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.

Potential Great News For Virginia Health Care Providers and others who Got Sick from COVID-19

Posted on Friday, September 4th, 2020 at 9:41 am    

Workers Compensation Attorney Joe Miller talks about Virginia Senate Bill 5066, which proposes to create a legal presumption for all police, firefighters, first Responders and healthcare providers in the Commonwealth that if he or she contracted COVID-19, then it is presumed to have been contracted on the job, and accordingly, is compensable as an occupational disease. Most importantly, the bill, as proposed, would be retroactive to provide this presumption to any worker in one of these occupations who became ill from COVID-19 at any time after January 1, 2020. Although some folks who have already taken their COVID cases to hearing in Virginia have prevailed, the majority have not. (more…)

Custodial Workers and Workers’ Compensation

Posted on Wednesday, August 26th, 2020 at 10:13 am    

As the start of the school year gets nearer, much of the focus has been on when and how the schools should open in light of the COVID-19 pandemic. One of the related issues will be the rights of teachers and custodial workers in these schools. We’ve written previously about teachers and workers’ compensation and also on the general rights of all workers to claim benefits if they contract COVID-19. (more…)

North Carolina Guidelines for People Attending Workers’ Compensation Hearings During the COVID-19 PANDEMIC

Posted on Thursday, August 20th, 2020 at 10:11 am    

The guidelines for North Carolina Industrial Commission hearings, as of July 2020, are the following:

You have COVID-19 symptoms

If you have any COVID-19 symptoms, you should not attend a hearing. You should not enter a courthouse or hearing room. You should contact the deputy commissioner by email or telephone to receive further instructions. (more…)

FAQs about COVID-19 and Workers’ Compensation in North Carolina and Virginia

Posted on Friday, June 19th, 2020 at 8:45 am    

The National Council on Compensation Insurance (NCCI) has posted a number of questions and answers about how the novel coronavirus is affecting work injury cases across the country. Some of the questions and answers follow. For more information, consult with an experienced North Carolina or Virginia workers’ compensation lawyer to discuss your rights and your claim. The answers are updated through April 30, 2020.

Is COVID-19 compensable under state workers compensation acts?

This is an open question that is being litigated. Workers’ compensation generally covers occupational illnesses that happen through work. Occupational insurance coverage normally does not include illnesses that are just as likely to occur away from work. So, the question being litigated is whether COVID-19 is more likely to occur at work than away from work. Advocates for coverage assert that for essential worker, the question should be answer in the affirmative. They say the healthcare workers, delivery workers, first responders, and other essential workers are more likely to get COVID-19 while serving the public than at home. Some states are passing or considering passing legislation to answer this question. Until the state passes a law, the question will be resolved by the courts on a case-by-case basis.

Where can I find state-specific legislative activity related to COVID-19?

Each state, including North Carolina and Virginia, has passed either legislation, issued executive orders, or both in regard to a variety of COVID-19 business and employment issues.

 So far, as between the two states, only North Carolina has been moving forward with passing legislation to cover workplace illnesses or death of essential workers due to COVID-19. The orders mostly apply to how cases will be conducted. As of the date of this writing, those efforts are still pending. 

You can find a good overview of ongoing State legislative initiatives across the U.S. specifically with respect to coverage of employees exposed to COVID-19  here

An employer has limited operations due to COVID-19. As a result, some employees are placed into new roles for the duration of the pandemic. What classifications could be assigned to these employees?

Many businesses are shifting to online and curbside pickup services. The employees are shifting from working as waiters for example to helping with deliveries. Generally, the main issues will be whether they are considered employees and what their pay is. Employees are entitled to work injury benefits if they are injured while working. Independent contractors are generally not entitled to benefits for a workplace injury – through the state workers’ compensation system. A skilled work injury lawyer can explain what calculations (Pre-Covid 19 or Post-Covid 19) will be used to determine your average weekly wage and whether you qualify as an employee or an independent contractor.

Is there any guidance regarding data reporting and claims coding related to COVID-19?

Yes. New reporting requirements set forth by the Department of Labor and OSHA have been created for employees who contract COVID-19.

Has Congress or the administration taken any specific actions that would directly impact the state-based workers compensation system?

