What Are Workers’ Compensation Compromises and Releases?

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

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

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

General considerations

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

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

Additional questions include:

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

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

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

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

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

There are several reasons for entering into a compromise and settlement

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

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

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

There may be additional factors

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

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

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

Recent Workers’ Compensation Statistics

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

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

Insurance-based statistics

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

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

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

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

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

Leading writers of workers’ compensation insurance policies

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

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

Leading Causes of Workplace Fatalities

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

  • Fishing workers
  • Aircraft pilots and flight engineers
  • Roofers

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

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

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

 

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

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

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

Employer-based statistics

According to employer.com:

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

Workers’ compensation and fraud

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

Employee fraud

The main types of employee fraud were the following:

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

Employer fraud

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

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

 

Additional workers’ compensation findings

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

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

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

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

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

Only the Authorized Treating Physician Can Provide Work Restrictions

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

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

Can you take a Vacation While Receiving Comp Benefits?

Posted on Thursday, January 31st, 2019 at 5:43 pm    

Here is another important piece of information, free of charge, this time regarding Going on Vacation During the Pendency of Your Workers Comp Claim. So here is the question:

Can you take a Vacation While Receiving Comp Benefits?

Whether it’s summer vacation, winter break, or you simply had a vacation planned prior to your injury, I am unfortunately here to tell you that you may want to think twice before going on vacation if you are receiving workers comp benefits. In this email we will discuss why going on vacation could have adverse effects on your workers compensation claim.

Medical Treatment

If you are receiving workers compensation benefits and you are required to see a physical therapist, orthopedic surgeon, or any other doctor or specialist, it is very important that you keep your appointments and attend every one. If you go on vacation for a long period of time and miss an appointment or request that the doctor change your appointment, you could risk losing your benefits.

Missing an appointment or rescheduling an existing appointment could be viewed as failure to comply with medical treatment by your nurse case manager. As such, particularly in Virginia, the case manager could have the defense lawyers file an application to have your benefits taken away. Once your benefits are stopped, it could be years until they are restored, if ever.

If you are going on a short trip and you will not be missing or rescheduling any doctor appointments to do so, you may be alright. However, as we will discuss in the next section, there are still other issues you need to be aware of even if your medical treatment is not affected.

They are always watching– Surveillance

Another issue you need to be aware of is that a worker’s compensation carrier will be keeping an eye on you. It costs very little for them to hire an investigator who is stationed far away from you with a high-powered lens to video your activities. They will always be looking for anything that you do that could damage your workers compensation claim. Of particular concern are any activities which might be viewed as inconsistent with your doctor’s restrictions. When you are on vacation it can be very tempting to do things that you should not be doing with your restrictions. For example, you may be tempted to go jet skiing with the rest of the family, even though with your restrictions and medical condition you clearly should not be doing that. Or, there may be yard work that involves lifting or engaging in other activities that fall well outside your doctor’s restrictions. Even if there is no investigator, in today’s age of smartphones, which are everywhere, videos or photos of you jet skiing or dirt biking take only seconds to be sent out to thousands on Facebook or other social media, in which case you can say goodbye to your benefits.

Marketing does not stop while you’re on vacation

Yet another issue that could harm your benefits is job marketing. This is for folks who have been released to light duty by their treating doctors, but their employers refuse to accommodate their physical restrictions by allowing them to work in a light duty capacity. So for instance, if you are not under an open award for your workers compensation claim in Virginia, you must be looking for 5-7 jobs a week. If you go on vacation and you stop looking for a week or you find less than 5 for a week, you will have forfeited the right to claim temporary total disability benefits for that week. Similar requirements exist in North Carolina, although they are not as strict.

The bottom line is your vacation should not be a vacation from your marketing efforts and your documentation of those efforts.

If you will not be missing or rescheduling any medical appointments and if you can continue to search for the required 5-7 jobs per week (when not under an open award) then you may go on vacation. But even then, you should be aware that there may be people watching and possibly recording your every move. Do not participate in activities that you should not be doing with your medical restrictions.

If you have been severely injured at work there are many things you need to be aware of to get the compensation you deserve for your injury. You need an experienced worker’s compensation lawyer on your side. Joe Miller has 30 years of experience in bringing injured workers the Strong Justice SM they deserve. Call today at 888-694-1671 or visit www.TheWorkInjuryCenter.com to learn what Joe Miller and his team can do for you.

Remember, you can still claim your free Case Success Tool Kit by clicking here.

