Fingertip, Finger, and Hand Injuries in Workers’ Compensation Cases

Posted on Wednesday, June 2nd, 2021 at 10:05 am    

Finger and hand injuries are all too common in the workplace. According to Occupational Health and Safety and data from the US Bureau of Labor – “Of the 286,810 non-fatal occupational injuries to upper extremities in 2018 involving days away from work in private industry, 123,990 involved hands, which is more than 43 percent.”  Human hands have 27 bones and 30 muscles – so there’s a lot that can go wrong.  (more…)

Workers Compensation For Benefits When You Hurt Your Back

Posted on Wednesday, May 19th, 2021 at 4:14 pm    

One of the most common types of injuries for workers is back pain. Back pain can occur in almost every profession. Any worker who does physical labor such as construction work, agricultural work, or industrial work is relying on their back almost constantly. Workers who stand most of the days such as waitresses, nurses, and other workers often develop back pain. Even if you sit all day using the computer or doing clerical work, you’re likely to develop back pain. (more…)

Workers Compensation For Benefits When You Injure Your Arm

Posted on Tuesday, May 18th, 2021 at 4:14 pm    

There are very few jobs a worker can do if his/her arm is injured. Your arm is also known as your “upper extremity” in workers’ compensation terms. Workers need their arms to serve food, treat patients, drive, operate machinery, do construction work, or type at a computer. Arm injuries-which often  include shoulder injuries – are due to either an acute or chronic injury. Acute injuries are normally injuries due to a specific event such as a workplace accident. Chronic injuries are typically wear and tear injuries where the deterioration just becomes too difficult to work with. Unfortunately, under most circumstances, “wear and tear” injuries are not compensable unless they are made symptomatic by a specific, identifiable, traumatic event such as a slip, trip or fall. In Virginia, a sudden, severe pain, accompanied by a “pop” or some other clear indication of a single event—even without a slip, trip or fall— may be sufficient, so long as it was caused by a risk associated with your employment.  (more…)

Light Duty and Awards

Posted on Thursday, March 4th, 2021 at 3:46 pm    

Virginia and North Carolina Workers Compensation Attorney Joe Miller explains the importance of making sure you get under an Award in Virginia, particularly if you are about to be released to light duty. Until you obtain that Award, you essentially have no rights at all and you are living in a house with no roof. All that rain is going to pour down on you if you don’t get that roof up to protect you by getting under an Award.

Always Get A Work Note

Posted on Wednesday, February 3rd, 2021 at 3:55 pm    

Virginia and North Carolina Workers Compensation Attorney Joe Miller explains why it is so critical to your case to obtain a current work note or disability slip after each and every appointment with your primary, authorized treating physician. Failure to present valid work notes at your hearing could mean you will be unable to prove you are entitled to weekly checks.

Workers’ Compensation and Cold Weather

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

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

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

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

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

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

Best cold-weather practices for employers and employees

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

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

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

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

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

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

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

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

General winter tips for workers

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

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

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

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

A few winter driving safety tips

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

A few common safety tips for cold weather driving include:

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

According to Business Insurance:

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

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

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

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

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands the many reasons why workplace accidents occur. It is not necessary to prove your employer was at fault in order to receive workers’ compensation benefits. The focus on considering safety measures in cold weather or any weather is to try to avoid the accident from happening. For help with any work injury claim, contact a seasoned North Carolina and Virginia workers’ compensation attorney. You can reach attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment. You can use complete our New Electronic Case Review. It’s a new way we’re offering workers to contact us remotely, particularly if they are awake after normal business hours. 

Carpal Tunnel Syndrome and Workers Compensation – Part Two

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

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

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

How does your doctor diagnose carpal tunnel syndrome? 

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

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

Imaging tests may also eliminate other problems such as diabetes.

What are the initial treatments for carpal tunnel syndrome?

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

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

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

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

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

What nonsurgical treatments may help?