So far, no specific federal legislation or regulatory initiatives that would “impact the workers compensation system” have been acted. There are some indirect affects due to the passage of the CARES act to help employers keep more employees on their payrolls. “The House of Representatives Committee on Financial Services has proposed considering a Pandemic Risk Insurance Act (PRIA).” Other than that, as mentioned in previous blogs, many states either have passed or are in the process of passing legislation that would give first responders or in some cases, all essential workers a presumption that if they contract illness from COVID-19, that it was contracted on the job, and therefore compensable. 

Unfortunately, Virginia is not among those states and as I’ve said in a previous video, this is a travesty and must be addressed when the legislature goes back for its next session in Richmond. I continue to urge all residents of the Commonwealth to contact their state Representatives and urge that legislation is introduced that at a minimum, protects our frontline healthcare workers in the event they contract the virus and become sick. 

On the other hand, North Carolina is moving forward to address this problem with House Bill 1057. Please urge your North Carolina State Legislators to pass this bill into law. 

Does the Families First Coronavirus Response Act (FRCA) address workers compensation, including the treatment of payroll? Will payments by employers for qualified paid sick leave and qualified family and medical leave expansion under the Act be used in the calculation of workers compensation premium?

“None of the provisions of the Families First Coronavirus Response Act (FRCA) expressly apply to workers compensation.” “In March 2020, Congress passed the Act in response to the COVID-19 pandemic. In general, the Act expands food assistance, addresses unemployment benefits, and provides emergency paid sick leave, emergency expanded family and medical leave, and tax credits.”

Th FCRA does modify and expand family and medical leave coverage  (FMLA)– “by requiring employers with fewer than 500 employees to provide paid leave to eligible employees for a qualifying need related to a public health emergency.” “Qualifying need” generally applies to employees who can’t work (or telework) because they need leave care for a child under 18 – if the child’s school or place of care is closed or the childcare provider isn’t available – due to the public health emergency. “Public health emergency” means an emergency with respect to COVID-19 declared by a federal, state, or local authority. Previously, the FMLA only applied to employers with more than 500 employees. 

“The section in the Act on Emergency Paid Sick Leave (EPSLA) provides that an eligible employer will provide an employee with paid sick time if the employee is unable to work or telework for reasons stated in the Act such as:”

  • The employee must comply with a governmental quarantine or isolate order – due to COVID-19.
  • A health care provider has told the employee to self-quarantine due to COVID-19 symptoms.
  • The employee is caring for someone who is required (by a governmental order or a healthcare provider’s directive) to self-quarantine.

North Virginia workers’ compensation attorney Joe Miller Esq. has helped thousands of employees get just settlements and awards. He’s been fighting for injured workers and workers with illnesses for more than 25 years. If you develop COVID-19 or are informed that you need to self-quarantine or stay isolated – preventing your from working, call Joe Miller, Esq., at 888-667-8295. or use my online contact form to arrange to speak with a respected work injury lawyer.

Some States are Making Workers’ Compensation Benefits More Accessible for First Responders and Front Line Workers Who Contract COVID-19

Posted on Thursday, June 18th, 2020 at 8:44 am    

Every state is responding to the COVID-19 pandemic in different ways. One of the common priorities is to provide some protection for the first responders and front line workers who are helping to keep everyone safe and helping to treat those people afflicted with the disease.  You can find a good resource to keep up-to-date with those efforts across the U.S. here

First responders and front-line workers generally include:

  • Police workers
  • Fire personnel
  • EMTs – emergency medical technicians
  • Paramedics
  • Health care providers involved in patient care
  • Correction officers
  • Workers in “essential businesses and operations”

New legislation in Illinois to protect first responders, front line workers, and essential workers

Illinois, according to the National Review, has passed legislation that provides that during the state of emergency, workers who can’t work due to COVID-19 exposure don’t need to prove:

  • “That the exposure arose out of and in the course of employment” or
  • “That the injury or period of incapacity was causally connected to the hazards or exposure from employment.

The legislation, in the form of an emergency amendment, creates a rebuttable presumption that the exposure was employment related and that the incapacity was “causally connected to the hazards or exposure from employment.” The amendment doesn’t force workers in essential businesses and operations to distinguish between onsite work and remote work – even though the risk for onsite workers is logically greater. 