All the best,

Joe Miller

Always Attend Your Physical Therapy Appointments

Posted on Thursday, January 31st, 2019 at 5:41 pm    

Here is another important piece of information, this time regarding Physical Therapy. 

We have had some of our clients tell us (after the fact) that they didn’t make their physical therapy or other doctor’s appointment for one reason or another. It might be a sick child. It might be that the client didn’t feel well. Perhaps the person’s ride fell through at the last minute.

Or, we’ve even heard “Well, I just didn’t feel like they were helping me, so I quit going.”

You must understand that when you are in a worker’s compensation case, especially an accepted claim, it’s a lot like being in a fishbowl.

The workers comp insurance company has a defense team that is watching your every move, and just waiting, like a cat standing over that fishbowl, for the right moment to “pounce” and wipe out your case.

We understand that occasionally, there may be things that come up which interfere with your ability to get to a physical therapy appointment. But habitual absence from scheduled appointments will only give the carrier the ammunition it needs to file a motion and stop your checks.

All the insurance company has to do is file a simple paper called a Form 24 that says that you have not been complying with the medical treatment plan by failing to attend the PT appointments prescribed by your treating physician. And you only have 14 days to respond to that Form 24. You should consider it like a nuclear bomb insofar as your case is concerned.

That’s because if you fail to respond within the 14 days, then the Industrial Commission can enter an Order stating that you have failed to comply with your medical treatment plan, and from that day forward, as long as that is true, your workers compensation weekly checks will stop.

So, please do not let this happen to you. Make every effort to attend all of your appointments. If therapy is not helping, then by all means, tell your treating doctor, but do not decide to stop going on your own.

All the best,

Joe Miller

Don’t Quit Your Job

Posted on Thursday, January 31st, 2019 at 5:40 pm    

Here is another important piece of information we want to provide you with respect to North Carolina Workers Compensation Claims.

And that is this: If you get hurt at work, don’t quit your job.

I’ll say it again: If you get hurt at work, don’t quit your job.

And again: Do not quit your job!

I know I sound like a broken record, but if I could shout it from the rooftops, I would. We regularly get calls from people who were badly hurt on the job, who desperately need help paying the mounting medical bills, and actually have a pretty good case on their hands. And it breaks my heart every time I hear that that person quit his or her job before calling us.

I understand why injured workers feel like their only option is to quit their job after an accident. They’re hurting, and their employer won’t listen and refuses to change their duties to match the doctor’s restrictions. Or maybe the doctor they went to won’t listen, and their pain only gets worse every day. It’s frustrating and stressful and eventually everyone has a breaking point. But if you get hurt at work and decide to quit your job, you instantly lessen any hope you had of taking your workers’ comp case to a Hearing and recovering your benefits.

The workers’ comp insurance companies would love for you to quit, because by quitting, you basically make their case for them. Injured employees can be awarded workers’ comp benefits when a workplace injury leaves them unable to work. In North Carolina, if you have an accepted claim, even if you are able to work, but your doctor says you cannot physically return to the work you were doing before the accident, you would still likely be entitled to ongoing weekly benefits.

But if you quit your job, the reason you can’t work isn’t because you were injured and you have to adhere to your doctor’s physical restrictions; it’s mostly because you took yourself out of the labor market by quitting. A Commissioner will take one look at a case where the employee quit, shrug, and may very well say, “tough luck.”

If you have an accepted claim, and your doctor puts you on light-duty, your employer has to either: 1. find a reasonable way to accommodate your restrictions, 2. find you another job within your restrictions, or 3. If they do not want to accommodate your restrictions, then keep paying you benefits for up to 500 weeks, assuming you are looking for other work within your restrictions. In most cases, they will simply keep paying you your weekly benefits.

If your employer does accommodate your restrictions and you come back to work on light duty after an injury, and it still hurts, then you should go back to your doctor, tell the doctor exactly what they are making you do at work that hurts you, and have your doctor write an order demanding the employer follow your restrictions. Sometimes, the doctor may decide that it’s a dangerous environment for you and he or she does not want you working in that environment at all, and then takes you back out of work again, in which case your weekly comp benefits would re-start. If your doctor won’t listen to you, call a workers’ comp attorney who may be able to get you a different doctor who will listen.

But again, if you quit, without the doctor holding you out of work, you have greatly lessened any possibility that any of those things can occur because you have removed yourself from work by quitting. In other words, the reason you are not working is because you quit, not because a doctor says you cannot work.

