Posted on Thursday, July 29th, 2021 at 2:56 pm
Workers Compensation Attorney Joe Miller reports on the features of the new Workers Compensation Law passed by the Virginia Legislature which has added COVID-19 as an occupational disease for health care workers who became sick from COVID-19 who were directly involved in the treatment or diagnosis of actual or suspected COVID-19 patients. The new law also covers certain categories of first responders. The law is RETROACTIVE to 3/12/20 for health care workers and to 7/1/20 for first responders. By adding COVID-19 as an enumerated occupational disease, it is now much easier for these categories of employees to bring a workers compensation occupational disease claim for illness from COVID-19. If you became ill from COVID-19 and you are either a health care worker or first responder, or if a loved one who is either a health care worker or first responder died from COVID-19, please do not hesitate to call us. You may have a significant claim and if you fit into the categories mentioned by the new law, there is now a PRESUMPTION that your COVID-19 came from your work duties. Kudos to the VA Legislature and all the Bill Sponsors for making this happen, it is long overdue!
Posted on Thursday, March 4th, 2021 at 3:40 pm
Posted on Wednesday, January 6th, 2021 at 12:17 pm
There’s good news finally about the COVID-19 pandemic which has affected workers and everyone in numerous ways. More than 350,000 Americans have died due to the disease and nearly 20 million Americans have become infected.
The good news is that the Food and Drug Administration has approved two COVID-19 vaccines developed by Pfizer and by Moderna. The vaccines use mRNA technology. Everyone who receives these two vaccines which helps their immunity system fight the disease – will require two doses.
According to the Raleigh News & Observer, North Carolina health officials are setting the priorities for when different classes of people (depending on their work activities, health risks, and age) should be eligible for the vaccine. The December 31, 2020 article outlines the priorities. Dr. Mandy Cohen, the secretary of the North Carolina Department of Health and Human Services, stated at a press conference, that the state will have a four-part rollout of the vaccines. The plan, which was developed through North Carolina Governor Roy Cooper’s office, will prioritize older people and frontline essential workers.
The North Carolina priorities match the vaccination priorities set by the Centers for Disease Control and Prevention.
How are “frontline essential workers” defined
North Carolina uses the CDC definition of a frontline essential workers. These people are employees who are at the “highest risk for being exposed to the coronavirus” “This phase is expected to begin in early January.” Frontline workers, according to the published article, include:
How are essential workers defined?
“Essential workers are defined by N.C. DHHS and the CDC as”
The vaccines are being given to residents just as North Carolina announced likely increases in “COVID-19 cases and hospitalizations expected due to Christmas and New Year’s gatherings.”
According to the Fayetteville Observer, the issue of whether employers can or can’t mandate that their workers be vaccinated is fast becoming a reality – and not a hypothetical. Health officials in North Carolina expect that the general adult population will have enough vaccines during the first half of 2021.
“The N.C. Department of Health and Human Services told the USA Today Network it has no plans to mandate vaccinations. But private sector employers can require workers to get them, labor law experts say.”
According to UNC School o f Law professor, Jeffery Hirsch, the private sector can manage employee vaccinations because the “private sector is at-will employment.”
Already, health care providers do mandate that members of the provider’s staff get immunizations for mumps, polio, the yearly flu, and other preventable diseases. According to Duke University School of Law professor, Dan Bowling, “jobs that feature significant customer and coworker interactions often have vaccine requirements.”
Generally, employers need to show that mandating the vaccine is a job-related necessity and “would pose a ‘direct threat to the health or safety of others’ if skipped according to the Americans for Disabilities Act.”
Workers whose job is terminated for noncompliance to these mandates may file EEOC (Equal Employment Opportunity Commission) complaints – but “experts say the law favors employers, even when workers seek medical or religious exemptions.” “While Title VII of the Civil Rights Act says employers must reasonably accommodate workers’ religious practices, the law allows employers leniency if these accommodations pose an ‘undue hardship’ on their business. “
Employers are likely to mandate the vaccines for two reasons. The first reason is to help prevent the spread of COVID-19 within the employer’s business. The second reason is because a large number of people (about 60 to 90%) need to have the vaccines or have been infected – to reach herd immunity. There are concerns that many people will not get the vaccine – even when it becomes clear the vaccines are working.
Health officials in North Carolina are working to assure residents that the COVID-19 vaccines are safe. Some employers are expected to offer financial incentives (similar to company incentives for insurance rate breaks for non-smokers) to encourage workers to take the vaccines.
So far, hospitals have been hesitant to mandate the vaccines for their staff. “Given the limited experience with the vaccine, there are no current plans to make the COVID-19 vaccine mandatory for UNC Health employees,’ a UNC Health statement said.”
According to the president of the N.C. Nurses Association, most health care workers are welcoming the vaccine.
All employees are valuable workers. It’s critical that all workers have access to vaccines so they can work on-site instead of remotely. Once workers do return to work at their regular job locations, they will still be at risk for many types of physical injuries and occupational illnesses. If you’re hurt at work for any reason, our experienced North Carolina and Virginia workers’ compensation lawyers are ready to help you jet the benefits you deserve. Call attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment. Employees can now also complete our New Electronic Case Review. It’s a new way of communicating with our clients that we’re providing this service to allow workers to contact us remotely.