According to the National Review, the media are not considered essential businesses and operations. The rebuttable presumption also doesn’t apply to non-essential businesses and operations – even where workers are required to work onsite to keep the business going. The Illinois legislation is stronger than comparable legislation in other states because it does include workers in essential businesses and operations – in addition to first responders and front line workers. Businesses, according to the National Review article, are not happy that the workers compensation coverage has been expanded beyond first responders and front line workers.

New legislation in Missouri to protect first responders and front line workers

According to Fire Rescue 1, Missouri has also passed workers’ compensation legislation to help first responders and front line workers. The new law creates a presumption that first responders who are either diagnosed with COVID-19 or quarantined due to COVID-19 were exposed to the disease through work. The law is an emergency rule announced by Missouri Governor Mike Parson. It applies to the police, to firefighters, and to other first responders (such as EMTs).

 

The rule takes effect on April 30,2020 but applies retroactively to “first responders who already have been diagnosed with the virus or are under quarantine.” Normally, workers need to prove that they acquired an occupational disease while – on the job.

Jefferson City police officer Jeremy Bowman said that COVID-19 has already affected 8 officers in St. Louis who have the disease and another 55 who are quarantined. Officer Bowman said that many other law enforcement and firefighter departments are have similar results. Officers and firefighters have no way of knowing whether the next person they help or arrest has the disease. 

“Mark Woolbright, with the International Association of Fire Fighters, said he knows of at least 10 firefighters who have tested positive for COVID-19 in the 70 fire districts, fire departments and ambulance districts he represents in St. Louis County and St. Charles County.”

Quarantines usually last for 14 days. Treatment of the disease can involve missed work for weeks or months and expensive medical costs especially if a patient needs long-term hospitalization.

“The St. Louis Police Officers Association, the union representing rank-and-file officers with the St. Louis Metropolitan Police Department, said the emergency rule was a ‘game changer.’”

New legislation in Minnesota to protect first responders, front line workers, and essential workers

EMS1 reported on April 13, 2020, that Minnesota’s legislature passed a workers’ compensation bill for first responders which provides occupational illness protection for certain workers who contract the novel coronavirus. The bill applies to paramedics, firefighters, police officers, healthcare workers, corrections officers, and others. These workers won’t need to prove that they acquired the disease through their work. Any worker who has a positive COVID-19 result will be “presumed to have an occupational disease, thereby making them eligible for workers’ compensation benefits under state law.”

North Carolina is considering changing workers’ compensation for frontline workers due to COVID-19

WCTI12 reported on May 13, 2020 that North Carolina leaders have bipartisan support to provide more workers’ compensation benefits, in the form of legislation, for frontline workers. The law, which has not been passed yet, would provide for a rebuttable presumption.  I referenced this very helpful move by North Carolina Legislators in my last blog on this subject. 

The rebuttable presumption means that police, firefighters, and other front line workers wouldn’t have to prove they developed COVID-19 while performing their duties. Instead, the burden would shift to employers to show the workers contracted the disease away from work. The shift In burden is often the difference between winning and losing a workers’ compensation case.

The legislators are also considering requiring that workers be tested before they can return to work. Workers who don’t test negative would not be allowed to return because they could affect co-workers and the general public. The bill applies to healthcare workers and essential workers in addition to first responders. The bill would also set aside $5 million away for workers’ compensation claims which are filed by employees of the government.

North Carolina workers’ compensation lawyer Joe Miller Esq. is keeping current with new rules and laws that help protect workers’ rights during the COVID-19 pandemic. He understands that many workers are heroes who are risking their lives to keep others safe. They should be protected if they contract the virus or need to be quarantined. To discuss your workers’ compensation rights during this health crisis, please phone Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to speak with an experienced work injury lawyer.

Health Care Workers and Workers’ Compensation Benefits – in the Age of COVID-19

Posted on Wednesday, May 27th, 2020 at 3:20 pm    

Nurses are on the front lines of the COVID-19 crisis, They are helping out in ICU rooms, emergency rooms, and the rooms where patients are trying to stay alive on ventilators. They’re helping out with testing patients for the coronavirus with swabs and by other means.