Some nonsurgical therapy treatments include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Carpal Tunnel Syndrome and Workers Compensation – Part One

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

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

What are the symptoms of carpal tunnel syndrome?

According to the Mayo Clinic, symptoms include:

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

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

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

What causes carpal tunnel syndrome?

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

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

What are the risk factors for carpal tunnel syndrome?

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

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

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

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

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

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

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

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

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

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

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

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

Pre-Existing Medical Conditions and Workers’ Compensation Claims

Posted on Thursday, October 22nd, 2020 at 1:28 pm    

Workers’ compensation claimants have the right to demand that their employer pay for all medical bills for injuries related to a workplace accident or an occupational illness. The insurance carrier for the employer is also required to pay temporary benefits (2/3rds of your average weekly wages – with some adjustments) until you can return to work or alternate, light duty work is found for you. Once you’ve reached maximum medical improvement (MMI), you may be evaluated to determine if you have a permanent impairment as well as permanent work restrictions due to your workplace injury. This evaluation includes a permanency rating which details the type of disability you have in your injured body part(s) and the severity of the disability as it relates to the types of work you will be able to do, and not do, going forward. Additional work loss payments are paid depending on the impairment rating and whether you are capable of returning to your pre-injury job.

Insurance companies for the employers are always looking for a way to limit how much they have to pay. One classic strategy that employers use is to argue that your injuries and inability to work are due to a pre-existing condition. If the employer can show you have a pre-existing condition:

  • Your right to benefits could be denied;
  • Your right to medical treatments (and payment for those treatments) could be reduced or denied;
  • Your right to temporary wage loss benefits could be reduced or denied;
  • Your right to permanent disability benefits could be reduced or denied.

Whether these rights are denied or reduced depends on the relationship between any prior condition and your current medical condition.

If the pre-existing condition dose not relate to your current medication condition (for example, your knee now hurts when the pre-existing condition was a broken arm), then your right to new benefits should not be affected. Likewise, if he pre-existing condition fully healed before your current accident, then your right to benefits should not be denied.

What is a pre-existing condition?

A pre-existing condition in the context of an injury case is a form of injury for which a worker has previously received medical treatment or for which a diagnosis of an injury has been made in his or her current work injury case. It used to be the case that if you had a pre-existing medical condition, your own health insurance wouldn’t pay for treatment for that condition – unless a sufficient length of time had passed since the last treatment. Due to the Affordable Care Act, insurance companies are now prohibited from denying payment for any necessary treatments – even if you have a pre-existing condition.

While the ACA helps with medical bills, it doesn’t pay any wage compensation. In addition, if you use your own health insurance, you have to pay the deductible and copays. Workers compensation doesn’t require deductibles or copays. If your claim is accepted or ruled compensable, the workers compensation insurance company must pay all reasonable and related costs in connection with your work injury. 

Pre-existing conditions vary from worker to worker and patient to patient. They include conditions due to injury such as broken bones and arthritis due to surgeries. Pre-existing conditions also include diseases such as heart disease and cancer. Whether your pre-existing condition will negatively affect your workers comp claim depends on a variety of factors, not the least of which is where your case is pending. 

Is your current medical condition related to your pre-existing condition?

In most cases, your physicians will make the initial determination about whether you have a pre-existing condition. This determination is based on a number of factors including:

  • A thorough review of your prior medical records. Previous doctor reports should document any treatments you had. They’ll document any diagnostic tests, such as x-rays, MRI’s or CT scans– if you had diagnostics. If you never received any treatment for your prior injury, then your current doctor is less likely to be aware of you pre-existing condition.
  • A physical examination. A scar from a prior surgery, for example, is an immediate clue that you had a prior injury. On the other hand, if your prior injury has completely healed, then a physical exam is less likely to show the prior injury.
  • An oral examination. Your physician will likely ask you about any pre-existing conditions. You need to be as candid and forthcoming as possible. Never, never try to lie or hide any pre-existing condition. The Insurance companies have a vast network of computer surveillance and of course, the power to subpoena records. If your doctor and your attorney know about any relevant pre-existing conditions, they can be dealt with. A surprise piece of information that is dug up by the defense and thrust into your doctor’s face is less likely to be effectively dealt with and may cause your doctor to be hostile towards you. 