I cannot tell you how many great cases we have been forced to turn away because the worker quit his job before he called us.

If you have been injured at work or you know someone who was hurt on the job, and are wondering if you should quit, think about all the medical bills you have to pay on your road to recovery from your work injuries. Workers’ comp exists to help you cover your medical expenses so you can heal and maybe one day rejoin the workforce. Don’t make an impulsive decision to quit that ruins your chances of being able to get the help you need.

I’ll leave you with one last piece of advice: If you get hurt at work, don’t quit your job!

Wishing you a speedy recovery,

Joe Miller

Why You Should Hire An Attorney

Posted on Thursday, January 31st, 2019 at 5:38 pm    

I want to provide you with an important piece of information, this time regarding whether or not to hire an attorney for your workers comp claim. We have noticed that one of the things that folks often say as to why they have hesitated in hiring an attorney is that “it costs too much,” and “I simply cannot afford it now.” In some cases, we’ve heard folks say that they did not speak to an attorney because “I know lawyers bill by the hour and I don’t want to get stuck with the bill.”

Well, if that sounds familiar to you, let me put your mind at ease because the good news is that

YOU WILL NOT HAVE TO STROKE A CHECK TO HIRE THE TEAM AT JOE MILLER LAW/THE WORK INJURY CENTER FOR YOUR CASE!!!!

If you have been severely injured, you may be out of work due to your injuries. How can you possibly afford an attorney now? You don’t even know how you are going to pay the bills that you have, much less afford an attorney! After all, your friend had to shell out a fortune to hire a divorce attorney. And your cousin had to stroke a BIG check to a criminal defense attorney after that cousin got his second DUI.

Well, here is the great news. You will not have to stroke a check or shell out cash, money order, or anything else to hire the team at Joe Miller Law/The Work Injury Center, to represent you, whether you’ve been hurt on the job, been in a car accident, or both.

How is that possible? What is the catch?

The fact is that almost the entirety of our fees are received on what is known as a contingency basis. This means that if you don’t get paid, then we don’t get paid.

 

How does that work?

 

On North Carolina Worker’s Compensation claims, we are typically awarded no more than 25% of any settlement of your case as an attorney’s fee. The reason we say “typically” is because at the end of the day, the North Carolina Industrial Commission decides what our fee will be. The percentages I just mentioned are the maximum standard amounts that are almost always awarded to the attorney in a settlement of your claim.

 

But hey, wait a minute, Miller! Why do you say “almost the entirety of our fees?” What is the small print here?

 

The reason we say “almost” is that sometimes, for instance if we need to go to a Hearing or other significant Motion before the Industrial Commission to get your benefits underway, the Industrial Commission may Award us every fourth check (i.e.,25%) of your weekly comp checks as ongoing compensation, if we elect to apply for that fee. In many cases, for instance, if we believe the case is ripe for settlement, we will forego that fee and wait until settlement to ask for our 25% fee out of settlement.

But again, notice that regardless of whether it is at the end of the case or while you are being paid benefits, you will still not have to stroke a check. If you get no weekly compensation check and/or Award, for instance if your claim is denied, then we are entitled to nothing from ongoing benefits, because there are no ongoing benefits. So those are all still contingency fees.

In personal injury cases, such as car accidents, where the injured person was not on the job at the time of the injury, our fee is 33.3% of the recovery, which may increase to 40% of the recovery, in the event that a lawsuit has to be filed. In the vast majority of cases, we are able to settle your claim without having to file a lawsuit.

So that sounds too easy to be true. What do I have to do to hire Joe Miller Law and the Work Injury Center and put your team to work for me?

If we decide to accept your claim, all you have to do is sign a fee contract that gives us permission to represent your interests in your case. Also, the contract contains the applicable language setting out what has just been explained to you above as to our contingency fees.

In addition, there are HIPPA forms to sign so that we can obtain all of your relevant medical records. You will not have to worry about getting those records as we do all the work. Finally, there are some easy fact forms to fill out so that we have all of the relevant information with regard to your claim. Just give us a call at 1-888-694-1671 or email us at info@joemillerinjurylaw.com or fill out the online form to get started!!!!

If you are still not ready to get an attorney involved in your case, we still understand, but please remember that we have a free information kit ready and waiting for you! All you have to do is CLICK HERE to order!