These new duties are in addition to their regular duties of helping to prepare patients for surgery and participating in surgeries. Nurses help patents recover by monitoring their systems and giving patients their medications, Nurses also provide a variety of physical and emotional tasks such as:

  • Moving the patients
  • Helping the patients walk and go to the bathroom
  • Repositioning patients in their beds
  • Changing the bed sheets

 

Other duties that nurses with more advance training and certifications perform include:

 

  • Speaking with family members
  • Treating the patient under a physician’s order
  • Helping with diagnostic tests
  • Recording the patient’s signs, symptoms, aches, and pains

 

In addition to certified nurses, there are registered nurses, nurse practitioners, critical care nurses, and other types of nurses.

Many nurses work in hospitals. Nurses also work in nursing home facilities, retirement facilities, assisted living facilities, a physician’s office, ambulatory surgery centers, and other outpatient facilities. Some nurses provide home health care

Nurses and workplace accidents

Nurses often suffer one or more of the following types of accidents during their lifetime”

  • Overexertion injuries. Nurses regularly lift patients move them, transfer them to other rooms, and push them while they’re in wheelchairs. They also reach for objects, handle and move medical equipment, and carry medical tools. All these exertions can cause a nurse to wrench a back, twist an ankle, sprain their neck, or cause fractures, soft tissue injuries, ligament damage, and other injuries that require time off from work.
  • Slips and falls. Nurses concentrate on their patients and their tasks. They don’t always look down at the ground as they walk or move. It’s easy to trip over wires, slip on wet surfaces, trip over objects, or slip and fall for a variety of reasons.
  • Violence. Some patients have severe emotional problems. Some patients are admitted because they’ve been shot or hurt due to force. Nurses are at risk of being attacked by a patient with psychological problems or by someone who is upset with the patient.

Injuries from overexertion, slips and falls, and violence include:

  • Fractures
  • Traumatic brain injury
  • Spinal cord damage
  • Back and neck pain
  • Strains of the knee, shoulder wrist, and ankle

Some injuries can force a nurse to lose time from work from months and months. Some victims suffer permanent injuries where they can never return to work or where they can only work with restrictions on how much they can lift, how long they can stand, or other restrictions.

Nurses and occupational injuries

Nurses, especially nurses who work in hospitals, are prone to many types of occupational infections, disorders, and diseases including the following:

  • Exposure to biological dangers, bloodborne risks, airborne diseases, and contagion. Patients are often in a hospital because they have some type of disease or infection. Nurses can contract those diseases and infections through direct skin contact, through blood or bodily fluid that contacts the nurse, through coughs and sneezes, and through other means. Nurses are especially prone to COVID-19. They need to take extra precautions such as wearing special masks, gloves, shoes, and uniforms to decrease the risk of exposure.
  • Exposure to equipment that isn’t sterile and to toxic chemicals used to sterilize medical equipment and medical tools. Ethylene oxide is used to sterilize instruments. It’s a dangerous chemical.
  • Radiation exposure. Nurses who help patients with X-Ray must wear protective gear to reduce the risk or radiation exposures.

Nurses can also be exposed to:

  • Dangerous drugs
  • Latex which may cause allergic reactions
  • Anesthetic gases. For example, nitrous oxide
  • Lasers which can cause severe burns
  • Being stuck by a needle that has dangerous contaminants 

In order to be eligible for workers’ compensation benefits due to an occupational illness, the nurse must show, with the help of an experienced work injury lawyer:

  • That they were an employee
  • That their illness was due to workplace conditions
  • That their illness or disease was more likely due to specific workplace conditions than to similar types of exposures when the nurse was at home or was away from her/his workplace.
  • That it was not caused by anything outside of the workplace

Nurses who are exposed to these diseases may die. Survivors may never be able to work again or may need extensive physical and emotional care to return back to their nursing duties.

Nursing, COVID-19, and workers’ compensation

There’s currently no definitive answer or definitive North Carolina or Virginia law that determines whether nurses who contract COVID-19 are entitled to workers’ compensation benefits. COVID-19 is not listed in the relevant state statutes which govern occupational illnesses and therefore it is going to be considered an “ordinary disease of life” which almost certainly means that any infected healthcare worker who makes a COVID-19 worker compensation claim is going to be DENIED by the insurance company.

The right of nurses and other healthcare workers under the current statutory claim workers’ to claim workers compensation benefits is very doubtful. 

