinal damage. Drivers can also be killed. Any restaurant delivery worker who is hurt while making a delivery would be entitled to North Carolina workers’ compensation benefits.
If you are suffering minor aches or a major injury due to work at a fast-food restaurant, local diner, hotel restaurant, five-star attraction, or any type of food service establishment; you may be entitled to workers’ compensation benefits. Benefits include 2/3rds of your average weekly wage loss and payment for your medical bills. If you are permanently injured, you may be entitled to additional benefits.
North Carolina workers’ compensation lawyer Joe Miller Esq. has been fighting for the rights of injured workers for over 25 years. You may have a strong recovery coming your way. Please phone attorney Miller at (888) 694-1671 to schedule an appointment with a respected work injury lawyers.
Posted on Monday, August 22nd, 2016 at 2:00 pm
Here are more impairment rating guidelines for physicians to use in North Carolina work injury cases. The guidelines are meant to be a starting point. Doctors should also factor into their impairment ratings the oral examination, functional tests, diagnostic tests, and the prognosis for the injured worker.
For a deeper understanding of why the impairment ratings can impact directly the amount of benefits you deserve, watch this video by attorney Joe Miller. He has been a tough advocate for injured workers for over 25 years. His counsel includes working with workers and doctors to fight for the right rating for each worker’s unique set of physical problems.
Many of the decision points for doctors are medical terms of art. A few that can help guide the discussion are:
• Ankylosis is stiffness of the joint(s) due to abnormal adhesion and joint bone rigidity.
• Arthroplasty is an orthopedic surgical procedure performed to help restore function of the joints.
The upper extremities means the thumbs, fingers, hands, wrist, elbows, shoulders, and the arms. Doctors should use the follow guidelines to decide if the digit, hand or arm should be rated:
• If damage is limited to the digits (fingers) distal to the metacarpophalangeal joint, then the digit itself should be rated.
• If there is anatomical damage proximal to the metacarpophalangeal joint, a rating for the hand should be given, including any consideration for the digit as a percentage of the hand.
• If anatomical damage includes an area proximal to the elbow joint, the disability rating should be for the arm and include any percentage which would have otherwise been credited for the hand or digits.
“ANKYLOSIS” AND “LIMITED MOTION WITH PAIN.”
• Ankylosis of distal IP joint (in optimum position) = 35% of digit
• Ankylosis of proximal IP joint (in optimum position) = 50% of digit
• Ankylosis of metacarpal-phalangeal joint (in optimum position) = 45% of digit
• Any of the above in malposition = up to 100% of digit
• Ankylosis in optimum position = 35% of “hand”
• Ankylosis in malposition = up to 100% of “hand”
o Limited motion, mild = up to 10% of hand
o moderate = up to 20% of hand
o severe = up to 25% of hand
• Ankylosis in optimum position = 50% of arm
• Ankylosis in malposition = up to 90% (Straightened position not as disabling as marked flexion).
• Limited motion and pain
o Flexion and extension (accounts for 60% of elbow function)
20º motion in middle range = 35% of “arm” (80 to 100%)
40º motion in middle range = 30% of “arm” (70 to 100%)
120º motion in middle range = 5% of “arm” (45 to 160%)
o Pronation and Supination account for 40% of elbow function
Total loss in neutral position = 25% of hand
20º motion each way from neutral 20% of hand
60º motion each way from neural 5% of hand
Arthroplasty of elbow using prosthesis = 40% of arm
• Ankylosis in optimum position = 50% of “arm”
• Ankylosis in malposition = up to 80% of “arm”
• Resection end of clavicle (distal to coranoid and trapezoid ligaments) = 5% plus limitation
• Fingers and Metacarpals. Mal-alignment, shortening, stiffening, etc., rated according to function of finger. Express as “percent of digit” if loss is distal to MP joint; otherwise, as “percent of hand,” calculated from the sum of each involved digit, reduced to its known percent of hand.
• Carpals: Rated according to function of wrist.
• Forearm fractures
o Mal-alignment. Rated primarily on limited motion in wrist joint. Add for angulation, shortening, weakness, etc. Express as “percent of hand.” Occasionally the elbow must also be rated for loss of motion, expressed in “percent of the arm” and the total impairment calculated from the sum of the parts reduced to their relative percent of the whole.
o Excision of fractured radial head. Full motion with no pain = 10% of arm. Otherwise rate on basis of loss of motion and pain in elbow and wrist.
o Excision of distal end of ulna. Rated on basis of adjacent joint function with minimum loss of 10% of hand
• Fractures of humerus
o Mal-alignment. Rated primarily on basis of limited motion and pain in shoulder and elbow joints, and expressed in “percent of arm.” Add for angulation, shortening, weaknesses, etc., not reflected in loss of joint function.
• Fractures of shoulder girdle. Rated according to function of shoulder joint. Add for pain and weakness in non-union.
• Fracture into a joint. In general, add 10% if minimal displacement, and more if joint surface is irregular. Any time a joint is entered surgically for repair or excision of a part, the minimum impairment is to be 10%
LACERATION OF THE HAND (TENDON, NERVE, JOINT, ETC.)
• Loss of sensation (complete and noticeable) (exclusive of tendon damage)
o ½ of distal phalanx = 25% of digit
o ½ of finger = 100% of digit
• Division of flexor sublimis with full extension of finger
o Tendon only = 10% of digit
• Division of flexor profundus
o Tendon only = 75% of digit
• Division of both profundus and sublimis tendons.= 90% of digit
• Arthrodesis of distal IP joint = 35% of joint
• Arthrodesis of proximal IP joint = 50% of digit
• Arthrodesis of MP joint = 45% of digit
• Above ratings are for arthrodesis in optimum position. Add for malposition.
• “Contractures” of joints or “limited motion and pain.” Impairment determined on basis of severity as compared to arthrodesis of the joint.
PERIPHERAL NERVE INJURIES:
(Rated on basis of loss in the “hand.” If lesion is high and involves structures above biceps insertion, then loss is rated on the “arm.”)
• Ulnar nerve injury
o Complete motor and sensory = 60% of “hand”
o Complete motor and partial sensory = 50% of “hand”
o Motor only = 40% of “hand”
• Median nerve injury
o Complete motor and sensory = 90% of “hand”
o Complete motor and partial sensory = 60% of “hand”
o Motor only to thumb = 35% of “hand”
• Radial nerve injury
o Motor and sensory = 75% of “hand”
• Above estimates are given prior to any reconstruction and may be reduced considerably by reconstructive surgery.
• If contracture has occurred in the digits, additional impairment should be added.
A slight variance in an impairment rating can be a huge difference in a worker’s wallet, particularly if the injured worker has returned to alternate employment and is earning the same as pre-injury. To help you get the right rating, it is crucial that speak with a knowledgeable North Carolina injury lawyer who understands the complex medical jargon and who has worked with work injury doctors. For help now, call North Carolina Workers’ Compensation attorney Joe Miller today at 888-694-1671. You can also fill out his contact form.