 

All the best,

Joe Miller

More on Cold Weather Risks for Workers and How to Prevent or Treat Them

Posted on Tuesday, January 29th, 2019 at 11:33 am    

Another danger for workers who work outside is trench foot. Trench foot is also known as immersion. Trench foot is due to lengthy exposure to cold temperatures and wet elements. Workers can develop trench foot even if temperatures are as much as 60 degrees F. The injury happens “because wet feet lose heat 25-times faster than dry feet.” According to OSHA’s stress guide, the danger is that the body, to prevent heat loss, will “constrict the blood vessels to shut down the circulation in the feet.” When the circulation is cut, skin tissue can die because the tissue doesn’t get the oxygen and nutrients it needs. There can also be a buildup of toxins.

Trench foot symptoms include swelling, numbness, blisters, and redness of the skin. If a worker develops trench foot, contact 911 immediately or get medical help immediately. The wet footwear and socks should be removed, and the feet should be dried.

OSHA recommendations for preventing cold stress

While OSHA does not have specific standards for how employers should handle cold weather, it does have recommendations. These recommendations include training workers on how to prevent cold stress injuries and illnesses. This includes what protective clothing and equipment should be worn outdoors. It includes creating policies for reducing risk such as monitoring temperatures and wet conditions and understanding when workers should come in from the cold. Proper “engineering controls” should be considered. This can include radiant heaters, and temporary facilities where workers can warm up. Equipment and devices can be purchased or crafted to reduce exposure to winds and drafts.

Some safe work practice policies that employers should consider when the weather gets cold include:

  • Preventing workers from becoming dehydrated. Fluids should be readily available. Workers should be encouraged to drink them. Warm sweet liquids generally help workers drink more liquids. Alcoholic beverages, however, should be avoided.
  • Heavy work should be scheduled for the sunnier warmer parts of the day.
  • Employees should use a buddy system (where employees work in pairs) so that each employee can monitor and help the other work.
  • If workers aren’t feeling well, they should be allowed to stop working and get hydrated or rest.
  • Employees should be allowed to take rest breaks, even when feeling well, on a more regular basis than in other weather conditions.
  • Workers who have been out of work due to a workplace injury or illness should be given plenty of time to acclimate themselves to work, in general, so they can build up their tolerance – before being given outdoor assignments.

Many factors contribute to workers feeling as warm as they need to be in cold weather. Proper dress for work factors include:

  • The fabric in the clothing. Cotton doesn’t have much insulation value if it becomes wet. Silk, wool, and many synthetics are better fabrics for protecting cold weather workers.
    • Workers should have at least three layers of clothing. The layers should be loose fitting. This combination helps to better insulate the worker. Tight fighting clothing is actually not as effective as many workers would think it should be. The three layers should consist of the following:
    • “An inner layer of wool, silk or synthetic to keep moisture away from the body.
    • A middle layer of wool or synthetic to provide insulation even when wet.
    • An outer wind and rain protection layer that allows some ventilation to prevent overheating.”
  • Workers should wear a hat or wear a coat with a hood. Head coverings are essential to reducing the amount of body heat that can escape.
  • Knit masks can protect the face. Some knit masks can even protect the mouth and lips.
  • Gloves should be insulated. Better gloves are also resistant to water.
  • Workers should wear boots that are insulated and waterproof boots. An extra pair of socks may help.

Additional safety tips for employees

Other steps that the Occupational Safety and Health Administration recommends employers take include:

  • Constant monitoring of workers’ physical conditions in outdoor weather
  • Staying as dry as possible. It’s the combination of cold and wetness that can often be the most harmful – causing hypothermia, frostbite, and trench mouth. Wetness doesn’t just include external liquids. Excess sweating can be dangerous too. The sweat quickly turns cold in bad weather.
  • Workers should have extra clothing such as sweaters and warm underwear ready.

Other cold weather problems besides the cold and wet

Icy and Snowy Walkways and Parking Lots. Ice is an especially dangerous concern in several respects. Icy surfaces can make it much more likely that workers will slip and fall. We unfortunately have represented many injured workers in all kinds of occupations who are injured—typically when exiting or entering their place of employment.  Even a telecommuter may be entitled to make a claim if he or she slipped on snow or ice at home—provided he or she has begun engaging in employment-related activities for the day and was so engaged at the time of the fall.

Snow and ice make it easy for people to lose their footing. Workers who slip and fall can suffer broken bones, muscle and ligament damage, and other types of injuries that can prevent them from working for a long time, or in some cases, unable to return to work at all. We have seen numerous surgeries made necessary due to a slip and fall on ice.