One would think it seems relatively clear that nurses are exposed to COVID-19 through the work they do with COVID-19 patients or with even being near patients who have contracted the virus. On the other hand, nurses could also contract the virus at home, in a park, or anywhere outside their hospital or workplace environment. Generally, the likelihood of a nurse contracting the virus is much higher at work than away from work, but there is a reason it is called a “pandemic.” “Pan” means it’s everywhere. 

Even if a nurse does contract the disease, there are questions about what would be covered. Generally, workers’ compensation covers reasonable medical expenses and a percentage (typically 2/3rds ) of their average weekly salary. For COVID-19, medical bills should include payment for medical testing and any treatments that are required including medications and medical consultations.

But as noted above, under the current laws, all cases would most likely be denied by the insurance company and head to hearing. In fact, our office has already fielded such calls, and an as expected, the insurance companies are, in fact, denying COVID-19 claims

If the injured worker became severely ill and died from the disease, that death would likely occur well before any evidentiary Hearing to decide the matter. Because of the devastating impact of serious COVID-19 on the lungs, it is doubtful the employee could even provide any useful testimony before his or her death. 

In the worst cases, the healthcare worker could die from the disease. In both North Carolina and Virginia, the families of deceased employees are typically entitled to payment for the funeral and burial up to a preset amount and compensation for lost income up to a preset amount of time. For example, death benefits in North Carolina are paid for up to 500 weeks with some exceptions.

Does this situation not seem very unfair, particularly for our frontline healthcare workers who risk their lives for their fellow citizens? Should a nurse or doctor who is dying on a ventilator from COVID-19 have to worry that his or her family will get NO compensation whatsoever through that State’s Workers Compensation System? To further worry that they will have hundreds of thousands of dollars in bills hanging over their head, even if the healthcare worker should recover from the virus? 

The good news is there is an easy fix, which exists for some other diseases already, and that is to provide a presumption in the law for any healthcare worker who becomes ill from COVID-19 that their illness came from work and therefore is compensable as an Occupational Disease. 

Unfortunately, Virginia has seen fit to take no action thus far to provide any such presumption. 

See my video where I have pointed out this horrible situation and pleaded with my fellow Virginians to contact their State Representatives and Senators to pass a bill giving our healthcare workers battling COVID-19 a presumption for workers comp coverage. 

 Many states have recognized this terrible problem facing healthcare workers and other essential workers who become ill from COVID-19  and have taken action. 

Fortunately, in North Carolina two bills under consideration, House Bill 1056 will make COVID-19 or any Coronavirus a covered occupational disease for healthcare workers, and other first responders, and House Bill 1057 provides a presumption not just to healthcare workers, but all workers considered “essential” under Governor Roy Cooper’s Executive Order, that if they contract COVID-19, it will be presumed to be a compensable workers compensation illness.  

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting for injured workers for more than 31 years. He is available to speak with new clients about work injury claims during the COVID-19 health crisis. He understands the legal issues involved in filing claims for all types of accidents and occupational illnesses. For help now, call Joe Miller, Esq., at 888-694-1671 or use my online contact form to talk to an experienced workers’ compensation lawyer.

The Rights of Delivery Service Workers to Workers’ Compensation Benefits in North Carolina and Virginia

Posted on Wednesday, May 27th, 2020 at 3:18 pm    

As the COVID-19 pandemic continues to force the closing of numerous businesses and still requiring many people to stay in their homes, delivery workers have become essential to lives of everyone in North Carolina and Virginia. Homeowners and essential business rely on delivery workers to provide their medical products, their groceries, their entertainment, their clothes, and many other products. Executive Orders issued by the Governors of both Virginia and North Carolina consider such workers to be “essential” to our lives and therefore except from many of the lockdown rules. 

Some food delivery workers have their own vehicles and work for companies like Grubhub, Uber Eats, or others. Many delivery workers are employed by local restaurants. Other types of delivery workers use vehicles owned by retailers and big shipping companies such as Amazon or UPS.

What these workers all have in common is that they may be risking their lives by delivering products through the people they came into close contact with during their workday and the products, packaging, doorknobs, and other things they routinely touch. What they also have in common is that they risk being hurt on the job while getting their delivery items, transporting their goods, and making the delivery to the homes of customers who have made increasing demands on such delivery services due to the lockdowns.  

Unfortunately, in Virginia, as has been explained in a previous article and video, if such a worker contracts COVID-19, he or she will face a very steep uphill climb on denied claim that has little chance of success. 