Posted on Tuesday, December 29th, 2020 at 1:33 pm
Today, people can connect to the Internet and with each other in many different ways – desktop computers, laptops, smartphones, and tablets. This technology is now being used to connect doctors and patients remotely – in place of in-office visits. The trend of using telemedicine in workers’ compensation cases is expected to continue through 2021 and beyond.
Electronic communications are being used for consultation, monitoring of a patient’s condition, management of chronic conditions, management of medication, and other clinical services – provided the video and audio connections are private and secure. Telemedicine usually includes a video consultation, after an injury, where the doctor can hopefully make a diagnosis of the workers’ injuries – though the worker may need to go to a lab to have certain medical tests done. The physician can then conduct follow-up examinations remotely instead of in-person.
“According to a representative from Kaiser Permanente (KP), a leader in telemedicine services, In 2015, of KP’s 110 million interactions between physicians and members, 56% were virtual, surpassing physical visits for the first time.”
The US Department of Veterans Affairs, which operates the country’s largest healthcare system, is using telemedicine for many veterans nationwide.
During the pandemic, the use of remote technology has been a life-saver for many workers. Workers who use telemedicine can do so from home so they don’t need to be in contact with anyone who might have the disease – other than their own family members. Physicians and healthcare providers are using telemedicine to consult with their patients.
There are some advantages to using telemedicine for all types of injuries. Telemedicine is useful for the following situations:
Telemedicine is useful for post-surgery care and second medical opinions. Telemedicine makes it easier to connect with specialists who may not be locally available.
According to the National Council on Compensation Insurance (NCCI), “In certain situations, where accessibility to immediate medical care may be limited, one type of telemedicine service—24/7 tele-triage—may be an invaluable resource for initial assessment and evaluation.
Telemedicine also helps workers and employers because it saves on the time and expense of transportation to and from the doctor’s/healthcare providers’ office. Telemedicine also makes it easier to see specialists and to reduce delays in getting medical treatment.
Generally, telemedicine is only advisable for non-critical situations. Many workers do need to be treating in an emergency room or a doctor’s office so the physicians can properly and fully examine the patient.
There are many legal issues involved with telemedicine such as that physicians can generally only give advice to patients they’ve seen in person at least once and can only give advice to patients who live in the same state as the doctor.
Some of the downsides of using telemedicine for work injury patients include:
According to NNCI, some of the other risks of telemedicine include:
As telemedicine expands, medical practitioners and patients will need to develop a balance between in-person visits and the use of telemedicine.
States and federal agencies, such as Medicare, are working to keep current with the advances in technology. According to NNCI, “In early 2018, Texas proposed a rule that would expand injured workers’ access to telemedicine services by lifting a restriction in the Medicare-based reimbursement policy that limits the use of telemedicine to underserved areas—typically rural regions with few healthcare providers.” Other restrictions, depending on the state, require that telemedicine could only be provided to a patient in a doctor’s office, hospital, or clinic, but not at a patient’s home.
Generally, the types of telemedicine services that are covered by workers’ compensation insurance, the provider requirements, and how reimbursement works vary from state to state. Some states require that doctors even have a special telemedicine license.
It is likely that the use of telemedicine will expand even when the pandemic is over. Because telemedicine helps reduce costs and may improve the outcomes for the worker (because the worker has access to specialists and his/her medical care is monitored electronically), telemedicine should be advantageous for both the worker and the employer’s insurance company. In addition, as telemedicine expands, workers may find that they enjoy it even more because of the reduced need for travel while they’re not feeling well and for the other advantages that we’ve described.
Attorney Joe Miller has been a strong advocate for injured and ill workers in North Carolina and Virginia for more than 30 years. He works with your physicians and the company doctors to help ensure you are receiving the medical care you need and deserve. To discuss your North Carolina or Virginia workers’ compensation claim with an experienced and caring work injury lawyer, call attorney Joe Miller, Esq., at 888-667-8295. or use my online contact form to schedule an appointment. Workers can also use our New Electronic Case Review. It’s a new way of communicating with clients that we’re offering – to allow workers to contact us remotely.
Posted on Monday, December 28th, 2020 at 1:33 pm
There are many 2020 developments that will affect workers’ compensation for both employees and employers in 2021 and the coming years. Many of these developments are related to COVID-19. Other developments, according to CMR Risk & Insurance , include the use of telemedicine, the rise of mega claims, and the rise of comorbidities.
Employers across North Carolina and Virginia are required to have workers’ compensation for their employees. The insurance should cover any accidents in the workplace regardless of fault and any occupational illnesses. The insurance should pay the workers’ medical bills and a large portion of their lost wages (generally, about 2/3rds) during the time they can’t work, or in many cases, if their employer is unable to accommodate their physical restrictions due to the work injury, for a maximum of 500 weeks. In addition, the insurance should pay for any permanent partial disability, even if the injured worker is able to return to employment. In some cases, payment for vocational rehabilitation may be required.