A typical office environment—where ladies wear high heels and men wear dress shoes—combined with ice, is an absolute prescription for disaster. These types of footwear provide no traction whatsoever on icy surfaces and are likely to slide out and cause serious injury. If possible, particularly if there is a long trek from the parking lot to the entry of your place of employment—alternate, weather appropriate footwear should be worn, such as warm boots, like the Sorel brand, and you should carry your office shoes with you in a backpack or by other means. This will also prevent the shoes from being ruined by the harsh salt and other chemicals which are often used in an attempt to melt icy walkways.

Steps should be taken by the employer/landlord to remove ice and clean up snow and ice on company sidewalks and parking lots – as soon as possible after the weather has ceased precipitation.  

Icy Road Conditions. Many North Carolina and Virginia drivers have difficulty driving in the snow. It is not something we are used to. Icy road conditions make driving especially dangerous. Icy conditions can also make it hard for drivers to see. Windshield wipers may stop working completely if the ice builds up too much.

Employers should prepare for bad weather and should educate their workers and have a plan in place about what to do in the event the roads are deemed hazardous. Follow your local news and school and employer closings. If most of the larger employers are opting out of requiring their employees to come to work, that might be a good indication that the employer should advise your employees not to come in as well.

Workers who are injured while driving on the job can suffer a broad range of serious injuries or may even be killed. Moreover, workers should be aware of the “going and coming rule”. That is, you typically cannot claim any injury that you suffered while on the way to or from work as a workers comp injury.  

North Carolina and Virginia worker’s compensation lawyer Joe Miller Esq. has been helping injured workers get justice for more than 30 years.  He’s helped thousands of injured employees get compensation for their medical bills and lost wages. He helps all types of workers from construction and heavy industry workers to healthcare workers and officer workers. For help now, please phone me at 1-(888) 667-8295 or fill out my contact form.

Don’t Get A Side Job While Receiving Comp Checks!

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:

Frequently Asked Questions – Part Three

Posted on Wednesday, January 9th, 2019 at 4:56 pm    

Here’s our third series in common questions and answers about North Carolina and Virginia worker’s compensation.

What is a Nurse Case Manager? (NCM)

Employers have the right to appoint a nurse case manager to help injured and ill workers with their medical needs. Employers will say that the nurse case manager is just trying to help the worker get healthy. That’s not always the case, in fact it is mostly not the case. While a nurse case manager can help coordinate your appointments and help get workers to their treatment or therapy sessions; nurse case manager’s main goal is to show that you are ready to return to work. They are agents of the insurance company and one of the defense professionals usually hired to do the insurance company’s dirty work.

What is that “dirty work.” The insurance company’s interest is to get you back to work as soon as possible. In Virginia, if you are not yet under an Award, and you get released to light duty— that means ANY light duty—even with a one lbs lifting restriction—then the insurance company does not have to pay you a penny, even if your employer does not accommodate your restrictions.

Employees should review with their worker’s compensation lawyer exactly what the nurse case manager can and cannot do. Nurse case managers do have the right to know about your appointments. They do have the right to go the doctor’s office or therapy office. They do have the right to obtain bills and reports from the health provider’s office. They do have the right to discuss your medical condition (including the diagnosis, necessary treatments, and prognosis) with the health professional. They can help you get transportation to the medical office.

They don’t have the right to be in the examination room with you the entire time, if you do not want them in there.  At least some portion of your examination with your doctor should be private so you’re comfortable explaining exactly why you’re hurting. Your doctor should know you can’t lift objects or that it hurts when you move. You also have the right to be present when the nurse case manager discusses your case with the physician. The nurse case manager and the doctor are supposed to be there to help you – not bow to the insurance company’s desires. They do not have the right to “manage” your medical care by deciding where or with whom you will treat. Those decisions belong to the authorized treating physician.

For the most part, the nurse case manager’s access to your physician will be dependent on how open your physician is to dealing with the nurse case manager. Some are more open to allowing the NCM into the examination room, while others are less open to it. Our interpretation of the law is that their only obligation is to provide the records to the NCM. Beyond that, your physician is under no legal obligation to talk to the NCM. The issue is that many physicians realize that if they completely “shut out” the NCM, it is less likely that the physician is going to get any further referrals from the insurance company. In other words, it’s bad for business. Most patient advocate type physicians will walk a fine line of communicating with the NCM, but maintaining their own independent medical judgement, despite the pleas of the NCM to return you to work before you are ready.

What is an independent medical examination?