It is important that you speak with your North Carolina or Virginia workers’ compensation lawyer as soon as possible. Often, your employer will go on a fishing expedition to try to show you have a pre-existing condition. There are limits to what employers and even physicians can ask about your prior medical history. Your lawyer can explain these limits. But we will say this repeatedly—the worst thing you can do is try to hide a pre-existing condition. This will destroy your credibility, not only with the Workers Compensation Commission, but with your doctors as well. 

Is the pre-existing condition related to your current injury or illness?

Whether the injury is “related” to a pre-existing condition is a legal question. The main issue is one of determining how much the new accident caused your injury and how much the prior condition is contributing to your need for medical benefits and work loss payments. Factors that need to be considered include:

  • Were you still treating for prior medical condition?
  • Did the current injury worsen your prior medical condition?
  • Is the current injury different than the new one? For example, if your prior injury was a torn meniscus and your new injury is a torn ligament, then the injuries (even though both may be to the same knee) are fairly different.
  • Was the pre-existing condition due to another workplace accident, to a personal injury accident, to old age, or to some other cause?
  • The type of injury. Some injuries like a broken arm should fully heal within a few months. Other injuries, like a bad back can be chronic and last for a lifetime.
  • The severity and trauma of the current injury. If you had a pre-existing, active condition, and the trauma associated with the new injury was very slight, it may be harder to prove that you have a new injury. 

Jurisdiction Matters. A lot really depends on what jurisdiction you are proceeding under. In Virginia, believe it or not, the law relating to medical causation is actually fairly liberal. First, as with any work injury, you just show that you suffered an injury by accident, which means that you suffered a sudden mechanical change in your body as a result of a trauma. 

Then, once you can prove that, if ANY part of your current disability or need for treatment comes from the new injury by accident—even if it’s only 1%— then the entirety of the claim is compensable.  So yes, the law on this is very helpful for injured workers in Virginia. 

Let’s take an example. Say you had a pre-existing herniated disc in your back. You may have even had surgery, but the surgery was about a year before the current accident, and you’ve done fairly well. In fact, you’ve resumed your full duties at work for the last three months. 

But then your co-worker drops his end of a heavy object which pulls you down and causes you to have a “pop” and then horrific pain in your back. Your left leg goes, and stays completely numb with shooting pins and needles down your left thigh and leg. Your Neurosurgeon says it’s a re-aggravation of your previous injury, takes you 100% out of work, and also says you will now require a more extensive fusion surgery on your lumbar spine. 

In Virginia, unless your Neurosurgeon or Orthopedic can say that the new accident had NOTHING to do with your current inability to work, then you should have no problem moving forward with a new claim on your back. 

How is this determined? In Virginia, we typically will write your doctor and ask him to answer a few questions in the form of an Opinion Letter which sets forth

  1. Whether you suffered a sudden mechanical change as a result of the new injury; and 
  2. Whether the new injury contributes—even in the slightest degree—to your current disability and need for treatment. 

So long as the answer to both of those questions is “yes,” from your authorized treating doctor, you should be fine and the entirety of your new claim should be compensable. 

North Carolina Workers Compensation Pre-Existing Injury Law—Not Quite as Liberal

Unfortunately, North Carolina Workers Compensation Law is not quite as liberal as Virginia in relation to the law on pre-existing injuries. 