In North Carolina, on the other hand, at this writing, at the end of May, 2020, there is are two bills currently under consideration by the Legislature in Raleigh which would give all workers deemed “essential” by the Governor to be entitled to a presumption that they contracted COVID-19 on the job if they become ill from it. 

If you reside in North Carolina we urge you to call your State Legislators and Senators to voice your support for House Bill 1056 and House Bill 1057

Why Virginia currently has no similar bill being sponsored or under consideration is a mystery, especially with a Democratic-Controlled Legislature. 

Besides COVID-19, common types of accidents that can occur during a delivery include:

  • Traffic accidents. Even though the roads may be less travelled these days, delivery drivers run this risk of being injured or killed by another driver who speeds, runs through a red light, or is negligent for any reason. The delivery driver can also be harmed if he/she loses control of his/her vehicle for any reason such as the driver’s own negligence, wet roads, potholes, or any condition. While it is critical that the driver be making a delivery for his/her employer when the accident occurs, there is no need to prove fault. There is also a risk as an injured worker crosses the street to deliver a package that he or she can be struck as a pedestrian by a moving vehicle. Fault is not required in workers’ compensation cases. The main requirements are that the employee:

 

    • Have a workplace “accident” and 
    • The accident causes the worker to become injured.

It is very important to also remember that if the injured worker is hurt due the negligence of another driver, he or she would also have what is referred to as a third party claim against the driver, in addition to the workers comp claim. 

At Joe Miller Law, we handle many cases where both types of claims—the Workers Comp and the Personal Injury—as both are necessary to pursue as a result of the same car accident. 

You need to know that the interactions between the realm of Workers Comp and Personal injury can be quite complex and you should definitely not attempt to resolve either claim without consulting an attorney familiar with the complex interplay between comp and personal injury claims.  Settling your PI claim, for instance, without notice to, and permission of the comp insurance company could have grave implications for your comp claim. 

  • Slips and falls. Delivery workers can slip and fall on loose or broken items in the store or company where they work. They can also be injured when they make a delivery because they trip on stairs, fall on slippery surfaces, on broken tiles.

 

  • Overexertion. Delivery workers may need to lift, push, pull, or place heavy objects and boxes while making a delivery and may injure themselves as a result of pushing or lifting an extremely heavy package.  

Other possible delivery service accidents that can cause a delivery worker to lose time from work include forklift injuries, dog bites, and repetitive stress injuries; however, repetitive stress is generally not going to be compensable unless it involves carpal tunnel syndrome. 

The employment status requirement

Generally, workers in North Carolina and in Virginia must be employed by the delivery service, restaurant, retail store, or another business. If a worker is an independent contractor, that delivery worker will likely not be entitled to workers’ compensation benefits.

Experienced workers’ compensation lawyers fight to show that a worker is an employee and not an independent contractor. It is not a determining factor that the employer says the worker is an independent contractor or even if they signed some kind of bogus “contract” or “agreement” that they are an independent contractor. 

Whether someone is classified as an employee or an independent contractor depends on various factors that the Commission will consider. 

At the core of these factors is the ability of the employer to control when and how the worker does his/her job. Some of the factors that help determine employment status include:

  • How the worker is paid. A W-2 implies employment status. A 1099 implies independent contractor status.
  • Who the employer is. Generally, workers who drive directly for a restaurant such as Domino’s or Pizza Hut are more likely to be considered employees than delivery workers who work for a delivery service such as Grubhub or DoorDash.  
  • The hours worked. The more hours a delivery worker works for one company, the more that suggests and employee work status.
  • The tools of the trade. Delivery workers who use company tools and equipment or are required to wear a company uniform provided by the employer are more likely to be considered employees and not independent contractors. If the company provides a delivery vehicle, vs the person using their personal vehicle to make deliveries, that is more indicative of direct employment. 

Occupational illnesses and COVID-19

Generally, workers are entitled to worker’s compensation benefits if they suffer an occupational illness. To qualify, the worker must:

  • Be an employee of the company
  • The illness must be due to workplace conditions
  • The illness or disease can’t be attributable to non-workplace conditions. 
  • The worker should be at increased risk of acquiring the illness due to the type of job he/she does and where the work is done. 