Sometimes, the employer or your own lawyer will request an independent medical examination (IME). An IME is a physical and oral examination of your current health condition. It is performed by a physician who is not one of your treating doctors. In North Carolina, you are entitled to an IME with a physician of your choice respect to your permanent impairment rating if you do not like your treating physician’s opinion in that regard, at the defendant’s expense. In North Carolina, you are also entitled to an IME at the defendant’s expense for general issues as well; however, there must either be an agreement by both sides as to who will perform the general IME, or the Industrial Commission will have to order who will perform the IME via a motion filed by the attorney.

In Virginia, you have no right to obtain an IME at the defendant’s expense; however, you are entitled to see any doctor you like at any time at your own expense. In North Carolina, it is not advisable to do this, as the IC will generally ignore unauthorized examinations and opinions.

On the other side, the employer’s insurance company also has the right to request an IME at any time in both Virginia and North Carolina. The defense may request an IME to try to show you are ready to go back to work, or when there is a question as to whether a procedure or surgery recommended by your physician is medically necessary. The doctor is hired by the employer’s insurance company which means he/she is not your friend. The employer physician normally only sees you one time at the IME. He or she will take an oral history and then conduct the physical exam.

You and your lawyer have the right to challenge any report the IME doctor makes that suggests you can return to work or that you can go back to work with some restrictions. Your lawyer will normally seek to have one of your own doctors review the IME doctor’s report – and explain where the report is not accurate.  Your treating doctors can show what the IME doctor misses because he/she only sees you one time and why any conclusions about your ability to work are not true.

Should I seek vocational rehabilitation?

Some workers can’t return to the type of job they did before their accident. For example, construction workers who needed to be able to lift 50-100 pounds or more to do their job may now not be able to lift much more than a few pounds.  Going back to work with restrictions may not be an option – either because there are no suitable restrictions (you just can’t do physical labor any more) or because the employer doesn’t have a job that matches your abilities.

Since you can’t do the job you’ve been trained for, you may be eligible to be retrained to do a new type of job. The new job is often more clerical and administrative if you were a physical laborer. Your North Carolina or Virginia work injury lawyer should then explain that you may be eligible to go back to school or to attend a training program so that you can be qualified to do more work.

That being said, the process of vocational rehabilitation, unless it is a simple payment for school tuition (rarely the case), is generally not what it sounds like. In our experience, it is generally an unpleasant and difficult process designed to strip you of your benefits. It is generally not designed to find you suitable employment but trip you up and find you out of compliance and hence no longer entitled to your workers comp benefits.  

While engaged in vocational rehabilitation, you still have the right to be paid your compensation checks (generally 2/3rds of your average weekly wages) and treat with you doctors. The insurance company is supposed to pay for your tuition or course costs, your books and training materials in connection with any vocational rehabilitation, but in our experience, they will typically take the cheapest road and enroll you in free courses if any re-training is required. If you need help getting to the course programs or school, vocational rehabilitation is supposed to either help or reimburse you for your transportation costs as well.

What does a vocational professional do?

This is someone who is trained to say what type of work a person can and can’t do based on the worker’s education, past job experience, current skills, and current physical and emotional abilities. Employers sometimes employ a vocational professional to say that – while you can’t do your current job – you should be able to find suitable work in the area where you live. These professionals usually review Department of Labor standards and other guidelines to help make their determination.

They will typically start with an initial session which goes through your entire work history to determine your current transferrable skills. They will also review any FCE’s and your doctor’s records to determine your current work restrictions. After that, the vocational rehab professional will often meet with you on a weekly basis to provide job leads for you to apply to. These job leads are supposed to be pre-screened, meaning they job must be within your physical restrictions, within your skills, and also at least some significant portion of your pre-injury wages. In other words, if you were earning $1500.00 per week pre-injury, having you apply for a minimum wage job would not be suitable employment.

Experienced work injury lawyers understand how to question vocational professionals. They also understand that most of the time, their job is not to find you suitable employment, but to trip you up so that you are stripped of your workers compensation benefits. They work to make sure the vocational rehabilitation counselor follows the rules and guidelines which govern what they can and cannot do.  In some cases, they may consult with another vocational professional who has a different opinion about the work you can and cannot do.

Attorney Joe Miller Esq. has been a strong advocate for injured and ill workers for more than 30 years. He’s helped thousands of North Carolina and Virginia employees get just recoveries when they’re hurt on the job or suffer an occupational illness. To speak with a lawyer who fights for injured workers, please call 1-(888) 667-8295 or fill out my contact form.

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