First of all, except with respect to back injuries, North Carolina requires that you show some type of actual “slip, trip, or fall,” when attempting to prove that you suffered an “injury by accident.”  Accordingly, a “leg giving way” or a twisting of the knee, without a fall to the ground or slip, would not be considered an “accident” under North Carolina Law, where it might in Virginia. That being said, North Carolina has carved out an exception for back injuries. All that need be shown is a “sudden traumatic event” if you’ve suffered a back injury.  This could be something as simple as feeling a sudden “pop” in one’s back as one is lifting something heavy at work. 

But of course, as in Virginia, once you have established that you have suffered an accident, what happens if you have a pre-existing condition in a North Carolina Workers Compensation Case? Unfortunately, things are not quite as easy as in Virginia. 

Let’s use the example we used in Virginia—you suffered a pre-existing back injury and surgery, and you’ve done fairly well and returned to full duty.  

Now you’ve re-injured the same back in a new North Carolina Workers’ Comp Case, and your doctor pulls you 100% out of work and says that you will require a more extensive back surgery. What will you have to prove to show that this is separate from the old injury? 

 North Carolina Law is similar, but not quite as liberal, as Virginia on this issue. The law in North Carolina is that where a nondisabling condition is aggravated or accelerated by an accidental injury from employment, so that the worker is now disabled, then the employer must compensate the employer for the entire resulting disability. In other words, just because the injured worker had some underlying condition that made the current injury worse, there is no “apportioning” done as between what was there before and what is wrong with the employee now. The entirety of the current disability is compensable. 

That being said, North Carolina has the extra requirement that the employee prove that the work-related accident “contributed in some reasonable degree” to the plaintiff’s disability.  The injured worker must prove that it is more likely than not that the accident was a “causal factor resulting in the disability.” 

So that standard is a little higher than Virginia’s causation standard, which sets forth that ANY contribution by the new injury to disability is enough to make the entire claim compensable. North Carolina requires a little more than that—a “reasonable degree” of contribution. 

How does one prove this? Again, as in Virginia, an opinion as to whether an aggravation of a pre-existing condition rests entirely with the authorized treating physician. If the physician is able to state that more likely than not, the new injury contributes in some reasonable degree to the current disability, then the entire claim is compensable. 

Unfortunately, unlike Virginia, the North Carolina Industrial Commission does not accept medical opinion letters as testimony or evidence, without sworn testimony. Accordingly, if a matter is proceeding to Hearing in North Carolina, the deposition of the doctor must be scheduled to elicit his or her testimony for hearing. 

That being said, oftentimes the production of a favorable opinion letter well in advance of any deposition of the doctor will give a clear indication of the way the physician intends to testify and may result in an agreement by the defense to accept the claim. 

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. is a seasoned workers’ compensation attorney. He’s helped thousands of injured workers, including many with pre-existing conditions, obtain a just recovery. He’ll fight to show the prior condition isn’t related to your new medical condition. To speak with an experienced work injury lawyer, call North Carolina and Virginia attorney Joe Miller, Esq., at 888-667-8295. or fill out our online contact form  or our new online case evaluation form to streamline the process of having Mr. Miller review your case. 

COVID-19 Can Kill Your VA Workers Comp Case

Posted on Thursday, September 17th, 2020 at 2:27 pm    

In this video Workers Compensation Lawyer Joe Miller explains how your contraction of COVID-19 illness could completely “kill” or derail a perfectly good workers compensation case in Virginia, even if you are under an Award. As a matter of fact, if you become unable to work as a result of ANY condition that is not related to your work injury, and your workers comp doctor has you on light duty, you can expect your benefits to be immediately cut off.

Why? Because you have been removed from the labor market for an unrelated condition, and therefore, your inability to work has nothing to do with your work injury, but with an unrelated condition. Yes, it is very, very unfair and no, it was not your fault that you got sick. But the workers compensation insurance company does not care about that, nor does the Virginia Workers Compensation Commission. The bottom line is if you are under an Award, and you’re on light duty, you had better avoid getting COVID-at all costs. Even if you only test positive and have no symptoms, we know that positive result would prevent you from working anywhere and therefore, you can expect your benefits to be cut off.

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