A common example of occupational illnesses that are covered by state workers’ compensation laws are:

  • Workers in coal mines who suffer black lung disease or other respiratory orders
  • Workers who work with asbestos as part of their construction job
  • Workers who suffer heart failure because of the stress of their job such as police work

Most likely delivery workers who develop COVID-19 would NOT be awarded workers’ compensation benefits based on an occupational illness under the current laws. First of all COVID-19 is not in the list of covered Occupational Diseases. Secondly, it would be considered an “ordinary disease of life,” meaning something that could be acquired anywhere, and something to which the public is also exposed. 

This is clearly a very unfair situation, particularly for our cherished healthcare workers fighting the pandemic on behalf of other citizens. How can this be fixed? 

The solution is for the states to pass laws authorizing benefits for COVID-19. Currently, North Carolina and Virginia authorize benefits for some specific occupational illnesses – but COVID 19 has not yet been added to the list; however, as mentioned previously, North Carolina has a bill proposing that it be added to the list of presumed occupational diseases for healthcare workers. 

For some workers, such as healthcare workers, one would certainly think that they are at great risk for contracting the coronavirus because they work with numerous infected patients. For food delivery workers and other delivery workers, a case can be made that they are at increased risk of developing the disease too; however, unless and until the Virginia or North Carolina Legislature remedies the situation by way of passing new laws, any such workers attempting to file a workers comp claim for COVID-19 infection will face a denied claim and a long path to a Hearing before the Commission.  By then, the worker suffering from a COVID-19 infection could very well be incapacitated on a respirator, or deceased. 

This situation is certainly terribly unfair, but there is an easy fix, which is for lawmakers to pass legislation to include COVID-19/Coronaviruses and/or Pandemic diseases in the list of occupational diseases, at least for healthcare workers. Another solution would be to provide a rebuttable presumption that anyone who works in an essential industry during the pandemic who becomes ill from COVID-19 has a compensable workers compensation case. 

As of this writing only North Carolina has under consideration two bills which will fix this unfair situation. House Bill 1056 would count Coronavirus as an occupational disease entitled to a presumption of compensability and House Bill 1057 ,would give a presumption of compensability from pandemic diseases not just to health care workers, but all workers deemed “essential” by Executive Order of the Governor during a pandemic. 

Right now, in our current situation, pursuant to Roy Cooper’s Executive Order, “essential workers”  would include many more workers than just healthcare workers, but also warehouse and delivery workers, and many others.   

Tragically, there is no such bill under consideration in Virginia. See my video pleading with citizens to contact their Virginia State Representatives to voice their concern about this very important issue. 

Should we not at least cover our frontline healthcare workers and give them workers compensation coverage in the event they become ill or die as a result of their exposure to COVID-19? Please call or email your Virginia State Representative or Senator and let him or her know that this is really a travesty and that you demand that this be fixed immediately. Tell them that North Carolina is already ahead of Virginia and tell them about NC House Bill 1056 and 1057. Why has Virginia not stepped up? All they need do is copy the language of the proposed NC Bills, and pass them into law here in Virginia. 

Problem solved! 

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has helped thousands of injured workers get the full benefits they deserve for workplace accidents and for occupational illnesses. He fights to show that you’re entitled to benefits and that you shouldn’t be forced back to work before you’re ready. He then demands payment for all reasonably necessary medical and the percentage of lost wages that you’re entitled to. He also negotiates long-term settlements. To discuss your work injury claim, whether you’re a food delivery worker or any type of worker, please phone Joe Miller, Esq., at 888-694-1671 or use my online contact form to speak with an experienced work injury lawyer.

BACK IN BUSINESS!!!

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

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

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

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

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

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

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

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

-Joe Miller, Esq.

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

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

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

Mediations conducted before June 1, 2020

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

Hearing policies through May 31, 2020.

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

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

 

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

 

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

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

COVID-19 Policy Update Regarding Electronic Signatures

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

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

Requests by the NCIC to workers who work remotely


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

Secured Leave Policy during the COVID-10 crisis

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

DocuSign and agreements

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

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

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

COVID-19 Response: Industrial Commission Filing Deadline Policy

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

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

COVID-19 Response: Telehealth Coverage and Billing

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

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

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

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

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

IC Staff Working Remotely; Email Communication Encouraged

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

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

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

Next Page »