The COVID-19 pandemic has affected workers and employers in many ways. Key compensation factors are related to the nature of the business. Some professions such as healthcare and delivery services expose workers to a greater risk of contracting the disease. Other professions, such as professional services, have less risk because the professionals can usually work remotely by using the Internet.
Employers need to consider what safety precautions to take depending on the nature of their business. Employees need to understand that workers’ compensation claims for families of workers who died due to COVID-19 and claims by workers who become ill or had to quarantine due to the disease will be handled on a case- by- case basis. Some of the questions that arise in COVID-19 workers’ compensation cases include:
As we discussed in previous blogs, some states are enacting laws to cover workers who develop COVID-19. Some states are also creating presumptions as to what conditions indicate a worker who developed COVID-19 – developed that condition through work. Thus far, in Virginia, a bill which would have given such presumptions to health care workers, first responders, firefighters, and teachers who develop COVID-19 was defeated in the State Legislature earlier this year. North Carolina is still wrangling with the particulars of a similar bill before the State Legislature in Raleigh.
Meanwhile, the Virginia Workers Compensation Commission in Virginia and Industrial Commission in North Carolina are still deciding COVID-19 workers’ compensation cases on an individual basis, under the standards of an ordinary disease of life, which are difficult, but not impossible, to meet. Mega Claims
According to CMR Risk & Insurance, another new trend is that many workers are filing “mega claims” which can result in payouts (for medical bills, wages, and other expenses) of millions of dollars.These claims are usually due to workers who have severe, and often, permanent injuries. Mega claims are often due to motor vehicle accidents, accidents where the worker was struck by an object, and falls.“In some cases, however, mega claims can develop slowly—particularly when caused by minor injuries that go untreated.”
CMR reports that, according to a recent study conducted by the National Council on Compensation Insurance (NCCI), these claims have reached a 12-year high—increasing in both frequency and severity. This increase has been attributed to several possible factors, such as changes in mortality patterns, medical advances, and a rise in health care costs.”
Employers are advised to take extra safety measures to help reduce the risk workers will suffer injuries that can result in mega claims.
Presumptions for first responders
According to M Power by Mitchell (a casualty and insurance company), “states are beginning to examine presumption laws for first responders and expanding coverage to conditions such as PTSD.” The issue of presumptions raises questions as to:
For instance, Virginia this past summer passed into law what is now VA Code 65.2-107, which provides that any first responders, fire fighters and police officers who suffer from Post Traumatic Stress Disorder (PTSD) will be compensated, provided the PTSD was caused by a “qualifying event.”
A qualifying event is defined as an event:
“A comorbidity is the simultaneous presence of two or more medical diagnoses for an individual.”
“Comorbid conditions are typically long-term health complications that have the potential to increase the severity of other injuries or illnesses that the affected individual may experience, making it more difficult to fully recover. Common comorbid conditions include obesity, diabetes, hypertension, depression, anxiety, and substance abuse.”
CMR states that an NCCI study found that work injury claims involving comorbidities have nearly tripled since 2000. In addition, the cost of workers’ compensation claims involving comorbidities is about twice that of other claims. This is generally because workers with comorbidities need more time to heal, are more likely to develop complications, and are at more risk of having a permanent disability.
In response to the concern about comorbidities, many employers are implementing wellness initiatives – to address chronic health problems and improve their staff’s overall fitness.
Another term to describe comorbidities are “pre-existing conditions.” The good news is that in most cases, if the work injury has even the slightest bit to do with causing the current disability, then the entire claim is compensable. The bad news is that if you are only partially disabled or on light duty, and a comorbid condition causes you to become completely disabled, that could essentially end your workers compensation claim, even if you are under an Award.
Many employers are hiring workers who lack experience in order to fill their labor shortages. The problem is that workers who are inexperienced are more prone to accidents in the workplace. Part of the problem of inexperienced workers can be addressed through better training. Part of the problem, though, is that there’s simply nothing like experience to do jobs in a safer manner.
“According to a recent survey conducted by the Golden Triangle Business Roundtable in Texas, employees with less than five years of experience contribute to 43% of overall workplace injuries.”
Another labor trend that is affecting workplace accidents is that many workers are working later in life. Data from the US Bureau of Labor Statistics shows that “employees over the age of 55 in the labor force are expected to increase to nearly 25% by 2024 (up from 21.7% in 2014).” Older workers generally require more time to recover from an accident than younger workers. Older workers generally have poorer balance, hearing, and vision than younger workers. They also have slower reaction times.
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting for injured workers for more than 25 years. He’s helped thousands of employees get just recoveries for the injuries and illnesses which are work-related. He also keeps current with the new trends and new laws.
If you’ve been involved in any type of workplace accident or think your illness is related to work, speak with an experienced 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. Workers now can also complete our New Electronic Case Review. It’s a new way of communicating with clients that we’re offering – to allow workers to contact us remotely.
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.
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…)
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…)
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:
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…)
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.
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.
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.
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.
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:”
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.